Indivisible common law crime calls for categorical approach to determine whether it's a crime of violence

US v. Montes-Flores:  Fabian Montes-Flores pleaded guilty to illegal re-entry. At his sentencing, the district court imposed a sixteen-level enhancement for a prior South Carolina conviction for assault and battery of a high and aggravated nature ("ABHAN"), which conviction his pre-sentence report classified as a "crime of violence" under the illegal re-entry guideline. Unfortunately for Montes-Flores, the district court concurred with the PSR classification, a decision it reached after employing a modified categorical approach to determine whether the earlier conviction qualified for the sentencing enhancement. The district court sentenced Montes-Flores at the bottom of the guidelines range it calculated for him, 46 months.

On appeal, Montes-Flores argued that his prior conviction should not be considered a "crime of violence" for sentencing purposes, and the district court should have used the categorical approach to determine the status of his prior conviction for ABHAN. The Fourth Circuit agreed with Montes-Flores, holding that divisible statutes, with some categories of crimes that constitute crimes of violence and some that do not, call for the district court to use a modified categorical approach. Divisible criminal statutes include multiple, alternative versions of the crime. ABHAN, here, according to the Fourth Circuit, is not divisible, so the district court applied the modified categorical approach in error; South Carolina’s ABHAN is not categorically a "crime of violence" because it can be committed without violent physical force. The Fourth Circuit also determined that this error was not harmless, since the district court made no indication that it desired to vary upwards in sentencing Montes-Flores. The Fourth Circuit reversed and remanded for re-sentencing.