United States v. Kareem Doctor , 842 F.3d 306 ( 2016 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4764
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KAREEM ANTWAN DOCTOR,
Defendant – Appellant,
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, Senior
District Judge. (2:13-cr-00811-PMD-1)
Argued: September 23, 2016 Decided: November 21, 2016
Before GREGORY, Chief Judge, and WILKINSON and DIAZ, Circuit
Judges.
Affirmed by published opinion. Chief Judge Gregory wrote the
opinion, in which Judge Wilkinson and Judge Diaz joined. Judge
Wilkinson wrote a separate concurring opinion.
ARGUED: Emily Deck Harrill, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Columbia, South Carolina, for Appellant. Robert Frank
Daley, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Columbia,
South Carolina, for Appellee. ON BRIEF: William N. Nettles,
United States Attorney, Columbia, South Carolina, Sean Kittrell,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charleston, South Carolina, for Appellee.
GREGORY, Chief Judge:
Kareem Antwan Doctor appeals his fifteen-year sentence for
unlawful possession of a firearm. The district court imposed an
enhanced sentence pursuant to the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), after finding that Doctor had two
predicate drug offenses and one predicate violent felony.
Doctor challenges the district court’s determination that his
prior conviction for South Carolina strong arm robbery qualifies
as a violent felony under the ACCA. Finding no error with the
district court’s application of the ACCA enhancement, we affirm.
I.
In April 2012, North Charleston police officers received a
call from a woman who alleged that Doctor had stolen a cell
phone and was inside the residence at 5309 Alvie Street with a
gun. The officers arrived on the scene and, after reading
Doctor his Miranda rights, questioned him about the firearm.
Doctor led the officers to a .380 caliber pistol on the couch.
Doctor eventually pleaded guilty to being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g)(1).
The probation officer recommended that Doctor be sentenced
under the ACCA, which mandates a minimum of fifteen years’
imprisonment for a defendant who violates § 922(g) and “has
three previous convictions” for a “violent felony or a serious
2
drug offense, or both.” 18 U.S.C. § 924(e)(1). Doctor had two
prior convictions for possession with intent to distribute
cocaine, which he did not contest qualified as serious drug
offenses, as well as a prior conviction for South Carolina
strong arm robbery (“South Carolina robbery”). 1 At sentencing,
the district court held, over Doctor’s objection, that the
robbery conviction was an ACCA violent felony. The district
court designated Doctor an armed career criminal based on his
three predicate offenses and imposed the mandatory minimum
sentence of fifteen years.
II.
We review de novo whether a prior conviction qualifies as
an ACCA violent felony. United States v. Hemingway, 734 F.3d
323, 331 (4th Cir. 2013). The ACCA defines “violent felony,” in
pertinent part, 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). 2 The issue on
1
South Carolina strong arm robbery and common law robbery
are “synonymous terms for a common law offense whose penalty is
provided for by statute.” State v. Rosemond, 560 S.E.2d 636,
640 (S.C. Ct. App. 2002) (footnote omitted). For ease of
reference, we refer to the offense as South Carolina robbery.
2
The ACCA separately defines “violent felony” as “any crime
punishable by imprisonment for a term exceeding one year” that
(Continued)
3
appeal is whether South Carolina robbery meets the definition of
violent felony in § 924(e)(2)(B)(i), known as the “force
clause.”
To determine whether South Carolina robbery matches this
definition and can thus be used to enhance a criminal sentence,
we apply the “categorical approach.” United States v. Baxter,
642 F.3d 475, 476 (4th Cir. 2011). The categorical approach
directs courts to examine only the elements of the state offense
and the fact of conviction, not the defendant’s conduct. 3 Id.In conducting this analysis, “we focus ‘on the minimum conduct’”
required to sustain a conviction for the state crime, United
States v. Gardner, 823 F.3d 793, 803 (4th Cir. 2016) (quoting
Castillo v. Holder, 776 F.3d 262, 267 (4th Cir. 2015)), although
there must be a “realistic probability, not a theoretical
possibility,” that a state would actually punish that conduct,
“is burglary, arson, or extortion, involves use of explosives,
or otherwise involves conduct that presents a serious potential
risk of physical injury to another.” 18 U.S.C.
§ 924(e)(2)(B)(ii). That subsection has no application here, as
robbery is not an enumerated crime and the Supreme Court deemed
the clause concerning risk of physical injury unconstitutionally
vague in Johnson v. United States (“Johnson II”), 135 S. Ct.
2551, 2557 (2015).
3 Courts apply the “modified categorical approach” where the
prior state offense is divisible, meaning it sets out multiple
elements in the alternative and at least one set of elements
matches the federal definition. Descamps v. United States, 133
S. Ct. 2276, 2284 (2013). Because South Carolina robbery is a
nondivisible offense, the modified categorical approach “has no
role to play in this case.” Id. at 2285.
