8:21-cr-00167-HMH-1) UNITED STATES OF AMERICA v. Patrick Fitzgerald Clemons

FILED: October 3, 2022
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
___________________
No. 22-4152
(8:21-cr-00167-HMH-1)
___________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
PATRICK FITZGERALD CLEMONS
Defendant - Appellant
___________________
O R D E R
___________________
Pursuant to Rule 244 of the South Carolina Appellate Court Rules, we respectfully
certify the following questions of law to the Supreme Court of South Carolina:
1. What mental state is required to commit South Carolina Assault and Battery
Second Degree, in violation of S.C. Code § 16-3-600; and
2. What mental state is required to commit South Carolina Criminal Domestic
Violence of a High and Aggravated Nature, in violation of S.C. Code
§ 16-25-65?
We acknowledge that the Supreme Court of South Carolina may restate the
questions. As we explain, no controlling South Carolina authority directly answers these
questions. Moreover, the answers will determine whether Clemons qualifies as an armed
career criminal and whether his currently imposed sentence exceeds the applicable

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statutory maximum. Therefore, the answers to the above-stated questions will be
determinative of this appeal.
I.
The relevant facts, as stated by the parties, are as follows:
In August 2021, a grand jury sitting in the District of
South Carolina charged Clemons in a four-defendant, six-
count superseding indictment. Later that month, Clemons
pleaded guilty without a written plea agreement to being a
felon in possession of a firearm.
A presentence investigation report (PSR) prepared for
sentencing determined Clemons was subject to a 15-year
mandatory minimum under the Armed Career Criminal Act, 18
U.S.C. § 924(e) (2020), based on two prior convictions for
South Carolina Criminal Domestic Violence of a High and
Aggravated Nature (CDVHAN) and one conviction for South
Carolina Assault and Battery Second Degree (AB2d). Clemons
objected to his armed career criminal designation, arguing
none of the three convictions is a predicate violent felony under
the Supreme Court’s recent decision in Borden v. United
States, 141 S. Ct. 1817, 1825 (2021), which held that a prior
conviction is an ACCA predicate only if the use of force
“against the person of another” was directed at, or targeted,
another individual.
The district court convened for sentencing in February
2022. It overruled Clemons’ objection and calculated the
Guidelines range to be 180 to 210 months. The court departed
downward three levels on the Government’s motion and
imposed a sentence of 145 months in prison. Clemons filed a
notice of appeal the same day. In his opening brief before this
Court, Clemons argues his CDVHAN and AB2d convictions
are not ACCA predicates under Borden because both crimes
can be committed with reckless or negligent conduct.
Mot. Certify, ECF No. 30 (record citations omitted).
II.
The Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e), prescribes a 15-year

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mandatory sentence for any person who illegally possesses a gun who has three or more
prior offenses for a violent felony. The Supreme Court in Borden v. United States, 141 S.
Ct. 1817, 1825 (2021), clarified that an offense requiring only a mens rea of recklessness
cannot qualify as a violent felony for purposes of ACCA.
Neither of the two statutes of conviction relevant here, S.C. Code §§ 16-3-600 and
16-25-65, describes the mens rea required for commission of the offense. Nor have we
found controlling authority on this issue in the case law of South Carolina’s Supreme Court
or Court of Appeals.
Determination of the required mental state for commission of these two South
Carolina offenses is necessary for the disposition of this appeal. The issue has arisen
frequently in other cases since the Supreme Court’s decision in Borden as well. See, e.g.,
United States v. Mack, No. 21-4191 (4th. Cir. docketed Apr. 22, 2021) (Assault and Battery
First Degree); United States v. Samuel, No. 20-4427 (4th. Cir. docketed Aug. 19, 2020)
(Assault and Battery of a High and Aggravated Nature); United States v. Blades, No. 21-
4472, (4th. Cir. docketed Sept. 3, 2021) (Assault and Battery Second Degree and Criminal
Domestic Violence Second Degree); United States v. Jenkins, No. 9:19-cr-438-DCN, ECF
No. 74 (D.S.C. May 13, 2022) (resentencing stayed pending determination of mens rea for
Assault and Battery Second Degree in Blades); United States v. Canada, No. 6:20-cr-
00471-HMH, ECF No. 166 (D.S.C. Aug. 29, 2022) (Criminal Domestic Violence Third
Degree); United States v. Thompson, No. 3:21-cr-00291-MGL-1, ECF No. 53 (D.S.C. Aug.
23, 2022) (sentencing stayed pending determination of mens rea for Assault and Battery of

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a High and Aggravated Nature in Samuel and Blades); United States v. Brooks, No. 3:21-
cr-00142-TLW, ECF No. 51 (D.S.C. May 4, 2022) (Assault and Battery of a High and
Aggravated Nature).
Accordingly, the facts presented in this appeal raise questions of South Carolina law
for which there is no controlling precedent, and we are unable to predict with confidence
how the Supreme Court of South Carolina would rule.
III.
In light of the above, we respectfully request that the Supreme Court of South
Carolina accept and answer the foregoing certified questions to provide the parties, the
courts, future litigants, and the public with definitive guidance on these issues.
We direct the Clerk of Court to forward a copy of this order under official seal to
the Supreme Court of South Carolina.
Entered with the concurrence of Judge Agee and Judge Diaz.
QUESTIONS CERTIFIED
______________________________
Honorable Barbara Milano Keenan
Senior Circuit Judge

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