by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit held that Maryland’s first-degree assault statute, Md. Code, Art. 27 § 12A -1, is indivisible, and a conviction thereunder is not a “violent felony” for purposes of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e).

In 2008, Garfield Redd was convicted by a jury of possession of a firearm by a felon under 18 U.S.C. § 922(g)(1). At his sentencing, the U.S. District Court for the District of Maryland determined that Redd had been previously convicted of four qualifying predicate offenses under the ACCA. Two of those prior convictions were for first-degree assault in Maryland. The District Court applied the ACCA enhancement and sentenced Redd to 240 months’ imprisonment. The Fourth Circuit affirmed Redd’s judgment in 2010. The following year, Redd filed a § 2255 motion, which the District Court denied, and the Fourth Circuit declined to grant a certificate of appealability.

In 2015, the Supreme Court of the United States (“SCOTUS”) struck down the residual clause of the ACCA as unconstitutional. Johnson v. United States, 576 U.S. 591 (2015). Redd filed a successive § 2255 motion, arguing that his Maryland first-degree assault convictions no longer qualified as predicate offenses for ACCA purposes, and thus, the ACCA sentence should be vacated. The District Court denied the motion, concluding that the Fourth Circuit’s prior decision affirming Redd’s judgment was dispositive. Redd timely appealed, and the Fourth Circuit granted a certificate of appealability “on the question of whether Maryland first-degree assault is a violent felony under the force clause of the” ACCA.

The Court observed that the “ACCA provides that anyone who violates 18 U.S.C. § 922(g) and has three previous convictions for ‘a violent felony or a serious drug offense, or both, committed on occasions different from one another’ shall be fined and imprisoned for a minimum of fifteen years.” 18 U.S.C. § 924(e)(1). The ACCA defines “violent felony” as “any crime punishable by imprisonment for a term exceeding one year” that (1) “has as an element the use, attempted use, or threatened use of physical force against the person of another” (the “force clause”); (2) “is burglary, arson, or extortion, [or] involves use of explosives” (the “enumerated offense clause”); or (3) “otherwise involves conduct that presents a serious potential risk of physical injury to another” (the “residual clause”). § 924(e)(2)(B). Because Johnson had declared the residual clause unconstitutional and since Redd had not been convicted of an enumerated offense, Redd’s Maryland assault convictions remained qualifying predicates only if they satisfy the requirements of the force clause.

The phrase “physical force” in the force clause means “violent force,” and the perpetrator must “direct his action at, or target, another individual”—reckless conduct is insufficient. Borden v. United States, 141 S. Ct. 1817 (2021). Determining whether a prior conviction is a violent felony under the ACCA requires the Court to use the categorical approach, i.e., the Court “examine[s] only the elements that must be proven for the offense in question, not the facts of how the defendant committed the crime, to determine whether the offense meets the force-clause definition.” Id. “‘If any—even the least culpable—of the acts criminalized’ does not require the kind of conduct that the force clause contemplates, ‘the statute of conviction does not categorically match the federal standard, and so cannot serve as an ACCA predicate.’” Id.

However, where a statute is “divisible,” the Court employs a “modified categorical approach.” Descamps v. United States, 570 U.S. 254 (2013). Divisible statutes set out “one or more elements in the alternative,” effectively listing different crimes. Id. Elements are the “constituent parts of a crime’s legal definition,” i.e., “the things the prosecution must prove to sustain a conviction.” Mathis v. United States, 579 U.S. 500 (2016).

At trial, the elements “are what the jury must find beyond a reasonable doubt to convict the defendant.” Id. If a defendant pleads guilty, the elements “are what the defendant necessarily admits when he pleads guilty.” Id. If the elements of one alternative satisfies the ACCA’s violent felony definition but the elements of another do not, “the modified categorical approach allows the Court to ‘consult a limited class of documents, such as the indictments and jury instructions, to determine which alternative formed the basis of the defendant’s prior conviction.’” Descamps. If the specific alternative under which the defendant was convicted is a categorically violent felony, the conviction may serve as an ACCA predicate. Id.

However, where a statute is indivisible, the modified categorical approach has no role in the determination. Descamps. “When an indivisible statute criminalizes several different types of conduct, any of which could constitute the offense, [the Court] simply ask[s] whether an individual could be convicted for any of those alternative means based on conduct that is not categorically violent.” Borden. An indivisible statute does not contain alternative elements but may merely list different ways a crime may be committed. Mathis. For example, if a statute requires the use of a deadly weapon as an element of the crime and further provides that the use of a “knife, gun, bat, or similar weapon” would all qualify, the statute would be indivisible because the jury need not find which particular item was used but need only find that one or more was used, explained the Court. Mathis.

“[T]he focal point of the analysis [in determining whether a statute is indivisible or divisible] is what the jury must find (or a defendant must admit) to convict.” United States v. Al-Muwwakkil, 983 F.3d 748 (4th Cir. 2020), as amended (Dec. 28, 2020). In making the determination, courts examine the statute itself, Mathis; the state court’s prior interpretation of the statute, Schad v. Arizona, 501 U.S. 624 (1991); a state’s charging practices, Al-Muwwakkil; and documents used in prosecuting the offense such as pattern jury instructions, Omargharib v. Holder, 775 F.3d 192 (4th Cir. 2014).

Turning to the present case, the Court determined that it was unclear from the language of the statute itself whether it is divisible or indivisible. At the time of Redd’s conviction, Md. Code, Art. 27 § 12A -1 provided:

“(a) Serious physical injury; use of a firearm—

(1) A person may not intentionally cause or attempt to cause serious physical injury to another.

(2) A person may not commit an assault with a firearm, including [any of the enumerated kinds of firearms.]

(b) Penalty.—A person who violates this section is guilty of the felony of assault in the first degree and on conviction is subject to imprisonment for not more than 25 years.”

The distinct separation of the alternatives is suggestive of a divisible statute, but the assignment of only one punishment suggests a single crime or an indivisible statute, according to the Court.

But Md. Code, Crim. Law § 3-206(a) provides that the State’s indictment “need not specify which modality of the statute it contends defendant violated.” This strongly suggests an indivisible statute, the Court stated.

Additionally, Md. Crim. Pattern Jury Instruction 4:01.1A provides, in relevant part: “In order to convict the defendant of first-degree assault, the State must prove all of the elements of second-degree assault and also must prove that:

(1) the defendant used a firearm to commit assault; or

(2) the defendant intended to cause serious physical injury in the commission of the assault….”

The Court stated that because juries under this instruction are not required to unanimously find any one of the particular modalities, it strongly suggests again that the statute is indivisible. Finally, under Maryland case law, juries need not find any particular modality or alternative to convict a defendant of first-degree assault. Wright v. State, 292 A.3d 284 (Md. App. 2022).

The Court concluded that Md. Code, Art. 27 § 12A -1 is indivisible, and the categorical approach applies. As explained above, a conviction for first-degree assault requires a finding that the defendant committed all the elements of second-degree assault. In Maryland, second-degree assault includes unintentional battery, which may be committed with a mens rea of recklessness. Elias v. State, 661 A.2d 702 (Md. 1995). Reckless conduct is insufficient for purposes of the ACCA’s force clause, and such conduct does not satisfy the ACCA’s definition of “violent felony.” Borden. Thus, the Court held that Maryland first-degree assault convictions cannot serve as an ACCA predicate crime.

Accordingly, the Court reversed and remanded for resentencing. See: United States v. Redd, 85 F.4th 153 (4th Cir. 2023).  

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