                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-5296


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

THOMAS ROYAL,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Richard D. Bennett, District Judge.
(1:09-cr-00439-RDB-1)


Argued:   October 26, 2012                 Decided:   October 1, 2013


Before TRAXLER, Chief Judge, DIAZ, Circuit Judge, and Catherine
C. EAGLES, United States District Judge for the Middle District
of North Carolina, sitting by designation.


Affirmed in part, vacated in part, and remanded by published
opinion.   Judge Diaz wrote the opinion, in which Chief Judge
Traxler and Judge Eagles joined.


ARGUED: James Christopher Fraser, VENABLE, LLP, Baltimore,
Maryland, for Appellant. John Walter Sippel, Jr., OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.    ON
BRIEF: James Wyda, Federal Public Defender, Baltimore, Maryland,
Paresh S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Greenbelt, Maryland, for Appellant.    Rod J. Rosenstein, United
States Attorney, Baltimore, Maryland, for Appellee.
DIAZ, Circuit Judge:

       Thomas     Royal       was          convicted      by     a     jury       of     unlawfully

possessing       ammunition            after      being    previously           convicted       of    a

crime punishable by imprisonment for a term exceeding one year,

in    violation    of        18   U.S.C. § 922(g)(1).                  At       sentencing,       the

district       court    determined             that      Royal       was    an     armed     career

criminal under the Armed Career Criminal Act (“ACCA”), 18 U.S.C.

§ 924(e), triggering a fifteen-year mandatory minimum sentence.

The court sentenced him to 188 months’ imprisonment.

       Royal     advances         three        arguments       on     appeal.            First,      he

contends the government failed to present sufficient evidence to

convict him of knowingly possessing “ammunition,” arguing that

since the rounds he possessed were loaded in an antique firearm,

the    government       had       a    burden      to     show       that   the        rounds     were

actually designed for use in a non-antique firearm.                                         Second,

Royal asserts that the district court committed plain error when

it    instructed       the    jury         that    the    phrase      “knowingly          possessed

ammunition” meant that Royal knew the rounds were “ammunition as

we    commonly    use    the          word.”       Finally,       Royal         argues    that    the

district       court      reversibly              erred     by        using       the      modified

categorical      approach             to   determine       that      his    prior        conviction

under    Maryland’s          second-degree             assault       statute      constituted         a

predicate       conviction             under      the     ACCA.            We     conclude       that

sufficient evidence supported the jury’s verdict and that the

                                                   2
district court did not err in its jury instructions.                         However,

in light of the Supreme Court’s recent holding in Descamps v.

United    States,    133     S.    Ct.   2276    (2013),      we   sustain     Royal’s

challenge to the district court’s application of the modified

categorical approach and its imposition of the ACCA sentencing

enhancement.        Accordingly, we affirm in part, vacate in part,

and remand for resentencing.



                                          I.

       On appeal from a criminal conviction, we view the evidence

in the light most favorable to the government.                     United States v.

Herder, 594 F.3d 352, 358 (4th Cir. 2010).

                                          A.

       On January 8, 2009, Sergeant Jones and Detective Rayam of

the Baltimore, Maryland Police Department stopped Thomas Royal

for    driving   with   an    expired    registration         plate.    During    the

stop, Detective Rayam observed Royal place his hand in his front

left jacket pocket, where Rayam noticed a bulge.                         Suspecting

criminal activity, the officers asked if they could search the

car.     After    initially       consenting     to     the   search,   Royal     grew

agitated and attempted to push his way past Detective Rayam.

Sergeant    Jones    used    his    Taser      device    to   subdue    him,    and   a

subsequent search of Royal’s person revealed an antique Iver

Johnson revolver loaded with five .32 caliber rounds.

                                          3
       Since Royal had previously been convicted of second-degree

assault,     “a     crime           punishable        by    imprisonment        for    a      term

exceeding     one       year,”        the     federal       Gun    Control      Act    (“GCA”)

prohibited        him        from     knowingly        possessing        “any    firearm       or

ammunition”       that        has     traveled        in    interstate        commerce.        18

U.S.C. § 922(g)(1).                  “Firearm”        and   “ammunition”         are   defined

terms under the GCA.                  As is relevant here, the term “firearm”

explicitly “does not include an antique firearm,” which is any

firearm    “manufactured             in     or    before     1898.”       Id. § 921(a)(3),

(a)(16)(A).                         “The          term            ‘ammunition’             means

ammunition . . . designed                   for    use      in    any    firearm.”            Id.

