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Criminal Practice – S.C. Strong-Arm Robbery Is ‘Violent Crime’

Deborah Elkins//November 30, 2016

Criminal Practice – S.C. Strong-Arm Robbery Is ‘Violent Crime’

Deborah Elkins//November 30, 2016

U.S. v. Doctor (Lawyers Weekly No. 001-168-16, 31 pp.) (Gregory, J.) No. 15-4764, Nov. 21, 2016; USDC at Charleston, S.C. (Duffy, J.) 4th Cir.

Holding: The 4th Circuit affirms a defendant’s mandatory 15-year sentence under the Armed Career Criminal Act for unlawful possession of a firearm; his prior conviction for South Carolina strong arm robbery qualifies as a violent felony under the ACCA.

The ACCA defines “violent felony,” in pertinent part, as having as an element the use, attempted use or threatened use of physical force against the person of another. 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.” We apply the “categorical approach” to make this determination.

In State v. Rosemond, 589 S.E. 2d 757 (S.C. 2003), 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. A defendant can thus commit robbery by alternative means of “violence” or “intimidation.”

A review of South Carolina law reveals that intimidation necessarily involves threatened use of physical force. To constitute intimidation in South Carolina, a robbery victim must feel a threat of bodily harm based on the defendant’s acts. 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 slight or implicit nature of a threat does not render it nonviolent. While hypothetical scenarios can surely be concocted to support robbery convictions based on accidental, negligent or reckless conduct, given the total absence of case law, there is not a realistic probability that South Carolina would punish such conduct.

Here, there is no indication that South Carolina robbery by violence can be committed with minimal actual force. Unlike the definition of North Carolina robbery, the definition of South Carolina robbery does not suggest that the degree of actual force used is immaterial. There is no general statement from the South Carolina Supreme Court or intermediate appellate court to that effect. There is no basis for the conclusion that South Carolina robbery can be accomplished with force below the physical force threshold.

In sum, South Carolina has defined its common law robbery offense, whether committed by means of violence or intimidation, to necessarily include as an element the use, attempted use or threatened use of physical force against another person. We conclude that defendant’s prior conviction for South Carolina robbery qualifies as predicate violent felony within the meaning of the ACCA.

Sentence affirmed.


Wilkinson, J.: I am pleased to join Chief Judge Gregory’s fine opinion. It reaches the right result for the right reason. I write to express a general concern that the categorical approach to predicate crimes of violence is moving beyond what the Supreme Court originally anticipated. Its overactive application is undermining the efforts of Congress, the role of district courts in sentencing and the public’s need for a sense of basic protection against the most violent forms of criminal behavior. The categorical approach should be adapted to return to sentencing courts a greater measure of their historical discretion.


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