Last Friday in United States v. Del Carmen Gomez, a Fourth Circuit panel reversed a district court’s decision to use the “modified categorical approach” to determine whether the defendant’s prior conviction constituted a “crime of violence” for purposes of calculating that defendant’s Sentencing Guidelines range. No. 12-4089 (4th Cir. Aug. 10, 2012). In doing so, the court agreed with the majority of other circuits that have considered the issue, holding that “district courts may apply the modified categorical approach to a statute only if it contains divisible categories of proscribed conduct, at least one of which constitutes—by its elements—a violent felony.”
Judge Paul Niemeyer penned a dissenting opinion in which he criticized the majority's opinion for "adopt[ing] an entirely new rule that (1) is not mandated by any Supreme Court decision; (2) is indeed inconsistent with a long line of Fourth Circuit cases, including cases cited approvingly by the Supreme Court; (3) is both impractical and illogical; and (4) aggravates a split among the circuits."
Judge Niemeyer also provided an overview of the circuit split on the issue:
In United States v. Woods, 576 F.3d 400 (7th Cir. 2009), the Seventh Circuit adopted a per se rule limiting the modified categorical approach to facially divisible statutes. The Fifth, and Eighth Circuits have similar policies. See, e.g., United States v. Gonzalez-Terrazas, 529 F.3d 293, 297-98 (5th Cir. 2008); United States v. Boaz, 558 F.3d 800, 807-08 (8th Cir. 2009). The Ninth Circuit, which had previously adopted the same rule as Woods, reversed course in United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc). It now applies the modified categorical approach to both divisible and indivisible statutes. The Sixth and Tenth Circuits follow a similar approach. See, e.g., United States v. Ventura-Perez, 666 F.3d 670 (10th Cir. 2012); United States v. Armstead, 467 F.3d 943 (6th Cir. 2006). The remaining circuits do not appear to have conclusively resolved the issue either way.