U.S. v. White

• Decision Date: 06 July 2009
• Docket Number: No. 08-4492.,08-4492.
• Citation: 571 F.3d 365
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Demontrell Williams WHITE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

571 F.3d 365

UNITED STATES of America, Plaintiff-Appellee, v. Demontrell Williams WHITE, Defendant-Appellant.

No. 08-4492.

United States Court of Appeals, Fourth Circuit.

Argued: May 15, 2009.

Decided: July 6, 2009.

ARGUED:

Mark Patrick Foster, Jr., Law Offices of Mark Foster, PC, Charlotte, North Carolina, for Appellant. Adam Christopher Morris, Office of the United States Attorney, Charlotte, North Carolina, for Appellee.

ON BRIEF:

Gretchen C.F. Shappert, United States Attorney, Charlotte, North Carolina, for Appellee.

Before MOTZ, KING, and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge KING wrote the opinion, in which Judge MOTZ and Judge DUNCAN joined.

OPINION

KING, Circuit Judge:

The Armed Career Criminal Act (the "ACCA") provides that a defendant convicted of an 18 U.S.C. § 922(g) firearm offense shall be imprisoned for "not less than fifteen years" if he has three previous violent felony convictions. 18 U.S.C. § 924(e). In this case, Demontrell Williams White pleaded guilty in the district court to being a felon in possession of a firearm, in contravention of § 922(g)(1). At sentencing, the court determined that White had three previous violent felony convictions and was thus an armed career criminal. As a result, the court applied the ACCA and sentenced White to fifteen years in prison. White's sole appellate contention is that the North Carolina offense underlying one of his previous convictions—conspiracy to commit robbery with a dangerous weapon—does not constitute a "violent felony" under the ACCA. As explained below, we reject this contention and affirm.

I.

On April 29, 2004, White was indicted in the Western District of North Carolina for being a felon in possession of a firearm, in contravention of 18 U.S.C. § 922(g)(1), and for possessing a stolen firearm, in violation of § 922(j). White pleaded guilty on April 19, 2006, to both charged offenses. On August 4, 2007, the probation officer filed a presentence report ("PSR"), designating White as an armed career criminal under the ACCA. One of the three previous convictions contributing to this designation was White's 1999 conviction for the North Carolina offense of conspiracy to commit robbery with a dangerous weapon. The district court subsequently declined to accept White's guilty pleas because the plea agreement failed to contemplate the applicability of the ACCA. Thereafter, on January 4, 2008, White again pleaded guilty to the § 922(g)(1) felon-in-possession offense, and the stolen firearm charge was dismissed.

On January 16, 2008, the probation officer filed a revised PSR with the district court, again designating White as an armed career criminal under the ACCA. On April 12, 2008, White objected to the PSR on the ground that a conspiracy to commit robbery with a dangerous weapon under North Carolina law is not a violent felony. The court denied this objection during its April 15, 2008 sentencing hearing, ruling from the bench that "a conspiracy to commit armed robbery is just as dangerous and confrontational ... as the substantive crime of armed robbery itself." J.A. 65.¹ The court also explained that "a conspiracy to commit an armed robbery is [a] dangerous type of crime that creates [a] serious potential risk of physical injury to another." Id. at 66. Accordingly, the court sentenced White under the ACCA to fifteen years in prison.²

On April 30, 2008, White filed a timely notice of appeal. We possess jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.

II.

White's sole appellate contention is that the North Carolina offense of conspiracy to commit robbery with a dangerous weapon (the "Conspiracy Offense") is not a "violent felony" under the ACCA. We review this contention de novo. See United States v. Thornton, 554 F.3d 443, 445 (4th Cir.2009).

A.

Before assessing White's contention that the Conspiracy Offense does not constitute an ACCA violent felony, we begin with an overview of the pertinent legal principles. More specifically, we discuss the elements of the Conspiracy Offense, the requirements of the ACCA, and the controlling decisions of the Supreme Court of the United States.

1.

