Maryland Second-Degree Assault Conviction Doesn't Trigger ACCA

US v. Royal: Royal was pulled over in Baltimore and found to be in possession of a loaded antique pistol.  He was charged with being a felon in possession of ammunition.  The pistol itself was old enough that it didn't meet the definition of "firearm" set out in 18 USC 921.  He went to trial, at which an ATF agent testified about the antiqueness of the pistol, but did not go into detail about the ammunition.  Royal sought a judgment of acquittal, arguing that the Government failed to prove the ammo met the statutory definition of "ammunition," which is "designed for use in any firearm" (as defined by the statute, of course).  It was denied and Royal was convicted.  He was sentenced to 180 months in prison under ACCA based on a prior Maryland conviction for second-degree assault.

On appeal, the Fourth Circuit affirmed Royal's conviction, but vacated his sentence and remanded for resentencing.  As to the conviction, the court first held that there was no error in denying Royal's motion for a judgment of acquittal because the issue of whether the ammo was "antique" (in the sense that it was designed exclusively for a weapon too old to be a "firearm") was an affirmative defense that Royal did not raise.  The evidence presented by the Government was sufficient to support the conviction.  The court also turned down a plain-error challenge to the jury instructions related to that issue.

As to the sentence, the case had been held in abeyance pending the Supreme Court's decision last term in Deschamps.  In light of that decision, the court concluded that the Maryland second-degree assault statute is a "facially indivisible statute" and rejected the Government's argument that state court decisions had converted it into a divisible statute (assuming, without deciding, that such an analysis was appropriate in the first place).  As a result the correct analysis was the regular categorical approach, not the modified categorical approach (as utilized by the district court).  Based on that analysis, because the statute allows conviction based on "any unlawful touching," whether violent or not, Royal's prior conviction was not a "violent felony" for ACCA.

Congrats to the Defender office in Maryland on the win!