§ 921(a)(17)(A).

       Royal was charged in a one-count indictment for possession

of    ammunition        by     a    prohibited        person,      in    violation       of    GCA

§ 922(g)(1).            At    trial,       the    government       called      Special     Agent

David Collier of the Bureau of Alcohol, Tobacco, Firearms, and

Explosives (“ATF”) as “an expert in identification of firearms

and    ammunition”           and     the    “interstate          nexus   of     firearms      and

ammunition.”

       Collier      testified              that       Royal’s       revolver       had        been

manufactured in 1895 and therefore, for the purposes of the GCA,

was an “antique firearm,” which is not a “firearm.”                                    Collier

also testified that the rounds had been manufactured outside

Maryland and had traveled in interstate commerce.                                 He gave no

                                                  4
testimony about whether Royal’s rounds had been “designed for

use in any firearm” such that they technically fell within the

statute’s    definition       of    “ammunition,”          but    conceded    on    cross-

examination      that    he   did    not    know     the    dates    of     the    rounds’

manufacture.

      The evidence showed that the rounds were .32 caliber, and

manufactured     by     the   arms    companies      Remington       and     Winchester.

The   rounds     themselves        were    also    entered        into     evidence       and

published to the jury.               The government presented no specific

evidence    as   to     the   rounds’      design.         Nor,    aside    from    cross-

examining Collier about the rounds’ manufacture dates, did Royal

himself     raise       any   issues       concerning        the     design        of     the

ammunition.

      At the close of the government’s case, Royal moved under

Fed. R. Crim. P. 29 for a judgment of acquittal, arguing that

the government had presented insufficient evidence to support a

guilty verdict.          The district court denied the motion.                          Royal

advanced no defense but renewed his Rule 29 motion, which the

court again denied.

      After closing arguments, the district court instructed the

jury that the government needed to prove that Royal knowingly

possessed one or more pieces of ammunition.                         It read them the

GCA’s     statutory      definition        of   ammunition:         “‘Ammunition’          is

ammunition or cartridge cases, primers, bullets, or propellant

                                            5
powder designed for use in any firearm,” J.A. 148.                         With respect

to the mens rea component, the district court instructed the

jury, without objection from Royal, that “whether the defendant

acted     knowingly . . . means         [whether]          he     knew       that      the

ammunition was ammunition as we commonly use the word.”                                The

jury returned a guilty verdict on the sole count.

      A conviction for being a felon in possession of a firearm

or ammunition normally carries a maximum penalty of ten years in

prison.     18 U.S.C. § 924(a)(2).              However, at Royal’s sentencing,

the   government      argued   that    he       was   subject   to    a    fifteen-year

mandatory     minimum      sentence         because      he     had        three    prior

convictions “for a violent felony or serious drug offense,” id.

§ 924(e)(1), including a 2007 guilty plea to Maryland second-

degree     assault.       Royal    argued         that   under       the    categorical

approach, this conviction did not qualify as a “violent felony”

because    “violent     force”    is   not       categorically       required       for   a

conviction under Maryland’s second-degree assault statute.                            The

district     court     rejected     this        argument      and,    following       our

decision in United States v. Alston, 611 F.3d 219 (4th Cir.

2010), applied the so-called modified categorical approach to

conclude that, based on facts admitted in his plea colloquy,

Royal’s    2007    second-degree       assault        conviction       was    indeed      a

violent    felony.       The     district        court   thus    applied      the    ACCA

§ 924(e)(1) enhancement and sentenced Royal to fifteen years and

                                            6
eight months in prison.        Royal timely appealed.      Following oral

argument, we placed the case in abeyance pending the Supreme

Court’s decision in Descamps, which issued in June 2013.



                                    II.

       The issues before us are (1) whether Royal was entitled to

a Rule 29 judgment of acquittal due to insufficient evidence;

(2) whether the district court committed plain error when it

instructed     the    jury   that   the   phrase    “knowingly    possessed

ammunition” meant “[Royal] knew the ammunition was ammunition as

we commonly use the word”; and (3) whether the district court

erred in applying the modified categorical approach to determine

that   Royal’s   2007    Maryland   second-degree     assault    conviction

qualified as a predicate “violent felony” under the ACCA.