In North Carolina, the offense of criminal conspiracy originated with, and is defined by, the common law. See N.C. Gen.Stat. § 4-1 (incorporating common law into North Carolina criminal law); see also State v. Howard, 129 N.C. 584, 40 S.E. 71, 74-75 (1901) (tracing common law origins of criminal conspiracy offense). North Carolina defines a criminal conspiracy—a partnership in crime—as "an agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful way or by unlawful means." State v. Gibbs, 335 N.C. 1, 436 S.E.2d 321, 347 (1993) (internal quotation marks omitted); State v. Conrad, 275 N.C. 342, 168 S.E.2d 39, 43 (1969) (describing criminal conspiracy as "a partnership in crime"). In order to be convicted of a North Carolina conspiracy offense, a defendant must be shown to have "entered into an unlawful confederation for the criminal purposes alleged." State v. Massey, 76 N.C.App. 660, 334 S.E.2d 71, 72 (1985). According to the pattern jury instructions for criminal prosecutions in North Carolina, there are three essential elements of such a conspiracy offense: (1) "that the defendant and [another] entered into an agreement"; (2) "that the agreement was to commit [a crime]"; and (3) "that the defendant and [his coconspirator(s)] intended that the agreement be carried out at the time it was made." N.C.P.I.-Crim. 202.80 (2001).³ As the pattern instructions reflect, the commission of an overt act is not an essential element of a North Carolina criminal conspiracy. See Gibbs, 436 S.E.2d at 347 ("As soon as the union of wills for the unlawful purpose is perfected, the offense of conspiracy is completed." (internal quotation marks omitted)).

Although the Conspiracy Offense is a common law offense, its object—robbery with a dangerous weapon—is statutorily defined. See N.C. Gen.Stat. § 14-87.⁴ The three essential elements of the North Carolina offense of robbery with a dangerous weapon are the following: "(1) the unlawful taking or an attempt to take personal property from the person or in the presence of another; (2) by use or threatened use of a firearm or other dangerous weapon; (3) whereby the life of a person is endangered or threatened." State v. Faison, 330 N.C. 347, 411 S.E.2d 143, 149 (1991) (internal quotation marks omitted).

2.

The ACCA defines what constitutes a "violent felony" in 18 U.S.C. § 924(e)(2)(B). First, under clause (i) of that provision, a violent felony is an offense 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). Second, pursuant to clause (ii) of that same provision, a violent felony "is a burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." Id. § 924(e)(2)(B)(ii). In assessing whether an offense constitutes an ACCA violent felony, we are obliged to utilize a categorical approach, under which the offense is analyzed generically—that is, by relying solely on its essential elements, rather than on the particular underlying facts. See James v. United States, 550 U.S. 192, 208, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007); Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (explaining that categorical approach requires "looking only to the fact of conviction and the statutory definition of the predicate offense, rather than to the particular underlying facts").

Applying a categorical analysis to the Conspiracy Offense, we first observe that it does not have "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). Furthermore, the Conspiracy Offense is not among the four enumerated offenses of § 924(e)(2)(B)(ii)—burglary, arson, extortion, or an offense involving the use of explosives. Thus, we must assess only one issue—the potential applicability of the "residual provision" of clause (ii). In other words, we must decide whether the Conspiracy Offense "otherwise involves conduct that presents a serious potential risk of physical injury to another." Id. § 924(e)(2)(B)(ii).

3.

In its James decision in 2007, the Supreme Court recognized that the crime of attempted burglary, as defined by Florida law, qualified as a violent felony under the residual provision of § 924(e)(2)(B)(ii). See 550 U.S. at 211-12, 127 S.Ct. 1586. In making that determination, the Court assessed "whether the risk posed by attempted burglary is comparable to that posed by its closest analog among the enumerated offenses—here, completed burglary." Id. at 203, 127 S.Ct. 1586. The Court explained that, "[a]s long as an offense is of a type that, by its nature, presents a serious potential risk of injury to another, it satisfies the requirements of § 924(e)(2)(B)(ii)'s residual provision." Id. at 209, 127 S.Ct. 1586. Because an attempted burglary "poses the same kind of risk" as a burglary, the Court held that the Florida offense of attempted burglary was encompassed within the clause (ii) residual provision, and thus constituted a violent felony under the ACCA. Id. at 203, 127 S.Ct. 1586.

A year after James, the Court refined the ACCA "violent felony" analysis by its decision in Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). There, the Court held that the New Mexico offense of driving under the influence ("DUI") did not constitute a violent felony under § 924(e)(2)(B)(ii)'s residual provision. See Begay, 128 S.Ct. at 1588. The Court recognized that the residual provision encompasses only those crimes "that are roughly similar, in kind as well as in degree of risk posed," to the enumerated offenses of clause (ii). Id. at 1585. Expanding the inquiry that...