Is Robbery a “Violent Felony” Under the Elements Clause of the Armed Career Criminal Act?
Is Robbery a “Violent Felony” Under the Elements Clause of the Armed Career Criminal Act?
The Armed Career Criminal Act (ACCA) imposes an elevated mandatory minimum sentence for unlawful firearm possession by a defendant who has three prior violent felony convictions. Robbery per se is not a “violent felony” under the ACCA; however, robbery may qualify under the elements clause of the ACCA, which defines a “violent felony” as any offense committed with “physical force.” The Court will decide whether a 1997 Florida robbery conviction required enough “physical force” to qualify as a “violent felony” under the elements clause.
Stokeling v. United States
Docket No. 17-5554
Argument Date: October 9, 2018
From: The Eleventh Circuit
by Mary Phelan D’Isa
Western Michigan University Thomas M. Cooley Law School, Lansing, MI
Congress enacted the Armed Career Criminal Act (ACCA) in 1984 to supplement state law enforcement efforts against “career” criminals because it was concerned that a “large percentage” of violent crimes were “committed by a very small percentage of repeat offenders.” The ACCA is a “three strikes”-type sentencing enhancement statute that significantly elevates the mandatory minimum sentence for unlawful firearm possession by a defendant who has three prior violent felony or serious drug offense convictions. A defendant’s mandatory sentence under this enhancement goes from a 10-year maximum to a 15-year minimum—up to life in prison.
To be considered a “violent felony,” a defendant’s prior convictions must qualify under one of two sections. The first, 18 U.S.C. § 924(e)(2)(b)(ii), enumerates four offenses— burglary, arson, extortion, or use of explosives. The second, 18 U.S.C. § 924(e)(2)(b)(i), which is at issue here, and is known as the “elements clause,” defines a qualifying “violent felony” as any offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another.”
Defendant contends that his 1997 Florida robbery conviction is not a “violent felony” under the ACCA’s elements clause.
Is a 1997 Florida robbery conviction enough “physical force” to qualify as a “violent felony” under the elements clause of the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(i), for purposes of imposing an enhanced sentence?
On July 27, 2015, Denard Stokeling and an accomplice burglarized a Miami Beach, Florida, restaurant where Stokeling worked. Police officers later approached Stokeling as he was reporting to work. When asked if he had any weapons on him, Stokeling produced a backpack and handed it to the officers. The officers found a semi-automatic firearm, a magazine, and 12 rounds of ammunition in the backpack.
On October 20, 2015, a federal grand jury in the Southern District of Florida returned a one-count indictment that charged Stokeling with knowingly possessing a firearm and ammunition after having been previously convicted of a felony, in violation of 18 U.S.C. § 924(e). On March 2, 2016, Stokeling pleaded guilty.
In the presentencing report, the probation officer recommended Stokeling was subject to enhanced sentencing as an Armed Career Criminal under the ACCA because he had three previous qualifying “violent felonies” or “serious drug offenses.” Stokeling had a September 27, 1997, conviction for unarmed Florida robbery; a September 27, 1997, conviction for armed robbery/home invasion/kidnapping; and a February 10, 1997, conviction for sale/ manufacture/delivery of cocaine.
Without the enhancement, Stokeling’s advisory Guideline sentence range was 70–87 months, and his statutory maximum was 10 years. With the enhancement, his advisory Guideline sentence range was 180–188 months.
Stokeling objected to the ACCA enhancement. He argued that his 1997 Florida unarmed robbery conviction did not qualify as a “violent felony” under the ACCA’s elements clause because the Florida statute under which he was convicted did not have as an element a sufficient level of “physical force” required in the elements clause. Specifically, Stokeling argued that the Court has defined “physical force” in the elements clause to mean “violent force,” citing Johnson v. United States, 559 U.S. 133 (2010).
Stokeling relied on Florida Supreme Court decisions to argue that any degree of force sufficed to commit robbery under the statute that was applied to him in 1997, and thus, the state offense lacked the requisite force necessary to meet the elements clause’s “physical [a/k/a violent] force” necessary for a sentence enhancement under the ACCA. He specifically argued that before 1999, Florida robbery included robbery by sudden snatching, so it did not always require sufficient force to constitute a violent felony.
