US v. Kareem Doctor

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 2:13-cr-00811-PMD-1. [999972039]. [15-4764]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4764

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KAREEM ANTWAN DOCTOR,
Defendant – Appellant,

Appeal from the United States District Court for the District of
South Carolina, at Charleston.
Patrick Michael Duffy, Senior
District Judge. (2:13-cr-00811-PMD-1)
Argued:

September 23, 2016

Decided:

November 21, 2016

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.
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.

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GREGORY, Chief Judge:
Kareem Antwan Doctor appeals his fifteen-year sentence for
unlawful possession of a firearm.
enhanced

sentence

pursuant

to

The district court imposed an

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 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,

imprisonment

for

which
a

mandates

defendant

a

who

minimum
violates

of

fifteen

§ 922(g)

years’

and

“has

three previous convictions” for a “violent felony or a serious
2

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drug offense, or both.”
prior

convictions

cocaine,

which

offenses,

as

he

well

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18 U.S.C. § 924(e)(1).

for

possession

did

not

as

a

with

contest

prior

Doctor had two

intent

qualified

conviction

to

as

for

district

court

held,

over

Doctor’s

serious

South

strong arm robbery (“South Carolina robbery”). 1
the

distribute

Carolina

At sentencing,

objection,

robbery conviction was an ACCA violent felony.

drug

that

the

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.
323, 331 (4th Cir. 2013).

United States v. Hemingway, 734 F.3d
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

1

South Carolina strong arm robbery and common law robbery
are “synonymous terms for a common law offense whose penalty is
provided for by statute.”
State v. Rosemond, 560 S.E.2d 636,
640 (S.C. Ct. App. 2002) (footnote omitted).
For ease of
reference, we refer to the offense as South Carolina robbery.
2

The ACCA separately defines “violent felony” as “any crime
punishable by imprisonment for a term exceeding one year” that
(Continued)
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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,

“is burglary, arson, or extortion, involves use of explosives,
or otherwise involves conduct that presents a serious potential
risk
of
physical
injury
to
another.”
18
U.S.C.
§ 924(e)(2)(B)(ii). That subsection has no application here, as
robbery is not an enumerated crime and the Supreme Court deemed
the clause concerning risk of physical injury unconstitutionally
vague in Johnson v. United States (“Johnson II”), 135 S. Ct.
2551, 2557 (2015).
3

Courts apply the “modified categorical approach” where the
prior state offense is divisible, meaning it sets out multiple
elements in the alternative and at least one set of elements
matches the federal definition. Descamps v. United States, 133
S. Ct. 2276, 2284 (2013).
Because South Carolina robbery is a
nondivisible offense, the modified categorical approach “has no
role to play in this case.” Id. at 2285.
4

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id. (quoting
(2013)).

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Moncrieffe

v.

Pg: 5 of 31

Holder,

133

S.

Ct.

1678,

1684-85

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.”

589 S.E.2d 757, 758 (S.C. 2003).

A defendant

can thus commit robbery in South Carolina by alternative means
of

“violence”

evaluating

or

“intimidation.”

intimidation,

courts

Id.
ask

at

758-59.

whether

an

When

“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.

See Gardner, 823 F.3d at 803.

Doctor offers several reasons why South Carolina robbery is not
a

categorical

intimidation.

match,

largely

focusing

on

robbery

by

He first contends that a robber may intimidate a

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victim without “the use, attempted use, or threatened use of
physical force.”
A

review

force.

South

Carolina

law

necessarily

intimidation

of

reveals,

involves

threatened

however,

use

of

that

physical

The South Carolina Supreme Court has indicated that a

robber intimidates a victim by threatening force.

See State v.

Mitchell, 675 S.E.2d 435, 437 (S.C. 2009) (stating that robbery
involves

either

“employment

(quoting

State

2007)).

The issue, then, is whether intimidation under South

Carolina

law

v.

Moore,

requires

the

of

649

force
S.E.2d

force

or
84,

“physical

force”

as

88

threatened

force” within the meaning of the ACCA.
defined

threat

“violent

of

(S.C.

to

be

force”)
Ct.

App.

“physical

The Supreme Court has
force--that

is,

force

capable of causing physical pain or injury to another person.”
Johnson

v.

(2010).

To constitute intimidation in South Carolina, a robbery

victim

United

must

“feel

defendant’s acts.

States

a

(“Johnson

threat

of

I”),

bodily

559

harm”

Rosemond, 589 S.E.2d at 759.

these two standards align.

