United States v. Quintin Bell , 901 F.3d 455 ( 2018 )


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  •                                      PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 16-4343
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    QUINTIN ANTONIO BELL, a/k/a Quinton Antonio Bell, a/k/a Quinten Antonio
    Bell, a/k/a Go-Go,
    Defendant - Appellant.
    Appeal from the United States District Court for the District of Maryland, at Greenbelt.
    George Jarrod Hazel, District Judge. (8:14-cr-00531-GJH-1)
    Argued: March 22, 2018                                      Decided: August 28, 2018
    Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.
    Affirmed by published opinion. Judge Niemeyer wrote the majority opinion, in which
    Judge Diaz joined. Judge Wynn wrote a dissenting opinion.
    ARGUED: Kian James Hudson, GIBSON, DUNN & CRUTCHER, LLP, Washington,
    D.C., for Appellant. Michael Thomas Packard, OFFICE OF THE UNITED STATES
    ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF: James Wyda, Baltimore,
    Maryland, Paresh Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt,
    Maryland; Miguel A. Estrada, Russell B. Balikian, Nathan H. Jack, GIBSON, DUNN &
    CRUTCHER LLP, Washington, D.C., for Appellant. Stephen M. Schenning, Acting
    United States Attorney, Daniel C. Gardner, Assistant United States Attorney, OFFICE
    OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
    2
    NIEMEYER, Circuit Judge:
    Following a six-day trial, a jury convicted Quintin Bell of (1) possession with
    intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C. § 841(a)(1);
    (2) possession with intent to distribute a quantity of heroin and cocaine base, in violation
    of 21 U.S.C. § 841(a)(1); (3) possession of a firearm as a felon, in violation of 18 U.S.C.
    § 922(g)(1); and (4) possession of a firearm in furtherance of a drug-trafficking crime, in
    violation of 18 U.S.C. § 924(c)(1)(A). Based on Bell’s prior convictions, the district
    court sentenced Bell to a mandatory minimum sentence of 480 months’ imprisonment.
    On appeal, Bell contends that the district court erred (1) in denying his motion to
    suppress statements he made to officers executing a search warrant for his residence;
    (2) in admitting “other acts” evidence under Federal Rule of Evidence 404(b); (3) in
    denying his motion to disclose the identity of a confidential informant who provided
    information used to obtain the search warrant; and (4) in enhancing his sentence on the
    basis of his prior convictions.
    For the reasons that follow, we affirm.
    I
    On April 9, 2014, an ATF task force consisting of federal and state law
    enforcement officers obtained a “no-knock” warrant from the Circuit Court of Prince
    George’s County, Maryland, to search 5404 Morton Place in Riverdale, Maryland, and to
    seize from the house any narcotics, firearms, and related items found. The probable
    cause for the warrant was based on the affidavit of ATF Special Agent Frank Oliver, who
    3
    had learned from a confidential informant (“CI-1”) that Bell was “utilizing the residence
    to sell and store large quantities of Heroin while armed with a firearm.” The warrant
    application recounted that CI-1 had recently visited Bell’s residence and “observed,
    inside a room of the residence, a firearm and a quantity of heroin, consistent with
    distribution amounts.” It further stated that the informant had been shown a police
    photograph of Bell and had “positively identified” him as “the individual utilizing [the
    residence] to sell . . . Heroin.”
    The next morning, April 10, 2014, officers of the Prince George’s Police
    Department made a forced entry into 5404 Morton Place to execute the warrant and,
    while performing a security sweep, found Bell in the basement and placed him in
    handcuffs. They led him upstairs to the living room and seated him in a chair near his
    wife, Stacy Bell (“Stacy”), who had also been handcuffed and seated in a chair. After the
    house was secured, Agent Oliver entered the living room and, knowing that Stacy was the
    owner of the house, informed her “that [he] had a narcotics search warrant for the home”
    and then asked her, in the interest of officer safety, “if there [were] any weapons in the
    house that would hurt an officer.” Before Stacy could respond, however, Bell interjected,
    stating that “there was a gun under the couch” next to them and that “a friend had given
    him the gun [after] somebody had tried to break into the house and rob him.” Officers
    then searched under the living-room couch and recovered a Mini-14 Ruger semi-
    automatic rifle.
    The ATF task force proceeded to search the house, recovering extensive evidence
    of drug trafficking. In the basement, where Bell was found, officers found approximately
    4
    112 grams of heroin and various drug-trafficking paraphernalia, including a digital scale,
    empty pill capsules, a capsule-filling device, and bottles of cutting agents. They also
    found a loaded rifle magazine that was compatible with the Mini-14 Ruger rifle. In the
    master bedroom upstairs, the officers found in a nightstand several more grams of heroin,
    another scale, approximately $2,000 in cash, a letter addressed to Bell, and Bell’s driver’s
    license. And in a separate bedroom, they found in a filing cabinet approximately $10,000
    in cash and a collection of jewelry. Upon completion of the search, the task force
    released Bell from custody, pursuant to the “request of another [law enforcement]
    agency.”
    Some four months later, on August 24, 2014, officers of the Metropolitan Police
    Department of the District of Columbia (“MPD”) received a tip leading them to
    investigate a parked car in Southeast Washington, D.C. Bell was in the car, accompanied
    by two others. As the officers approached, Bell opened his door and attempted to exit but
    was apprehended. The officers found a loaded Glock pistol next to the driver’s seat,
    where Bell had been sitting, as well as approximately $1,000 in cash on Bell’s person.
    They also found several small baggies of marijuana, heroin, and crack cocaine in the
    car’s center console. One baggie containing marijuana was imprinted with green dollar
    signs, and another baggie containing heroin was imprinted with blue caricatures of a
    devil’s face.
    After the MPD officers brought Bell back to the station, a detective advised him of
    his Miranda rights and then interviewed him. During the interview, which was recorded
    by video, Bell stated that he had been “sharing” the Glock pistol with another man in the
    5
    car; that the two of them had been “hustlin[g] together” when they were arrested; that he
    had come to Washington, D.C., that evening to buy “two guns and some coke”; and that,
    in particular, he was expecting to buy “two Rugers.” Bell was charged in the Superior
    Court of the District of Columbia with several offenses relating to this incident, but the
    government subsequently decided not to prosecute him in the District of Columbia and
    dismissed the charges.
    Five days later, on August 29, 2014, while Bell was still in custody in Washington,
    D.C., the ATF task force executed a second search warrant at 5404 Morton Place.
    Probable cause for this warrant was based on Bell’s Washington, D.C. arrest, the
    evidence from the initial search in April 2014, and CI-1’s assertion that Bell was “storing
    quantities of heroin within [the] residence . . . consistent with distribution amounts.”
    During this search, officers found 14 grams of heroin and 3 grams of crack cocaine in the
    basement, as well as baggies marked with green dollar signs and blue devil faces.
    Elsewhere in Bell’s residence, they again recovered other evidence of drug trafficking,
    including digital scales, bottles of cutting agent, and handgun ammunition hidden inside a
    crockpot.
    In November 2014, a grand jury indicted Bell on four counts for drug trafficking
    and the illegal possession of a firearm. Bell filed a pretrial motion to suppress the
    statements he made to Agent Oliver during the April 2014 search of his residence, when
    he admitted to possession of the Ruger rifle, contending that the statements were obtained
    in violation of Miranda. He also filed a motion to compel disclosure of the identity of
    CI-1 or, in the alternative, for an in camera examination of the informant to determine
    6
    whether disclosure was warranted. Also prior to trial, the government filed a motion to
    admit evidence under Federal Rule of Evidence 404(b) of Bell’s arrest in Washington,
    D.C., including the video of his interview.
    Following a two-day hearing on these pretrial motions, the district court denied
    Bell’s motion to suppress, stating that Agent Oliver had testified credibly about the April
    2014 search; that Oliver had directed his question about weapons in the house to Stacy;
    and that Bell had then volunteered the answer. The court thus concluded that Bell was
    not interrogated in violation of Miranda. The court also denied Bell’s motion to disclose
    the identity of CI-1, explaining that Bell had failed to meet his burden to pierce the
    informer’s privilege or to obtain an in camera examination of the informant that would
    risk disclosure of his or her identity. Finally, the court granted the government’s motion
    to admit evidence of Bell’s arrest in Washington, D.C., concluding that the evidence was
    reliable and relevant to showing Bell’s knowing possession of the rifle and drugs found in
    his residence and that any prejudice to Bell would be outweighed by the evidence’s
    probative value.
    Following trial, the jury convicted Bell on all charges.
    The probation officer prepared a presentence report noting Bell’s several prior
    convictions, on which the government relied to argue that he was an “armed career
    criminal” subject to a 15-year mandatory minimum sentence for his conviction under 18
    U.S.C. § 922(g)(1) (firearm possession as a felon). See 18 U.S.C. § 924(e). The report
    also noted that Bell’s conviction under 18 U.S.C. § 924(c) for possession of a firearm in
    furtherance of drug trafficking subjected him to a mandatory minimum consecutive
    7
    sentence of 25 years’ imprisonment because he had a prior conviction under § 924(c).
    Finally, the report classified Bell, based on his prior convictions, as a career offender
    under U.S.S.G. § 4B1.1.     Combining an offense level of 34 and a criminal history
    Category VI with a second § 924(c) conviction resulted in an advisory Sentencing
    Guidelines range of 562 to 627 months’ imprisonment, and Bell’s statutory mandatory
    minimum sentence was 480 months’ imprisonment.
    Bell objected to the calculation of his Guidelines sentencing range and to the
    statutory mandatory minimum sentence, arguing that his predicate convictions did not
    qualify him as either an armed career criminal or a career offender. He argued further
    that the statutory mandatory minimum sentences could not constitutionally be applied to
    him because the fact of his prior convictions had neither been charged in the indictment
    nor found by the jury beyond a reasonable doubt. The district court rejected Bell’s
    arguments and sentenced him to 480 months’ imprisonment.
    This appeal followed.
