Criminal – No ACCA Sentence for Common-Law Robbery

U.S. v. Gardner (Lawyers Weekly No. 001-089-16, 20 pp. (Keenan) No. 14-4533, May 18, 2016; USDC at Greenville, N.C. (Fox, J.) 4^th Cir.

Holding: Police were entitled to stop defendant’s vehicle based on a tip from a reliable informant who said defendant was a convicted felon in possession of a gun driving a white Lincoln Town Car and the trial court properly denied defendant’s motion to suppress; however, the 4^th Circuit vacates his sentence as an armed career criminal because North Carolina common law robbery is not categorically a violent felony.

We have stated in U.S. v. Singh, 363 F.3d 347 (4^th Cir. 2004), that when an investigative stop is based on unverified information provided by a known informant, a tip of this nature may alone justify a reasonable suspicion of criminal activity. When police obtain information corroborating the tip, this circumstance adds significant support for a finding of reasonable suspicion.

This case is governed by Singh. The officers here corroborated some of the information provided by the informant, namely the presence of a white Lincoln Town Car at the described location and verification that defendant was the driver. While the officers did not confirm that defendant was a convicted felon before initiating the stop, every detail provided by a tipster need not be independently verified to support a finding of reasonable suspicion. We hold the district court did not err in concluding that the traffic stop was supported by reasonable suspicion.

We disagree with defendant’s alternative argument that the encounter matured into a de facto arrest that required Miranda warnings. His statement concerning the gun in the car was not obtained in violation of his Fifth Amendment.

Common law robbery

Because the Supreme Court recently held in Johnson v. U.S., 135 S.Ct. 2551 (2015), that the language of the residual clause in the Armed Career Criminal Act is unconstitutional, North Carolina common law robbery can qualify as a “violent felony” only if it matches the definition of a violent felony under the force clause.

North Carolina common law robbery is the felonious, non-consensual taking of money or personal property from the person or presence of another by means of violence or fear. The crime may be committed by the alternate means of violence or fear that do not constitute different elements of distinct crimes. The crime is an indivisible offense, to be analyzed under the categorical approach.

North Carolina case law supports the conclusion that even minimal contact may be sufficient to sustain a robbery conviction if the victim forfeits property in response. We hold that North Carolina common law robbery does not qualify categorically as a violent felony under the ACCA. The district court erred in applying the ACCA enhancement.

Affirmed in part, vacated in part and remanded.