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Fourth Circuit: South Carolina Conviction for Assaulting, Wounding, or Beating Officer While Resisting Arrest Is Not Predicate Violent Felony Conviction Under ACCA

by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit held that a conviction for assaulting, beating, or wounding a law enforcement officer while resisting arrest (“ABWO”) in violation of South Carolina Code § 16-9-320(B) (“ABWO statute”) is not a predicate offense because it does not satisfy the “force clause” of the Armed Career Criminal Act (“ACCA”) of 18 U.S.C. § 924(e)(2)(B).

In April 2007, James Eric Jones was convicted of possessing a firearm as a convicted felon in violation of 18 U.S.C § 922(g)(1), which permits a maximum sentence of 120 months. But if the defendant has three or more prior “violent felony” convictions, a minimum sentence of 180 months is required per the ACCA. In March 2008, the trial court determined Jones had at least three prior convictions defined by the ACCA as “violent felonies,” i.e., “any crime punishable by a term of imprisonment exceeding one year that: (i) has as an element the use, attempted use, or threatened use of physical force against the person of another [the “force clause”]; or (ii) is burglary, arson, or extortion, involves use of explosives [the “enumerated crimes clause”], or otherwise involves conduct that presents a serious potential risk of physical injury to another [the “residual clause”]. Jones was sentenced to 456 months in prison.

In April 2016, the Court granted Jones authorization to file a second motion under 28 U.S.C. 2255 based on Johnson v. United States, 135 S. Ct. 2551 (2015) (identified as “Johnson II” to distinguish it from Johnson v. United States, 559 U.S. 133 (2010), known as “Johnson I”).

Johnson II struck down the residual clause of the ACCA definition of violent felony as “unconstitutionally vague.” And Welch v. United States, 136 S. Ct. 1257 (2016), held that Johnson II applies retroactively to cases on collateral review. Jones argued in his 2255 motion that he no longer qualifies for enhanced sentences under the ACCA. The district court found that Jones had two convictions under South Carolina’s strong-arm robbery statute and the ABWO conviction. The district court determined these three convictions were “violent felonies” under the ACCA and denied Jones’ motion. He appealed.

In deciding if Jones’ convictions were violent felonies, the Court first determined that the “categorical approach” applies to the ABWO offense because the ABWO statute is not “divisible”—meaning it does not list “elements in the alternative and thereby define multiple crimes.” United States v. Dozier, 848 F.3d 180 (4th Cir. 2017). This means the Court does not look to the facts surrounding the crime of which Jones was convicted but instead examines the elements of the statute under which he was convicted.

The ABWO statute provides, in pertinent part, that it is a felony punishable by up to 10 years in prison to “knowingly and willfully assault, beat, or wound a law enforcement officer....” The Court then looked to decisions of the Supreme Court of South Carolina to determine the minimum conduct that may result in a conviction under the ABWO statute. United States v. Middleton, 883 F.3d 485 (4th Cir. 2018). If the minimum conduct does not require the ACCA’s “physical force” defined as “violent force—that is, force capable of causing physical pain or injury to another person,” then a conviction under the statute is not a predicate offense under the ACCA. Johnson I. In State v. Burton, 589 S.E.2d 6 (S.C. 2003), the South Carolina Supreme Court reinstated Burton’s conviction under the ABWO statute for spitting blood on an officer’s boot. The state court ruled Burton’s conduct was an assault. Since the ABWO statute permits a conviction for conduct that does not require physical force, a conviction pursuant to the statute is not a predicate offense under the ACCA. Accordingly, the Court vacated the district court’s judgment and remanded for further proceedings as may be appropriate. See: United States v. Jones, 2019 U.S. App. LEXIS 3454 (4th Cir. 2019). 

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