United States v. Fabian Montes-Flores
2013 U.S. App. LEXIS 23753
| 4th Cir. | 2013Background
- Fabian Montes‑Flores, a removed alien, pled guilty to illegal reentry under 8 U.S.C. § 1326; sentencing depended on whether a prior South Carolina conviction for assault and battery of a high and aggravated nature (ABHAN) qualified as a "crime of violence" under U.S.S.G. § 2L1.2(b)(1)(A)(ii).
- The PSR applied a 16‑level enhancement treating ABHAN as a crime of violence, producing an advisory range of 46–57 months; after acceptance credit, the court sentenced Montes‑Flores to 46 months.
- The ABHAN indictment alleged a common‑law assault and battery constituting "violent injury" accompanied by "circumstances of aggravation"; South Carolina common law lists various aggravating circumstances but did not enumerate alternative statutory elements.
- At sentencing Montes‑Flores argued ABHAN is a broad common‑law offense that can be committed without force and therefore is not categorically a crime of violence; the government urged the district court to apply the modified categorical approach.
- The district court applied the modified categorical approach and found ABHAN involved the use/attempted use/threatened use of physical force; the Fourth Circuit majority held that was error because ABHAN is an indivisible common‑law offense and must be analyzed categorically.
- Because ABHAN can be committed without violent force, the Fourth Circuit vacated the sentence and remanded for resentencing; the court declined to find the error harmless. Judge Shedd dissented, arguing the record shows the sentence would have been the same and thus the error was harmless.
Issues
| Issue | Plaintiff's Argument (Montes‑Flores) | Defendant's Argument (Gov't) | Held |
|---|---|---|---|
| Whether the modified categorical approach may be applied to a South Carolina ABHAN conviction to determine if it is a "crime of violence" under U.S.S.G. § 2L1.2 | ABHAN is a single, broad common‑law offense that can be committed without force; therefore the categorical approach must be used and ABHAN is not categorically a crime of violence | The court may apply the modified categorical approach (relying on earlier unpublished remands) to look to Shepard‑approved documents to identify the convicted variant and thus treat ABHAN as a crime of violence | The modified categorical approach was inapplicable: Descamps divisibility analysis applies to common‑law offenses; ABHAN is indivisible (two elements: violent‑injury + circumstances of aggravation), so only the categorical approach governs |
| Whether ABHAN categorically qualifies as a "crime of violence" (i.e., has as an element the use, attempted use, or threatened use of physical force) | Because ABHAN convictions may rest on non‑forceful or minimal conduct (no actual bodily harm or force required), it is not categorically a crime of violence | The government contended that given the indictment and plea documents, this conviction involved force and thus qualified | Held: ABHAN is not categorically a crime of violence under the force clause of § 2L1.2; it can be committed without violent force, so the 16‑level enhancement does not categorically apply |
| Whether the sentencing error (applying the 16‑level enhancement) was harmless | Error was not harmless because the Guidelines range would have been substantially lower (10–16 or 18–24 months) and the record does not establish the court would have imposed the same 46‑month sentence absent the enhancement | Gov't argued the district court thoroughly considered § 3553(a) factors and would have imposed the same sentence regardless | Held: Error not harmless—remand for resentencing required because record lacks certainty that the same 46‑month sentence would have been imposed with a lower advisory range |
| Whether Descamps divisibility analysis applies to common‑law crimes for guideline enhancement purposes | Montes‑Flores argued Descamps applies and therefore the modified categorical approach is limited to divisible offenses | Government implicitly conceded applicability but relied on prior practice allowing modified categorical inquiries | Held: Descamps divisibility analysis applies to common‑law offenses; common‑law ABHAN is indivisible, so Descamps forecloses use of the modified categorical approach here |
Key Cases Cited
- United States v. Gomez, 690 F.3d 194 (4th Cir. 2012) (discusses categorical/modified categorical approaches under ACCA/GUIDELINES)
- Johnson v. United States, 559 U.S. 133 (2010) ("physical force" means violent force capable of causing physical pain or injury)
- Descamps v. United States, 574 U.S. 254 (2014) (modified categorical approach limited to divisible statutes; clarified divisibility test)
- United States v. Hemingway, 734 F.3d 323 (4th Cir. 2013) (held Descamps divisibility analysis applies to common‑law ABHAN and applied categorical approach)
- United States v. Cabrera‑Umanzor, 728 F.3d 347 (4th Cir. 2013) (applies categorical analysis to guideline enhancements)
- United States v. Savillon‑Matute, 636 F.3d 119 (4th Cir. 2011) (harmless‑error framework for sentencing guideline calculation errors)