4
id. (quoting Moncrieffe v. Holder, 133 S. Ct. 1678, 1684-85
(2013)). We look to state court decisions to determine the
minimum conduct needed to commit an offense, id., and to
identify the elements of a state common law offense, Hemingway,
734 F.3d at 332. We then compare those elements to the
definition of violent felony in the force clause.
In State v. Rosemond, the South Carolina Supreme Court
defined robbery as the “felonious or unlawful taking of money,
goods, or other personal property of any value from the person
of another or in his presence by violence or by putting such
person in fear.” 589 S.E.2d 757, 758 (S.C. 2003). A defendant
can thus commit robbery in South Carolina by alternative means
of “violence” or “intimidation.” Id. at 758-59. When
evaluating intimidation, courts ask whether an “ordinary,
reasonable person in the victim’s position would feel a threat
of bodily harm from the perpetrator’s acts.” Id. at 759 (citing
United States v. Wagstaff, 865 F.2d 626 (4th Cir. 1989)).
If either robbery by means of violence or by means of
intimidation fails to match the force clause definition, the
crime is not a violent felony. See Gardner, 823 F.3d at 803.
Doctor offers several reasons why South Carolina robbery is not
a categorical match, largely focusing on robbery by
intimidation. He first contends that a robber may intimidate a
5
victim without “the use, attempted use, or threatened use of
physical force.”
A review of South Carolina law reveals, however, that
intimidation necessarily involves threatened use of physical
force. The South Carolina Supreme Court has indicated that a
robber intimidates a victim by threatening force. See State v.
Mitchell, 675 S.E.2d 435, 437 (S.C. 2009) (stating that robbery
involves either “employment of force or threat of force”)
(quoting State v. Moore, 649 S.E.2d 84, 88 (S.C. Ct. App.
2007)). The issue, then, is whether intimidation under South
Carolina law requires the force threatened to be “physical
force” within the meaning of the ACCA. The Supreme Court has
defined “physical force” as “violent force--that is, force
capable of causing physical pain or injury to another person.”
Johnson v. United States (“Johnson I”), 559 U.S. 133, 140
(2010). To constitute intimidation in South Carolina, a robbery
victim must “feel a threat of bodily harm” based on the
defendant’s acts. Rosemond, 589 S.E.2d at 759. We find that
these two standards align. There is no meaningful difference
between a victim feeling a threat of bodily harm and feeling a
threat of physical pain or injury. See United States v. McNeal,
818 F.3d 141, 154 (4th Cir. 2016). It follows that to
constitute intimidation in South Carolina, a robbery victim must
feel a threat of physical force based on the defendant’s acts.
6
In other words, a defendant intimidates a victim by threatening
physical force.
Notably, the South Carolina Supreme Court modeled its
definition of intimidation in robbery cases after the one this
Circuit uses in federal bank robbery cases under 18 U.S.C.
§ 2113(a). The Rosemond definition--whether an ordinary victim
feels a threat of bodily harm from the robber’s acts--adopts and
indeed cites the definition from our Wagstaff decision.
Rosemond, 589 S.E.2d at 759 (citing Wagstaff, 865 F.2d at 626);
see Wagstaff, 865 F.2d at 627 (“[T]aking ‘by intimidation’ under
section 2113(a) occurs when an ordinary person in the teller’s
position reasonably could infer a threat of bodily harm from the
defendant’s acts.” (emphasis omitted) (quoting United States v.
Higdon, 832 F.2d 312, 315 (5th Cir. 1987)). This Court recently
confirmed in McNeal that intimidation in the context of
§ 2113(a) bank robbery necessarily entails a threat of violent
force. 818 F.3d at 153. Because South Carolina uses
effectively the same definition of intimidation that we use in
§ 2113(a) bank robbery cases, this holding lends persuasive
support to our conclusion here that intimidation in the context
of South Carolina robbery requires the threatened use of
physical force. Indeed, like the defendants in McNeal, Doctor
has not “identified a single [] robbery prosecution where the
7
victim feared bodily harm”--that is, was intimidated--by
“something other than violent physical force.” Id. at 156.
Doctor instead highlights how a defendant can effectuate a
robbery with only a slight threat. He seizes on the following
discussion of constructive force 4 in the South Carolina Court of
Appeals opinion in State v. Rosemond: “[r]egardless of how
slight the cause creating the fear is or by what other
circumstances the taking is accomplished, if the transaction is
accompanied by circumstances of terror, such as threatening by
word or gesture, . . . the victim is placed in fear.” 560
S.E.2d 636, 641 (S.C. Ct. App. 2002) (emphasis added). But
whether a robber’s threat is slight does not resolve the force
clause inquiry; what matters is whether, as Rosemond explains,
the threat creates a fear of bodily injury in a reasonable
person. Under the right circumstances, a slight threat--“you
better hand over the money, or else,” or even just a menacing
stare--can communicate an intent to cause great bodily injury.
