United States v. Dinkins, 18-6264

• Citation: 928 F.3d 349
• Decision Date: 01 July 2019
• Docket Number: No. 18-6264,18-6264
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Bobby Arion DINKINS, Defendant - Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

928 F.3d 349

UNITED STATES of America, Plaintiff - Appellee,

v.Bobby Arion DINKINS, Defendant - Appellant.

No. 18-6264

United States Court of Appeals, Fourth Circuit.

Argued: May 9, 2019

Decided: July 1, 2019

ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant. Elizabeth Margaret Greenough, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Before NIEMEYER, KEENAN, and QUATTLEBAUM, Circuit Judges.

Affirmed by published opinion. Judge Keenan wrote the opinion, in which Judge Niemeyer and Judge Quattlebaum joined.

BARBARA MILANO KEENAN, Circuit Judge:

Bobby Arion Dinkins pleaded guilty in 2009 to a federal firearm charge, for which he was sentenced to serve a term of 252 months’ imprisonment. His sentence included an enhancement under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), based in part on his prior convictions in North Carolina for common law robbery and for being an accessory before the fact of armed robbery (the challenged convictions). In 2016, Dinkins filed a motion under 28 U.S.C. § 2255, in which he argued that the challenged convictions no longer qualified as predicate offenses under the ACCA after the Supreme Court’s decision in Johnson v. United States , ––– U.S. ––––, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015) ( Johnson II ). After the district court dismissed Dinkins’ motion, we granted a certificate of appealability.

Upon our review, we hold that the challenged convictions categorically qualify as violent felonies under the "force clause" of the ACCA. In reaching this holding, we conclude that North Carolina common law robbery qualifies as an ACCA predicate under the Supreme Court’s recent decision in Stokeling v. United States , ––– U.S. ––––, 139 S. Ct. 544, 202 L.Ed.2d 512 (2019), which abrogated our prior holding in United States v. Gardner , 823 F.3d 793 (4th Cir. 2016) (holding that North Carolina robbery does not qualify as an ACCA predicate under the force clause). We further hold that a conviction under North Carolina law for being an accessory before the fact of armed robbery qualifies as a violent felony because that offense incorporates the elements of armed robbery, which itself is a violent felony. We therefore affirm the district court’s judgment.

I.

In 2009, Dinkins pleaded guilty to Hobbs Act robbery, in violation of 18 U.S.C. § 1951, and to being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). In the presentence report, the probation officer listed Dinkins’ criminal history, which included prior convictions under North Carolina law for (1) being an accessory before the fact of armed robbery; (2) second-degree burglary; and (3) common law robbery.¹

Based in part on these convictions, the probation officer recommended that Dinkins be sentenced as an armed career criminal under the ACCA, 18 U.S.C. § 924(e), which mandates a fifteen-year minimum sentence for defendants convicted of a firearm offense who have three or more prior convictions for violent felonies or serious drug offenses. Absent this armed career criminal designation, Dinkins would have been subject to a ten-year maximum sentence for his firearm conviction. See 18 U.S.C. § 924(a)(2).

The district court adopted this portion of the presentence report and calculated Dinkins’ sentencing guideline range as being between 235 and 293 months’ imprisonment. After considering the sentencing factors in 18 U.S.C. § 3553(a) and rejecting Dinkins’ motion for a downward departure, the court imposed a sentence of 252 months’ imprisonment with respect to the firearm charge.

In February 2015, Dinkins filed his first motion for post-conviction relief under § 2255, challenging both his conviction and his sentence.² The district court dismissed the motion as untimely, because it was filed almost five years after his conviction had become final. See 28 U.S.C. § 2255(f) (establishing a one-year limitations period for § 2255 motions, generally beginning from the date the challenged judgment becomes final).

In 2016, Dinkins sought and received authorization to file the present § 2255 motion, arguing that he improperly was designated as an armed career criminal. Dinkins contended that his North Carolina common law convictions for robbery and for being an accessory before the fact of armed robbery did not qualify as violent felonies following the United States Supreme Court’s decision in Johnson II , which held that a portion of the ACCA’s definition of violent felony known as the "residual clause" is unconstitutionally vague. 135 S. Ct. at 2555-57. Therefore, Dinkins argued that his sentence for the firearm charge exceeds the maximum allowed by law.