U.S.

based

133,

on

140

the

We find that

There is no meaningful difference

between a victim feeling a threat of bodily harm and feeling a
threat of physical pain or injury.
818

F.3d

141,

154

(4th

Cir.

See United States v. McNeal,

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.
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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

§ 2113(a).

in

federal

bank

robbery

cases

under

18

U.S.C.

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);
see Wagstaff, 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)).
confirmed

in

McNeal

that

intimidation

This Court recently
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

physical force.

robbery

requires

the

threatened

use

of

Indeed, like the defendants in McNeal, Doctor

has not “identified a single [] robbery prosecution where the

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bodily

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harm”--that

is,

was

“something other than violent physical force.”

intimidated--by
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 force 4 in the South Carolina Court of
Appeals
slight

opinion
the

in

cause

State

v.

creating

Rosemond:
the

fear

“[r]egardless
is

or

by

of

what

how

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.”

560

S.E.2d 636, 641 (S.C. 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

person.

creates

a

fear

of

bodily

injury

in

a

reasonable

Under the right circumstances, a slight threat--“you

better hand over the money, or else,” or even just a menacing
stare--can communicate an intent to cause great bodily injury.
Put simply, the slight or implicit nature of a threat does not
render it nonviolent.

4

Though the South Carolina Court of Appeals did not
explicitly define the term, “constructive force” generally means
“[t]hreats
and
intimidation
to
gain
control
or
prevent
resistance; esp., threatening words or gestures directed against
a robbery victim.”
Constructive Force, Black’s Law Dictionary
(10th ed. 2014).
8

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Doctor next argues that South Carolina robbery is not an
ACCA violent felony because it does not match the force clause
requirement
another.”

that

force

be

directed

“against

the

person

of

Again focusing on robbery by intimidation, he asserts

that a defendant can commit the crime even where his or her
threatening behavior is not specifically aimed at the victim.
Doctor suggests that the facts of Rosemond illustrate that a
defendant can be convicted for applying force against property
rather than people.
The
around

defendant

9:00

p.m.

in

Rosemond

and,

after

entered

spending

a

a

convenience

few

minutes

store
in

the

bathroom, immediately “went behind the counter to the register”
and “glare[d]” at the store clerk who stood “just a few feet”
away.
to

589 S.E.2d at 758.

open

the

cash

When the defendant tried and failed

register,

he

grabbed

the

“heavy”

register,

flipped it into the air, picked it up again, and slammed it down
once more, finally popping it open.
clerk

testified

that

she

was

scared

Id. at 759.
by

both

glare and his slamming of the cash register.

the

The store
defendant’s

Id. at 758.

The

South Carolina Supreme Court upheld the defendant’s conviction,
finding that a reasonable person in the clerk’s position “would
have felt a threat of bodily harm from petitioner’s acts.”
at 759.

Id.

The court, then, did not affirm just because the clerk

was generally fearful during the defendant’s assault on the cash
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register.

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It

sustained

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the

conviction

after

specifically

finding that the defendant’s actions threatened a similar use of
violent force against the clerk.
defendant’s
“against
sense

use

the

given

or

threatened

person
that

of

Rosemond thus confirms that a

use

of

another.”

intimidation

force

This

means

must

be

directed

interpretation

the

threatened

makes

use

of

physical force--a concept that, common sense tells us, involves
people.

Indeed, the very purpose of threatening physical force

is to prevent a person from resisting the taking.

See Rosemond,

560 S.E.2d at 641.
Doctor also argues that South Carolina robbery is not a
violent

felony

because

it

can

be

committed

intentional use or threat of physical force.
rooted

in

considered

Leocal
whether

v.

Ashcroft,

Florida’s

543

offense

U.S.
of

without

an

This position is
1

(2004),

driving

under

which
the

influence of alcohol constituted a “crime of violence” under the
force clause in 18 U.S.C. § 16(a).

There, the Supreme Court

held that the ordinary meaning of “use . . . of physical force
against” a person “most naturally suggests a higher degree of
intent than negligent or merely accidental conduct.”

Id. at 9.

Because a Florida conviction for driving under the influence
could be based on negligent or accidental conduct, it lacked the
level of intent needed to be a crime of violence.

Id. at 9-10.

We later held that an assault conviction premised on reckless
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force was not a crime of violence for the same reason.