In response, the government cited conflicting Eleventh Circuit precedent, United States v. Lockley, 632 F.3d 1238 (11th Cir. 2011), which held that a Florida robbery conviction “categorically” qualifies as a violent felony under the elements clause of the ACCA. The government also noted that Stokeling was convicted after the Florida Supreme Court decided Robinson v. Florida, 692 So.2d 883 (1997), clarifying that every robbery offense in Florida requires “resistance by victim that is overcome by the physical force of the offender.”
In an unreported decision, the district court agreed with Stokeling and rejected the enhanced sentence recommendation. Instead, the district court, using a 10-year statutory maximum Guideline with a range of 70–87 months, sentenced Stokeling to 73 months imprisonment, followed by 2-year supervised release. In so doing, the district court rejected a categorical classification of the offense and instead looked not to the elements of the crime, but to the underlying facts of Stokeling’s conduct as they were set out in the presentencing report. Specifically, it looked at the fact that Stokeling “grabbed [the victim]” by the neck and tried to “remove her necklaces” while she “held onto” them.
The government appealed, and on April 6, 2017, the Eleventh Circuit Court of Appeals vacated the sentence and remanded for resentencing. In an unreported, per curiam opinion, the Eleventh Circuit first noted that the district court had “erroneously looked to the underlying facts” of Stokeling’s robbery offense to make its own “circumstance-specific” judgment about whether the conviction was a violent felony under the ACCA.
The Eleventh Circuit then said that the district court should have applied the “categorical approach” that looks only to the elements of the crime, and not to the underlying facts of the specific defendant’s conduct. Applying that approach, and citing Lockley as binding precedent, the court determined that Florida robbery is a “violent felony” under the elements clause of the ACCA because “[a]n element of Florida robbery is ‘the use of force, violence, assault, or putting in fear,’ which requires ‘resistance by the victim’ that is overcome by the physical force of the offender’’—even if it occurred before 1999 [citations omitted].
The court’s decision was bolstered by a post-sentence decision, United States v. Fritts, 841 F.3d 937 (11th Cir. 2016), cert. denied, 549 U.S. 941 (2017), in which the Eleventh Circuit “specifically rejected the argument that the sudden-snatching statute changed the elements of Florida robbery,” and “explained that the Florida Supreme Court has held that Florida robbery ‘had never included a theft or taking by mere snatching.’” Thus, it concluded that the “new sudden snatching statute was apparently needed because…robbery did not cover sudden snatching where there was no resistance by the victim and no physical force to overcome it.”
Stokeling appealed and the Court granted certiorari on April 2, 2018.
In the ACCA’s first incarnation in 1984, it applied only to prior robbery and burglary convictions, and those enumerated crimes were explicitly defined in the statute. At that time, “robbery” was defined as “the taking of the property of another from the person or presence of another by force or violence, or by threatening or placing another person in fear that any person will imminently be subjected to bodily injury.”
In 1986, Congress replaced the enumerated burglary and robbery offenses with two definitions of a “violent felony.” The first, which is still in effect today and, as noted, is referred to as the “elements clause,” expanded the violent crimes covered in the ACCA to include any offense having an element requiring the use of threat of violent force against another person.
The second definition enumerated four property crimes—burglary, arson, extortion, and the use of explosives—and added a catch-all category of any offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” The former four enumerated crimes appear in the current version of the ACCA; however, the latter clause, which became known as the “residual clause,” was invalidated by the Court in 2015 as being unconstitutionally vague.
As Stokeling noted in his Petition for Writ of Certiorari: “Once this Court eliminated the residual clause as the easiest route to an ACCA enhancement…lower courts have [had] to reconsider whether state robbery crimes…would qualify as ‘violent felonies’ under [the elements clause of the ACCA].”
This is not the Court’s first ACCA rodeo or its first review of the predicate “physical force” requirement in the “elements clause.” But it is the Court’s first look at a state robbery conviction vis-à-vis the elements clause in the absence of a backup residual clause option and the question whether the degree of force necessary to overcome victim resistance in a state robbery offense is categorically “violent force” under the ACCA.
