United States v. Leroy Hemingway
2013 U.S. App. LEXIS 22196
| 4th Cir. | 2013Background
- Hemingway pleaded guilty to illegal firearm possession by a felon under 18 U.S.C. § 922(g)(1) in the District of South Carolina.
- The district court sentenced Hemingway to the mandatory fifteen-year ACCA minimum based on four prior convictions classified as ACCA predicates.
- Two of those prior convictions were ABHAN and its lesser included AHAN under South Carolina law; Hemingway contested them as non-ACCA predicates.
- The PSR and district court treated ABHAN as an ACCA violent felony under the residual clause, despite acknowledging it could be non-forcible.
- Hemingway objected at sentencing, arguing ABHAN cannot be a violent felony under the ACCA and that the modified categorical approach is inapplicable to a common-law offense.
- On appeal, the government changed position, conceding ABHAN is not categorically an ACCA violent felony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is ABHAN a categorical ACCA violent felony? | ABHAN lacks forceful element; not a violent felony. | ABHAN can be a violent felony under the residual clause. | ABHAN is not categorically an ACCA violent felony. |
| Should the modified categorical approach apply to ABHAN as a common-law offense? | Descamps forbids using the modified approach for indivisible common-law crimes. | Modified approach may apply if statute is divisible and supports underlying element. | Modified categorical approach has no role; apply categorical approach only. |
| What is the proper method of analysis for common-law ABHAN under ACCA residual clause? | Focus on generic risk, not mental state debates; ABHAN does not pose comparable risk. | Consider ABHAN's aggravating circumstances to draw closer to enumerated offenses. | Rejects reliance on aggravation list; ABHAN does not pose the required residual-clause risk. |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (1990) (established elements-based categorical approach for ACCA)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (limits modified categorical approach to divisible statutes)
- Johnson v. United States, 559 U.S. 133 (2010) (defines force clause as violent force; reliance post-Descamps)
- Chambers v. United States, 555 U.S. 122 (2009) (explains residual clause framework)
- Begay v. United States, 553 U.S. 137 (2008) (explains risk comparison for residual clause aligned with Begay's test)
- James v. United States, 550 U.S. 192 (2007) (residual-clause comparison to closest enumerated offense)
- Sykes v. United States, 131 S. Ct. 2267 (2011) (clarifies Begay risk analysis and residual-clause application)
- Gomez v. United States, 690 F.3d 194 (2012) (divisibility framework applied to a common-law-like context)
- Cabrera-Umanzor v. United States, 728 F.3d 347 (2013) (limits modified approach to divisible statutes; emphasizes elements focus)
- Carthorne v. United States, 726 F.3d 503 (2013) (discusses divisibility and use of Shepard materials)