    II
    Bell contends first that the district court erred in denying his motion to suppress
    the statements he made on April 10, 2014, during the execution of the first search warrant
    for 5404 Morton Place. During the course of that search and after Agent Oliver asked
    Bell’s wife, Stacy, “if there [were] any weapons in the house that would hurt an officer,”
    Bell interjected that there was a Ruger rifle under the couch. Bell notes that he and Stacy
    “were being held together, next to each other”; that “it is commonplace for [married]
    8
    couples to jointly answer questions about matters within their individual knowledge, even
    when a question is directed only to one of them”; and that Agent Oliver “did not specify
    whether [Bell] or [Stacy] should respond” to his question. Accordingly, he claims that
    Agent Oliver’s questioning of Stacy constituted interrogation of him, relying on Rhode
    Island v. Innis, 
    446 U.S. 291
    (1980), to argue that, in those circumstances, Oliver “should
    have known . . . that [the questioning] was reasonably likely to elicit an incriminating
    response from Mr. Bell.” Thus, Bell maintains, because he responded to interrogation
    while in custody without having been given the required Miranda warnings, his motion to
    suppress should have been granted.
    At the pretrial hearing, Agent Oliver described the April 10 encounter in some
    detail, testifying that after he entered the living room from outside the house, he
    approached Stacy, because she was the owner of the house, and “informed [her]” that the
    officers had “a narcotics search warrant for the home.” He then asked her, out of
    “concern[] for officer safety,” “if there [were] any weapons in the house that would hurt
    an officer.” According to Agent Oliver, in posing this question to Stacy, he walked to
    “[w]ithin a couple feet” of her and “directed [his] question to [her] . . . directly,” “looking
    at her in the eye.” At the time, Stacy was handcuffed and seated in a chair in the living
    room. Bell, who was also handcuffed, was seated in “another chair off to the right,
    behind her chair,” and the two chairs were “in close proximity” to each other. After
    Agent Oliver directed the question to Stacy, however, and before she could answer, Bell
    stated that “there was a gun under the couch.” When the officers looked under the couch,
    9
    they found the Mini-14 Ruger semi-automatic rifle that, Bell explained, a friend had
    given him.
    The district court accepted Agent Oliver’s testimony about the encounter, stating
    that he credited, as a factual matter, “Agent Oliver’s testimony that he did direct the
    question at Ms. Bell and that the defendant then volunteered an answer.” The court thus
    concluded that although Bell “was in custody, he was not being interrogated” and that his
    statements were therefore “admissible even though Miranda had not been given.”
    To safeguard the protection against self-incrimination guaranteed by the Fifth
    Amendment, the Supreme Court in Miranda adopted a set of procedural rules that apply
    when a suspect is subjected to custodial interrogation, including the familiar requirements
    that he be informed of his “right to remain silent, that any statement he [makes] may be
    used as evidence against him, and that he has a right to the presence of an attorney, either
    retained or appointed.” Miranda v. Arizona, 
    384 U.S. 436
    , 444 (1966). And the Court
    has stated, in applying Miranda to circumstances similar to those before us, that “the
    Miranda safeguards come into play whenever a person in custody is subjected to either
    express questioning or its functional equivalent.” 
    Innis, 446 U.S. at 300
    . “That is to say,
    the term ‘interrogation’ under Miranda refers not only to express questioning, but also to
    any words or actions on the part of the police (other than those normally attendant to
    arrest and custody) that the police should know are reasonably likely to elicit an
    incriminating response from the suspect.” 
    Id. at 301
    (emphasis added); see also 
    id. at 301
    & n.7 (explaining that “[t]he latter portion of this definition focuses primarily upon
    10
    the perceptions of the suspect,” but that “the intent of the police . . . may well have a
    bearing on” the inquiry).
    In Innis, the defendant was arrested for a robbery that had been committed hours
    before with a shotgun. 
    See 446 U.S. at 293
    –94. After Innis received his Miranda
    warnings and invoked his right to counsel, officers took him to the station in a police car,
    and on the way, he overheard two officers discussing the need to find the shotgun
    because there was a school for handicapped children located nearby and one of the
    children could find the gun and hurt himself. Innis interrupted their conversation, stating
    that he knew where the gun was located, and then led the officers to it. 
    Id. at 294–95.
    On
    those facts, the Supreme Court rejected the Rhode Island Supreme Court’s conclusion
    that Innis’s statement was the product of “subtle coercion” equivalent to “interrogation,”
    in violation of Miranda. 
    Id. at 296,
    303. The Court noted that the officers had not
    expressly questioned Innis as they had spoken only to each other. 
    Id. at 302.
    And it
    further concluded that the officers’ conversation did not amount to the “functional
    equivalent” of questioning, as the “entire conversation . . . consisted of no more than a
    few off hand remarks”; that the remarks were not “particularly ‘evocative’”; that Innis
    was not “unusually disoriented or upset at the time”; and that the officers had no reason
    to believe Innis “was peculiarly [concerned for] the safety of handicapped children.” 
    Id. at 302–03.
    Thus, while recognizing that the officers’ remarks presumably subjected Innis
    to “subtle compulsion,” the Court held nonetheless that their conversation did not amount
    to prohibited interrogation, as “it [could not] be said . . . that [the officers] should have
    11
    known that their conversation was reasonably likely to elicit an incriminating response.”
    
    Id. In this
    case, as in Innis, it is apparent that Bell was subjected to neither express
    questioning nor its functional equivalent. Agent Oliver focused directly on Stacy as the
    owner of the house, looked her in the eye, and asked her a single question relating to
    officer safety — whether there “w[ere] any weapons in the house that would hurt an
    officer.” The question was not posed to Bell and did not seek a response from him, nor
    was there any evidence that it was intended to. Moreover, nothing in the formulation of
    the question would suggest that it invited a response from anyone other than Stacy. In
    short, the record hardly supports Bell’s claim that the question, in the circumstances, was
    likely to elicit from him a statement implicating himself in the illegal possession of a
    firearm. To be sure, Bell was within earshot, and thus it was within the realm of
    possibility that he would interject to answer the question. But a conclusion that Agent
    Oliver should have known that his question to Stacy was likely to prompt an
    incriminatory response from Bell cannot be reconciled with the record before us,
    including the district court’s factual findings, which Bell does not challenge. Nor could
    such a conclusion be reconciled with the holding of Innis.
    Innis’s articulation of the Miranda rule as applying not only to express questioning
    but also to its “functional equivalent” reflected the Supreme Court’s concern that certain
    conduct by the police could be designed to have the same coercive effect as conventional
    interrogation.   To illustrate, the Court gave as examples several “techniques of
    persuasion,” such as using a “coached witness” to pick the suspect out of a police lineup,
    12
    or accusing him of a “fictitious crime” in order to induce his confession to the actual
    crime under investigation. 
    Innis, 446 U.S. at 299
    . The Innis rule thus encompasses
    “words or actions . . . that the police should know are reasonably likely to elicit an
    incriminating response,” 
    id. at 301
    , but it also recognizes that an officer’s conduct does
    not give rise to “‘[i]nterrogation,’ as conceptualized in the Miranda opinion, [unless it]
    reflect[s] a measure of compulsion above and beyond that inherent in custody itself.” 
    Id. at 300
    (emphasis added). Indeed, in applying this standard, the Court emphasized that
    even though “it may be said” that officers had subjected Innis to “subtle compulsion,”
    that alone was insufficient to qualify the officers’ remarks as interrogation. 
    Id. at 303.
    Here too, the record before us falls well short of establishing that Bell was subject
    to anything beyond the compulsion inherent in custody itself or the “subtle compulsion”
    accepted in Innis. It can hardly be said that overhearing a single question posed to one’s
    spouse creates the necessary level of compulsion without more. To the contrary, the
    district court found as fact that Bell had “volunteered” his answer to the question directed
    to Stacy. At bottom, we cannot conclude that Agent Oliver’s single question to Stacy
    resulted in the degree of coercion for it to constitute the functional equivalent of express
    questioning, as would make Bell’s self-incrimination likely enough that Oliver should
    have foreseen it. See 
    Innis, 446 U.S. at 301
    –02 (noting that “the police surely cannot be
    held accountable for the unforeseeable results of their words or actions”); United States v.
    Johnson, 
    734 F.3d 270
    , 277 (4th Cir. 2013) (“Innis rejects [the] possibility [of self-
    incrimination] in favor of foreseeability”).
    We therefore affirm the district court’s ruling on Bell’s motion to suppress.
    13
    III
    Bell contends next that the district court abused its discretion in admitting
    evidence about his August 24, 2014 arrest in Washington, D.C., particularly the video of
    his police interview and the testimony of the MPD officers who arrested Bell relating
    how Bell was seated next to a Glock handgun and several bags of illegal drugs. Because
    Bell was not charged for this conduct, the district court admitted the evidence under
    Federal Rule of Evidence 404(b) as proof that Bell knowingly possessed the drugs and
    Ruger rifle recovered from the April and August 2014 searches of his Maryland
    residence. Bell argues that, “as compared to the charged conduct [in Maryland], the
    [Washington, D.C.] incident involved a different gun and categorically different
    quantities of drugs found in . . . a different context,” and thus the evidence could only be
    relevant to establish his criminal propensity, a prohibited ground for the admission of
    such evidence under Rule 404(b). He argues further that, even if the evidence had some
    marginal relevance, it should have been excluded under Rule 403 because “that relevance
    was vastly overshadowed by the danger of unfair prejudice [to him].”
    Rule 404(b) provides that “[e]vidence of a crime, wrong, or other act is not
    admissible to prove a person’s character in order to show that on a particular occasion
    the person acted in accordance with the character” (emphasis added), but that such
    evidence may nonetheless be admissible for other purposes, “such as proving motive,
    opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
    accident.” It is thus a rule of inclusion because it “recognizes the admissibility of prior
    14
    crimes, wrongs, or acts, with only the one stated exception.” United States v. Queen, 
    132 F.3d 991
    , 994 (4th Cir. 1997).
    To admit evidence of uncharged crimes under Rules 404(b) and 403, we have held
    that it must satisfy the following criteria:
    (1) The evidence must be relevant to an issue, such as an element of an
    offense, and must not be offered to establish the general character of the
    defendant. . . . (2) The act must be necessary in the sense that it is
    probative of an essential claim or an element of the offense. (3) The
    evidence must be reliable. And (4) the evidence’s probative value must not
    be substantially outweighed by confusion or unfair prejudice in the sense
    that it tends to subordinate reason to emotion in the factfinding process.
    
    Queen, 132 F.3d at 997
    ; see also United States v. Lighty, 
    616 F.3d 321
    , 352 (4th Cir.
