Fourth Circuit clarifies Carter; Holds escape under SC law is not a per se violent felony.

by Kirsten E. Small

The Fourth Circuit issued two published opinions today, both in criminal cases. In United States v. Hernandez, the rejected (on plain error review) the defendant's argument that the district court inadequately explained the reasons for imposing a sentence at the bottom of the guidelines range. Specifically, Hernandez contended that the explanation was inadequate under the Court's prior decision in United States v. Carter, 564 F.3d 325. Carter held that "Regardless of whether the district court imposes an above, below, or within-Guidelines sentence, it must place on the record an 'individualized assessment' based on the particular facts of the case before it. This individualized assessment need not be elaborate or lengthy, but it must provide a rationale tailored to the particular case at hand and adequate to permit 'meaningful appellate review.'" 564 F.3d at 330. Carter has been the subject of substantial litigation.

Hernandez clarifies (some might say "narrows") Carter by stating that a district court sufficiently explains a within-guidelines sentence by, essentially, recognizing the wisdom and experience embodied in the Sentencing Guidelines and concluding that the case is a typical one.

The second decision, United States v. Bethea, addressed the question of whether escape under South Carolina law is categorically a violent felony for purposes of the Armed Career Criminal Act. The Court concluded that it was not, reasoning that because the statutory term "escape" encompasses a failure to report--a non-violent felony under the ACCA--the decision of the Supreme Court in United States v. Chambers, 129 S. Ct. 687 (2009), required the Fourth Circuit to hold that the South Carolina escape statute did not necessarily constitute a violent felony. The Court further concluded that Bethea's offense could not be considered a violent felony under the modified-categorical approach because the charging documents and sentencing sheet simply identified the offense as "escape." The court therefore vacated Bethea's sentence and remanded for resentencing.