See

Garcia v. Gonzales, 455 F.3d 465, 468-69 (4th Cir. 2006).
South

Carolina

robbery

incorporates

the

elements

of

larceny, which includes an intent to steal, see Broom v. State,
569 S.E.2d 336, 337 (S.C. 2002), but it does not contain an
explicit mens rea requirement as to the force or intimidation
element.
lacks

the

Doctor takes this to mean that South Carolina robbery
intent

violent felony.

requirement

needed

for

it

to

qualify

as

a

But he fails to cite a single case in South

Carolina where a defendant negligently or recklessly used force
in the commission of a robbery, 5 or where a defendant negligently
or

recklessly

intimidated

a

victim.

This

is

unsurprising

because the intentional taking of property, by means of violence
or intimidation sufficient to overcome a person’s resistance,
must

entail

conduct.

more

than

accidental,

negligent,

or

reckless

In considering § 2113(a) bank robbery, the Supreme

Court held that the crime requires general intent, meaning a

5

Doctor does point us to United States v. Dixon, in which
the Ninth Circuit concluded that robbery under California Penal
Code § 211 could be committed with accidental force.
805 F.3d
1193, 1197 (9th Cir. 2015). That holding, however, hinged on a
stranger-than-fiction California Supreme Court case where a
defendant broke into an unoccupied car in a parking garage,
stole the car, and then accidentally ran over the car’s owner
after exiting the garage.
Id. (discussing People v. Anderson,
252 P.3d 968 (Cal. 2011)).
We have found no indication that a
defendant can similarly commit South Carolina robbery with
accidental force.
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defendant must possess “knowledge with respect to the actus reus
of the crime (here, the taking of property of another by force
and violence or intimidation).”
U.S.

255,

268

(recognizing

(2000);

Carter).

see
We

Carter v. United States, 530

also

see

no

McNeal,
reason

818
why

robbery should be viewed any differently.

F.3d
South

at

155

Carolina

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.
Finally, Doctor argued for the first time at oral argument
that South Carolina robbery can be committed with de minimis
actual force.
accomplished

Several courts have found that if robbery can be
with

minimal

actual

force--grazing

a

victim’s

shoulder while lifting a purse, for instance--the crime does not
meet

the

physical

force

requirement

outlined

in

Johnson

I

(“force capable of causing physical pain or injury to another
person”).

See, e.g., United States v. Parnell, 818 F.3d 974,

979 (9th Cir. 2016) (holding that Massachusetts armed robbery,
which requires only “minimal, nonviolent force,” does not meet
the

physical

Gardner

with

force

threshold).

respect

to

North

We

reached

Carolina

that

common

result

law

in

robbery.

Gardner, 823 F.3d at 804.

In doing so, we cited the Supreme

Court

statement

of

North

Carolina’s

12

that

“[a]lthough

actual

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force implies personal violence, the degree of force used is
immaterial, so long as it is sufficient to compel the victim to
part with his property.”

Id. at 803 (emphasis added) (quoting

State v. Sawyer, 29 S.E.2d 34, 37 (N.C. 1944)).
Here,
Carolina

by

contrast,

robbery

actual force.

by

there

violence

is

no

can

be

indication
committed

that
with

South
minimal

As noted, South Carolina robbery can be committed

“by violence or putting [a] person in fear.”
S.E.2d at 758.

Rosemond, 589

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.”
general

statement

from

intermediate

appellate

provides

examples

minimis

no

actual

force

robbery by violence. 6

the
court

of

South
to

South

sufficient

Carolina
that

Carolina
to

Supreme

effect.
cases

sustain

There is no

a

Court

And
that

or

Doctor
find

conviction

de
for

Therefore, there is no basis for the

conclusion that South Carolina robbery can be accomplished with
force below the physical force threshold.
6

Recognizing that each

At oral argument, defendant’s counsel cited two cases for
the first time--State v. Gagum, 492 S.E.2d 822 (S.C. Ct. App.
1997) and Humbert v. State, 548 S.E.2d 862 (S.C. 2001)--in
support of the argument that South Carolina robbery can be
committed with slight actual force.
Neither case, however,
addresses the minimum amount of actual force needed to sustain a
robbery conviction in South Carolina. In fact, it is not clear
from the face of either appellate decision whether the juries
(or, more precisely, at least some of the jurors) convicted the
defendants of robbery by violence or robbery by intimidation.
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“State is entitled to define its crimes as it sees fit,” McNeal,
818

F.3d

at

153,

South

Carolina

robbery

differs

from

North

Carolina robbery in this critical respect.
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 the person of another.”
Accordingly,

we

conclude

that

Doctor’s

prior

conviction

for

South Carolina robbery qualifies as a predicate violent felony
within the meaning of the ACCA.

III.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.

