In a published opinion, the Fourth Circuit found that the lower court was wrong when it counted the defendant’s prior conviction for second degree assault as a “crime of violence.”
For some time, Maryland’s second degree assault statute has caused confusion in federal court. The Government inevitably argues that second degree assault must be a crime of violence, even though this is not always the case. The reality, as the Fourth Circuit has made clear, is that second degree assault can go either way. It can be violent or it can be non-violent.
If the Court is to count second degree assault as a violent conviction, the Government must prove that the assault is the violent type. However, there are limited ways in which the Government may do so.
In U.S. v. Donnell, the lower court improperly reached the conclusion that the second degree assault conviction was “violent” by using the police officer’s statement of probable cause. But, as the Fourth Circuit clarified, the defendant did not plea guilty to the officer’s statement of probable cause, and did not necessarily admit that those facts were true. Therefore, the court could not use those facts to make a determination of whether the crime to which the defendant pleaded guilty was “violent.”
The lesson of this case: When the Government attempts to enhance a federal sentence by using a Maryland second degree assault conviction, it is the duty of the defense to challenge this type of enhancement. Sure, the Government may prevail in some cases, but they must be held to their burden of proof.