United States v. Burns-Johnson

• Decision Date: 18 July 2017
• Docket Number: No. 16-4338,16-4338
• Citation: 864 F.3d 313
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lamar BURNS-JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

864 F.3d 313

UNITED STATES of America, Plaintiff-Appellee,

v.Lamar BURNS-JOHNSON, Defendant-Appellant.

No. 16-4338

United States Court of Appeals, Fourth Circuit.

Argued: December 7, 2016

Decided: July 18, 2017

ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: Ross Richardson, Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Jill Westmoreland Rose, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Before KING, DUNCAN, and KEENAN, Circuit Judges.

Affirmed by published opinion. Judge Keenan wrote the opinion, in which Judge King and Judge Duncan joined.

BARBARA MILANO KEENAN, Circuit Judge:

In this appeal, we consider whether the North Carolina offense of robbery with a dangerous weapon, in violation of North Carolina General Statutes Section 14-87 (armed robbery, or statutory armed robbery), qualifies as a "violent felony" for purposes of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). Relying on the Supreme Court's decision in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) ( Johnson II ), in which the Supreme Court invalidated the ACCA's residual clause as being unconstitutionally vague, Lamar Burns-Johnson argues that his predicate North Carolina convictions for armed robbery no longer qualify as "violent felonies" because they are not enumerated crimes under the ACCA's definition of that term and do not meet the requirements of the definition's "force clause." See 18 U.S.C. § 924(e)(2)(B). Burns-Johnson therefore asserts that the district court erred in considering those convictions in imposing sentence on him.

Upon our review, we conclude that the offense of armed robbery under North Carolina General Statutes Section 14-87 categorically qualifies as a violent felony under the "force clause" of the ACCA. Accordingly, we affirm the district court's judgment sentencing Burns-Johnson as an armed career criminal.

I.

In 2015, Burns-Johnson pleaded guilty to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). In the presentence report, the probation officer recommended that Burns-Johnson be sentenced as an armed career criminal based on his prior armed robbery convictions. Burns-Johnson objected to the ACCA designation, arguing that armed robbery under North Carolina General Statutes Section 14-87 does not qualify as a violent felony under the ACCA. The district court overruled Burns-Johnson's objection and held that his prior convictions for statutory armed robbery under North Carolina law qualify as violent felonies under the force clause of the ACCA, because that offense requires the use, attempted use, or threatened use of force.

As a result of Burns-Johnson's ACCA classification, he was subject to a mandatory minimum sentence of 15 years' imprisonment, with a Sentencing Guidelines range of between 180 and 210 months' imprisonment. See 18 U.S.C. § 924(e)(1). In May 2016, the district court sentenced Burns-Johnson to the mandatory minimum term of 180 months in prison. Burns-Johnson now appeals.

II.

The sole issue before us is whether the offense of robbery with a dangerous weapon, in violation of North Carolina General Statutes Section 14-87, qualifies as a violent felony within the meaning of the ACCA, 18 U.S.C. § 924(e). This question presents an issue of law, which we review de novo. See United States v. Gardner , 823 F.3d 793, 801 (4th Cir. 2016).

A.

We begin our analysis with an overview of the ACCA. Under this statutory scheme, a defendant qualifies as an armed career criminal, and is subject to a mandatory minimum 15-year term of imprisonment, if he has three prior convictions for "a violent felony or a serious drug offense, or both, committed on occasions different from one another." 18 U.S.C. § 924(e)(1). A crime qualifies as a "violent felony" if the offense is "punishable by imprisonment for a term exceeding one year" and

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another [the force clause]; or

(ii) is burglary, arson, or extortion, involves use of explosives [the enumerated offense clause], or otherwise involves conduct that presents a serious potential risk of physical injury to another [the residual clause].

Id. § 924(e)(2)(B). In Johnson II , decided before Burns-Johnson's sentencing hearing, the Supreme Court struck down the residual clause as unconstitutionally vague. 135 S.Ct. at 2557-60. Therefore, because robbery is not listed in the enumerated offense clause, statutory armed robbery under North Carolina law may qualify as a violent felony only by satisfying the requirements of the ACCA's force clause.

