North Carolina Lawyers Weekly
U.S. v. Winston (Lawyers Weekly No. 001-068-17, 17 pp.) (Keenan, J.) No. 16-7252, March 13, 2017; USDC at Charlottesville, Va. (Moon, J.) 4th Cir.
Holding: The 4th Circuit vacates a district court decision holding that Virginia common law robbery qualifies as a violent felony under the ACCA’s force clause; defendant still may be subject to an armed career criminal designation if his rape conviction under the Uniform Code of Military Justice qualifies as a violent felony.
Defendant was convicted on a federal firearm charge and sentenced under the Armed Career Criminal Act, based on his prior conviction for the Virginia crime of common law robbery. He moved for post-conviction relief under 28 U.S.C. § 2255, arguing that his robbery conviction no longer qualified as an ACCA predicate offense after the U.S. Supreme Court decision in Johnson v. U.S., 135 S. Ct. 2551 (2015) (Johnson II), which invalidated a portion of the ACCA’s definition of “violent felony.”
The district court denied the § 2255 motion, concluding that Virginia common law robbery continues to qualify as a violent felony because the crime has as an element the “use, attempted use or threatened use of physical force against the person of another.” On review, we agree with the district court’s rejection of the government’s procedural arguments, because defendant sufficiently has shown that he relied on a new rule of constitutional law. However, we disagree with the district court’s substantive conclusion and hold that defendant’s conviction for Virginia common law robbery does not constitute a violent felony under the ACCA, because the full range of conduct covered by the Virginia crime does not necessarily include the use of force capable of causing physical pain or injury to another person.
We agree with the district court’s conclusion that defendant’s claim for post-conviction relief relied on, at least in part, the new rule of constitutional law announced in Johnson II. Although the record does not establish that the residual clause served as the basis for concluding that defendant’s prior convictions for rape and robbery qualified as violent felonies, nothing in the law requires a court to specify which clause it relied upon in imposing a sentence. We will not penalize a movant for a court’s discretionary choice not to specify under which clause of § 924(e)(2)(B) an offense qualified as a violent felony.
We conclude the minimum conduct necessary to sustain a conviction for Virginia common law robbery does not necessarily include the use, attempted use or threatened use of “violent force … capable of causing physical pain or injury to another person,” under Johnson v. United States, 559 U.S. 133 (2010). Accordingly, we hold that defendant’s conviction for Virginia common law robbery does not qualify as a violent felony under the ACCA.
Vacated and remanded.