    2010). And the unfair prejudice is not shown merely because the evidence is damaging
    to a defendant’s case, since “highly probative [evidence] invariably will be prejudicial to
    the defense.” United States v. Basham, 
    561 F.3d 302
    , 326 (4th Cir. 2009) (internal
    quotation marks and citation omitted).
    In this case, we readily conclude that the district court did not abuse its discretion
    in admitting the Washington, D.C. evidence. The video of Bell’s police interview — in
    which he stated that he had been “sharing” the handgun with a companion as they
    “hustl[ed] together,” and that he was expecting to buy “some coke” and “two Rugers” —
    was plainly necessary and relevant to showing that Bell had, as charged, possessed the
    Ruger rifle in furtherance of drug trafficking four months earlier. And the MPD officers’
    testimony, recounting how Bell was arrested with heroin, marijuana, and crack cocaine,
    packaged in distinctively marked baggies, was similarly probative. Indeed, those same
    narcotics, and the same baggies, were discovered in Bell’s basement the very next week.
    15
    Rather than merely establishing a propensity to commit crimes, the Washington, D.C.
    evidence was persuasive proof that Bell had, as alleged in the indictment, knowingly
    possessed the illegal drugs in his residence with the intent to distribute them and that he
    had knowingly possessed the Ruger rifle in furtherance of his drug-trafficking activity.
    Bell’s character was not at issue and the evidence was not admitted to prove his
    character. But intent and motive were at issue, and evidence of both were admissible
    under Rule 404(b). Finally, Bell makes no claim that the Washington, D.C. evidence was
    unreliable.
    As to Bell’s claimed unfair prejudice under Rule 403, nothing in the record
    suggests that admitting the Washington, D.C. evidence created confusion or tended to
    subordinate reason to emotion in the jury’s factfinding process. Moreover, Bell was
    notified before trial of the government’s intent to use the Washington, D.C. evidence, and
    the district court gave appropriate limiting instructions to the jury, explaining that the
    evidence could only be considered to infer his intent to commit the crimes alleged in his
    indictment. See 
    Queen, 132 F.3d at 997
    –98.
    Nonetheless, Bell argues that our decision in United States v. Hall, 
    858 F.3d 254
    (4th Cir. 2017), compels us to reach a contrary conclusion. In Hall, the defendant was
    convicted of possession with intent to distribute marijuana and related firearm offenses
    after the district court admitted, as evidence of knowledge and intent under Rule 404(b),
    his several prior marijuana convictions. The prior convictions, however, all predated the
    offenses in Hall’s indictment by at least five years, and the government provided only the
    date and statutory citation of each conviction without offering “any [other] information
    16
    regarding the circumstances giving rise to the convictions.” 
    Id. at 262.
    We held that the
    district court had abused its discretion because the defendant’s criminal history was either
    irrelevant to the purpose for which it had been admitted or, for certain purposes, so
    marginally relevant and unduly prejudicial as to violate Rule 403. 
    Id. at 268–76.
    Our
    holding in Hall, however, is far afield, as the evidence admitted there was the bare fact of
    the defendant’s convictions from more than a half-decade before.           In this case, by
    contrast, the evidence at issue is the defendant’s own conduct and statements, which had
    a close factual and temporal nexus to the crimes charged in the indictment. Bell’s
    reliance on Hall is thus unavailing.
    We therefore conclude that the district court did not abuse its discretion in
    admitting the evidence of Bell’s arrest in Washington, D.C.
    IV
    For his final challenge to his conviction, Bell contends that the district court erred
    in denying his motion to compel disclosure of the identity of the confidential informant
    who supplied law enforcement with information used to obtain the search warrants for his
    residence or, in the alternative, to have the district court conduct an in camera
    examination of the informant to determine whether disclosure was warranted. He argues
    that the crux of his defense was that the contraband at his residence actually belonged to
    Steven Wise, a heroin addict who assertedly had been living in Bell’s basement prior to
    his death in August 2014. In light of Wise’s unavailability as a witness, Bell maintains
    that he was entitled to pierce the informer’s privilege so that he would have an
    17
    opportunity to examine the informant at trial, as this “could establish that the informant
    [had] mistakenly identified Mr. Bell [to law enforcement] and that the contraband
    actually was possessed by Mr. Wise.” By denying his motion, Bell argues, the district
    court foreclosed his ability to offer testimony that was “essential to a fair determination
    of [his] case.”
    The district court denied Bell’s motion because Bell had failed to meet his “heavy
    burden to demonstrate the need for identification,” as would allow him to pierce the
    informer’s privilege.
    The “informer’s privilege,” which protects a confidential informant’s identity, “is
    in reality the Government’s privilege to withhold from disclosure the identity of persons
    who furnish information [about crimes]” to law enforcement. Roviaro v. United States,
    
    353 U.S. 53
    , 59 (1957). In Roviaro, the Court declined to adopt a bright-line rule for
    determining when a defendant may pierce the privilege, stating that the issue instead calls
    for case-by-case “balancing [of] the public interest in protecting the flow of information
    [to law enforcement] against the individual’s right to prepare his defense.” 
    Id. at 62.
    Whether disclosure should be ordered therefore depends “on the particular circumstances
    of each case, taking into consideration the crime charged, the possible defenses, the
    possible significance of the informer’s testimony, and other relevant factors.” 
    Id. And in
    applying Roviaro, we have held more particularly that “the government is privileged to
    withhold the identity of [an] informant when [he] was a ‘mere tipster,’ or was used only
    for obtaining a search warrant, but that failing to disclose the informant’s identity more
    likely amounts to error when the informant was an active participant in the events
    18
    leading to the arrest of the accused.” United States v. Gray, 
    47 F.3d 1359
    , 1365 (4th Cir.
    1995) (emphasis added) (citations omitted).
    In this case, we cannot conclude that the district court abused its discretion in
    refusing to disclose the identity of CI-1, the confidential informant who supplied
    information used by law enforcement to obtain the two warrants for the search of Bell’s
    residence. Other than providing information for the search warrants — namely, that the
    informant had recently observed Bell “inside a room of the residence, [with] a firearm
    and a quantity of heroin . . . consistent with distribution amounts” — the informant
    apparently had no role in Bell’s crimes or his prosecution.        The informant did not
    participate in the offenses charged in Bell’s indictment, which arose from Bell’s
    possession of narcotics and a firearm at times when the informant was not present, nor
    was the informant even mentioned to the jury at trial. Moreover, the assertion that the
    informant might have testified that it was Wise, not Bell, who had stockpiled illegal drugs
    at Bell’s residence — in flat contradiction to the representations in the warrant affidavits
    — appears dubious, if not entirely speculative. In short, Bell has identified nothing in
    this case to exempt it from the “well settled principle that the government is permitted to
    withhold the identity of a confidential informant when ‘the informant was used only for
    the limited purpose of obtaining a search warrant.’” 
    Gray, 47 F.3d at 1365
    (quoting
    United States v. Poms, 
    484 F.2d 919
    , 922 (4th Cir. 1973)).
    We also find no fault in the district court’s refusal to convene an in camera
    proceeding to explore this issue further. Under the circumstances, the court was entitled
    19
    to conclude that any marginal benefit to Bell from such a proceeding would not be worth
    the added risk of disclosure of the informant’s identity.
    The cases on which Bell relies to argue that disclosure is nonetheless required are
    materially distinguishable in that the confidential informants in those cases were
    intimately involved in the crimes that were to be proved at trial. See McLawhorn v.
    North Carolina, 
    484 F.2d 1
    , 6 (1973) (officers used informant to set up a controlled
    purchase of narcotics from the defendant); United States v. Price, 
    783 F.2d 1132
    , 1139
    (4th Cir. 1986) (“[T]he informant in this case did much more than tip off the government.
    . . . [He] set up the deal [and] was a necessary party to the telephone negotiations which
    led to the attempted [contraband] sale”). In such a case, the defendant has a colorable
    claim that the informant’s identity is necessary to a fair determination of his guilt or
    innocence. See 
    Roviaro, 353 U.S. at 64
    –65. But, as we have explained, Bell cannot
    make any such claim.
    V
    In challenging his 480-month prison sentence, Bell contends that, in concluding
    that he was subject to mandatory minimum sentences based on prior convictions, the
    district court erred in finding the fact of his prior convictions rather than submitting the
    issue to the jury. This error, he argues, violated his Sixth Amendment rights.
    Bell’s argument, however, is foreclosed by the Supreme Court’s decision in
    Almendarez-Torres v. United States, 
    523 U.S. 224
    (1998), where the Court recognized an
    exception to the Sixth Amendment that permits a sentencing judge to find the fact of a
    20
    defendant’s prior convictions instead of a jury, even when this fact increases the statutory
    maximum or minimum penalty. 
    Id. at 247;
    United States v. McDowell, 
    745 F.3d 115
    ,
    123 (4th Cir. 2014). Bell nonetheless argues that the Almendarez-Torres exception is
    “flatly inconsistent” with the Supreme Court’s subsequent decision in Alleyne v. United
    States, which held “that facts that increase mandatory minimum sentences must be
    submitted to the jury.” 
    570 U.S. 99
    , 116 (2013). The Alleyne Court, however, expressly
    exempted “the fact of a prior conviction” from its holding, leaving intact the “narrow
    exception” to the Sixth Amendment recognized in Almendarez-Torres. 
    Id. at 111
    n.1; see
    also 
    McDowell, 745 F.3d at 124
    (noting that “Almendarez-Torres remains good law
    [even after Alleyne], and we may not disregard it unless and until the Supreme Court
    holds to the contrary”).
    VI
    In challenging his sentence, Bell also contends that the district court erred in
    relying on prior convictions that did not qualify as predicate offenses to conclude that he
    was subject to a mandatory minimum sentence of 40 years’ imprisonment.
    The district court imposed a 40-year mandatory minimum sentence by adding
    together two components:        (1) a 15-year mandatory minimum sentence for his
    § 922(g)(1) conviction because Bell had at least three prior convictions “for a violent
    felony or a serious drug offense” under the Armed Career Criminal Act (“ACCA”), 18
    U.S.C. § 924(e)(1); and (2) a consecutive 25-year mandatory minimum sentence for his
    § 924(c) conviction because Bell had a prior § 924(c) conviction, see § 924(c)(1)(C)(i),
    21
    (D). To satisfy the requirement of three qualifying prior convictions under § 924(e)(1),
    the district court relied on two 1985 Maryland convictions for “robbery with a deadly
    weapon” and a 1991 federal conviction for “possession with intent to distribute —
    cocaine base.”
