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Fourth Circuit finds child abuse statute does not qualify as predicate conviction for Guidelines sentencing enhancement; could have sweeping impact on second degree assault enhancements

By Justin Brown 7 years agoNo Comments

Maryland Federal Criminal Defense

In United States v. Gomez, (12-4089), the defendant, a citizen of El Salvador, was deported from the United States after pleading guilty to state child abuse charges. After reentering the U.S. without permission, the defendant was charged with illegal entry, and pleaded guilty in federal court. At sentencing, the government sought to use the defendant’s prior child abuse conviction to enhance her sentence. Under the Sentencing Guidelines, defendants who are convicted of unlawful reentry after being previously convicted of a “crime of violence” are subject to a sixteen-level increase in their base offense levels.

Using the “modified categorical approach,” the district court determined that the defendant’s child abuse conviction constituted a “crime of violence,” and enhanced her sentence accordingly. In employing this approach, the district court looked to the statement of facts that were presented during the defendant’s guilty plea, which noted that the defendant admitted to burning the bottoms of her son’s feet with a candle as punishment.

Typically, sentencing courts may determine whether a crime constitutes a violent felony only by looking to the statutory definition of the offense. This approach – called the “categorical approach” – prohibits judges from considering the defendant’s conduct in committing the crime, and protects defendants from mini-trials and subjective inquiries regarding their prior offenses.

In Gomez, the Fourth Circuit held that judges may refer to a defendant’s “record of conviction” (i.e. documents such as charging papers, transcripts of plea hearings, etc.) only when the statute of conviction encompasses several alternative “divisible categories of proscribed conduct,” with at least one category qualifying as a crime of violence. In these instances, the modified categorical approach is appropriate to determine which statutory phrase served as the basis for the defendant’s prior conviction.

In so holding, the Court referred to the Maryland child abuse statute to determine whether the district court properly employed the modified categorical approach:

(i) The sustaining of physical injury by a child as a result of cruel or inhumane treatment or as a result of a malicious act by any parent or another person who has permanent or temporary care or custody or responsibility for supervision of a child, or by any household or family member, under circumstances that indicate that the child’s health or welfare is harmed or threatened thereby; or

(ii) Sexual abuse of a child, whether physical injuries are sustained or not.

First, the Fourth Circuit found that subsection (i) does not necessarily require violent force for a child to sustain physical injury. In addition, the Court found that the entire child abuse statute is divisible into only two categories: physical abuse (not necessarily involving force) and sexual abuse. According to Gomez, because the statute did not include a divisible use-of-force element, the district court erred in referring to the statement of facts from the defendant’s guilty plea. The defendant’s sentence was vacated accordingly and remanded for re-sentencing.

This case is potentially significant for defendants whose sentences are enhanced with a Maryland second degree assault conviction. We have argued on multiple occasions that Maryland’s second degree assault statute is similar to the child abuse statute in that it is not divisible into violent and non-violent components – and therefore does not necessarily qualify as a violent offense. (There are types of second degree assault, such as a verbal threat, that do not have an element of violence). Gomez could signal that our argument will eventually prevail. If so, relief may be in store for hundreds of convicted defendants whose  sentences were enhanced by a second degree assault conviction. This could apply to career offenders or armed career criminals. Please call the Firm if you think you have a case to which this applies.

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About

 Justin Brown

  (64 articles)

Justin Brown is a trial attorney based in Baltimore, Maryland. He has tried criminal and civil cases in state district court, state circuit court, and the United States District Court for Maryland. He has argued appeals before the Maryland Court of Special Appeals, the Maryland Court of Appeals and the Fourth Circuit Court of Appeals.

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