842 F.3d 306 (4th Cir. 2016), 15-4764, United States v. Doctor

Docket Nº:15-4764
Citation:842 F.3d 306
Opinion Judge:GREGORY, Chief Judge:
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KAREEM ANTWAN DOCTOR, Defendant -- Appellant,
Attorney: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. William N. Nettles, United States Attorney, Columbia, South Carolina, Sean Kittrell, Assistant...
Judge Panel:Before GREGORY, Chief Judge, and WILKINSON and DIAZ, Circuit Judges. Chief Judge Gregory wrote the opinion, in which Judge Wilkinson and Judge Diaz joined. Judge Wilkinson wrote a separate concurring opinion. WILKINSON, Circuit Judge, concurring:
Case Date:November 21, 2016
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
SUMMARY

Defendant was convicted of unlawful possession of a firearm. The district court sentenced defendant to 15 years in prison pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e), based on defendant's two predicate drug offenses and one predicate violent felony. The court agreed with the district court's determination that defendant's prior conviction for South Carolina strong arm... (see full summary)

 
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Page 306

842 F.3d 306 (4th Cir. 2016)

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

KAREEM ANTWAN DOCTOR, Defendant -- Appellant,

No. 15-4764

United States Court of Appeals, Fourth Circuit

November 21, 2016

Argued September 23, 2016

Appeal from the United States District Court for the District of South Carolina, at Charleston. (2:13-cr-00811-PMD-1). Patrick Michael Duffy, Senior District Judge.

AFFIRMED.

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.

Before GREGORY, Chief Judge, and WILKINSON and DIAZ, Circuit Judges. Chief Judge Gregory wrote the opinion, in which Judge Wilkinson and Judge Diaz joined. Judge Wilkinson wrote a separate concurring opinion.

OPINION

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 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 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, id. (quoting Moncrieffe v. Holder, 133 S.Ct. 1678, 1684-85, 185 L.Ed.2d 727 (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." 356 S.C. 426, 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 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, 382 S.C. 1, 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, 374 S.C. 468, 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, 130 S.Ct. 1265, 176 L.Ed.2d 1 (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. 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 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...

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