United States v. Ezekiel Gardner (2016)

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, id. (quoting Moncrieffe v. Holder, — U.S. —, 133 S.Ct. 1678, 1684-85 , 185 L.Ed.2d 727 (2013)).

In support of his argument, Winston cites as persuasive authority our recent decision in United States v. Gardner, 823 F.3d 793, 803-04 (4th Cir. 2016), in which we held that North Carolina common law robbery, which can be committed either by violence or by instilling fear in the victim, was not a. violent felony under the ACCA’s force clause.

United States v. Gardner, 823 F.3d 793, 803 (4th Cir. 2016) (internal quotation marks omitted).

Mathis, 136 S.Ct. at 2256 ; see also United States v. Edwards, 836 F.3d 831, 833 (7th Cir. 2016) (“The Supreme Court recently clarified that a statute is considered divisible only if it creates multiple offenses by setting forth alternative elements.”); United States v. Gardner, 823 F.3d 793, 802 (4th Cir. 2016) (“A crime is not divisible simply because it may be accomplished through alternative means, but only when alternative elements create distinct crimes.”).

To qualify as a predicate offense under the categorical approach and ACCA’s force clause, the offense itself “necessarily must have as an element the ‘use, attempted use, or threatened use of physical 6 force against the person of another.’” United States v. Gardner, 823 F.3d 793, 803 (4th Cir. 2016) (quoting 18 U.S.C. § 924 (e)(2)(B)(i)).

No. 16-3855 United States v. Burris Page 13 what state law is.’” Id. (quoting United States v. Gardner, 823 F.3d 793, 803 (4th Cir. 2016) (alteration omitted)).

Yet, in determining the “minimum conduct” that satisfies a state offense, as the categorical approach requires, we must ensure “there is a ‘realistic probability, not [just] a theoretical possibility,’ that a State would actually punish that conduct.” United States v. Gardner, 823 F.3d 793, 803 (4th Cir. 2016) (quoting Moncrieffe v. Holder, 133 S. Ct. 1678 , 1684–85 (2013)).

Gardner, 823 F.3d at 803 (citation omitted).

“We review a district court’s factual findings in deciding a motion to suppress for clear error, and the court’s legal conclusions de novo.” United States v. Gardner, 823 F.3d 793, 799 (4th Cir. 2016).

Subsection (i) is commonly referred to as the “force clause.” United States v. Gardner, 823 F.3d 793, 802 (4th Cir. 2016).

In United States v. Gardner, 823 F.3d 793, 801-04 (4th Cir. 2016), we concluded that North Carolina common law robbery does not qualify as a “violent felony” under the force clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924 (e)(2)(B)(i), which is identical to and applied the same as the force clause in § 4B1.2(a)(1), see, e.g., United States v. King, 673 F.3d 274 , 279 & n.3 (4th Cir. 2012).

See United States v. Mulkern, 854 F.3d 87, 93 (1st Cir. 2017) (holding that a state conviction for robbery in Maine was not a violent felony under the ACCA because “Maine’s highest court recognizes that ‘any physical force’ suffices to satisfy the ‘physical force’ element [of the robbery statute],” including “ ‘the mere act of snatching a purse from the hand of a victim’ .,., even if the robber never made ‘direct bodily contact’ with the victim”) (emphasis in original); Unit…

If anything, the fact that Moncrieffe only looked to state intermediate appellate court decisions supports the adage that after a state supreme court’s decisions, “intermediate [state] appellate court decisions constitute the next best indicia of what state law is.” United States v. Gardner, 823 F.3d 793, 803 (4th Cir. 2016) (quotation marks omitted).

United States v. Gardner, 823 F.3d 793, 803 (4th Cir. 2016) (quoting Castillo v. Holder, 776 F.3d 262, 267 (4th Cir. 2015)), abrogated on other grounds by United States v. White, 987 F.3d 340 (4th Cir. 2021).

If the state’s highest court does not further illuminate the meaning of a state statute, “intermediate state appellate court decisions constitute the next best indicia of what state law is.” Burris, 912 F.3d at 398 (quoting United States v. Gardner, 823 F.3d 793, 803 (4th Cir. 2016)); see also id. at 401 (rejecting the government’s argument that “a few (potentially) outlier lower [state] court decisions” cannot disprove a categorical match between a state and federal statute…

If there is a “‘realistic probability, not [just] a theoretical possibility,’ that a state would actually punish that conduct,” we then compare that minimum conduct with “the definition of violent felony in the force clause.” Doctor, 842 F.3d at 308–09 (quoting United States v. Gardner, 823 F.3d 793, 803 (4th Cir. 2016)).

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)).

Under that approach, we are to review the elements of the crime and discern “the minimum conduct necessary for a violation under state law.” United States v. Gardner, 823 F.3d 793, 803 (4th Cir. 2016) (internal quotation marks omitted).

