South Carolina Domestic Assault Is ACCA Violent Felony

US v. Drummond: Drummond was convicted of being a felon in possession of a firearm and sentenced under the Armed Career Criminal Act. His ACCA status was triggered by three prior domestic violence convictions in South Carolina, one for third offense criminal domestic violence (CDV) and two for CDV of a “high and aggravated nature.” Drummond argued that those offenses did not require the use of force required under Johnson to qualify as violent felonies, but the district court disagreed.

On appeal, a divided Fourth Circuit affirmed Drummond’s sentence. CDV (regular or aggravated) is defined by statute to requires causing “physical harm or injury” or “offer[ing] or attempt[ing]” to do so “with apparent present ability under circumstances reasonably creating fear of imminent peril.” The court concluded that “this minimal unlawful conduct satisfies” ACCA standards and rejected Drummond’s argument that CDV was similar to South Carolina assault and battery, which the court has already concluded doesn’t meet ACCA standards. The court noted that while assault and battery arises out of common law, CDV has a statutory definition and “Does not reference nor rely upon South Carolina’s definition of assault” which “can be committed in the absence of physical injury, actual or threatened.” It is the “physical harm-or-injury element” that “distinguishes CDV from common-law assault.”

Judge Floyd dissented, arguing that the majority had misread State v. LaCoste, 553 S.E.2d 464 (S.C. Ct. App. 2001), which by his reading supports the conclusion that the common-law definition of assault has some bearing on the elements of CDV, even if LaCoste “does not speak with perfect clarity on the issue at hand.”