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WILKINSON, Circuit Judge, concurring:
I am pleased to join Chief Judge Gregory’s fine opinion. It
reaches the right result, and for the right reasons. The ACCA’s
force

clause

covers

acts

of

intimidation

and

a

strong

arm

robbery is the quintessential act of intimidation – whether or
not actual physical force is used. This was a point we made in
United States v. McNeal, 818 F.3d 141 (4th Cir. 2016). I hope
that the panel opinion will mark a turning point toward a more
realistic application of the categorical approach, because all
too often that approach has pushed criminal sentencing to the
very last place that sentencing ought to be, that is at an
untenable remove from facts on the ground.
As

as

a

express

refreshing

concern

general

the

panel’s
that

analysis

the

is,

categorical

I

write

to

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.
While it need not be discarded, the categorical approach should
be adapted to return to sentencing courts a greater measure of
their historical discretion.

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I.
It surprises me that we have arrived at this point, because
in theory, the categorical approach makes a good deal of sense.
I had high hopes for it. District courts would be spared the
practical

difficulties

of

probing

the

underlying

conduct

of

predicate convictions. And the approach promised to strike a
balance

between

defendants

exempting

convicted

of

from

sentencing

non-violent

conduct

enhancements

and

vindicating

Congress’s desire to punish the most violent recidivists. But
what was fine in theory has sometimes proven to be less so in
practice.
For starters, the purported administrative benefits of the
categorical

approach

Judges

simply

have

have
swapped

not

always

factual

worked

inquiries

as

advertised.

for

an

endless

gauntlet of abstract legal questions. Consider the decisional
costs: Courts must first construe the predicate crime, which
requires combing through state court decisions and “peek[ing]”
at various documents to discern whether each statutory phrase is
a separate element or merely an alternative means of satisfying
the element. See Mathis v. United States, 136 S. Ct. 2243, 2256–
57 (2016). After decoding the definition of the offense, courts
must then assess whether “the minimum conduct criminalized” by
the statutory elements “categorically fits” within the generic
“federal

offense

that

serves
16

as

a

point

of

comparison.”

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Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013). But because
there is no agreed-upon metric for what constitutes a match,
this inquiry also involves an exhaustive review of state law as
courts search for a non-violent needle in a haystack or conjure
up some hypothetical situation to demonstrate that the predicate
state crime just might conceivably reach some presumably less
culpable behavior outside the federal generic.
The

Supreme

Court

has

sensibly

cautioned

judges

to

use

common sense in applying the categorical approach and not to
indulge in imaginative flights. See Gonzales v. Duenas-Alvarez,
549 U.S. 183, 193 (2007). And yet the insistent injunction that
we begin the inquiry with the presumption that the conviction
“rested

upon

[nothing]

more

than

the

least

of

th[e]

acts”

criminalized, see Johnson v. United States, 559 U.S. 133, 137
(2010), virtually ensures that our legal imagination will be
utilized to posit an outlier set of facts or scenarios. The
upshot of this “counterintuitive” exercise, see Mathis, 136 S.
Ct. at 2251, is that the categorical approach can serve as a
protracted ruse for paradoxically finding even the worst and
most violent offenses not to constitute crimes of violence.
The

categorical

approach,

too

aggressively

applied,

eviscerates Congress’s attempt to enhance penalties for violent
recidivist behavior. The ACCA addresses the most culpable sector
of the criminal population, the repeat offenders Congress found
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responsible for the majority of violent crimes in America. H.R.
REP. NO.

98-1073,

at

1-3

(1984);

S. REP. NO.

98-190,

at

5-6

(1983). This is no rookie class of criminals. They are the exact
opposite of those first-offense or non-violent offenders who are
the focus of sensible sentencing reform efforts. Doctor, for
instance, has been convicted of assault and battery of a police
officer, domestic violence, strong arm robbery, and a series of
drug distribution offenses. This cohort of offenders are those
Congress unequivocally sought to “incapacitate.” H.R. REP. NO.
98-1073, at 2; S. REP. NO. 98-190, at 9. Yet the categorical
approach

has

facilitating

too
a

often

regime

flipped
that

this

objective

ostensibly

seeks

on

its

every

head,

possible

opportunity to eschew recidivist punishment. Whatever Congress
meant

when

it

tethered

the

ACCA’s

sentencing

enhancement

to

prior “convictions,” see Taylor v. United States, 495 U.S. 575,
600 (1990), it did not pass a statute aimed at violent acts only
to have patently violent acts called by some other name.
Explanations of the categorical approach repeatedly advance
its sentencing windfall as a necessary consequence. It does not
matter that “a sentencing judge knows (or can easily discover)
that

the

defendant

carried

out

[a

crime

of

violence].”