Put simply, the slight or implicit nature of a threat does not
render it nonviolent.
4 Though the South Carolina Court of Appeals did not
explicitly define the term, “constructive force” generally means
“[t]hreats and intimidation to gain control or prevent
resistance; esp., threatening words or gestures directed against
a robbery victim.” Constructive Force, Black’s Law Dictionary
(10th ed. 2014).
8
Doctor next argues that South Carolina robbery is not an
ACCA violent felony because it does not match the force clause
requirement that force be directed “against the person of
another.” Again focusing on robbery by intimidation, he asserts
that a defendant can commit the crime even where his or her
threatening behavior is not specifically aimed at the victim.
Doctor suggests that the facts of Rosemond illustrate that a
defendant can be convicted for applying force against property
rather than people.
The defendant in Rosemond entered a convenience store
around 9:00 p.m. and, after spending a few minutes in the
bathroom, immediately “went behind the counter to the register”
and “glare[d]” at the store clerk who stood “just a few feet”
away. 589 S.E.2d at 758. When the defendant tried and failed
to open the cash register, he grabbed the “heavy” register,
flipped it into the air, picked it up again, and slammed it down
once more, finally popping it open. Id. at 759. The store
clerk testified that she was scared by both the defendant’s
glare and his slamming of the cash register. Id. at 758. The
South Carolina Supreme Court upheld the defendant’s conviction,
finding that a reasonable person in the clerk’s position “would
have felt a threat of bodily harm from petitioner’s acts.” Id.
at 759. The court, then, did not affirm just because the clerk
was generally fearful during the defendant’s assault on the cash
9
register. It sustained the conviction after specifically
finding that the defendant’s actions threatened a similar use of
violent force against the clerk. Rosemond thus confirms that a
defendant’s use or threatened use of force must be directed
“against the person of another.” This interpretation makes
sense given that intimidation means the threatened use of
physical force--a concept that, common sense tells us, involves
people. Indeed, the very purpose of threatening physical force
is to prevent a person from resisting the taking. See Rosemond,
560 S.E.2d at 641.
Doctor also argues that South Carolina robbery is not a
violent felony because it can be committed without an
intentional use or threat of physical force. This position is
rooted in Leocal v. Ashcroft, 543 U.S. 1 (2004), which
considered whether Florida’s offense of driving under the
influence of alcohol constituted a “crime of violence” under the
force clause in 18 U.S.C. § 16(a). There, the Supreme Court
held that the ordinary meaning of “use . . . of physical force
against” a person “most naturally suggests a higher degree of
intent than negligent or merely accidental conduct.” Id. at 9.
Because a Florida conviction for driving under the influence
could be based on negligent or accidental conduct, it lacked the
level of intent needed to be a crime of violence. Id. at 9-10.
We later held that an assault conviction premised on reckless
10
force was not a crime of violence for the same reason. See
Garcia v. Gonzales, 455 F.3d 465, 468-69 (4th Cir. 2006).
South Carolina robbery incorporates the elements of
larceny, which includes an intent to steal, see Broom v. State,
569 S.E.2d 336, 337 (S.C. 2002), but it does not contain an
explicit mens rea requirement as to the force or intimidation
element. Doctor takes this to mean that South Carolina robbery
lacks the intent requirement needed for it to qualify as a
violent felony. But he fails to cite a single case in South
Carolina where a defendant negligently or recklessly used force
in the commission of a robbery, 5 or where a defendant negligently
or recklessly intimidated a victim. This is unsurprising
because the intentional taking of property, by means of violence
or intimidation sufficient to overcome a person’s resistance,
must entail more than accidental, negligent, or reckless
conduct. In considering § 2113(a) bank robbery, the Supreme
Court held that the crime requires general intent, meaning a
5
Doctor does point us to United States v. Dixon, in which
the Ninth Circuit concluded that robbery under California Penal
Code § 211 could be committed with accidental force. 805 F.3d
1193, 1197 (9th Cir. 2015). That holding, however, hinged on a
stranger-than-fiction California Supreme Court case where a
defendant broke into an unoccupied car in a parking garage,
stole the car, and then accidentally ran over the car’s owner
after exiting the garage. Id. (discussing People v. Anderson,
252 P.3d 968 (Cal. 2011)). We have found no indication that a
defendant can similarly commit South Carolina robbery with
accidental force.
