Wednesday, August 15, 2012
Categorical Approach Required for Maryland Child Abuse Statute
US v. Gomez: Gomez pleaded guilty to illegal reentry after having been deported due to an aggravated felony conviction. That conviction was for child abuse in Maryland, during which (according to Gomez's statement while pleading guilty) she had burned the bottoms of her son's feet with a candle as punishment. After her illegal reentry conviction, the main issue at sentencing was whether that prior conviction was a "crime of violence" such that it triggered a 16-level enhancement under the Guidelines. Gomez argued that, applying a categorical approach, it was not. The Government argued that it was and the district court could resort to the modified categorical approach (and thus consider Gomez's statement) in doing so. The district court agreed with the Government and applied the enhancement, although it varied from the resulting range an imposed a sentence of 24 months.
The Fourth Circuit vacated Gomez's sentence and remanded the case for resentencing. The court concluded that the modified categorical approach is appropriate only when the statute being analyzed "contains divisible categories of proscribed conduct, at least one of which constitutes - by its elements - a violent felony." The Maryland statute at issue in this case, while "expansive" it could not be separated into forceful and non-forceful acts. As a result, only the original unmodified categorical approach should have been used. The court also rejected the Government's argument that any error in applying the modified categorical approach was harmless because of the district court's ultimate imposition of a variance sentence.
Judge Niemeyer dissented, calling the majority's position "novel" and arguing that it was not consistent with Supreme Court and prior Fourth Circuit precedent.
Congrats to the FPD office in Maryland on the win!