See

Mathis, 136 S. Ct. at 2251. “Whether the [defendant’s] actual
conduct involved such facts is quite irrelevant.” Moncrieffe,
133 S. Ct. at 1684. The reasons for this contention are well18

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known and understandable, but I wonder if it is sustainable over
the long term to have a criminal sentencing regime so frankly
and explicitly at odds with reality.
I

understand

that

the

ACCA

carries

a

mandatory

minimum

term, which already strips trial courts of a portion of their
ability to craft an individualized sentence. But while one may
certainly object to Congress’s overuse of mandatory minimums, it
does

not

follow

that

courts

should

double

the

damage

by

depriving sentencing judges of an additional measure of their
discretion to find facts related to predicate convictions. Many
of the arguments that critics legitimately level at the overuse
of mandatory minimums can likewise be raised against the overuse
of

the

categorical

approach

–

each

removes

much

needed

discretion from the sentencing court.
The

most

aggressive

applications

of

the

categorical

approach have operated as another exclusionary rule that limits
the ability of courts to see beyond the judicial sanctuary and
to fashion an informed sentence. Even when the record starkly
reveals

that

the

manner,

violent

predicate
predators

crime
are

was

thrown

committed
in

the

in

hopper

a

violent

with

all

other offenders because judges generally may not consider any
facts underlying the predicate offense. The alluring theoretical
terminology of the categorical approach has too often served to
isolate us in a judicial bubble, sealed conveniently off from
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the real-life dangers that confront American citizens in their
actual lives.
This

exclusion

is

simply

contrary

to

the

sentencing

function, which relies on district judges to consider a broad
swath

of

information

“background,
(2012).

In

bearing

character,
fact,

“[n]o

and

on

the

conduct.”

limitation

individual
See

shall

18
be

defendant’s

U.S.C.
placed”

§

3661

on

the

consideration of such information. Id. The Sixth Amendment need
not bar a judge from finding what a previous crime involved or
guilty plea determined. See Mathis, 136 S. Ct. 2258 (Kennedy,
J., concurring) (“Apprendi . . . does not compel the elements
based

approach.”).

Nonetheless,

with

an

exclusive

focus

on

elements, we have converted traditional questions of fact into
byzantine

questions

of

law

that

amount

almost

to

willful

blindness to what the defendant actually did. The categorical
approach

thus

increasingly

transfers

the

sentencing

function

from the trial courts to appellate courts, a turf battle which
the appellate courts may be equipped to win but at the expense
of

those

were

whose

heretofore

ground-level
thought

to

view
be

and

the

fact-finding

heart

of

the

capacities
sentencing

function.
II.
This should not mean jettisoning the categorical approach
and its admitted advantages altogether, but rather loosening its
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present rigid grip upon criminal sentencing. The U.S. Sentencing
Commission

has

complaints

that

legalistic,”

it

already
the

begun

this

doctrine

recently

process:

was

eliminated

in

“cumbersome
the

light
and

categorical

of

overly
approach

from many of the illegal reentry guidelines. See U.S. SENTENCING
COMM’N, AMENDMENTS

TO THE

SENTENCING GUIDELINES 26 (2016). As judges,

there is a way to apply the categorical approach in a realistic
manner that would serve its original and laudable purposes. The
categorical

approach

District

courts

inquiry,

but

need

should

should

not

the

free

be

be
to

apply

retain

the

exclusive
it

discretion

as
to

standard.

the

default

consider

the

defendant’s actual conduct when it can be clearly derived from
the record.
Four

Justices

have

now

expressed,

albeit

for

varying

reasons and to varying degrees, some uneasiness with aspects of
the

categorical

approach.

See

Mathis,

136

S.

Ct.

at

2258

(Kennedy, J., concurring); id. at 2263-66 (Breyer, J., joined by
Ginsburg,

J.,

dissenting);

id.

at

2267-71

(Alito,

J.,

dissenting). I recognize of course that four is not five, and we
have an obligation to follow a strict elements-based inquiry so
long as a majority of the Supreme Court adheres to it. The lower
courts have attempted in good faith to do just that. See, e.g.,
United States v. Parral-Dominguez, 794 F.3d 440 (4th Cir. 2015)
(North Carolina conviction for knowingly discharging a firearm
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into an occupied building was not a crime of violence); United
States v. Shell, 789 F.3d 335 (4th Cir. 2015) (North Carolina
conviction for rape of a mentally disabled person was not a
crime of violence); United States v. Torres-Miguel, 701 F.3d 165
(4th Cir. 2012) (California conviction for threatening to commit
a crime “which will result in death or great bodily injury to
another”

was

not

Hernandez-Montes,

a
831

crime
F.3d

of

violence);

284

(5th

United

Cir.