11
defendant must possess “knowledge with respect to the actus reus
of the crime (here, the taking of property of another by force
and violence or intimidation).” Carter v. United States, 530
U.S. 255, 268 (2000); see also McNeal, 818 F.3d at 155
(recognizing Carter). We see no reason why South Carolina
robbery should be viewed any differently. While hypothetical
scenarios can surely be concocted to support robbery convictions
based on accidental, negligent, or reckless conduct, given the
total absence of case law, there is not a realistic probability
that South Carolina would punish such conduct.
Finally, Doctor argued for the first time at oral argument
that South Carolina robbery can be committed with de minimis
actual force. Several courts have found that if robbery can be
accomplished with minimal actual force--grazing a victim’s
shoulder while lifting a purse, for instance--the crime does not
meet the physical force requirement outlined in Johnson I
(“force capable of causing physical pain or injury to another
person”). See, e.g., United States v. Parnell, 818 F.3d 974,
979 (9th Cir. 2016) (holding that Massachusetts armed robbery,
which requires only “minimal, nonviolent force,” does not meet
the physical force threshold). We reached that result in
Gardner with respect to North Carolina common law robbery.
Gardner, 823 F.3d at 804. In doing so, we cited the Supreme
Court of North Carolina’s statement that “[a]lthough actual
12
force implies personal violence, the degree of force used is
immaterial, so long as it is sufficient to compel the victim to
part with his property.” Id. at 803 (emphasis added) (quoting
State v. Sawyer, 29 S.E.2d 34, 37 (N.C. 1944)).
Here, by contrast, there is no indication that South
Carolina robbery by violence can be committed with minimal
actual force. As noted, South Carolina robbery can be committed
“by violence or putting [a] person in fear.” Rosemond, 589
S.E.2d at 758. Unlike the definition of North Carolina robbery,
the definition of South Carolina robbery does not suggest that
the degree of actual force used is “immaterial.” There is no
general statement from the South Carolina Supreme Court or
intermediate appellate court to that effect. And Doctor
provides no examples of South Carolina cases that find de
minimis actual force sufficient to sustain a conviction for
robbery by violence. 6 Therefore, there is no basis for the
conclusion that South Carolina robbery can be accomplished with
force below the physical force threshold. Recognizing that each
6 At oral argument, defendant’s counsel cited two cases for
the first time--State v. Gagum, 492 S.E.2d 822 (S.C. Ct. App.
1997) and Humbert v. State, 548 S.E.2d 862 (S.C. 2001)--in
support of the argument that South Carolina robbery can be
committed with slight actual force. Neither case, however,
addresses the minimum amount of actual force needed to sustain a
robbery conviction in South Carolina. In fact, it is not clear
from the face of either appellate decision whether the juries
(or, more precisely, at least some of the jurors) convicted the
defendants of robbery by violence or robbery by intimidation.
13
“State is entitled to define its crimes as it sees fit,” McNeal,
818 F.3d at 153, South Carolina robbery differs from North
Carolina robbery in this critical respect.
In sum, South Carolina has defined its common law robbery
offense, whether committed by means of violence or intimidation,
to necessarily include as an element the “use, attempted use, or
threatened use of physical force against the person of another.”
Accordingly, we conclude that Doctor’s prior conviction for
South Carolina robbery qualifies as a predicate violent felony
within the meaning of the ACCA.
III.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
14
WILKINSON, Circuit Judge, concurring:
I am pleased to join Chief Judge Gregory’s fine opinion. It
reaches the right result, and for the right reasons. The ACCA’s
force clause covers acts of intimidation and a strong arm
robbery is the quintessential act of intimidation – whether or
not actual physical force is used. This was a point we made in
United States v. McNeal, 818 F.3d 141 (4th Cir. 2016). I hope
that the panel opinion will mark a turning point toward a more
realistic application of the categorical approach, because all
too often that approach has pushed criminal sentencing to the
very last place that sentencing ought to be, that is at an
untenable remove from facts on the ground.
As refreshing as the panel’s analysis is, I write to
express a general concern that the categorical approach to
predicate crimes of violence is moving beyond what the Supreme
Court originally anticipated. Its overactive application is
undermining the efforts of Congress, the role of district courts
in sentencing, and the public’s need for a sense of basic
protection against the most violent forms of criminal behavior.
While it need not be discarded, the categorical approach should
be adapted to return to sentencing courts a greater measure of
their historical discretion.
15
I.
It surprises me that we have arrived at this point, because
in theory, the categorical approach makes a good deal of sense.
I had high hopes for it. District courts would be spared the
practical difficulties of probing the underlying conduct of
predicate convictions. And the approach promised to strike a
balance between exempting from sentencing enhancements
defendants convicted of non-violent conduct and vindicating
Congress’s desire to punish the most violent recidivists. But
what was fine in theory has sometimes proven to be less so in
practice.
For starters, the purported administrative benefits of the
categorical approach have not always worked as advertised.