    Bell’s challenge focuses only on the two 1985 Maryland convictions for “robbery
    with a deadly weapon.” He contends that those two convictions do not qualify as
    predicate convictions under § 924(e) because, as he argues, the offense “does not have as
    an element the use or threatened use of violent force against a person, as required by the
    ACCA [§ 924(e)],” in that “it can be accomplished with force to property, and it can be
    accomplished with non-violent (i.e., de minimis) force against a person.”
    Section 924(e) provides that any “person who violates section 922(g) of this title
    and has three previous convictions . . . for a violent felony or a serious drug offense, or
    both, . . . shall be . . . imprisoned not less than fifteen years.” 18 U.S.C. § 924(e)(1). The
    term “violent felony” is defined, as relevant here, as “any crime punishable by
    imprisonment for a term exceeding one year . . . that . . . has as an element the use,
    attempted use, or threatened use of physical force against the person of another.” 18
    U.S.C. § 924(e)(2)(B)(i). To determine whether a prior conviction satisfies this definition
    of a violent felony — known as the “force clause” — we apply the categorical approach.
    See United States v. Reid, 
    861 F.3d 523
    , 527 (4th Cir. 2017). Under this approach, we do
    not look to the facts underlying the prior conviction but must instead determine whether
    the prior offense by its elements involves “the use, attempted use, or threatened use of
    physical force against the person of another.” And the term “physical force,” in the
    22
    context of describing a violent felony, entails more than the “mere unwanted touching”
    necessary to prove common law battery, Johnson v. United States, 
    559 U.S. 133
    , 142
    (2010); rather, it is understood to mean “violent force — that is, force capable of causing
    physical pain or injury to another person,” 
    id. at 140.
    In determining whether a state offense encompasses the use of such force as an
    element, we look to state law and “the interpretation of [the] offense articulated by that
    state’s courts.” United States v. Winston, 
    850 F.3d 677
    , 684 (4th Cir. 2017) (citations
    omitted). But the determination of whether the elements of a state offense qualify under
    the force clause is a question of federal law. See Taylor v. United States, 
    495 U.S. 575
    ,
    590–92 (1990). As the Supreme Court has stated, “[T]he label a State assigns to a crime
    . . . has no relevance to whether that offense is an ACCA predicate.” Mathis v. United
    States, 
    136 S. Ct. 2243
    , 2251 (2016) (citing 
    Taylor, 495 U.S. at 590
    –92).
    In this case, Bell was twice previously convicted in Maryland state court for
    “robbery with a deadly weapon.” Robbery in Maryland is a common law crime defined
    as “the felonious taking and carrying away of the personal property of another from his
    person by the use of violence or by putting in fear.” Williams v. State, 
    490 A.2d 1277
    ,
    1280 (Md. 1985). At the time of Bell’s convictions, the offense of common law robbery
    was incorporated into two provisions of the Maryland Code. The first, Maryland Code,
    Article 27 § 486 (now repealed), provided:
    Every person convicted of the crime of robbery, or as accessory thereto
    before the fact, shall . . . be sentenced to the penitentiary for not less than
    three nor more than ten years.
    And the second, Maryland Code, Article 27 § 488 (now repealed), provided:
    23
    Every person convicted of the crime of robbery or attempt to rob with a
    dangerous or deadly weapon or accessory thereto, shall . . . be sentenced to
    imprisonment in the Maryland Penitentiary for not more than twenty years.
    As Bell was sentenced to 20 years’ imprisonment (with 8 years suspended) for each of
    his two Maryland robbery convictions, he does not dispute that he was therefore
    convicted under § 488. *
    Bell contends that despite the two distinctly numbered sections for simple and
    armed robbery, providing for two distinct punishments, Maryland nonetheless recognizes
    only one crime of robbery that can be committed with de minimis force or with force
    directed solely against property, either of which would disqualify it as a predicate offense
    under ACCA’s force clause. To make his argument, he relies on statements made by the
    Maryland Court of Appeals that have described the “dangerous or deadly weapon”
    component of § 488 as a sentence enhancement for the “single common law offense” of
    simple robbery, as opposed to an element of the distinct crime of armed robbery. E.g.,
    Whack v. State, 
    416 A.2d 265
    , 266 (Md. 1980) (“In Maryland, robbery is a single
    common law offense. Article 27, §§ 486 and 488, do not create separate statutory
    offenses but merely fix the penalties for the one crime of robbery”); accord Grimes v.
    State, 
    429 A.2d 228
    , 231 (Md. 1981); but see Hagans v. State, 
    559 A.2d 792
    , 799 (Md.
    1989) (noting that “armed robbery and basic robbery . . . [are], for some purposes . . .
    *
    Maryland repealed §§ 486 and 488 in 2002 but generally retained common law
    robbery and the substance of §§ 486 and 488 in a recodification. See Md. Code Crim.
    Law §§ 3-401(e) (providing that robbery “retains its judicially defined meaning,” with
    certain enumerated exceptions), 3-402 (addressing simple robbery), 3-403 (addressing
    armed robbery); see also Spencer v. State, 
    30 A.3d 891
    , 895 (Md. 2011).
    24
    regarded as separate offenses[,] with robbery being the lesser included offense of armed
    robbery”); Sweetwine v. State, 
    421 A.2d 60
    , 61 n.1 (Md. 1980) (same). Thus, Bell asserts
    that we cannot consider whether armed robbery by its elements satisfies the force clause
    because it is subsumed within the “single . . . offense” of simple common law robbery.
    Despite what Whack and similar Maryland cases have said, however, Maryland
    uniformly treats the dangerous or deadly weapon component in § 488 as a distinct
    element of a separate crime, as understood under federal law. The Maryland courts have
    invariably required the “dangerous or deadly weapon” component to be pled in the
    indictment and proven to the jury beyond a reasonable doubt. See 
    Sweetwine, 421 A.2d at 61
    n.1 (“[B]ecause armed robbery requires proof of an additional element, the offenses
    are distinct”); Bynum v. State, 
    357 A.2d 339
    , 340–41 (Md. 1976) (noting separate counts
    in indictment for simple and armed robbery); Battle v. State, 
    499 A.2d 200
    , 203 (Md. Ct.
    Spec. App. 1985) (“[T]he State must prove beyond a reasonable doubt, number one, that
    there was a robbery, and number two, that it was committed with the use of a deadly or
    dangerous weapon” (emphasis added) (quoting trial court’s jury instructions))); see also
    Wadlow v. State, 
    642 A.2d 213
    , 216 (Md. 1994) (“[R]obbery is ordinarily characterized
    as one offense, with the division between armed robbery and simple robbery being for the
    purpose of punishment, . . . but the charge must be specific and the determination of the
    seriousness of the offense is for the trier of fact” (citing Hook v. State, 
    553 A.2d 233
    , 236
    n.10 (Md. 1989)).      And the Maryland pattern jury instructions — in the version
    applicable during the period when Bell was convicted — similarly made clear that the use
    of a deadly weapon in a robbery is a separate element to be proved to the jury. Compare
    25
    Md. Crim. Jury Inst. & Comm., § 4.82 (1975) (simple robbery) with 
    id. § 4.83
    (armed
    robbery) (“In order for the defendant to be found guilty of [armed robbery], the state must
    prove beyond a reasonable doubt: (1) that there was a robbery; and (2) that it was
    committed with the use of a deadly or dangerous weapon” (emphasis added)). Thus,
    while Maryland has described § 488 as providing for a sentencing enhancement when a
    deadly weapon is used in a robbery, it has treated the use of a weapon as a separate
    “element” as that term is understood under federal law. “Elements,” after all, “are the
    ‘constituent parts’ of a crime’s legal definition — the things the ‘prosecution must prove
    to sustain a conviction.’” 
    Mathis, 136 S. Ct. at 2248
    (quoting Black’s Law Dictionary
    634 (10th ed. 2014)). And when § 488 applies, the defendant’s maximum sentence
    increases from 10 to 20 years’ imprisonment. See 
    id. at 2256
    (noting, for purposes of the
    categorical approach, that “[i]f statutory alternatives carry different punishments, then . . .
    they must be elements [as opposed to means]”). Since the determination of whether an
    offense qualifies under ACCA’s force clause is a question of federal law, we conclude
    that § 488 defined a separate crime, with a separate element and a separate punishment,
    distinct from simple robbery, which was addressed in § 486.
    Thus, the offense of armed robbery in Maryland requires the prosecution to prove
    that the defendant committed (1) “[a] felonious taking and carrying away of the personal
    property of another from his person by the use of violence or by putting in fear,”
    (2) while using a “dangerous or deadly weapon.” 
    Williams, 490 A.2d at 1280
    ; Md. Code,
    Art. 27 § 488 (repealed). And for a weapon to qualify as “dangerous or deadly,” “the
    instrument must be (1) designed as ‘anything used or designed to be used in destroying,
    26
    defeating, or injuring an enemy, or as an instrument of . . . combat’; (2) under the
    circumstances of the case, immediately useable to inflict serious or deadly harm . . . ; or
    (3) actually used in a way likely to inflict that sort of harm.” Brooks v. State, 
    552 A.2d 872
    , 880 (Md. 1989) (quoting Bennett v. State, 
    205 A.2d 393
    , 394 (Md. 1964)). With
    these elements defined by state law, we readily conclude that, as a matter of federal law,
    the crime of Maryland armed robbery “has as an element the use, attempted use, or
    threatened use of physical force against the person of another,” in the sense that the force
    is “capable of causing physical pain or injury,” 
    Johnson, 559 U.S. at 140
    , and that
    therefore it is a violent felony under 18 U.S.C. § 924(e).
    Bell argues nonetheless that Maryland armed robbery could be committed with
    only de minimis force, proffering a hypothetical defendant who “uses an axe to break into
    a store and then snatches merchandise from the shop owner’s hand” or who “use[s] a
    knife to cut the victim’s purse strap [before] yank[ing] it off her shoulder.” It is doubtful,
    to say the least, that those hypotheticals would actually support a conviction under § 488.
