Certified Questions: Answered

The South Carolina Supreme Court recently answered a certified question from the Fourth Circuit about whether a person can commit the offense of criminal domestic violence of a high and aggravated nature (CDVHAN) or assault and battery second degree (AB2d) with a mental state of recklessness. The ramifications of its decision are extremely significant to federal criminal defendants.

Certified Questions

Rule 244 of the South Carolina Appellate Court Rules provides a mechanism for any federal court, and almost any appellate court from any other state, to ask the South Carolina Supreme Court to answer a question regarding South Carolina law. Interestingly, our friendly neighbor to the north, North Carolina, is the only state in America that does not provide for such a procedure.

Pursuant to this rule, South Carolina occasionally gets questions from federal courts, including the Fourth Circuit Court of Appeals when there is a pending case before that court that necessarily depends on the answer to a question of South Carolina law that has not been previously answered. The procedure is rarely invoked. By my count, there were only four certified questions in South Carolina in 2022, and only one in 2023.

United States v. Clemons and the Armed Career Criminal Act (ACCA)

One of the 2022 certified questions came from the Fourth Circuit which the Supreme Court answered two weeks ago.

The Fourth Circuit asked the South Carolina Supreme Court what mental state is required to commit the crimes of CDVHAN and AB2d under South Carolina law. The Supreme Court reworded the questions slightly to answer whether South Carolina law permits a defendant to be convicted of either of these crimes with a mental state of “recklessness.” The Supreme Court answered “yes” to both. United States v. Clemons, Op. No. 28202 (S.C. Sup. Ct. Filed May 1, 2024) (Howard Adv. Sh. No. 16 at 21). 

The significance of this decision really cannot be understated.

An enormous amount of federal criminal law is dedicated to prosecuting convicted felons who are in possession of firearms or ammunition. And under the Armed Career Criminal Act (ACCA), a person who is convicted of being a felon in possession and has three or more prior “violent felony” convictions is subjected to enhanced penalties. The enhancement is quite severe – a ten-year maximum sentence becomes a fifteen-year minimum sentence. 18 U.S.C. § 924 (e). ACCA defines “violent felony,” in part, as a crime that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i).

In determining whether a person’s prior convictions meet this elements clause of ACCA, federal courts employ what is known as the “categorical approach.” Under the categorical approach, a prior conviction meets the elements clause under ACCA if the offense necessarily involved the use, attempted use, or threatened use of force against another person. If even the least culpable conduct criminalized by the statute for which the person was previously convicted does not “categorically match” this standard, then the prior conviction cannot serve as a predicate conviction under ACCA.

In Borden v. United States, 141 S.Ct. 1817 (2021), the Supreme Court of the United States resolved a circuit split as to whether a state crime which could be committed with a mental state of recklessness could serve as a predicate offense under ACCA. The Court held that it cannot. So pursuant to the Court’s decision in Borden, if a defendant has a prior state criminal conviction for a crime that could have been committed with a mental state of recklessness, that conviction cannot be used to enhance his sentence under ACCA.

Clemons pled guilty to being a felon in possession in federal court and was subjected to the enhanced punishment under ACCA because of prior convictions for CDVHAN and AB2d in South Carolina. On appeal to the Fourth Circuit, Clemons argued that these convictions did not qualify under ACCA because they could be committed with a mental state of recklessness. The Fourth Circuit certified the question to the South Carolina Supreme Court who agreed with Clemons.

One fascinating aspect of this case was that the South Carolina Attorney General’s Office agreed with Clemons. The federal government was then pitted against the state government. It’s no surprise that the SCAG advocated for the lower mens rea requirement because that will make it easier for defendants to be prosecuted for these crimes in state court. It’s also no surprise that the USAO disagreed so that it could subject federal criminal defendants with these prior convictions to the enhanced penalty of ACCA.

At the oral argument, the attorney representing the United States was asked directly by Justice James why they didn’t just take the South Carolina Attorney General’s word for what the proper mens rea is for state crimes. It was a great question in light of the fact that the SCAG is the lead prosecuting authority for South Carolina crimes and frequently gives opinions as to what specific conduct is criminalized by a state statute. See oral argument at 36:00.

Of course, the United States had a strong response which is that the SCAG doesn’t make the law in South Carolina, the General Assembly does. Still, it was not a huge surprise that the Supreme Court sided with the lead prosecutorial agency in South Carolina and against the federal government, even though it meant simultaneously ruling in favor of a federal criminal defendant.

Conclusion

I think the benefits to federal criminal defendants because of the Court’s decision in Clemons will far outweigh any negative impacts it may have on state criminal defendants. In my own experience, South Carolina prosecutors have long been acting under the belief that both domestic violence and assault and battery can be committed with a mental state of recklessness and Solicitor’s Offices regularly pursue charges against people as such.

In other words, this decision will have very little, if any, impact on how state prosecutions proceed against people charged with these crimes. But the impact to federal criminal defendants is huge. Felons in possession of firearms will not be subjected to the enormous increase in their sentencing guidelines for prior domestic violence or assault convictions in South Carolina.

adam@ruffinappeals.com

(803) 470-5629

1320 Main Street, Suite 300,

Columbia, SC 29201