Judges have simply swapped factual inquiries for an endless
gauntlet of abstract legal questions. Consider the decisional
costs: Courts must first construe the predicate crime, which
requires combing through state court decisions and “peek[ing]”
at various documents to discern whether each statutory phrase is
a separate element or merely an alternative means of satisfying
the element. See Mathis v. United States, 136 S. Ct. 2243, 2256–
57 (2016). After decoding the definition of the offense, courts
must then assess whether “the minimum conduct criminalized” by
the statutory elements “categorically fits” within the generic
“federal offense that serves as a point of comparison.”
16
Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013). But because
there is no agreed-upon metric for what constitutes a match,
this inquiry also involves an exhaustive review of state law as
courts search for a non-violent needle in a haystack or conjure
up some hypothetical situation to demonstrate that the predicate
state crime just might conceivably reach some presumably less
culpable behavior outside the federal generic.
The Supreme Court has sensibly cautioned judges to use
common sense in applying the categorical approach and not to
indulge in imaginative flights. See Gonzales v. Duenas-Alvarez,
549 U.S. 183, 193 (2007). And yet the insistent injunction that
we begin the inquiry with the presumption that the conviction
“rested upon [nothing] more than the least of th[e] acts”
criminalized, see Johnson v. United States, 559 U.S. 133, 137
(2010), virtually ensures that our legal imagination will be
utilized to posit an outlier set of facts or scenarios. The
upshot of this “counterintuitive” exercise, see Mathis, 136 S.
Ct. at 2251, is that the categorical approach can serve as a
protracted ruse for paradoxically finding even the worst and
most violent offenses not to constitute crimes of violence.
The categorical approach, too aggressively applied,
eviscerates Congress’s attempt to enhance penalties for violent
recidivist behavior. The ACCA addresses the most culpable sector
of the criminal population, the repeat offenders Congress found
17
responsible for the majority of violent crimes in America. H.R.
REP. NO. 98-1073, at 1-3 (1984); S. REP. NO. 98-190, at 5-6
(1983). This is no rookie class of criminals. They are the exact
opposite of those first-offense or non-violent offenders who are
the focus of sensible sentencing reform efforts. Doctor, for
instance, has been convicted of assault and battery of a police
officer, domestic violence, strong arm robbery, and a series of
drug distribution offenses. This cohort of offenders are those
Congress unequivocally sought to “incapacitate.” H.R. REP. NO.
98-1073, at 2; S. REP. NO. 98-190, at 9. Yet the categorical
approach has too often flipped this objective on its head,
facilitating a regime that ostensibly seeks every possible
opportunity to eschew recidivist punishment. Whatever Congress
meant when it tethered the ACCA’s sentencing enhancement to
prior “convictions,” see Taylor v. United States, 495 U.S. 575,
600 (1990), it did not pass a statute aimed at violent acts only
to have patently violent acts called by some other name.
Explanations of the categorical approach repeatedly advance
its sentencing windfall as a necessary consequence. It does not
matter that “a sentencing judge knows (or can easily discover)
that the defendant carried out [a crime of violence].” See
Mathis, 136 S. Ct. at 2251. “Whether the [defendant’s] actual
conduct involved such facts is quite irrelevant.” Moncrieffe,
133 S. Ct. at 1684. The reasons for this contention are well-
18
known and understandable, but I wonder if it is sustainable over
the long term to have a criminal sentencing regime so frankly
and explicitly at odds with reality.
I understand that the ACCA carries a mandatory minimum
term, which already strips trial courts of a portion of their
ability to craft an individualized sentence. But while one may
certainly object to Congress’s overuse of mandatory minimums, it
does not follow that courts should double the damage by
depriving sentencing judges of an additional measure of their
discretion to find facts related to predicate convictions. Many
of the arguments that critics legitimately level at the overuse
of mandatory minimums can likewise be raised against the overuse
of the categorical approach – each removes much needed
discretion from the sentencing court.
The most aggressive applications of the categorical
approach have operated as another exclusionary rule that limits
the ability of courts to see beyond the judicial sanctuary and
to fashion an informed sentence. Even when the record starkly
reveals that the predicate crime was committed in a violent
manner, violent predators are thrown in the hopper with all
other offenders because judges generally may not consider any
facts underlying the predicate offense. The alluring theoretical
terminology of the categorical approach has too often served to
isolate us in a judicial bubble, sealed conveniently off from
19
the real-life dangers that confront American citizens in their
actual lives.