    But more importantly, Bell does not identify any actual defendant from a Maryland case
    who has been prosecuted in such circumstances. Yet, in determining the “minimum
    conduct” that satisfies a state offense, as the categorical approach requires, we must
    ensure “there is a ‘realistic probability, not [just] a theoretical possibility,’ that a State
    would actually punish that conduct.” United States v. Gardner, 
    823 F.3d 793
    , 803 (4th
    Cir. 2016) (quoting Moncrieffe v. Holder, 
    133 S. Ct. 1678
    , 1684–85 (2013)).
    Bell also argues that the force required to commit Maryland armed robbery can be
    directed solely against property, giving the example of a defendant who uses a firearm
    27
    “to threaten the victim’s dog or car,” thereby effecting a robbery of the victim without
    threatening force against his person. In making this argument, Bell relies on Giles v.
    State, 
    261 A.2d 806
    , 807 (Md. Ct. Spec. App. 1970) (stating that the “fear” required to
    commit common law robbery “may be of injury to the person or to property, as for
    example, a threat to burn down a house” (emphasis added)), and Douglas v. State, 
    267 A.2d 291
    , 295 (Md. Ct. Spec. App. 1970) (same). In Giles, however, the court held that
    there was sufficient evidence to support a finding that the defendant had committed
    robbery through “actual violence” directed at the victim’s person, given that the victim
    had been “grabbed and pushed” during a 
    “tussl[e].” 261 A.2d at 808
    . And in Douglas,
    the court affirmed the defendant’s robbery conviction for holding up an office clerk,
    holding that there was no error in a jury instruction stating that robbery by constructive
    force requires a “threat of violence,” rather than “fear of great bodily harm,” as the
    defendant had 
    argued. 267 A.2d at 294
    –95. Thus, the actual holdings in those cases —
    both of which addressed simple, not armed robbery — hardly provide Bell with support.
    Moreover, the dicta on which Bell relies have apparently never been repeated by any
    Maryland court in the nearly five decades since Douglas and Giles were decided.
    More importantly, Bell’s hypothetical overlooks the elements of armed robbery as
    defined by the Maryland Court of Appeals. To convict a defendant for armed robbery,
    the State must prove that he committed (1) “[a] felonious taking and carrying away of the
    personal property of another from his person by the use of violence or by putting in fear,”
    (2) while using a “dangerous or deadly weapon.” 
    Williams, 490 A.2d at 1280
    (emphasis
    added); Md. Code, Art. 27 § 488 (repealed); see also West v. State, 
    539 A.2d 231
    , 234
    28
    (Md. 1988) (explaining that robbery requires “actual” or “constructive” violence; that
    actual violence “implies personal violence”; and that constructive violence is that which
    “intimidat[es] or plac[es] the victim in fear” (emphasis added) (citation omitted));
    
    Spencer, 30 A.3d at 898
    (“[W]hen considering whether there has been a threat of force or
    intimidation,” a court must “consider whether an ordinary, reasonable person under the
    circumstances would have been in fear of bodily harm” (emphasis added)); Snowden v.
    State, 
    583 A.2d 1056
    , 1059 (Md. 1991) (“Robbery is a . . . larceny from the person
    accomplished by either an assault (putting in fear) or a battery (violence)”). Accordingly,
    Bell’s force-to-property hypothetical again does not serve as a persuasive analysis of the
    elements of Maryland armed robbery. See 
    Moncrieffe, 569 U.S. at 191
    (reaffirming that
    the categorical approach’s “focus on the minimum conduct criminalized by the State
    statute is not an invitation to apply ‘legal imagination’ to the State offense” and that there
    instead “must be ‘a realistic probability, not a theoretical possibility, that the State would
    apply its statute to conduct that falls outside the generic definition of a crime’” (citation
    omitted)); Gonzales v. Duenas-Alvarez, 
    549 U.S. 183
    , 193 (2007) (explaining that to
    show the requisite “realistic probability,” an offender “must at least point to his own case
    or other cases in which state courts in fact did apply the statute in the special (nongeneric)
    manner for which he argues”).
    At bottom, we hold that Bell’s two Maryland convictions for robbery with a
    dangerous or deadly weapon were “violent felon[ies]” as used in § 924(e), and in doing
    so we join the other Courts of Appeals that have considered this issue and reached the
    same conclusion. See United States v. Redrick, 
    841 F.3d 478
    , 485 (D.C. Cir. 2016);
    29
    United States v. Warren, 723 F. App’x 155, 165 (3d Cir. 2018) (unpublished); see also
    United States v. Segovia, 
    770 F.3d 351
    , 355 (5th Cir. 2014) (holding that Maryland
    armed robbery qualifies under an identical force clause in U.S.S.G. § 2L1.2).
    While we acknowledge that Bell also challenges the district court’s finding under
    U.S.S.G. § 4B1.1 that he qualified as a career offender by relying on his 1991 District of
    Columbia conviction for assault with a deadly weapon, in view of our conclusion that
    Bell’s 480-month sentence was a statutory mandatory minimum sentence, any error in the
    career offender classification would not provide Bell with any relief. We therefore do not
    reach the issue.
    *      *      *
    For the foregoing reasons, we affirm the judgment of the district court.
    AFFIRMED
    30
    WYNN, Circuit Judge, dissenting:
    After a jury convicted Defendant Quintin Antonio Bell (“Defendant”) of several
    drug and firearms offenses, the U.S. District Court for the District of Maryland sentenced
    Defendant to what the court determined was the mandatory minimum of 480 months’
    imprisonment. On appeal, Defendant lodges numerous challenges to his convictions and
    sentence, asserting, among other claims, that the district court (1) reversibly erred in
    admitting inculpatory statements made by Defendant obtained in violation of his rights
    under Miranda v. Arizona, 
    384 U.S. 436
    (1966), and (2) incorrectly imposed a mandatory
    minimum sentence under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. §
    924(e)(1), based on Defendant’s two prior Maryland armed robbery convictions. I agree
    with both assertions.
    My good colleagues in the majority conclude that the district court properly
    rejected Defendant’s Miranda argument because Defendant did not make his inculpatory
    statements in response to “interrogation” by a law enforcement officer. Ante at 9–12. In
    particular, like the district court, my colleagues conclude that because the law
    enforcement officer testified that he intended to direct the question to which Defendant
    responded to Defendant’s wife—who was seated “in close proximity” to Defendant when
    the officer asked the question—Defendant was not subject to “express questioning,”
    therefore rendering Miranda inapplicable.       But, under Miranda, our assessment of
    whether Defendant was subject to “interrogation” must be analyzed from the perspective
    of Defendant, not the officer who questioned Defendant. Therefore, as explained below,
    31
    the district court erred by treating as dispositive the officer’s testimony that he intended
    to, and did in fact, direct the question to Defendant’s wife.
    Additionally, regarding Defendant’s sentence, my colleagues in the majority
    conclude that Defendant’s prior Maryland armed robbery convictions had “as an element
    the use, attempted use, or threatened use of physical force against the person of another,”
    as Section 924(e)(1) requires, notwithstanding that Maryland appellate decisions, which
    remain good law, provide that armed robbery can be committed solely by use or
    threatened use of force against property. See, e.g., Giles v. State, 
    261 A.2d 806
    , 807
    (Md. Ct. Spec. App. 1970). The majority opinion disregards those state court decisions
    on grounds that the discussion of threats against property amounted to “dicta” and that,
    under Maryland law, armed robbery typically involves violence against persons. Ante at
    27–29. But this Court and other courts routinely rely on dicta from state court opinions
    in determining whether a state offense constitutes a predicate offense for purposes of the
    ACCA. And this Court has held that when a state offense allowed for conviction solely
    based on harm to property, the offense did not constitute a crime of violence, even though
    state law established that the offense was “primar[il]y” intended to protect persons. See
    United States v. Parral-Dominguez, 
    794 F.3d 440
    , 445–46 (4th Cir. 2015). Therefore, as
    explained below, the district court erred regarding Defendant’s sentence.
    32
    Regarding the resolution of these issues by the majority opinion, I respectfully
    dissent. 1
    1
    I concur in the majority opinion’s judgment that the district court did not abuse
    its discretion in admitting certain evidence under Federal Rule of Evidence 404(b). Ante
    at 14-17. That rule provides that “[e]vidence of a crime, wrong, or other act is not
    admissible to prove a person’s character in order to show that on a particular occasion the
    person acted in accordance with the character,” but that such evidence may nonetheless
    be admissible for other purposes, “such as proving motive, opportunity, intent,
    preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed. R.
    Evid. 404(b).
    Here, the district court did not abuse its discretion in concluding that the testimony
    regarding Defendant’s August 25, 2014, arrest, search, and interrogation in Washington,
    D.C., because there was an adequate factual basis to conclude that the conduct at issue in
    that arrest was “part of single criminal episode,” United States v. Chin, 
    83 F.3d 83
    , 87–88
    (4th Cir. 1996), and was “necessary to complete the story of the crime at trial,” United
    States v. Siegel, 
    536 F.3d 306
    , 316 (4th Cir. 2008) (internal quotation marks omitted).
    Most notably, as the majority opinion correctly emphasizes, that the officers found plastic
    baggies, some of which contained drugs, with the same green dollar sign and blue devil
    markings in both searches, indicating that both arrests were part of the same series of
    transactions. Moreover, the two searches of Defendant’s home were in close temporal
    proximity to his arrest.
    In rendering its judgment, the majority opinion characterizes Rule 404(b) as “a
    rule of inclusion.” Ante at 14. To be sure, this Court has characterized Rule 404(b) as “a
    rule of inclusion.” United States v. Hall, 
    858 F.3d 254
    , 276–77 (4th Cir. 2017). We have
    done so to make clear that Rule 404(b)’s “list of proper purposes is not exhaustive.” 
    Id. at 266,
    277 (citing United States v. Queen, 
    132 F.3d 991
    , 994–95 (4th Cir. 1997). “That
    characterization does not displace the longstanding rule”—which predates the Queen
    decision referenced by the majority opinion—“that prior ‘bad act’ evidence is ‘generally
    inadmissible.’” 
    Hall, 858 F.3d at 277
    (emphasis added) (quoting United States v.
    McBride, 
    676 F.3d 385
    , 395 (4th Cir. 2012)). Accordingly, the majority opinion should
    not—and cannot—be read as holding that other bad acts evidence is presumptively
    admissible. See McMellon v. United States, 
    387 F.3d 329
    , 333 (4th Cir. 2004) (en banc)
    (“When published panel opinions are in direct conflict on a given issue, the earliest
    opinion controls, unless the prior opinion has been overruled by an intervening opinion
    from the court sitting en banc or the Supreme Court.”).