To determine whether a state crime qualifies as a violent felony under the ACCA's force clause, we apply the categorical approach described by the Supreme Court in Descamps v. United States , ––– U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013).¹ See Gardner , 823 F.3d at 802. Under the categorical approach, we examine whether a state crime has as an element the "use, attempted use, or threatened use of physical force against the person of another," and do not consider the particular facts underlying the defendant's conviction. Descamps , 133 S.Ct. at 2283 (citing Taylor v. United States , 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ); Gardner , 823 F.3d at 803 (citing 18 U.S.C. § 924(e)(2)(B)(i) ). The Supreme Court has defined the term "physical force" as used in the ACCA as "violent force—that is, force capable of causing physical pain or injury to another person." Johnson v. United States , 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ( Johnson I ). Accordingly, if the elements of a crime can be satisfied by de minimis physical contact, the offense does not qualify categorically as a violent felony. See id . at 140-42, 130 S.Ct. 1265.

In evaluating whether a state offense requires the use, attempted use, or threatened use of physical force, federal courts must rely on the interpretation of the offense rendered by the courts of the state in question. See United States v. Winston , 850 F.3d 677, 684 (4th Cir. 2017) ; United States v. Doctor , 842 F.3d 306, 309 (4th Cir. 2016). We look to the "minimum conduct" required to obtain a conviction for the state crime, and ensure that there is "a realistic probability, not a theoretical possibility, that a state would actually punish that conduct."² Doctor , 842 F.3d at 308(internal quotation marks omitted) (quoting Gardner , 823 F.3d at 803 ); see also Moncrieffe v. Holder , 569 U.S. 184, 133 S.Ct. 1678, 1685, 185 L.Ed.2d 727 (2013). With this background in mind, we turn to consider the offense of statutory armed robbery under North Carolina law.

B.

Burns-Johnson advances two alternative arguments in support of his contention that statutory armed robbery does not constitute a violent felony. He contends that (1) the offense does not include as an element the use of violent physical force as defined by the Supreme Court; and (2) the offense does not require the intentional use or threatened use of force and, therefore, does not meet the mens rea requirement of the ACCA. We address each argument in turn.

i.

Burns-Johnson first argues that statutory armed robbery does not categorically qualify as a violent felony because the crime does not require the use of violent physical force "capable of causing physical pain or injury to another person." Johnson I , 559 U.S. at 140, 130 S.Ct. 1265. He contends that North Carolina courts have defined the term "dangerous weapon" broadly to include means that do not involve the use or threatened use of violent force, such as the use of substances like poison. Relying on this Court's decision in United States v. Torres-Miguel , 701 F.3d 165 (4th Cir. 2012), Burns-Johnson asserts that because the crime can be accomplished by administering poison, which he contends does not involve the use of violent physical force, statutory armed robbery does not qualify categorically as a violent felony. We disagree with Burns-Johnson's argument.

North Carolina General Statutes Section 14-87 provides that

[a]ny person or persons who, having in possession or with the use or threatened use of any firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened , unlawfully takes or attempts to take personal property from another or from any place of business, residence or banking institution or any other place where there is a person or persons in attendance, at any time, either day or night, or who aids or abets any such person or persons in the commission of such crime, shall be guilty of a Class D felony (emphasis added).

North Carolina courts have interpreted Section 14-87 as encompassing four elements: "(1) an 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" and (4) "the defendant had the intent to deprive the owner of his property at the time of taking." State v. Kemmerlin , 356 N.C. 446, 573 S.E.2d 870, 889 (2002) (citations omitted). As of the date of Burns-Johnson's offense, North Carolina courts defined the term "dangerous weapon" to include "any article, instrument or substance which is likely to produce death or great bodily harm." State v. Wiggins , 78 N.C.App. 405, 337 S.E.2d 198, 199 (1985) (emphasis added) (citation omitted); see, e.g. , State v. Cockerham , 129 N.C.App. 221, 497 S.E.2d 831, 832-34 (1998) (upholding conviction for attempted robbery with a dangerous weapon in which the defendant threw gasoline into the face of a victim, when matches...