This exclusion is simply contrary to the sentencing
function, which relies on district judges to consider a broad
swath of information bearing on the individual defendant’s
“background, character, and conduct.” See 18 U.S.C. § 3661(2012). In fact, “[n]o limitation shall be placed” on the
consideration of such information. Id. The Sixth Amendment need
not bar a judge from finding what a previous crime involved or
guilty plea determined. See Mathis, 136 S. Ct. 2258 (Kennedy,
J., concurring) (“Apprendi . . . does not compel the elements
based approach.”). Nonetheless, with an exclusive focus on
elements, we have converted traditional questions of fact into
byzantine questions of law that amount almost to willful
blindness to what the defendant actually did. The categorical
approach thus increasingly transfers the sentencing function
from the trial courts to appellate courts, a turf battle which
the appellate courts may be equipped to win but at the expense
of those whose ground-level view and fact-finding capacities
were heretofore thought to be the heart of the sentencing
function.
II.
This should not mean jettisoning the categorical approach
and its admitted advantages altogether, but rather loosening its
20
present rigid grip upon criminal sentencing. The U.S. Sentencing
Commission has already begun this process: in light of
complaints that the doctrine was “cumbersome and overly
legalistic,” it recently eliminated the categorical approach
from many of the illegal reentry guidelines. See U.S. SENTENCING
COMM’N, AMENDMENTS TO THE SENTENCING GUIDELINES 26 (2016). As judges,
there is a way to apply the categorical approach in a realistic
manner that would serve its original and laudable purposes. The
categorical approach need not be the exclusive standard.
District courts should be free to apply it as the default
inquiry, but should retain the discretion to consider the
defendant’s actual conduct when it can be clearly derived from
the record.
Four Justices have now expressed, albeit for varying
reasons and to varying degrees, some uneasiness with aspects of
the categorical approach. See Mathis, 136 S. Ct. at 2258
(Kennedy, J., concurring); id. at 2263-66 (Breyer, J., joined by
Ginsburg, J., dissenting); id. at 2267-71 (Alito, J.,
dissenting). I recognize of course that four is not five, and we
have an obligation to follow a strict elements-based inquiry so
long as a majority of the Supreme Court adheres to it. The lower
courts have attempted in good faith to do just that. See, e.g.,
United States v. Parral-Dominguez, 794 F.3d 440 (4th Cir. 2015)
(North Carolina conviction for knowingly discharging a firearm
21
into an occupied building was not a crime of violence); United
States v. Shell, 789 F.3d 335 (4th Cir. 2015) (North Carolina
conviction for rape of a mentally disabled person was not a
crime of violence); United States v. Torres-Miguel, 701 F.3d 165(4th Cir. 2012) (California conviction for threatening to commit
a crime “which will result in death or great bodily injury to
another” was not a crime of violence); United States v.
Hernandez-Montes, 831 F.3d 284 (5th Cir. 2016) (Florida
attempted second-degree murder was not a crime of violence);
United States v. Najera-Mendoza, 683 F.3d 627 (5th Cir. 2012)
(Oklahoma kidnapping was not a crime of violence); United States
v. McMurray, 653 F.3d 367 (6th Cir. 2011) (Tennessee aggravated
assault was not a crime of violence); United States v. Jordan,
812 F.3d 1183 (8th Cir. 2016) (Arkansas conviction for
aggravated assault creating a “substantial danger of death or
serious physical injury” was not a crime of violence); United
States v. Parnell, 818 F.3d 974 (9th Cir. 2016) (Massachusetts
armed robbery was not a crime of violence); United States v.
Cisneros, 826 F.3d 1190 (9th Cir. 2016) (Oregon first-degree
burglary did not “categorical[ly] match” generic burglary and
was not a crime of violence); United States v. Madrid, 805 F.3d
1204 (10th Cir. 2015) (Texas conviction for aggravated sexual
assault of a child was not a crime of violence).
22
I do not intend to fault the aforementioned cases. Whether
one agrees with them or not (and I often have not), they
conscientiously attempted, as they should have, to apply the
categorical approach correctly. And yet hidden within their
binding holdings are heinous and indisputably violent acts which
sentencing courts might have found if only given the
opportunity. The foregoing is no more than a smattering of cases
that makes no attempt to be exhaustive, but it should serve to
illustrate the windfall that many criminal defendants have
received from having their violent depredations on their fellow
citizens obscured in what two experienced counsel have termed,
perhaps too excitedly, “a morass of jurisprudential goo.” See
STEVEN KALAR & JODI LINKER, FED. DEFENDERS SERVS. OFFICE, GLORIOUS GOO: THE
TAYLOR/SHEPARD CATEGORICAL AND MODIFIED CATEGORICAL ANALYSES 2 (2012) (“It
is particularly glorious goo, because the confusion almost
inevitably helps our clients.”). I acknowledge that the
sentencing enterprise is a matter of endless disputation and
perpetual difficulty. It is hard to get right. But the heart of
the endeavor has historically been the sentencing courts’ fact-
finding capability and guided legal discretion, and the rigid
categorical approach to predicate crimes of violence has blown
us far off course.
