United States v. Montes-Flores, 736 F.3d 357 (4th Cir. Nov. 26, 2013) (South Carolina conviction for assault and battery of a high and aggravated nature (the unlawful act of violent injury to another accompanied by circumstances of aggravation), was not categorically a crime of violence within the meaning of the residual clause of USSG 2L1.2(b)(1)(A)(ii) (2012) (any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another); the district court erroneously applied the modified categorical approach to this offense, which was an indivisible common law crime, because this offense can be committed with or without force"and even when force is involved, it can be committed in a violent or nonviolent manner); applying Descamps v. United States, 133 S.Ct. 2276 (June 20, 2013); see United States v. Hemingway, 734 F.3d 323, 330 (4th Cir. Oct. 31, 2013) (South Carolina conviction for assault and battery of a high and aggravated nature, was not categorically a crime of violence under the ACCAs residual clause).

Note: While Descamps held open the question whether its analysis applies to common law crimes, as opposed to crimes defined by statute, this decision does apply the categorical analysis to common law offenses. We agree with our sister circuits that, when a state crime is defined by specific and identifiable common law elements, rather than by a specific statute, the common law definition of a crime serves as a functional equivalent of a statutory definition. Id. at 367 (internal quotations mark and citations omitted).