                                     A.

       We first consider Royal’s argument that he was entitled to

a   judgment     of    acquittal    because   the    government     offered

insufficient evidence to support his conviction.            We review de

novo the district court’s decision to deny a defendant’s Rule 29

motion for judgment of acquittal.          United States v. Smith, 451

F.3d 209, 216 (4th Cir. 2006).            On an appeal challenging the

sufficiency of evidence, we assess the evidence in the light

most favorable to the government, and the jury’s verdict must

stand unless we determine that no rational trier of fact could

                                     7
have    found       the     essential         elements        of     the    crime    beyond     a

reasonable doubt.               United States v. Young, 609 F.3d 348, 355

(4th Cir. 2010).

       In     order    to       prove    that     Royal       possessed       ammunition      in

violation      of     the    GCA,       the   government           was    required   to     prove

beyond a reasonable doubt that (1) Royal was a convicted felon;

(2) he knowingly possessed ammunition; and (3) the ammunition

had traveled in interstate commerce.                      See United States v. Moye,

454    F.3d    390,       395    (4th     Cir.       2006).         Royal    challenges       the

sufficiency of the government’s evidence as to only the second

prong, insisting that the government failed to show that the

five rounds found in his revolver were “ammunition” within the

statute’s       definition.               Specifically,             he     argues    that     the

government never met its burden of proving beyond a reasonable

doubt that the rounds were “designed for use in any firearm”;

that   is,     the     government         never       showed       that     the   rounds    were

designed for use in any non-antique firearm.                               One of our sister

circuits has helpfully articulated this distinction:

       Bullets are “ammunition” if they are “designed for use
       in any firearm.”        18 U.S.C. § 921(a)(17)([A])
       (emphasis added).   If these bullets had been designed
       exclusively for use in [defendant’s antique] revolver,
       they would not be “ammunition” because by definition
       this antique revolver is not a “firearm.”      On the
       other hand, if the bullets were designed for use, not
       just in this antique revolver, but in other guns
       manufactured after 1898, then it would appear, given
       the literal language of the definition, that they are


                                                 8
     “ammunition” because they would be designed for any
     firearm.

United States v. Mixon, 457 F.3d 615, 618 (7th Cir. 2006).

     The government does not contest this literal reading of the

statute.      Rather, it posits that its burden of proof did not

entail a need to demonstrate that the rounds were designed for

use in a non-antique firearm.               Instead, it argues that whether

the ammunition was designed exclusively for use in an antique

firearm is an affirmative defense that must be raised by the

defendant and supported by evidence before the government must

disprove its application.

     To support this theory, the government cites numerous cases

holding       that        the    “antique       firearm    exception”       in   18

U.S.C. § 921(a)(3) is an affirmative defense that the defendant

bears   the    burden       of   raising.       Because    the    antique   firearm

exception     is     an    affirmative      defense   to   a     § 922(g)   firearm

charge, the government insists, it follows that a claim that

ammunition was designed for use in a non-antique firearm is also

an affirmative defense, which Royal failed to raise.

     We accept Royal’s literal reading of the statute and agree

that rounds designed for use exclusively in antique firearms do

not meet the GCA’s definition of “ammunition.”                   However, we also

agree with the government that the antique firearms exception is

an affirmative defense, which Royal failed to raise.


                                            9
      It is well established that the antique firearm exception

is an affirmative defense to a firearm charge under § 922(g).

See, e.g., United States v. McMillan, 346 F. App’x 945, 947 (4th

Cir. 2009) (unpublished); United States v. Lawrence, 349 F.3d

109, 122 (3d Cir. 2003) (“Every circuit court of appeals that

has considered this issue has agreed that [the antique firearm

exception]       is   an     affirmative      defense        that     must     initially     be

raised by sufficient evidence to justify shifting a burden of

proof to the government.”); United States v. Mayo, 705 F.2d 62,

75 (2d Cir. 1983) (“We find no indication in the language of the

statute that Congress intended the government to prove in all

criminal       prosecutions      under       18    U.S.C. § 922         that      the    illegal

firearms        transactions          involved          weapons         that       were     not

antiques.”).          This owes to the longstanding principle that “an

indictment       or   other    pleading       founded        on   a    general      provision

defining the elements of an offense . . . need not negative the

matter    of    an    exception       made    by    a   proviso        or   other       distinct

clause . . . .         [I]t is incumbent on one who relies on such an

exception to set it up and establish it.”                             McKelvey v. United

States,    260        U.S.     353,     357        (1922).            Accordingly,         since

§ 921(a)(3) clearly sets apart the antique firearm exception as

a   distinct      proviso      to   the      general     definition          of    “firearm,”

courts have not hesitated to place the burden on defendants to



                                              10
raise it as an affirmative defense.               We agree with this broadly

held view.