2016)

States

v.

(Florida

attempted second-degree murder was not a crime of violence);
United States v. Najera-Mendoza, 683 F.3d 627 (5th Cir. 2012)
(Oklahoma kidnapping was not a crime of violence); United States
v. McMurray, 653 F.3d 367 (6th Cir. 2011) (Tennessee aggravated
assault was not a crime of violence); United States v. Jordan,
812

F.3d

1183

(8th

Cir.

2016)

(Arkansas

conviction

for

aggravated assault creating a “substantial danger of death or
serious physical injury” was not a crime of violence); United
States v. Parnell, 818 F.3d 974 (9th Cir. 2016) (Massachusetts
armed robbery was not a crime of violence); United States v.
Cisneros, 826 F.3d 1190 (9th Cir. 2016) (Oregon first-degree
burglary did not “categorical[ly] match” generic burglary and
was not a crime of violence); United States v. Madrid, 805 F.3d
1204 (10th Cir. 2015) (Texas conviction for aggravated sexual
assault of a child was not a crime of violence).

22

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I do not intend to fault the aforementioned cases. Whether
one

agrees

with

them

or

not

(and

I

often

have

not),

they

conscientiously attempted, as they should have, to apply the
categorical

approach

correctly.

And

yet

hidden

within

their

binding holdings are heinous and indisputably violent acts which
sentencing

courts

might

have

found

if

only

given

the

opportunity. The foregoing is no more than a smattering of cases
that makes no attempt to be exhaustive, but it should serve to
illustrate

the

windfall

that

many

criminal

defendants

have

received from having their violent depredations on their fellow
citizens obscured in what two experienced counsel have termed,
perhaps too excitedly, “a morass of jurisprudential goo.” See
STEVEN KALAR & JODI LINKER, FED. DEFENDERS SERVS. OFFICE, GLORIOUS GOO: THE
TAYLOR/SHEPARD CATEGORICAL
is

particularly

inevitably

helps

MODIFIED CATEGORICAL ANALYSES 2 (2012) (“It

AND

glorious
our

goo,

because

clients.”).

I

the

confusion

acknowledge

almost

that

the

sentencing enterprise is a matter of endless disputation and
perpetual difficulty. It is hard to get right. But the heart of
the endeavor has historically been the sentencing courts’ factfinding capability and guided legal discretion, and the rigid
categorical approach to predicate crimes of violence has blown
us far off course.

23

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III.
There is a tension in the way that the Supreme Court is
looking at the role of sentencing judges. One set of cases seeks
to

limit

the

fact-finding

prerogative

of

trial

courts,

see

Descamps 133 S. Ct. at 2283; Moncrieffe, 133 S. Ct. at 1684,
while another seeks to expand it, see United States v. Booker,
543

U.S.

220

(2005)

(holding

the

Sentencing

Guidelines

advisory); Gall v. United States, 552 U.S. 38 (2007) (holding
district court sentencing generally reviewable under an abuse of
discretion standard). Yet although the categorical approach has
diminished
violence

district
under

the

court

discretion

ACCA

and

on

other

predicate
recidivist

crimes

of

sentencing

enhancements, it is much to be hoped that district judges retain
a

large

“crimes

measure
of

of

violence”

discretion

outside

sentencing

the

frameworks.

ACCA

and

In

other

similar
words,

notwithstanding the doubt that has sometimes been thrown on the
very notion of a crime of violence, does there remain a pathway
for

district

courts

to

ensure

that

the

worst

behaviors

are

appropriately sanctioned?
I believe a pathway does exist, and it is one that fully
respects, as it must, both the pronouncements of Congress and
the emphatic support that Supreme Court decisions have given the
superior sentencing vantage point of our trial judges. As I have
noted,

Congress

and

the

Supreme
24

Court

have

accorded

a

wide

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degree of latitude to trial judges, both in their capacity to
find facts and to fashion an individualized sentence (subject of
course to statutory maximums and minimums). Congress established
a

comprehensive

review

in

each

prohibited
consider,

set

any
see

of

case,

objectives
see

18

limitation
18

U.S.C.

on

for

U.S.C.
the

§ 3661

§ 3553(a)

information

(2012).

sentencing

decisions

following

Booker,

envisioned

a

in

district

scheme

which

sentencing

courts

(2012),

and

court

may

a

Likewise,

the

in

Supreme

courts

to

major

Court

exercise

has

broad

discretion. As the Court emphasized, “[t]he sentencing judge has
access to, and greater familiarity with, the individual case and
the

individual

defendant

before

him

than

the

[Sentencing]

Commission or the appeals court.” Rita v. United States, 551
U.S.

