United States v. Croft

• Citation: 987 F.3d 93
• Decision Date: 29 January 2021
• Docket Number: No. 18-6627,18-6627
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Travis Dequincy CROFT, Defendant - Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

987 F.3d 93

UNITED STATES of America, Plaintiff - Appellee,

v.Travis Dequincy CROFT, Defendant - Appellant.

No. 18-6627

United States Court of Appeals, Fourth Circuit.

Argued: December 10, 2020

Decided: January 29, 2021

ARGUED: Anwar Lord Graves, O'MELVENY & MYERS LLP, Washington, D.C., for Appellant. Kathleen Michelle Stoughton, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: Shannon Barrett, David K. Roberts, Michael Rosenblatt, O'MELVENY & MYERS LLP, Washington, D.C., for Appellant. Peter M. McCoy, Jr., United States Attorney, Brook B. Andrews, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Before MOTZ, THACKER, and QUATTLEBAUM, Circuit Judges.

Affirmed by published opinion. Judge Quattlebaum wrote the opinion, in which Judge Motz and Judge Thacker joined.

QUATTLEBAUM, Circuit Judge:

The question here is whether a conviction under South Carolina's carjacking statute, S.C. Code § 16-3-1075, which prohibits taking or attempting to take a motor vehicle "by force and violence or by intimidation while the person is operating the vehicle or while the person is in the vehicle," is a violent felony predicate under the Armed Career Criminal Act ("ACCA"). To qualify as a violent felony, a predicate crime must have as an element the use, attempted use or threatened use of physical force against another person. In appealing the district court's denial of his petition for writ of habeas corpus under 28 U.S.C. § 2255, Travis Croft claims that S.C. Code § 16-3-1075 does not. Croft's argument comes down to whether "intimidation," as it is used in the carjacking statute, requires the threat of physical force against the person in the vehicle. Although South Carolina courts have not explicitly interpreted the carjacking statute, the state has given us every indication that it meant "intimidation" in its carjacking statute to require the use, attempted use or threat of physical force against the person in the vehicle. Therefore, we affirm the district court's conclusion that South Carolina carjacking is a violent felony under the ACCA and affirm the denial of Croft's petition.¹

I.

We begin by recapping the events that led to Croft's sentence. In 2003, Croft pled guilty to carjacking in violation of S.C. Code § 16-3-1075 and was sentenced to thirty months in prison.² Seven years later, Croft pled guilty to the distribution of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), (e). At sentencing for those charges, the government asserted that Croft was an armed career criminal based on two prior convictions of distributing crack cocaine and the 2003 South Carolina carjacking conviction. The district court agreed and sentenced Croft to 188 months in prison, applying the ACCA's fifteen-year minimum. We affirmed Croft's sentence enhancement as an armed career criminal. See United States v. Croft , 533 F. App'x 187 (4th Cir. 2013).

During Croft's imprisonment, the Supreme Court held in Johnson v. United States , 576 U.S. 591, 597, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), that the ACCA's residual clause was unconstitutionally vague. Soon after, it determined that its holding in Johnson applied retroactively to cases on collateral review. Welch v. United States , ––– U.S. ––––, 136 S. Ct. 1257, 1268, 194 L.Ed.2d 387 (2016).

That same year, Croft filed a § 2255 motion to collaterally attack his sentence, arguing that Johnson changed the substantive law of his conviction because his South Carolina carjacking offense no longer qualified as a predicate offense under the ACCA. More specifically, Croft argued that the South Carolina carjacking statute could only be a predicate offense under the ACCA's residual clause, and, therefore, he no longer had enough predicate offenses to be sentenced as an armed career criminal. The government disagreed, arguing that the statute describes a violent felony under the ACCA's force clause because it requires the use, attempted use or threat of physical force against another person.

The district court denied Croft's motion to vacate his sentence. It identified three predicate convictions: two drug offenses, which Croft conceded were "serious drug offenses" under the ACCA, and the carjacking offense. 18 U.S.C. § 924(e)(2)(A). The district court reasoned that, although South Carolina has no precedent directly on point, its carjacking statute was a violent felony under the ACCA's force clause because it shared the same intimidation element as South Carolina robbery, which we held was a violent felony in United States v. Doctor , 842 F.3d 306, 309 (4th Cir. 2016). The district court concluded that Croft was not sentenced under the ACCA's residual clause and, therefore, was not eligible for relief under Johnson . It noted, however, that "[i]t is not a settled point of law that the South Carolina carjacking statute satisfies the physical force requirement" of an ACCA violent felony predicate. J.A. 66. The district court thus granted Croft a certificate of appealability on this specific question.

