5th Cir.: South Carolina assault & battery of a high and aggravated nature is Crime of Violence

The Fifth Circuit released this week a case holding that a South Carolina state conviction for Assault and Batter of a High and Aggravated Nature (ABHAN), a state common law offense, is a crime of violence for purposes of sentencing enhancement. United States v. Guerrero-Robledo, No. 07-41151 (5th Cir. April 20, 2009). Though the court did not need to reach this issue to decide the case, it did so solely for the purpose of clarifying its treatment of this offense. As the court reminded, “A prior offense qualifies as a crime of violence because it is either an enumerated offense or it has as an element the use or attempted use of force.”

For his part, the defendant argued that his ABHAN conviction had no mens rea requirement. However, the court rested its holding on a South Carolina Supreme Court case that announced that “for a common law offense to constitute a crime, ‘the act must be accompanied by a criminal intent, or by such negligence or indifference to duty or to consequences as is regarded by law as equivalent to criminal intent.'” Guerrero-Robledo, No. 07-41151, slip op. at 11 (quoting State v. Ferguson, 395 S.E.2d 182, 183 (S.C. 1990)). Because a different South Carolina Supreme Court case had defined the first element of ABHAN as “an unlawful act,” the 5th Circuit concluded that, based on Ferguson, “the first element of ABHAN–an unlawful act–must indicate criminal intent.” Guerrero-Robledo, No. 07-41151, slip op. at 11. Thus, the 5th Circuit concluded that ABHAN “falls within the common meaning of aggravated assault, rendering it a crime of violence.”

Given the 5th Circuit’s reliance on an analysis of the elements of ABHAN, there’s little reason to think that this case won’t have wide use in the immigration context for DHS to argue that ABHAN is a crime of violence under the INA.

In another section, the 5th Circuit also held that when a defendant collaterally attacks a prior conviction on the ground that he was not represented by counsel, the defendant bears the burden of rebutting the presumption that he validly waived his right to counsel–at least when the conviction occurred after the right to state-appointed counsel was conclusively established. Guerrero-Robledo, No. 07-41151, slip op. at 3.