      Unlike      § 921(a)(3)’s        antique    firearm        exception,        which

stands alone as a separate sentence untethered to the general

definition of “firearm,” the “designed for use in any firearm”

language of § 921(a)(17)(A)’s definition of “ammunition” is part

and parcel of the definitional sentence.                   Consequently, it is

the government’s initial burden to prove as an element of the

offense that the rounds were “designed for use in any firearm.”

We    are   not    persuaded,      however,      that    that        burden      somehow

incorporates the antique firearms exception, thereby requiring

the   government     to    initially     come    forth    with       proof      that   the

ammunition     was   not    designed     exclusively       for       use   in    antique

firearms.      Instead, if a defendant seeks the shelter of the

antique firearms exception as it relates to § 921(a)(17)(A)’s

“designed for use” clause, it remains incumbent on him to raise

the exception as an affirmative defense at trial.

      This Royal failed to do.                Although he is correct that a

defendant need only produce “more than a scintilla of evidence”

to raise an affirmative defense, United States v. Sligh, 142

F.3d 761, 762 (4th Cir. 1998), and that an affirmative defense

may   be    raised    by    the    testimony      of     the     government’s          own

witnesses,     see   Sherman      v.   United    States,       356    U.S.      369,   373

(1958), Royal fails to satisfy even this minimal burden.

                                         11
       Special    Agent      Collier’s     testimony   that    the    rounds     were

found in an antique revolver and that he did not know the dates

of their manufacture constituted the full extent of the evidence

on this issue.         This evidence, we conclude, was too attenuated

to sufficiently raise the defense.                Although the ammunition was

found loaded in an antique revolver, the mere fact that the

ammunition happened to fit in an antique firearm does not mean

it was designed for antique firearms.                  Cf. Mixon, 457 F.3d at

618 (“It is true that the bullets were in the cylinder [of an

antique revolver], but that simple fact hardly establishes as a

matter of law that they were designed for, and could be safely

used, in this weapon.”).            Royal, meanwhile, offered no testimony

or evidence on the rounds’ design and never asserted at trial

that   the   ammunition       was    not   designed    for    use    in   a   modern

firearm.     Accordingly, because the jury ultimately did not hear

even a scintilla of evidence to suggest that the rounds were

designed for use exclusively in an antique firearm, Royal was

not entitled to have it consider the issue as an affirmative

defense.

       Meanwhile, although the government did not present evidence

specifically going to the ammunition’s design, the evidence was

still sufficient to establish that the ammunition was “designed

for    use   in    any    firearm.”         The   evidence     showed     that    the

ammunition       was   .32    caliber,      manufactured      by    Remington     and

                                           12
Winchester, and the ammunition itself was shown to the jury.

Since most people are familiar with the appearance of modern

ammunition,        we     find     that      the    jury     could       reasonably        have

concluded     that      .32     caliber      rounds      manufactured         by    well-known

firearms companies were “designed for use in any firearm.”

       As   the    district       court      correctly     noted,       the    government’s

evidence     satisfied           all   three       elements       of     the       § 922(g)(1)

violation.        We therefore hold that sufficient evidence supported

Royal’s conviction.

                                              B.

       We next address Royal’s challenge to the district court’s

jury    instructions.              Since      Royal       did     not       object    to     the

instructions,        we    review      for    plain      error.         United      States    v.

Robinson, 627 F.3d 941, 953-54 (4th Cir. 2010).                                    Under this

standard, Royal “must establish that the district court erred,

that the error was plain, and that it affected his substantial

rights.”     Id. at 954 (internal quotation marks omitted).

       Royal asserts that the district court plainly erred when it

instructed        the     jury     that      the    phrase      “knowingly           possessed

ammunition” meant that Royal “knew the ammunition was ammunition

as we commonly use the word.”                      He relies on United States v.