Croft filed two motions for reconsideration, which the district court denied. He then timely appealed to this Court, advancing the same arguments he pressed below.

II.

To address Croft's arguments on appeal, we first describe the analytical framework for our inquiry before applying it to the South Carolina carjacking statute to determine whether the statute qualifies as a violent felony predicate under the ACCA.³

A.

To qualify as a violent felony under the ACCA, a predicate crime must "ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another." Doctor , 842 F.3d at 308 (quoting 18 U.S.C. § 924(e)(2)(B)(i) ). Physical force "means 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). Force that is sufficient "to overcome a victim's physical resistance is inherently ‘violent.’ " Stokeling v. United States , ––– U.S. ––––, 139 S. Ct. 544, 553, 202 L.Ed.2d 512 (2019).

Whether a state crime is classified as a violent felony predicate under the ACCA is determined by either the categorical or the modified categorical approach. See Descamps v. United States , 570 U.S. 254, 271–72, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). The categorical approach applies when the statute has an indivisible set of elements, whereas the modified categorical approach applies when the statute is divisible. Id. Here, the parties agree that we should apply the categorical approach. Based on our precedent, we agree. See United States v. Burns-Johnson , 864 F.3d 313, 316 (4th Cir. 2017).

To apply the categorical approach, we review the elements of the offense to determine the minimum conduct necessary for a violation as defined by state law, disregarding the particular facts underlying the defendant's conviction. Id . at 316. In that assessment, we must "rely on the interpretation of the offense rendered by the courts of the state in question." Id. (citing United States v. Winston , 850 F.3d 677, 684 (4th Cir. 2017) ). Thus, South Carolina law controls our inquiry here.

Additionally, in determining the "minimum conduct" required to obtain a conviction for a state crime, we must ask whether there is " ‘a realistic probability, not a theoretical possibility,’ that a state would actually punish that conduct." Doctor , 842 F.3d at 308 (quoting United States v. Gardner , 823 F.3d 793, 803 (4th Cir. 2016) ). Therefore, we need not "conjure up fanciful fact patterns in an attempt to find some nonviolent manner in which a crime can be committed." United States v. Salmons , 873 F.3d 446, 451 (4th Cir. 2017) ; see also Moncrieffe v. Holder , 569 U.S. 184, 133 S. Ct. 1678, 1684–85, 185 L.Ed.2d 727 (2013) ("[O]ur focus on the minimum conduct criminalized by the state statute is not an invitation to apply ‘legal imagination’ to the state offense ....") (quoting Gonzales v. Duenas-Alvarez , 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) ).

B.

South Carolina's carjacking statute requires proof that the defendant "(i) took, or attempted to take, a motor vehicle from another person; (ii) by force and violence or by intimidation; (iii) while the person was operating the vehicle or while the person was in the vehicle." State v. Elders , 386 S.C. 474, 688 S.E.2d 857, 862 (S.C. Ct. App. 2010) (citing S.C. Code Ann. § 16-3-1075(B) ). Under the categorical approach, the question becomes whether "intimidation," as it is used in S.C. Code § 16-3-1075, requires the use, attempted use or threat of violent, physical force against the person in the vehicle. If it does not, then it is possible a person could be convicted of carjacking in South Carolina without committing a violent felony as defined in the ACCA.

As Croft properly notes, South Carolina courts have not defined "intimidation" in the carjacking statute. Accordingly, Croft argues the plain, and thus broader, meaning of "intimidation" applies. Using that approach, he contends that "intimidation" includes nonviolent threats and coercion. For example, one could threaten a car owner with economic harm in order to obtain the vehicle. Croft argues that example does not involve the threat of violence but still violates the statute. Therefore, according to Croft, a violation of the South Carolina carjacking statute is not categorically a violent felony.

We disagree. The statute's text, surrounding caselaw and the historical context of the statute's passage all demonstrate that "intimidation" in the carjacking statute requires the threat of physical force against the person in the vehicle. Croft's reference to other statutes in South Carolina and other state carjacking statutes does not save his argument. As all roads led to Rome during its empire,...