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III.
There is a tension in the way that the Supreme Court is
looking at the role of sentencing judges. One set of cases seeks
to limit the fact-finding prerogative of trial courts, see
Descamps 133 S. Ct. at 2283; Moncrieffe, 133 S. Ct. at 1684,
while another seeks to expand it, see United States v. Booker,
543 U.S. 220 (2005) (holding the Sentencing Guidelines
advisory); Gall v. United States, 552 U.S. 38 (2007) (holding
district court sentencing generally reviewable under an abuse of
discretion standard). Yet although the categorical approach has
diminished district court discretion on predicate crimes of
violence under the ACCA and other recidivist sentencing
enhancements, it is much to be hoped that district judges retain
a large measure of discretion outside the ACCA and similar
“crimes of violence” sentencing frameworks. In other words,
notwithstanding the doubt that has sometimes been thrown on the
very notion of a crime of violence, does there remain a pathway
for district courts to ensure that the worst behaviors are
appropriately sanctioned?
I believe a pathway does exist, and it is one that fully
respects, as it must, both the pronouncements of Congress and
the emphatic support that Supreme Court decisions have given the
superior sentencing vantage point of our trial judges. As I have
noted, Congress and the Supreme Court have accorded a wide
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degree of latitude to trial judges, both in their capacity to
find facts and to fashion an individualized sentence (subject of
course to statutory maximums and minimums). Congress established
a comprehensive set of objectives for sentencing courts to
review in each case, see 18 U.S.C. § 3553(a) (2012), and
prohibited any limitation on the information a court may
consider, see 18 U.S.C. § 3661 (2012). Likewise, in major
sentencing decisions following Booker, the Supreme Court has
envisioned a scheme in which district courts exercise broad
discretion. As the Court emphasized, “[t]he sentencing judge has
access to, and greater familiarity with, the individual case and
the individual defendant before him than the [Sentencing]
Commission or the appeals court.” Rita v. United States, 551
U.S. 338, 357-58 (2007). The trial court, therefore, is not
bound by the advisory Sentencing Guidelines. Id. at 355. Rather,
judges are empowered to make any number of factual
determinations and conduct an “individualized assessment based
on the facts presented.” Gall, 552 U.S. at 50.
Do trial courts then retain significant sentencing
discretion? The signals are mixed. The categorical approach is
restrictive, and yet Gall is expansive. Outside the strictures
of the ACCA and other recidivist enhancements that apply the
categorical approach to predicate crimes of violence, a district
court’s fact-finding capabilities are not so constrained. While
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sentencing judges are confined to a narrow set of record
documents when classifying predicate crimes for a sentencing
enhancement, Shepard v. United States, 544 U.S. 13 (2005), there
is no corresponding “limitation on the district’s court’s
consideration of [factual descriptions of an offense] in
crafting its sentence under § 3553(a).” United States v.
Savillon-Matute, 636 F.3d 119, 124 n.8 (4th Cir. 2011); see also
Booker, 543 U.S. at 233 (“For when a trial judge exercises his
discretion to select a specific sentence within a defined range,
the defendant has no right to a jury determination of the facts
that the judge deems relevant.”).
Of course, the scope of a sentencing court’s discretion to
delve into the facts underlying a conviction rendered in another
forum has never been boundless. Federal sentencing proceedings
are not the presumptive forum – unlike habeas corpus actions -
for overturning prior convictions or entertaining constitutional
challenges to them. See Custis v. United States, 511 U.S. 485,
497 (1994). Yet because no comparable presumption attaches
itself to the factual circumstances of prior criminal behavior –
sentencing hearings are, after all, the designated vehicle for
such inquiries - district courts have the option to assess the
seriousness of past conduct if they so choose. Indeed, it would
be the odd sentencing regime that requires a holistic view of
the defendant to be sentenced, see 18 U.S.C. § 3553(a), and yet
26
prevents district courts from finding that a present or prior
crime was committed in a particularly violent manner.
IV.
Accordingly, as the district court sets about this
discretionary exercise, it has various tools to impose a
stricter sentence if it believes that the categorical approach
is ignoring a violent criminal history or disserving the general
aims of sentencing. To be sure, the Guidelines “provide a
framework or starting point” for the trial judge’s sentencing
determination. See Freeman v. United States, 131 S. Ct. 2685,
2692 (2011). But the Guidelines are just a starting point:
sentencing judges have two options for fashioning a sentence
outside the advisory range. In describing the options, I
apologize for accenting the already familiar, but these
discretionary tools have a renewed salience in light of the
restrictions elsewhere placed upon sentencing our most violent
offenders and on the sentencing judge’s role. Although these
alternate pathways will not repair the entire damage that I
respectfully suggest a rigid categorical approach has done to
congressional intent, it may allow a trial judge to reach an
appropriate sentence by considering the very facts the
categorical approach proscribes.