338,

357-58

(2007).

The

trial

court,

therefore,

is

not

bound by the advisory Sentencing Guidelines. Id. at 355. Rather,
judges

are

empowered

to

make

any

number

of

factual

determinations and conduct an “individualized assessment based
on the facts presented.” Gall, 552 U.S. at 50.
Do

trial

courts

then

retain

significant

sentencing

discretion? The signals are mixed. The categorical approach is
restrictive, and yet Gall is expansive. Outside the strictures
of the ACCA and other recidivist enhancements that apply the
categorical approach to predicate crimes of violence, a district
court’s fact-finding capabilities are not so constrained. While
25

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sentencing
documents

Filed: 11/21/2016

judges
when

are

Pg: 26 of 31

confined

classifying

to

predicate

a

narrow

crimes

set

for

of

a

record

sentencing

enhancement, Shepard v. United States, 544 U.S. 13 (2005), there
is

no

corresponding

“limitation

consideration

of

crafting

sentence

its

[factual

on

the

district’s

descriptions

under

of

§ 3553(a).”

an
United

court’s

offense]

in

States

v.

Savillon-Matute, 636 F.3d 119, 124 n.8 (4th Cir. 2011); see also
Booker, 543 U.S. at 233 (“For when a trial judge exercises his
discretion to select a specific sentence within a defined range,
the defendant has no right to a jury determination of the facts
that the judge deems relevant.”).
Of course, the scope of a sentencing court’s discretion to
delve into the facts underlying a conviction rendered in another
forum has never been boundless. Federal sentencing proceedings
are not the presumptive forum – unlike habeas corpus actions for overturning prior convictions or entertaining constitutional
challenges to them. See Custis v. United States, 511 U.S. 485,
497

(1994).

Yet

because

no

comparable

presumption

attaches

itself to the factual circumstances of prior criminal behavior –
sentencing hearings are, after all, the designated vehicle for
such inquiries - district courts have the option to assess the
seriousness of past conduct if they so choose. Indeed, it would
be the odd sentencing regime that requires a holistic view of
the defendant to be sentenced, see 18 U.S.C. § 3553(a), and yet
26

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prevents district courts from finding that a present or prior
crime was committed in a particularly violent manner.
IV.
Accordingly,
discretionary

as

the

exercise,

district

it

has

court

various

sets

about

tools

to

this

impose

a

stricter sentence if it believes that the categorical approach
is ignoring a violent criminal history or disserving the general
aims

of

sentencing.

To

be

sure,

the

Guidelines

“provide

a

framework or starting point” for the trial judge’s sentencing
determination. See Freeman v. United States, 131 S. Ct. 2685,
2692

(2011).

But

the

Guidelines

are

just

a

starting

point:

sentencing judges have two options for fashioning a sentence
outside

the

apologize

advisory

for

discretionary

range.

accenting
tools

In

the

have

a

describing

already

renewed

the

familiar,

salience

in

options,
but

light

I

these
of

the

restrictions elsewhere placed upon sentencing our most violent
offenders and on the sentencing judge’s role. Although these
alternate

pathways

will

not

repair

the

entire

damage

that

I

respectfully suggest a rigid categorical approach has done to
congressional intent, it may allow a trial judge to reach an
appropriate

sentence

by

considering

the

very

facts

the

categorical approach proscribes.
First,
departure

the
if

Guidelines
“reliable

expressly
information
27

provide

for

indicates

an

upward

that

the

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defendant’s

criminal

underrepresents

the

Pg: 28 of 31

history

seriousness”

category
of

the

significantly

defendant’s

criminal

history or likelihood of recidivism. U.S. SENTENCING GUIDELINES MANUAL
§ 4A1.3(a)(1) (U.S. SENTENCING COMM’N 2015). Among the factors a
court may consider are the factual circumstances and “nature of
the prior offenses.” See id. cmt. n.2(B); see also United States
v. Yahnke, 395 F.3d 823, 825 (8th Cir. 2005) (concluding that
the

