United States v. Doctor, No. 15-4764

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtGREGORY, Chief Judge
Citation842 F.3d 306
Parties United States of America, Plaintiff–Appellee, v. Kareem Antwan Doctor, Defendant–Appellant
Docket NumberNo. 15-4764
Decision Date21 November 2016

842 F.3d 306

United States of America, Plaintiff–Appellee,
v.
Kareem Antwan Doctor, Defendant–Appellant,

No. 15-4764

United States Court of Appeals, Fourth Circuit.

Argued: September 23, 2016
Decided: November 21, 2016


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.

Affirmed by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Wilkinson and Judge Diaz joined. Judge Wilkinson wrote a separate concurring 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

842 F.3d 308

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,

842 F.3d 309

id.(quoting Moncrieffe v. Holder, ––– U.S. ––––, 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 (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. SeeGardner, 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. SeeState v. Mitchell, 382 S.C. 1, 675 S.E.2d 435, 437 (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 (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. SeeUnited 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);seeWagstaff, 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

842 F.3d 310

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 force4 in the South Carolina Court of Appeals opinion in State v. Rosemond:"[r]egardless of how slight the cause creating the fear is or by what other circumstances the taking is accomplished, if the transaction is accompanied by circumstances of terror, such as threatening by word or gesture, ... the victim is placed in fear." 348 S.C. 621, 560 S.E.2d 636, 641 (Ct. App. 2002) (emphasis added). But whether a robber's threat is slight does not resolve the force clause inquiry; what matters is whether, as Rosemond explains, the threat creates a fear of bodily injury in a reasonable person. Under the right circumstances, a slight threat—"you better hand over the money, or else," or even just a menacing...

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164 practice notes
  • Bridges v. United States, No. 20-1623
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 17, 2021
    ...ruse for paradoxically finding even the worst and most violent offenses not to constitute crimes of violence." United States v. Doctor , 842 F.3d 306, 313 (4th Cir. 2016) (Wilkinson, J., concurring). The need to investigate whether Bridges had a viable categorical approach argument was espe......
  • United States v. Allred, No. 18-6843
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • November 7, 2019
    ...focus "only [on] the elements of the ... offense and the fact of conviction, not [on] the defendant’s conduct." United States v. Doctor , 842 F.3d 306, 308 (4th Cir. 2016). To qualify as a predicate offense under the categorical approach and ACCA’s force clause, the offense itself 942 F.3d ......
  • United States v. Scott, No. 18-163-cr
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • March 2, 2021
    ...to be sentenced has actually done, but the most lenient conduct punished by his statute of conviction."); United States v. Doctor , 842 F.3d 306, 313 (4th Cir. 2016) (Wilkinson, J. , concurring) ("[T]he categorical approach can serve as a protracted ruse for paradoxically finding even the w......
  • United States v. Lujan, CR 12-0268 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • February 3, 2022
    ...ruse for paradoxically finding even the worst and most violent offenses not to constitute crimes of violence, ” United States v. Doctor, 842 F.3d 306, 313 (4th Cir. 2016)(Wilkinson, J., concurring), and pleads: “Heaven help us, ” United States v. McCollum, 885 F.3d 300, 314 (4th Cir. 2018)(......
  • Request a trial to view additional results
164 cases
  • Bridges v. United States, No. 20-1623
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 17, 2021
    ...ruse for paradoxically finding even the worst and most violent offenses not to constitute crimes of violence." United States v. Doctor , 842 F.3d 306, 313 (4th Cir. 2016) (Wilkinson, J., concurring). The need to investigate whether Bridges had a viable categorical approach argument was espe......
  • United States v. Allred, No. 18-6843
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • November 7, 2019
    ...focus "only [on] the elements of the ... offense and the fact of conviction, not [on] the defendant’s conduct." United States v. Doctor , 842 F.3d 306, 308 (4th Cir. 2016). To qualify as a predicate offense under the categorical approach and ACCA’s force clause, the offense itself 942 F.3d ......
  • United States v. Scott, No. 18-163-cr
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • March 2, 2021
    ...to be sentenced has actually done, but the most lenient conduct punished by his statute of conviction."); United States v. Doctor , 842 F.3d 306, 313 (4th Cir. 2016) (Wilkinson, J. , concurring) ("[T]he categorical approach can serve as a protracted ruse for paradoxically finding even the w......
  • United States v. Lujan, CR 12-0268 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • February 3, 2022
    ...ruse for paradoxically finding even the worst and most violent offenses not to constitute crimes of violence, ” United States v. Doctor, 842 F.3d 306, 313 (4th Cir. 2016)(Wilkinson, J., concurring), and pleads: “Heaven help us, ” United States v. McCollum, 885 F.3d 300, 314 (4th Cir. 2018)(......
  • Request a trial to view additional results

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