Tomlinson,        where    we     held     that     to    sustain       a    conviction,      a

district court must instruct the jury that the defendant must

have had “knowledge of those facts that bring the firearm within

                                              13
[the] legal definition” prohibited by the GCA.                 67 F.3d 508, 514

(4th Cir. 1995).          Here, Royal insists the district court ran

afoul of Tomlinson when it failed to instruct the jury that the

government    needed      to   prove   that    Royal   knew    the   rounds     were

“ammunition” within the GCA’s definition, and specifically that

Royal knew the rounds were designed for use in a non-antique

firearm.

     We disagree.         In light of our first holding, we find no

error, plain or otherwise, in the district court’s instructions

on   the    “knowing   possession       of    ammunition”      element    of    the

offense.     The district court properly instructed the jury as to

the statutory definition of the word ammunition.                       And we are

satisfied    that   the    instructions       adequately   informed      the    jury

that, to sustain a conviction, Royal needed to have knowledge of

those facts that brought the rounds in this case within that

legal definition.          See United States v. Frazier-El, 204 F.3d

553, 561 (4th Cir. 2000) (“The conventional mens rea of criminal

statutes . . . requires         not    that    a   defendant    know     that   his

conduct was illegal, but only that he ‘know the facts that make

his conduct illegal.’” (quoting Staples v. United States, 511

U.S. 600, 605 (1994))).          As we have already explained, evidence

that the rounds were designed exclusively for use in an antique

firearm is not required to prove an element of the offense, but

rather provides an affirmative defense.                Because the matter of

                                        14
the rounds’ design was not in issue on the facts presented, the

district court did not err, plainly or otherwise, by failing to

mention it in its jury instructions.

                                             C.

       Finally,     we   address          Royal’s    challenge      to   the        district

court’s      use    of   the    modified          categorical     approach         and       its

determination       that     his     2007     Maryland         second-degree            assault

conviction     qualified       as    a    violent     felony     under   the       ACCA,      18

U.S.C. § 924(e)(1).             We    review       this     determination          de    novo.

United States v. Harcum, 587 F.3d 219, 222 (4th Cir. 2009).

       In Descamps, the Supreme Court recently clarified whether

courts may apply the modified categorical approach to assess,

for ACCA sentencing enhancement purposes, the violent nature of

a    defendant’s     prior     conviction         under   an    indivisible         criminal

statute (i.e., one that does not set out elements of the offense

in     the    alternative,          but     which     may      nevertheless             broadly

criminalize        qualitatively          different       categories     of        conduct).

Answering that question in the negative, the Court explained

that    the    modified        categorical          approach     “serves       a    limited

function: It helps effectuate the categorical analysis when a

divisible     statute,     listing         potential      offense   elements            in   the

alternative, renders opaque which element played a part in the

defendant's conviction.”             Descamps, 133 S. Ct. at 2283.



                                             15
      In this case, Royal’s 2007 Maryland second-degree assault

conviction    is    predicated          on    a    facially      indivisible          statute. 1

Nevertheless,       the        government           has      argued         elsewhere        that

authoritative       judicial         decisions        have,      in    effect,      converted

Maryland’s    second-degree            assault       statute         from    indivisible      to

divisible,      because        the    Maryland        courts      have      held      that    the

completed battery form of second-degree assault may consist of

either “offensive physical contact” or infliction of “physical

harm.”      Supp.    Br.       of     Appellee       at     18-19,     United       States    v.

Barillas,    No.    11-5141          (4th    Cir.    Aug.      28,    2013),    ECF     No.   42

(quoting    Nicolas       v.     State,       44     A.3d      396,    402     (Md.    2012)).

Because an assault involving “physical harm” would qualify as a

violent    felony     for       sentencing          purposes,        the    argument       goes,

courts may continue to apply the modified categorical approach

to   Maryland      second-degree            assault       convictions,         in   order     to

determine whether the defendant’s conviction was in fact for the

“physical harm” variety of the offense.                        Id. at 21.

     In     addressing         this     argument,         we    acknowledge         that      the

Supreme Court in Descamps “reserve[d] the question whether, in

determining a crime’s elements, a sentencing court should take

     1
        Maryland’s statute prohibiting second-degree assault
provides simply that “[a] person may not commit an assault.”
Md. Code, Crim. Law § 3-203(a).       "Assault" encompasses “the
crimes of assault, battery, and assault and battery, which
retain their judicially determined meanings.” Id. § 3-201(b).