The district court dismissed Dinkins’ second motion on procedural grounds.³ Dinkins timely filed a notice of appeal and, after informal briefing, a panel of this Court granted him a certificate of appealability to address "[w]hether Dinkins has prior convictions of three violent felonies and is an armed career criminal in light of the rules announced in [Johnson II ] and [ Gardner ]." See 28 U.S.C. § 2253(c).

II.

We review de novo a district court’s legal conclusions concerning a denial of § 2255 relief, including whether certain prior convictions qualify as violent felonies under the ACCA. See United States v. Jones , 914 F.3d 893, 899 (4th Cir. 2019).

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). At the time of Dinkins’ sentencing, a crime qualified as a "violent felony" if the offense was "punishable by imprisonment for a term exceeding one year" and

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

(ii) [Was] burglary, arson, or extortion, involves use of explosives (the enumerated crimes clause), or otherwise involve[d] conduct that present[ed] a serious potential risk of physical injury to another (the residual clause).

Id. § 924(e)(2)(B) (naming conventions added).

In 2015, the Supreme Court in Johnson II struck down the ACCA’s residual clause as unconstitutionally vague, in violation of the Due Process Clause of the Fifth Amendment. 135 S. Ct. at 2557-60. The Court held that the residual clause did not clearly articulate how to evaluate the risks of injury posed by a crime, thus depriving defendants of fair notice regarding their potential sentence and inviting "arbitrary enforcement by judges." Id. at 2557. The Court further held that the force clause and the enumerated crimes clause remained valid as defining the scope of a predicate violent felony under the ACCA. Id. at 2563.

In the present case, we observe that neither robbery nor the offense of being an accessory before the fact of armed robbery is listed in the enumerated crimes clause of the ACCA. Thus, after Johnson II , Dinkins’ challenged convictions may qualify as violent felonies 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," focusing on the elements of the crime of conviction and not on the underlying facts. United States v. Reid , 861 F.3d 523, 527 (4th Cir. 2017). Under this approach, we consider whether the state crime at issue 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) ; see Gardner , 823 F.3d at 803. In evaluating whether a state offense meets this definition, "we look to state law and ‘the interpretation of [the] offense articulated by that state’s courts.’ " United States v. Bell , 901 F.3d 455, 469 (4th Cir. 2018) (quoting United States v. Winston , 850 F.3d 677, 684 (4th Cir. 2017) ). The definition of the term "physical force," however, and the separate question whether the elements of a state offense satisfy that definition, present issues of federal law. Johnson v. United States , 559 U.S. 133, 138, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ( Johnson I ); Bell , 901 F.3d at 469.

The Supreme Court recently revisited the definition of "physical force" under the ACCA’s force clause to determine whether the offense of robbery under Florida law, Fla. Stat. § 812.13(1), constituted a predicate offense under that clause. See Stokeling , 139 S. Ct. at 549. The term "physical force" under the ACCA long has been defined as "violent force—that is, force capable of causing physical pain or injury to another person." Johnson I , 559 U.S. at 140, 130 S.Ct. 1265. In Stokeling , the Court held that the term "violent force" discussed in Johnson I "encompasses robbery offenses that require the criminal to overcome the victim’s resistance." 139 S. Ct. at 550.

In arriving at this conclusion, the Court reviewed the history of the ACCA. The Court recognized that the ACCA had incorporated the common law definition of robbery, and that, at common law, a person committed robbery by seizing property from another through use of force sufficient to overcome the victim’s resistance. Id. at 550-51. Noting that in some instances of robbery only slight force is necessary to overcome a victim’s resistance, the Court stated that such force "is inherently ‘violent’ in the sense contemplated by [Johnson I ]" because overpowering even a weak-willed victim "necessarily involves a physical confrontation and struggle." Id. at 553.

Focusing on Johnson I ’s use of the word "capable," the Court explained that its definition of violent force is concerned...