    (Continued)
    33
    I.
    First, the district court erred in refusing to suppress statements Defendant made
    while in custody, in violation of his Fifth Amendment rights as protected by the
    prophylactic rule in Miranda v. Arizona, 
    384 U.S. 436
    , 444 (1966). Miranda requires
    “law enforcement to inform individuals who are [1] in custody of their Fifth Amendment
    rights prior to [2] interrogation.” United States v. Hashime, 
    734 F.3d 278
    , 282 (4th Cir.
    2013). “We review the factual findings underlying a motion to suppress for clear error
    and the district court’s legal determinations de novo. When a suppression motion has
    been denied, this Court reviews the evidence in the light most favorable to the
    government.” 
    Id. (quotation omitted).
    A.
    In ruling on Defendant’s suppression motion, the district court principally relied
    on the testimony of Bureau of Alcohol, Tobacco, & Firearms Special Agent Frank Oliver,
    I further concur in the majority opinion’s judgment that the district court did not
    abuse its discretion by refusing to compel the government to disclose the identity of a
    confidential informant. Ante at 17–20. In rendering its judgment, the majority opinion
    states that “[t]he district court denied [Defendant’s] motion because [Defendant] failed to
    meet his ‘heavy burden to demonstrate the need for identification,’ as would allow him to
    pierce the informer’s privilege.” Ante at 18. The majority opinion’s reference to a
    “heavy burden” simply quotes the district court’s opinion, it does not state—much less
    establish—the standard applied by the Supreme Court or this Court in reviewing motions
    to compel identification of a confidential informant. 
    Id. As the
    majority opinion
    correctly states, that standard is governed by the balancing test set forth in Roviaro v.
    United States, 
    353 U.S. 53
    , 59 (1957), and applied by this Court in United States v. Gray,
    
    47 F.3d 1359
    , 1364–65 (4th Cir. 1995). Neither Roviaro nor Gray characterize a
    Defendant’s burden in propounding such a motion as “heavy.”
    34
    which the court found credible. On April 20, 2014—after a Prince George’s County
    Emergency Services Team had “clear[ed] [Defendant’s] home, ma[d]e sure it [wa]s
    safe,” and accounted for all individuals—Special Agent Oliver entered Defendant’s home
    to execute a “no knock” search warrant for, among other things, firearms and drugs. J.A.
    265, 272. Special Agent Oliver sought and obtained a “no knock” search warrant so as to
    surprise Defendant and thereby render him in “a state of confusion that w[ould] eliminate
    the possible use of a firearm.” J.A. 61. Special Agent Oliver entered directly into the
    home’s living room, where he found Defendant’s wife seated handcuffed in a chair.
    Emergency Services Team members then brought Defendant, who also was handcuffed,
    into the living room as well. Defendant was placed in another chair in the living room,
    which Special Agent Oliver testified was “in close proximity” to the chair in which
    Defendant’s wife was seated. J.A. 278, 282.
    Without advising Defendant of his Fifth Amendment rights, Special Agent Oliver
    then informed Defendant’s wife of the search warrant and “asked her if there [were] any
    weapons or anything that would hurt an officer.” J.A. 266. According to Special Agent
    Oliver’s testimony, when he asked that question, he “directed” the question to
    Defendant’s wife, “looking at her in the eye.” J.A. 282. Special Agent Oliver did not
    preface either the statement or the question by stating Defendant’s wife’s name or
    instruct only her to answer. J.A. 282–83. Immediately after Special Agent Oliver asked
    the question, Defendant “spoke up and said there as a gun under the couch.” J.A. 391;
    see also J.A. 267. Defendant further stated that a “friend had given him the gun because
    somebody had tried to break into the house and rob him.” J.A. 268.
    35
    Defendant moved to suppress his statements regarding the gun—a Mini-14 Ruger
    .223 caliber rifle that served as the basis of Defendant’s firearms convictions—under
    Miranda. The parties agreed—and the district court concluded—that Defendant was “in
    custody” for purposes of Miranda when he made the statements. The parties disagreed,
    however, as to whether Defendant was subject to “interrogation” for purposes of Miranda
    when he made the statements regarding the gun. Ruling from the bench, the district court
    held that Defendant “was not being interrogated” when he made the statements. J.A. 392.
    The district court’s entire explanation for that legal conclusion is as follows:
    Regarding the April 10, 2014 statement in the house, defendant’s primary
    argument is that the question regarding firearms in the house was actually
    directed at him and not his wife. I do credit, as a factual matter and as a
    legal matter, Agent Oliver’s testimony that he did direct the question at Ms.
    Bell and that the defendant then volunteered an answer.
    
    Id. B. In
    Rhode Island v. Innis, the Supreme Court held that a person is subject to
    “interrogation” for purposes of Miranda “whenever a person in custody is subject to
    either express questioning or its functional equivalent.”       
    446 U.S. 291
    , 301 (1980)
    (emphasis added); see also 
    id. (“[T]he term
    ‘interrogation’ under Miranda refers not only
    to express questioning, but also to any words or actions on the part of the police . . . that
    the police should know are reasonably likely to elicit an incriminating response from the
    suspect.” (emphasis added)).      Innis made clear that “express questioning” and the
    “functional equivalent” of express questioning constitute distinct “prong[s]” of the
    interrogation inquiry. 
    Id. at 302;
    see also Smiley v. Thurmer, 
    542 F.3d 574
    , 582 (7th Cir.
    36
    2008) (“It is clear from the language, facts and context of Innis, that the Supreme Court
    defined interrogation as (1) express questioning; or (2) its functional equivalent.”);
    United States v. Brown, 
    720 F.2d 1059
    , 1067 (9th Cir. 1983) (“[U]nder Innis,
    interrogation within Miranda’s requirements applies (1) to express questioning or (2) to
    the ‘functional equivalent’ thereof.”).
    Although Innis did not expand upon what constitutes “express questioning”—
    perhaps because that “prong” of the interrogation inquiry was not at issue in the 
    case, 446 U.S. at 302
    —the Supreme Court did go into greater depth regarding the “functional
    equivalent” prong. That prong encompasses “any words or actions on the part of the
    police (other than those normally attendant to arrest and custody) that the police should
    know are reasonably likely to elicit an incriminating response from the suspect.” 
    Id. at 301
    . Importantly, that inquiry “focuses primarily upon the perceptions of the suspect,
    rather than the intent of the police.” 
    Id. (emphasis added).
    Following Innis, lower courts—including this Court—have concluded that Innis
    likewise requires that courts assess whether a defendant was subject to “express
    questioning” from the perspective of the suspect, and not based on the subjective intent of
    the law enforcement officer engaged in the questioning. For instance, relying on Innis’s
    discussion of the “functional equivalent” prong, the District of Columbia Circuit held that
    the determination of whether an individual was subjected to express questioning “is an
    objective inquiry; the subjective intent of the officer is relevant but not dispositive.”
    United States v. Bogle, 
    114 F.3d 1271
    , 1275 (D.C. Cir. 1997) (emphasis added); see also
    United States v. Johnson, 
    734 F.3d 270
    , 276 (4th Cir. 2013) (examining whether “express
    37
    questioning” amounted to Miranda interrogation from the “suspect’s point of view”);
    United States v. Cowan, 
    674 F.3d 947
    , 958 (8th Cir. 2012) (“A question is an
    interrogation if it is reasonably likely to elicit incriminating information.” (internal
    quotation marks omitted)); United States v. Allen, 
    13 F.3d 105
    , 109 (4th Cir. 1993)
    (relying on Innis’s objective test to determine whether “express questioning” constituted
    interrogation for purposes of Miranda). Put differently, “the test for determining whether
    a suspect was subjected to interrogation is whether a reasonable objective observer would
    believe an officer’s express questioning [was] reasonably likely to elicit an incriminating
    response.”   United States v. Johnson, 
    680 F.3d 966
    , 976 (7th Cir. 2012) (internal
    quotation marks and alterations omitted), overruled on other grounds by Fowler v. Butts,
    
    829 F.3d 788
    (7th Cir. 2016). “The focus is on the suspect’s perceptions rather than the
    intent of the police.” 
    Id. (emphasis added).
    The extension of Innis’s objective, suspect-focused inquiry to the express
    questioning prong makes sense. Innis explained, for example, that the interrogation
    inquiry focuses on the “perceptions of the suspect, rather than the intent of the police”
    because “the Miranda safeguards were designed to vest a suspect in custody with an
    added measure of protection against coercive police practices, without regard to objective
    proof of the underlying intent of the 
    police.” 446 U.S. at 301
    . That rationale is no less
    applicable to an express question than it is to the functional equivalent thereof.
    That is particularly true in circuits, like this circuit, which recognize the possibility
    that a suspect can face “express questioning” without being subject to “interrogation” for
    purposes of Miranda, if the questions “are not reasonably likely to elicit incriminating
    38
    responses.” 
    Johnson, 734 F.3d at 276
    . But see 
    Smiley, 542 F.3d at 583
    (holding that
    because the defendant was subject to “express questioning,” the lower court should not
    have considered whether question was reasonably likely to elicit an incriminating
    response).   If, as this Court holds, a defendant can be exempted from Miranda’s
    protections on grounds that the express questions he faced were “not reasonably likely to
    elicit incriminating responses,” 
    Johnson, 734 F.3d at 276
    —Innis’s test for whether police
    action amounts to the functional equivalent of express questioning—then Innis requires
    that the express questioning assessment be made from the suspect’s perspective.
    Because whether a suspect was subject to express questioning must be examined
    from the perspective of the suspect, the district court committed legal error in denying
    Defendant’s motion to suppress his un-Mirandized inculpatory statements.
    The district court rested its decision entirely on “Agent Oliver’s testimony that he
    did direct the question at Ms. Bell,” not at Defendant. J.A. 392. But nowhere in the
    district court’s oral ruling, or its earlier oral factual findings, did the district court
    consider the relevant question: whether a reasonable suspect in Defendant’s position
    would have believed that Special Agent Oliver’s question was directed at Defendant.
    Notably, the district court failed to address that dispositive question, even though
    Defendant’s counsel repeatedly argued that the court should do so. See, e.g., J.A. 337–38
    (arguing that “[i]t really doesn’t even matter as to what Agent Oliver’s subjective intent
    was” because Defendant “took the question [as] being addressed to him reasonably and
    answered in response.”).