                                              16
account not only of the relevant statute’s text, but of judicial

rulings interpreting it.”                 133 S. Ct. at 2291.                     We need not

resolve      that    question         here,     however,          because    regardless         of

whether judicial decisions might in theory turn an indivisible

statute      into    a    divisible      one,      that      is    simply        not    what   the

Maryland courts have done with respect to the completed battery

form of second-degree assault.

       As the Court explained in Descamps, offenses are divisible

when    they     consist       of    alternative        elements      through          which   the

offense may be proved.                Id. at 2283.           By “elements,” the Court

meant factual circumstances of the offense that the jury must

find “unanimously and beyond a reasonable doubt.”                                  Id. at 2288

(citing Richardson v. United States, 526 U.S. 813, 817 (1999)).

Thus,     to     decide        whether    “offensive          physical           contact”      and

“physical       harm”     are       alternative         elements      of     the        completed

battery form of second-degree assault, we consider how Maryland

courts generally instruct juries with respect to that offense.

        To     convict     a    defendant       of      an   assault        of    the     battery

variety under Maryland law, “the State must prove that: (1) the

defendant caused offensive physical contact with, or harm to,

the victim; (2) the contact was the result of an intentional or

reckless act of the defendant and was not accidental; and (3)

the    contact      was   not       consented      to   by    the    victim        or    was   not

legally        justified.”            Nicolas,       44      A.3d     at     407        (quoting,

                                              17
favorably, trial court jury instructions).                           Maryland juries are

not instructed that they must agree “unanimously and beyond a

reasonable      doubt”      on     whether       the    defendant       caused         “offensive

physical contact” or “physical harm” to the victim; rather, it

is   enough     that       each    juror       agree    only     that      one     of    the   two

occurred,      without       settling       on    which.         See    also      Robinson       v.

State, 58 A.3d 514, 528, 531 (Md. Ct. Spec. App. 2012) (quoting

instruction requiring jury to find, among other elements, “that

the defendant caused offensive physical contact with or physical

harm    to    [the     victim],”         and     describing         that     instruction        as

“mirror[ing]         the    pattern       jury    instruction          for    second      degree

assault”).

       Rather than alternative elements, then, “offensive physical

contact” and “physical harm” are merely alternative means of

satisfying       a      single          element        of    the       Maryland         offense.

Consequently, because “[t]he dispute here does not concern any

list of alternative elements,” the modified approach “has no

role to play.”         Descamps, 133 S. Ct. at 2285.

       Instead,        we     must       apply        the     traditional          categorical

approach, under which we look “only to the statutory definition

of   the     state    crime       and    the    fact    of    conviction          to    determine

whether the conduct criminalized by the statute, including the

most   innocent       conduct,          qualifies      as    a   ‘crime      of    violence.’”

United     States     v.    Torres–Miguel,            701    F.3d    165,    167       (4th    Cir.

                                                 18
2012) (internal quotation marks omitted).                      And because, “as we

have    repeatedly      observed,”       Maryland’s          second-degree       assault

statute      reaches    any    unlawful          touching,     whether    violent       or

nonviolent     and     no   matter    how    slight,     “convictions          under   the

statute, including [Royal’s], cannot categorically be crimes of

violence.”      Karimi v. Holder, 715 F.3d 561, 568 (4th Cir. 2013).

Accordingly,         Royal’s     2007       Maryland      second-degree          assault

conviction     does     not    constitute        a   predicate    “violent       felony”

supporting a sentencing enhancement under ACCA § 924(e)(1).                            Cf.

Johnson v. United States, 559 U.S. 133, 140-42 (2010) (holding

that a violent felony under the ACCA necessarily involves the

use of “violent force”).



                                         III.

       For   the    foregoing     reasons,        we   conclude    that    sufficient

evidence     supported      Royal’s     conviction       and     that    the    district

court did not err in its jury instructions.                       However, in light

of Descamps, the district court’s application of the modified

categorical        approach     to      support        Royal’s     ACCA    sentencing




                                            19
enhancement   was   in   error.   Accordingly,   we    affirm   Royal’s

conviction, vacate his sentence, and remand for resentencing. 2



                                                      AFFIRMED IN PART,
                                                       VACATED IN PART,
                                                           AND REMANDED




     2
         We deny Royal’s motion for leave to file a supplemental
brief.



                                  20