We rely on decisions of the Supreme Court of North Carolina, while decisions of the state’s intermediate appellate court “constitute the next best indicia of what state law is.” United States v. Gardner, 823 F.3d 793, 803 (4th Cir. 2016) (citation omitted).

We rely on decisions of the Supreme Court of North Carolina, while decisions of the state’s intermediate appellate court “constitute the next best indicia of what state law is.” United States v. Gardner, 823 F.3d 793, 803 (4th Cir. 2016) (citation omitted).

The first clause is known as the “force clause,” and the second clause consists of several enumerated crimes as well as a “residual clause.” United States v. Gardner, 823 F.3d 793, 801-02 (4th Cir. 2016) (internal quotation marks omitted).

Courts look at “‘the minimum conduct necessary for a violation’ under state law.” United States v. Gardner, 823 F.3d 793, 803 (4th Cir. 2016) (quoting Castillo v. Holder, 776 F.3d 262, 267 (4th Cir. 2015)).

Courts look at “‘the minimum conduct necessary for a violation’ under state law.” United States v. Gardner, 823 F.3d 793, 803 (4th Cir. 2016) (quoting Castillo v. Holder, 776 F.3d 262, 267 (4th Cir. 2015)).

In Beckles v. United States, 137 S. Ct. 886, 892 (2017), however, the Supreme Court declined to extend Johnson’s reasoning to the Guidelines, holding that “the Guidelines are not subject to a vagueness challenge under the Due Process Clause,” and thus the residual clause of USSG § 4B1.2(a)(2) “is not void for vagueness.” 1 After United States v. Gardner, 823 F.3d 793, 804 (4th Cir. 2016), it is clear that North Carolina common law robbery is not a crime of violence under the…

We acknowledged our prior holding that North Carolina robbery does not constitute a violent felony under the ACCA’s force clause, United States v. Gardner, 823 F.3d 793, 804 (4th Cir. 2016), but we explained that the ACCA’s force clause encompasses crimes that have as an element “the use, attempted use, or threatened use of force capable of causing physical pain or injury to another person,” while, “to commit generic robbery by taking property through the use of force, the d…

USSG §4B1.2, cmt. n.1. 3 Although Jackson acknowledged that, at the time of his sentencing, the contested conviction was considered to be a crime of violence for sentencing purposes, on appeal he contends that this is no longer true, relying on Johnson and United States v. Gardner, 823 F.3d 793, 801-04 (4th Cir. 2016) (North Carolina common law robbery does not qualify as a violent felony under the ACCA).

We must identify the elements of Dinkins’s state conviction and determine whether the ‘“minimum conduct’ required to sustain a conviction for the state crime” falls within the ACCA definition of a “violent felony.” Id. (quoting United States v. Gardner, 823 F.3d 793, 803 (4th Cir. 2016)).

Foye appealed, but based on the Government’s unopposed motion to remand for resentencing, we vacated Foye’s sentence and remanded for resentencing in light of our decisions in United States v. Gardner, 823 F.3d 793, 804 (4th Cir. 2016) and an unpublished case.

United States v. Gardner, 823 F.3d 793, 801 (4th Cir. 2016).

“Alternative elements of a crime, as opposed to alternative means of committing a crime, are ‘factual circumstances of the offense that the jury must find unanimously and beyond a reasonable doubt.’” United States v. Gardner, 823 F.3d 793, 802 (4th Cir. 2016) (quoting Omargharib, 775 F.3d at 198 ).

“Alternative elements of a crime, as opposed to alternative means of committing a crime, are ‘factual circumstances of the offense that the jury must find unanimously and beyond a reasonable doubt.’ ” United States v. Gardner, 823 F.3d 793, 802 (4th Cir. 2016) (quoting Omargharib, 775 F.3d at 198 ).

United States v. Gardner, 823 F.3d 793, 799 (4th Cir. 2016).

Decisions of the Florida Supreme Court are binding; decisions of Florida’s intermediate appellate court “constitute the next best indicia of what state law is.” United States v. Gardner, 823 F.3d 793, 803 (4th Cir. 2016); Harris, 844 F.3d at 1264 .

Hadsell preserved this issue in the district court and, therefore, “we review de novo the question whether his prior state conviction[ ] qualified as [a] predicate felony conviction ] for purposes of a federal sentence enhancement.” United States v. Gardner, 823 F.3d 793, 801 (4th Cir. 2016) (internal quotation marks omitted).

If anything, the fact that Moncrieffe only looked to state intermediate appellate court decisions supports the adage that after a state supreme court’s decisions, “intermediate [state] appellate court decisions constitute the next best indicia of what state law is.” United States v. Gardner, 823 F.3d 793, 803 (4th Cir. 2016) (quotation marks omitted).