    39
    That legal error is significant because the factual record includes evidence that
    could allow a factfinder to conclude that a reasonable suspect in Defendant’s position
    would have believed that the question was directed at him.             In particular, as my
    colleagues in the majority acknowledge, at the time of the questioning Defendant “was
    seated in ‘another chair off to the right, behind [his wife’s] chair,’ and the two chairs
    were ‘in close proximity’ to each other.” Ante at 9. Even though Special Agent Oliver
    intended to—and, according to his unrebutted testimony, did in fact—direct the question
    to Defendant’s wife, a person seated directly “behind” and “in close proximity” to
    Defendant’s wife, as Defendant was, may have reasonably believed that Special Agent
    Oliver was directing the question to him or to both he and his wife.
    For the same reason, a factfinder could conclude that an officer in Special Agent
    Oliver’s position “should have known” that directing a question at Defendant’s wife,
    when Defendant was seated directly “behind” and “in close proximity” to her, was
    “reasonably likely to elicit an incriminating response” from Defendant. 
    Innis, 446 U.S. at 302
    . That is particularly true given that Special Agent Oliver (1) testified that he did not
    preface either his initial statement about the search warrant or the question regarding
    weapons by stating Defendant’s wife’s name, nor did he instruct only her to answer, and
    (2) obtained a “no knock” warrant so as to place Defendant in a “state of confusion” at
    the time of the questioning. J.A. 61. Put differently, Special Agent Oliver’s testimony in
    no way precludes a finding that a reasonable person in Defendant’s position would have
    believed that the question was directed at him—the dispositive issue never addressed by
    the district court.
    40
    That Special Agent Oliver’s question—whether “there [were] any weapons in the
    house” 2—was “directly relevant to the substantive offense charged” provides further
    evidence that the question was “reasonably likely to elicit incriminating information,”
    2
    At several points the majority opinion emphasizes that the question was “relating
    to officer safety.” Ante at 9, 12. Whether Special Agent Oliver’s intent in asking the
    question was to protect the safety of the officers searching the residence does not resolve
    whether the question amounted to interrogation for purposes of Miranda—an inquiry that
    “focuses primarily upon the perceptions of the suspect, rather than the intent of the
    police.” 
    Innis, 446 U.S. at 301
    (emphasis added).
    To be sure, Miranda’s “public safety exception” permits law enforcement officers
    to ask questions, without giving Miranda’s prophylactic warnings, if doing so is
    necessary to protect the officers or the public from immediate danger. See United States
    v. Mobley, 
    40 F.3d 688
    , 692 (4th Cir. 1994). This Court has held that the public safety
    exception “must be construed narrowly” and “applies only where there is ‘an objectively
    reasonable need to protect the police or the public from an immediate danger associated
    with [a] weapon.’” 
    Id. at 693
    (emphasis added) (quoting New York v. Quarles, 
    467 U.S. 649
    , 659 n.8 (1984)).
    Tellingly, the majority opinion does not uphold the district court’s separate
    conclusion that Defendant’s statements were admissible under the public safety
    exception. J.A. 393. For good reason; this case is on all fours with Mobley, in which this
    Court declined to apply the public safety exception. There, law enforcement officers
    executed a search warrant at the defendant’s apartment. 
    Mobley, 40 F.3d at 690
    . After
    the officers had completed a “security sweep” of the apartment and placed the defendant
    under arrest, the officers asked the defendant “if there was anything in the apartment and
    specifically any weapons that were in the apartment that could be of danger to the agents”
    who were conducting the search. 
    Id. at 690–91.
    This Court concluded that, under these
    facts, the government failed to demonstrate “an ‘immediate need’ that would validate”
    application of the public safety exception. 
    Id. at 693
    .
    Like in Mobley, when Special Agent Oliver asked the question regarding weapons,
    the Emergency Services Team had finished performing their protective sweep and
    Defendant and his wife were handcuffed and under the control of the officers.
    Accordingly, without endangering themselves or others, the law enforcement officers
    could have advised Defendant of his Miranda rights before asking if there were any
    dangerous objects in the homes. Therefore, there was no “immediate need” warranting
    application of the public safety exception.
    41
    and therefore constituted interrogation for purposes of Miranda. 
    Cowan, 674 F.3d at 958
    (internal quotation marks omitted); see also, e.g., United States v. Williams, 227 Fed.
    App’x 307, 311 (4th Cir. 2007) (holding that question amounted to “interrogation” for
    purposes of Miranda when law enforcement officer “should have known that any
    response to his questions would likely implicate [the defendant] in the” offense under
    investigation).
    Here, Special Agent Oliver was investigating Defendant for drug and firearms
    offenses and expressly sought and obtained a warrant to seize any firearms found in his
    search of the residence. Accordingly, contrary to the majority opinion’s conclusion,
    Special Agent Oliver’s question was “directly relevant to the substantive offense
    charged,”     
    Cowan, 674 F.3d at 958
    , and therefore reasonably “likely to elicit from
    [Defendant] a statement implicating himself in the illegal possession of a firearm,” ante
    at 12.
    Significantly, even if it were appropriate for this Court to independently review
    the record to determine whether a reasonable person in Defendant’s position would have
    believed the question was directed at him, we cannot do so because the record on appeal
    omits a crucial piece of evidence bearing on that question. During cross-examination,
    defense counsel presented Special Agent Oliver with a diagram of the room in which the
    questioning occurred. At defense counsel’s request, Special Agent Oliver made “X”
    marks on the diagram to indicate in which chairs Defendant and his wife were seated and
    where those chairs were located in the room.       That marked diagram is not part of the
    record on appeal, nor was it preserved by the district court.
    42
    Additionally, during oral argument on the suppression motion—which occurred
    more than a week after Special Agent Oliver’s testimony—the district court expressed
    confusion regarding where, exactly, Defendant and his wife were seated relative to each
    other. J.A. 359 (“I looked back in my notes and, even then, I wasn’t hundred percent sure
    [i]n terms of who is seated where at the time the question is being asked.”). The record
    includes no indication that the district court ever resolved that uncertainty, which bears
    directly on whether Defendant reasonably believed, based on his proximity relative to his
    wife, that the question was directed at him. In such circumstances, this Court should, at a
    minimum, remand the case to the district court to determine whether, under the proper
    legal standard, Defendant’s inculpatory statements should have been suppressed. 3
    II.
    3
    After concluding that Special Agent Oliver did not expressly question Defendant,
    the majority opinion further concludes that Defendant was not subjected to the
    “functional equivalent” of express questioning. Ante at 12–13. In particular, the majority
    opinion states “[i]t can hardly be said that overhearing a single question posed to one’s
    spouse creates the necessary level of compulsion without more” to amount to the
    functional equivalent of express questioning. 
    Id. at 13.
    The majority opinion offers no
    legal authority in support of this assertion, nor does the majority opinion examine the
    coerciveness of the questioning from Defendant’s perspective, as Innis 
    requires. 446 U.S. at 301
    . And one can easily imagine situations in which law enforcement officers
    directing questions at a suspect’s spouse or other family member would be “reasonably
    likely to elicit an incriminating response from the suspect.” 
    Innis, 446 U.S. at 301
    .
    Additionally, the majority opinion errantly treats the district court’s assertion that
    Defendant “‘volunteered’ his answer” as relevant to the Miranda inquiry,
    notwithstanding that the Supreme Court has held that “Miranda’s procedural safeguards
    exist precisely because the voluntariness test is an inadequate barrier when custodial
    interrogation is at stake.” J.D.B. v. North Carolina, 
    564 U.S. 261
    , 281 (2011).
    43
    I also disagree with my colleagues’ conclusion that Defendant’s two 1985
    Maryland convictions for “robbery with a deadly weapon” qualified as predicate
    convictions supporting enhancement of Defendant’s sentence Section 924(e) of the
    ACCA. “[W]e review de novo the question whether his prior state convictions qualified
    as predicate felony convictions for purposes of a federal sentence enhancement.” United
    States v. Gardner, 
    823 F.3d 793
    , 801 (4th Cir. 2016) (internal quotation marks and
    alterations omitted).
    The ACCA subjects a defendant to substantial mandatory minimum sentences if
    the defendant has three prior convictions for “violent felon[ies].” 18 U.S.C. § 924(e)(1)
    The ACCA’s “force clause” provides, in pertinent part, that a crime is a “violent felony”
    if it “has as an element the use, attempted use, or threatened use of physical force against
    the person of another.” § 924(e)(2)(B)(i). Only “violent force—that is, force capable of
    causing physical pain or injury to another person”—satisfies the “physical force
    requirement.” Johnson v. United States, 
    559 U.S. 133
    , 140 (2010). In determining
    whether a prior offense constitutes a violent felony for purposes of the force clause, we
    apply the “categorical approach,” under which we “must determine whether the state
    crime of conviction by its elements”—i.e. not under the particular facts underlying a
    defendant’s prior conviction—necessarily “involves the ‘the use, attempted use, or
    threatened use of physical force against the person of another.’” United States v. Reid,
    
    861 F.3d 523
    , 527 (4th Cir. 2017). We look to state law to make that determination.
    
    Gardner, 823 F.3d at 803
    . In engaging in that analysis, we first look to decisions of the
    State’s highest court, with decisions of a State’s intermediate appellate court
    44
    “constitut[ing] the next best indicia of what state law is.” 
    Id. (quoting Castillo
    v. Holder,
    
    776 F.3d 262
    , 268 & n.3 (4th Cir. 2015)).
    Defendant argues that his two 1985 Maryland convictions for armed robbery do
    not constitute “violent felonies” because, under Maryland law, a defendant can commit
    armed robbery through use or threatened use of violent force solely against property, and
    therefore that the offense does not categorically require use of force “against the person
    of another,” as Section 924(e)(2)(B)(i) requires. In an analogous context, this Court held
    that when an offense can be committed through use or threatened use of violence against
    property alone, then the offense does not fall within language identical to that of the force
    clause. 
    Parral-Dominguez, 794 F.3d at 445
    .
    Under Maryland common law, to convict a defendant of armed robbery, the State
    must prove that the defendant (1) committed simple “robbery” while (2) using a
    “dangerous or deadly weapon.” Williams v. State, 
    490 A.2d 1277
    , 1280 (Md. 1985).