“violent

finding

nature”

that

of

a

prior

[defendant’s]

conviction

“support[ed]

criminal-history

a

category

substantially underrepresented the seriousness of his criminal
history”). Our court, for instance, allows a district court to
classify a defendant as a “de facto career offender” if the
defendant’s

previous

crimes

“were

sufficiently

analogous

to

qualifying [violent felonies] that they could be considered for
all intents and purposes” a violent prior offense. See United
States v. Lawrence, 349 F.3d 724, 726 (4th Cir. 2003). To aid
its

inquiry,

the

sentencing

judge

may

consult

presentence

reports and consider the extent to which a defendant’s criminal
history was violent. See United States v. Howard, 773 F.3d 519,
530 (4th Cir. 2014); Lawrence, 349 F.3d at 727-30.
Second, the district court has the discretion to impose a
sentence

outside

the

Guidelines

range

if

it

finds

that

the

§ 3553(a) factors justify a variance sentence. See Gall, 552
U.S.

at

50-51.

Three

of

those
28

factors

are

the

“nature

and

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circumstances of the offense and the history and characteristics
of the defendant,” the need to “afford adequate deterrence,” and
the

need

to

defendant.”

“protect
18

U.S.C.

the

public

from

§ 3553(a)(1),

further

crimes

(a)(2).

the

too,

Here

of

the

sentencing court may tailor its sentence to the nature of the
defendant’s conduct, both past and present. There is no formal
limit on the extent of a district judge’s discretion to deviate
from the Guidelines. See Rita, 551 U.S. at 355; United States v.
Rivera-Santana, 668 F.3d 95, 106 (4th Cir. 2012). Nor is there
any restriction on the trial court’s ability to make factual
findings and probe into the circumstances underlying previous
convictions. See United States v. Hargrove, 701 F.3d 156, 164
(4th Cir. 2012); United States v. Diasdado-Star, 630 F.3d 359,
367 (4th Cir. 2011). In the course of this probe, one which does
not implicate the modified categorical approach, the fact that a
document is not Shepard-approved may go more to the weight of
the evidence than to its admissibility. See U.S SENTENCING GUIDELINES
MANUAL § 6A1.3(a) (U.S. SENTENCING COMM’N 2015) (“In resolving any
dispute

concerning

determination,

the

a

factor

court

important

may

consider

to

the

relevant

sentencing
information

without regard to its admissibility under the rules of evidence
applicable

at

trial,

sufficient

indicia

of

provided

that

reliability

accuracy.”).
29

to

the

information

support

its

has

probable

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Consistent
are

“in

a

import,”

with

superior

all

Gall’s

appreciation

position

sentencing

Pg: 30 of 31

to

find

decisions

–

that

facts

district
and

“whether

courts

judge
inside,

their
just

outside, or significantly outside the Guidelines range” - are
entitled to “due deference” from appellate courts. Gall, 552
U.S. at 39, 51. While a sentencing judge’s explanation for the
sentence must “support the degree of the variance,” a district
court need not find “extraordinary circumstances” to justify a
deviation

from

the

irrespective

of

“deferential

abuse-of-discretion

across

the

calculates

the

Guidelines.

board.
the

particulars

Id.

at

Guidelines

52.
range

Id.
of

at

“the

50.

Rather,

individual

standard
Even

47,

when

of

review”

the

incorrectly,

case,”

applies

district

appellate

a

court
courts

may find that the error is harmless if the evidence suggests
that the sentencing judge would have varied from the Guidelines
anyway and reached the exact same result. See Hargrove, 701 F.3d
at 162; Savillon-Matute, 636 F.3d at 123-24.
In stressing the foregoing, I have once again stated only
the obvious, but there are times when even the obvious needs to
be

said.

The

categorical

approach

might

have

increasingly

committed the application of specified sentencing enhancements
to the legal rulings of appellate courts, but that does not mean
that district courts are without recourse to ensure that basic
sentencing

objectives

are

respected
30

and

achieved.

In

other

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words,

the

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district

inconclusive

record

court
to

may

apply

Pg: 31 of 31

decide
the

in

the

categorical

face

of

an

approach

to

predicate offenses, but it also should enjoy the discretion and
the

tools

to

craft

a

more

individualized

sentence

when

such

would serve the ends of justice. Our standard of review under
Gall remains a deferential one. I do not believe, therefore,
that

the

intended

Supreme
to

Court,

through

incapacitate

district

its

categorical

courts

and

approach,

require

those

courts to stand idly by and let dangerous individuals re-enter
society prematurely. Their future victims may be nameless and
faceless to us, but they will bear the brunt of violent acts in
intensely personal ways.

31