Death Knell of Second Degree Assault as “Crime of Violence”

Federal Criminal Defense Baltimore, Maryland

For years Maryland’s second degree assault statute has been a thorn in the side of criminal defendants. Although second degree assault may result from a non-violent incident, it is almost always used by federal prosecutors as a “crime of violence” to enhance federal sentences – often to extreme results. In the context of the Armed Career Criminal Act, a second degree assault on one’s record – even if a decade old – could be the difference between a six-year sentence and a 15-year sentence. For career offenders, the addition of a second degree assault could enhance a sentence threefold.

Gradually, this edifice has been crumbling. The problem is that second degree assault is not always a violent crime. Therefore, we do not know if someone convicted of second degree assault necessarily committed a violent act. For years federal courts in Maryland have been looking at certain state-court documents to determine what kind of second degree assault it was. Was it a punch to the face? Or an unwanted kiss on the cheek? It used to be that federal courts would look to state charging documents to try and figure this out.

Problem was, the federal courts were not supposed to be doing this. There are only certain types of statutes for which federal courts can look to the state court documents – and second degree assault was not one of them. Nevertheless, the courts, perhaps not wanting to rock the boat, continued this practice.

In recent months, however, it has become undeniable that this practice was wrong. As discussed in this blog, a sea change was signaled by United States v. Gomez, 690 F.3d 194 (4th Cir. 2012), in which the Fourth Circuit considered the same issue, but with a different state court statute. The Gomez court ruled that a federal court could not look to these underlying state-court documents unless the statute was divisible into non-violent and violent sections, and the court was merely seeking to figure out the section under which the defendant had been convicted. The offense in Gomez was not divisible. Nor is second degree assault. As was also discussed in this blog, Gomezwas followed up by a favorable district court ruling that applied the Gomez principle to second degree assault, holding that the statute was not divisible and therefore it could not be the subject of a further inquiry as to the specific nature of the offense.

Now, it appears the wall had tumbled down. In an unpublished opinion, United States v. Shem Bailey, No. 11-4774, the Fourth Circuit officially applied the rational ofGomez to second degree assault. The Shem Bailey court held that second degree assault is not a divisible statute and therefore courts cannot look to underlying documents to determine whether an offender committed a violent or non-violent second degree assault. By default, all second degree assaults, therefore, must be non-violent.

There is at least one oddity in the brief Shem Bailey opinion: it is unpublished, meaning it has no precedential value. It’s almost as if the Fourth Circuit didn’t want to come out and officially announce it – despite the fact that this is a momentous ruling. Never mind. The district courts will take notice.