    Simple robbery is “the felonious taking and carrying away of the personal property of
    another from his person by the use of violence or by putting in fear.”       
    Id. (emphasis added).
    In two opinions, an intermediate Maryland appellate court held that the “fear”
    element of simple robbery may be satisfied by “fear . . . of injury to the person or to
    property, as for example, a threat to burn down a house.” 
    Giles, 261 A.2d at 807
    –08
    (emphasis added); Douglas v. State, 
    267 A.2d 291
    , 295 (Md. App. 1970) (“That the fear
    be of great bodily harm is not a requisite. Nor need the fear be of bodily injury at all.”
    (emphasis added)). Neither of those holdings has been overturned. In a separate case,
    the Government conceded that, under Giles and Douglas, simple robbery—a constituent
    45
    element of armed robbery—did not constitute a crime of violence because it
    encompassed “threats against property,” not simply “against the person of another,” as
    the force clause requires. United States v. Baten, No. 04-CR-0256, Docket No. 23 (D.
    Md. Nov. 16, 2015).
    Notwithstanding its prior concession as to simple robbery, the Government now
    argues—and the majority opinion agrees, ante at 28—that Giles’s and Douglas’s
    statements that robbery can be accomplished by threats to property are not dispositive
    because neither case involved a threat to property, rendering the statements dicta. But
    neither the Government nor the majority opinion identifies any controlling authority
    holding that we should disregard dicta in ascertaining whether a state law constitutes a
    crime of violence.
    To the contrary, this Court and other Circuits previously have relied on dicta in
    state court opinions in determining whether a state offense crime was a “violent felony”
    for purposes of the ACCA. For example, in United States v. Aparicio-Soria, 
    740 F.3d 152
    (4th Cir. 2014) (en banc), this Court expressly relied on dicta in determining whether
    a state offense categorically constituted a “crime of violence” for purposes of the
    sentencing guidelines, 
    id. at 157-58
    & n.4; see also 
    id. at 164
    (Wilkinson, J., dissenting)
    (noting that language in state opinion relied on by majority was dicta). Other circuits
    have taken the same approach. See, e.g., United States v. Vail-Bailon, 
    868 F.3d 1293
    ,
    1304 (11th Cir. 2017) (relying on dicta in state court opinion in determining whether state
    offense was “crime of violence”); 
    id. at 1322
    (Rosenbaum, J. dissenting) (noting that
    state decision relied on by majority was dicta); United States v. Smith, 582 F. App’x 590,
    46
    596 & n.5 (6th Cir. 2014) (relying on dicta in state court opinion in determining whether
    North Carolina common law robbery was a crime of violence because courts should
    “defer to the North Carolina Supreme Court on the interpretation of North Carolina
    law”), vacated on other grounds 
    135 S. Ct. 2930
    (2015).
    Accordingly, that the language in Giles and Douglas was dicta in no way bars this
    Court from considering it in determining whether Maryland armed robbery constitutes a
    violent felony under the ACCA’s force clause. Indeed, because Giles and Douglas
    remain good law, lower Maryland courts are bound to convict a defendant of robbery if
    the defendant solely threatens the victim’s property, not his person.           In such
    circumstances, it makes no sense to disregard Giles’s and Douglas’s description of the
    fear element as dicta.
    Notwithstanding the express language in Giles and Douglas, my colleagues in the
    majority rely upon the supposed silence of two Maryland appellate decisions post-dating
    Defendant’s convictions that describe the “fear” element of robbery without reference to
    threats to property. Ante at 28-29 (citing Spencer v. State, 
    30 A.3d 891
    , 898 (Md. 2011)
    and Snowden v. State, 
    583 A.2d 1056
    , 1059 (Md. 1991)). But Spencer and Snowden
    involved defendants who threatened or inflicted bodily harm, meaning that neither court
    needed to consider the standard for putting a victim in fear through harming or
    threatening to harm property. 
    Spencer, 30 A.3d at 893
    ; 
    Snowden, 583 A.2d at 1057
    . And
    neither opinion addressed whether harm to property could satisfy the “fear” element,
    much less overruled Giles’s and Douglas’s earlier unambiguous statements that threats to
    property could satisfy that element. Additionally, both opinions post-date Defendant’s
    47
    conviction, meaning that the could not have implicitly abrogated, much less overruled,
    Giles and Douglas at the time of Defendant’s conviction.
    The majority opinion also relies on a Maryland Court of Appeals decision that
    post-dates Defendant’s convictions: West v. State, 
    583 A.2d 231
    (Md. 1988). But, if
    anything, West supports Defendant’s contention that a defendant can be convicted of
    armed robbery without using or threatening to use violent force against the person of
    another. In particular, West holds that a defendant can be convicted of robbery based on
    the application of “constructive” force “by intimidation or placing the victim in fear.” 
    Id. at 234.
    As Giles explains, a defendant can place a victim in fear by threatening the
    victim’s property—e.g., “threat[ening] to burn down a house”—without ever applying
    physical force against the person of the victim, as the force clause demands. 
    Giles, 261 A.2d at 807
    –08. That, in such a case, the victim is in fear that violent force will be
    applied against his property in no way establishes that his person was subject to “force
    capable of causing physical pain or injury,” as the force clause requires. See 
    Johnson, 559 U.S. at 140
    . Accordingly, contrary to the majority opinion’s suggestion, West is
    entirely consistent with Giles and Douglas.
    That Defendant committed armed, as opposed to simple, robbery also does not
    change this conclusion. The majority opinion implies that this Court should not treat
    Maryland armed robbery as a violent felony because there is not a “realistic
    probability”—but rather only a “theoretical possibility”—that a suspect can commit
    armed robbery by harming or threatening to harm property. See ante at 29 (quoting
    Moncrieffe v. Holder, 
    569 U.S. 184
    , 191 (2013)).
    48
    Even assuming it is possible to draw an enforceable line between a “realistic
    probability” and “theoretical possibility”—which the majority opinion makes no effort to
    do—it takes little “legal imagination” to conceive of how a defendant could use a weapon
    to inflict or threaten harm to a victim’s property without threatening the victim’s person.
    
    Moncrieffe, 569 U.S. at 191
    .      Maryland courts already have expressly provided an
    example: “threat[ening] to burn down a house.” 
    Giles, 261 A.2d at 807
    –08. And there
    are numerous cases in which other courts have recognized that a suspect can commit
    robbery or armed robbery, under legal frameworks materially indistinguishable from
    Maryland common law armed robbery, by threatening a victim’s property as opposed to
    his person. See, e.g., United States v. O’Connor, 
    874 F.3d 1147
    , 1154 (10th Cir. 2017)
    (holding that Hobbs Act robbery constitutes violent felony because for example, a
    suspect could commit a Hobbs Act robbery by saying to a victim, “If you don’t give me
    $1 million, I won’t hurt you, but I’ll blow up an empty building you own”); U.S. v
    Becerrill-Lopez, 
    541 F.3d 881
    , 891 (9th Cir. 2008) (holding that defendant could be
    convicted of violating California robbery statute by making “mere threats to property,
    such as ‘Give me $10 or I’ll key your car’ or ‘Open the cash register or I’ll tag your
    windows’”); People v. Gallegos, 
    563 P.2d 937
    , 938 (Colo. 1977) (en banc) (holding
    defendant committed attempted “robbery by threat” when defendant “threat[ened] to
    blow up a Greeley business unless its owner paid him $100”).
    Importantly, none of the three opinions of our sister circuits concluding that
    Maryland robbery constitutes a violent felony under the force clause or statutory
    language similar thereto are binding on this Court. See ante at 29–30 (citing United
    49
    States v. Redrick, 
    841 F.3d 478
    , 485 (D.C. Cir. 2016); United States v. Warren, 723 Fed.
    App’x 155, 165 (3d Cir. 2018) (unpublished); United States v. Segovia, 
    770 F.3d 351
    ,
    355 (5th Cir. 2014)). Indeed, none of the three opinions is persuasive.
    Redrick principally ignored the harm-to-property language in Giles and Douglas
    on grounds that that language was 
    dicta. 841 F.3d at 485
    . But, as explained above, in
    this Circuit, we have held, for good reason, that dicta should be considered in
    determining whether a prior offense constitutes a violent felony. See 
    Aparicio-Soria, 740 F.3d at 157-58
    & n.4. Redrick also relies on an intermediate Maryland appellate court
    decision—which post-dates both of Defendant’s convictions—defining assault, which it
    characterizes as a constituent element of robbery, as the attempted or actual application of
    force “to the body of the 
    victim.” 841 F.3d at 485
    (quoting Lamb v. State, 
    613 A.2d 402
    ,
    446 (Md. App. 1992)).       But unlike Giles and Douglas, which expressly dealt with
    robbery, robbery was not at issue in Lamb, meaning that Lamb could not have abrogated
    Giles’s and Douglas’s statement that the fear element for robbery encompasses harm or
    threats to property. Given this material distinction, it is unsurprising that the majority
    opinion does not embrace this aspect of Redrick’s reasoning.
    Warren disregarded the harm-to-property language in Giles and Douglas on
    grounds that those decisions were issued by an “intermediate-appellate court” and
    therefore were “not binding.” 723 Fed. App’x at 164. But we have held in this Circuit
    that when, as here, there is an absence of authority from a state’s highest court, this Court
    follows the decisions of intermediate state appellate courts unless we are “convinced by
    other persuasive data that the highest court of the state would decide otherwise.”
    50
    
    Castillo, 776 F.3d at 268
    n.3 (internal quotation marks omitted).         And neither the
    Government nor the majority opinion points to language in any opinion by the Maryland
    Court of Appeals indicating that Giles’s and Douglas’s characterization of the fear
    element as encompassing threats to property no longer remains good law. Perhaps for
    this reason, the majority opinion declines to rely on any aspect of Warren’s reasoning.
    Finally, Segovia never mentions Giles or Douglas, much less examines whether
    harm or threats to property satisfy the fear element, and therefore is even less 
    persuasive. 770 F.3d at 355
    .
    III.
    In sum, the majority opinion follows the district court’s legal error by analyzing
    Defendant’s Miranda argument from the perspective of the law enforcement officer, not
    the suspect. And the majority opinion incorrectly holds that Maryland armed robbery
    categorically constitutes a violent felony for purposes of the ACCA.
    Accordingly, I respectfully dissent.
    51