US v. Sonny Mack, No. 21-4191 (4th Cir. 2022)
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Less than a year after being released from federal prison, Defendant “engaged in an unjustified, merciless beating” of an unarmed, 72-year-old security guard that caused “permanent damage” to one of the victim’s eyes. The probation officer petitioned to revoke Defendant’s supervised release. In rulings not challenged here, the district court found Defendant committed the alleged offense and that it constituted first-degree assault and battery under South Carolina law. The primary issue on appeal was whether that offense is a “crime of violence” under the Federal Sentencing Guidelines.
The Fourth Circuit affirmed. The court concluded that the district court correctly determined that South Carolina Code Section 16-3- 600(C)(1)(b)(i) is a crime of violence under the Federal Sentencing Guidelines. The court explained that even if it might be possible to imagine a case of first-degree assault and battery via a reckless offer, that would not change the court’s conclusion. To exclude a state offense under the elements clause, “there must be a realistic probability, not a theoretical possibility, that a state would actually punish that conduct.” But given the text of this statute—and “the total absence of case law” involving any such prosecutions—we conclude “there is not a realistic probability that South Carolina would punish” a reckless offer as first-degree assault and battery.
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