First, the Guidelines expressly provide for an upward
departure if “reliable information indicates that the
27
defendant’s criminal history category significantly
underrepresents the seriousness” of the defendant’s criminal
history or likelihood of recidivism. U.S. SENTENCING GUIDELINES MANUAL
§ 4A1.3(a)(1) (U.S. SENTENCING COMM’N 2015). Among the factors a
court may consider are the factual circumstances and “nature of
the prior offenses.” See id. cmt. n.2(B); see also United States
v. Yahnke, 395 F.3d 823, 825 (8th Cir. 2005) (concluding that
the “violent nature” of a prior conviction “support[ed] a
finding that [defendant’s] criminal-history category
substantially underrepresented the seriousness of his criminal
history”). Our court, for instance, allows a district court to
classify a defendant as a “de facto career offender” if the
defendant’s previous crimes “were sufficiently analogous to
qualifying [violent felonies] that they could be considered for
all intents and purposes” a violent prior offense. See United
States v. Lawrence, 349 F.3d 724, 726 (4th Cir. 2003). To aid
its inquiry, the sentencing judge may consult presentence
reports and consider the extent to which a defendant’s criminal
history was violent. See United States v. Howard, 773 F.3d 519,
530 (4th Cir. 2014); Lawrence, 349 F.3d at 727-30.
Second, the district court has the discretion to impose a
sentence outside the Guidelines range if it finds that the
§ 3553(a) factors justify a variance sentence. See Gall, 552
U.S. at 50-51. Three of those factors are the “nature and
28
circumstances of the offense and the history and characteristics
of the defendant,” the need to “afford adequate deterrence,” and
the need to “protect the public from further crimes of the
defendant.” 18 U.S.C. § 3553(a)(1), (a)(2). Here too, the
sentencing court may tailor its sentence to the nature of the
defendant’s conduct, both past and present. There is no formal
limit on the extent of a district judge’s discretion to deviate
from the Guidelines. See Rita, 551 U.S. at 355; United States v.
Rivera-Santana, 668 F.3d 95, 106 (4th Cir. 2012). Nor is there
any restriction on the trial court’s ability to make factual
findings and probe into the circumstances underlying previous
convictions. See United States v. Hargrove, 701 F.3d 156, 164
(4th Cir. 2012); United States v. Diasdado-Star, 630 F.3d 359,
367 (4th Cir. 2011). In the course of this probe, one which does
not implicate the modified categorical approach, the fact that a
document is not Shepard-approved may go more to the weight of
the evidence than to its admissibility. See U.S SENTENCING GUIDELINES
MANUAL § 6A1.3(a) (U.S. SENTENCING COMM’N 2015) (“In resolving any
dispute concerning a factor important to the sentencing
determination, the court may consider relevant information
without regard to its admissibility under the rules of evidence
applicable at trial, provided that the information has
sufficient indicia of reliability to support its probable
accuracy.”).
29
Consistent with Gall’s appreciation that district courts
are “in a superior position to find facts and judge their
import,” all sentencing decisions – “whether inside, just
outside, or significantly outside the Guidelines range” - are
entitled to “due deference” from appellate courts. Gall, 552
U.S. at 39, 51. While a sentencing judge’s explanation for the
sentence must “support the degree of the variance,” a district
court need not find “extraordinary circumstances” to justify a
deviation from the Guidelines. Id. at 47, 50. Rather,
irrespective of the particulars of “the individual case,” a
“deferential abuse-of-discretion standard of review” applies
across the board. Id. at 52. Even when the district court
calculates the Guidelines range incorrectly, appellate courts
may find that the error is harmless if the evidence suggests
that the sentencing judge would have varied from the Guidelines
anyway and reached the exact same result. See Hargrove, 701 F.3d
at 162; Savillon-Matute, 636 F.3d at 123-24.
In stressing the foregoing, I have once again stated only
the obvious, but there are times when even the obvious needs to
be said. The categorical approach might have increasingly
committed the application of specified sentencing enhancements
to the legal rulings of appellate courts, but that does not mean
that district courts are without recourse to ensure that basic
sentencing objectives are respected and achieved. In other
30
words, the district court may decide in the face of an
inconclusive record to apply the categorical approach to
predicate offenses, but it also should enjoy the discretion and
the tools to craft a more individualized sentence when such
would serve the ends of justice. Our standard of review under
Gall remains a deferential one. I do not believe, therefore,
that the Supreme Court, through its categorical approach,
intended to incapacitate district courts and require those
courts to stand idly by and let dangerous individuals re-enter
society prematurely. Their future victims may be nameless and
faceless to us, but they will bear the brunt of violent acts in
intensely personal ways.
31