See, e.g., United States v. Eason, 829 F.3d 633, 640-42 (8th Cir. 2016) (Arkansas robbery); United States v. Gardner, 823 F.3d 793, 803-04 (4th Cir. 2016) (North Carolina robbery); United States v. Parnell, 818 F.3d 974, 979 (9th Cir. 2016) (Massachusetts armed robbery); see also United States v. Bell, 840 F.3d 963, 964-67 (8th Cir. 2016) (holding Missouri second-degree robbery does not qualify as a crime of violence under Sentencing Guidelines).

In United States v. Gardner, 823 F.3d 793, 804 (4th Cir. 2016), we held that North Carolina common-law robbery is not a violent felony under the force clause of the ACCA.

Subsection (e)(2)(B)(i), which is commonly referred to as the “force clause,” applies only to crimes that involve “violent force—that is, force that is capable of causing physical pain or injury to another person.” United States v. Gardner, 823 F.3d 793, 803 (4th Cir. 2016) (internal quotation marks omitted).

See, e.g., United States v. Gardner, 823 F.3d 793, 804 (4th Cir. 2016) (“North Carolina has defined common law robbery to encompass cases involving the use of minimal force, which does not satisfy the condition of ‘violent force’.... ”); United States v. Flores-Cordero, 723 F.3d 1085, 1088 (9th Cir. 2013) (“Under prevailing Arizona law, the use of minimal force is sufficient to constitute ‘resisting arrest,’ ” and therefore does not meet the requirements of Johnson).

Following the district court’s order denying relief on this issue, we decided United States v. Gardner, 823 F.3d 793, 803-04 (4th Cir. 2016), holding that North Carolina common law robbery is not categorically a crime of violence for ACCA purposes.

After the district court’s order, we held that North Carolina common law robbery “does not qualify categorically as a ‘violent felony1 under [§ 924(e)(2)(B) ].” United States v. Gardner, 823 F.3d 793, 801-04 (4th Cir. 2016).

Additionally, we held that North Carolina common law robbery “does not qualify categorically as a ‘violent felony5 under [§ 924(e)(2)(B)].” United States v. Gardner, 823 F.3d 793, 804 (4th Cir. 2016).

See United States v. Bell, 840 F.3d 963, 966 (8th Cir. 2016) (stating that robbery in Missouri requires physical contact but it need not cause physical pain or injury); United States v. Gardner, 823 F.3d 793, 803 (4th Cir. 2016) (explaining that for North Carolina common law robbery "the degree of force used is immaterial, so long as it is sufficient to compel the victim to part with his property” (citation omitted)); United States v. Eason, 829 F.3d 633, 641 (8th Cir. 2016)…

This is plainly distinct from the violence element of North Carolina’s common law robbery as articulated in Gardner, in which the Fourth Circuit concluded that “de minimus contact” js sufficient and “the degree of force is immaterial.” 823 F.3d at 803 (internal citation omitted).

The Petitioner argues that Mitchell’s analysis is inconsistent with the Fourth Circuit’s analysis in United States v. Gardner, 823 F.3d 793 (4th Cir. 2016), in which the Court held that “the minimum conduct necessary to sustain a conviction for North Carolina common law robbery does not necessarily include the use, attempted use, or threatened use of force capable of causing physical pain or injury to another person, as required by the force clause of the ACCA.” 823 F.3d at …

United States v. Gardner, 823 F.3d 793, 804 (4th Cir. 2016).

See also United States v. Gardner, 823 F3d 793, 802 (II) (B) (1) (4th Cir. 2016) (“A crime is not divisible simply because it may be accomplished through alternative means, but only when alternative elements create distinct crimes.”). 14 The categorical and modified categorical approaches are also used outside the ACCA context, such as in applying sentencing guidelines and immigration provisions.

See also United States v. Gardner , 823 F.3d 793 , 802 (II) (B) (4th Cir. 2016) ("A crime is not divisible simply because it may be accomplished through alternative means, but only when alternative elements create distinct crimes.").

See United States v. O'Connor , 874 F.3d 1147 , 1151 (10th Cir. 2017) ("We must apply the 'categorical approach' to decide whether Mr. O'Connor's prior conviction for Hobbs Act robbery is a *416 'crime of violence' under the Guidelines and therefore qualifies him for an enhanced sentence."); United States v. Gardner , 823 F.3d 793 , 802 (4th Cir. 2016) ("A crime is not divisible simply because it may be accomplished through alternative means, but only when alternative elemen…

After Castro-Vazquez, three courts of appeals held that comparable state statutes, which required only slight physical contact, such as a “bump” of a shoulder and a “yank” of a purse, for a robbery conviction, did not require “force capable of causing physical pain or injury to another person” as required to satisfy either the force clause of U.S.S.G. § 4B1.2, see United States v. Bell, 840 F.3d 963, 966 (8th Cir. 2016), or the ACCA, see United States v. Gardner, 823 F.3d 79…