Lower courts to tackle this have not on the surface appeared consistent. For example, the Fourth, Sixth, Ninth, and Tenth Circuits have recognized (with varying degrees of reconsideration and certiorari petitions) that some state robberies requiring a “use of force” or “victim resistance” do not categorically necessitate a Johnson level of “violent force.”
Whether this squarely conflicts with the Eleventh Circuit’s approach in Stokeling’s case is debatable. The government argues that the outcomes in those cases, short of the most recent Ninth Circuit case, “arise not from any disagreement about the meaning of ‘physical force,’ under Johnson, but from differences in how States define robbery.” And in those cases, “the degree of force required under state law was not sufficient to satisfy the ACCA’s elements clause.”
The government contends that in other cases, including this one, “a court of appeals has determined that a State’s definition of robbery does satisfy the ACCA’s elements clause because the State requires force greater than the de minimis amount necessary to remove the property from the person.” Thus, “because differences in state definitions of robbery explain why robbery in some States, but not others, is a ‘violent felony,’ the courts’ decisions do not suggest any conflict.” Different state courts “are free to define common law robbery in their respective jurisdictions in a manner different from that employed by federal courts in construing a federal statute.”
The government may be on to something here despite the 19-ish cases raising this issue that were relisted pending the grant of certiorari in this case, because not all of the relisted ACCA robbery cases survived. The Court denied certiorari in all of the relisted cases that involved robbery statutes other than Florida’s.
In the meantime, the parties agree that the district court applied the incorrect method to determine whether a conviction is a violent felony under the ACCA by erroneously looking at the underlying facts of Stokeling’s offense. They also agree that the district court should have applied the “categorical approach” that looks only at the elements of the crime, not the underlying facts of the defendant’s conduct when the crime was committed.
Using the categorical approach, the Eleventh Circuit relied on Florida Supreme Court precedent to determine that “[a]n element of Florida robbery is ‘the use of force, violence, assault, or putting in fear,’…which requires resistance by the victim that is overcome by the physical force of the offender.” The government agrees and contends that “force sufficient to overcome a victim’s resistance for purposes of Florida robbery is ‘physical force’ under the ACCA’s elements clause.” All that Johnson requires, the government argues, “is that the force be ‘capable’ of causing [physical pain or injury], which is true for every Florida robbery conviction.”
According to the government, “a perpetrator who does not employ such force, and instead employs only ‘the force necessary to remove the property from the person,’ may be guilty of theft or larceny (or the post-1999 lesser crime of ‘[r]obbery by sudden snatching,’) but is not guilty of robbery.” It cites examples of “slight force” that “would not support a robbery conviction [to] include simple purse-snatching, pocket-picking, ‘snatching money from a person’s hand,’ ‘grabbing a camera from a victim’s shoulder,’ and the ‘stealthy taking of jewelry from a child during a game.’”
Dismissing Stokeling’s Oliver Twist argument (see below), the government argues that “Florida’s distinction between robbery and lesser theft offenses, based on the amount of force used in the commission of the crime, demonstrates that Florida robbery cannot be committed with ‘the slightest offensive touching,’ but requires an amount of force at least akin to a ‘slap in the face.’”
Stokeling and amici counter that the government’s inclusion of an offense that includes some potential risk of slight injury “[w]ould impermissibly expand the reach of the elements clause beyond its text” and Congressional “[i]ntent to target only violent robbery in the ACCA.” Amici specifically charge that “conjectural analysis has no place in the elements clause, which focuses…on what degree of force the perpetrator is required to use, in every manifestation of the offense.” Amici further accuse the government of using “modes of analysis from the now-invalidated residual clause to expand upon the elements-clause definition.”
Stokeling rejects the government’s “capable” approach and argues that the better approach is that of the Ninth Circuit in United States v. Geozos, 870 F.3d 890 (9th Cir. 2017), decided while Stokeling’s petition for a writ of certiorari was pending. In Geozos, the Ninth Circuit held that Florida robbery is not a “violent felony” under the ACCA’s elements clause.
In so doing, the Ninth Circuit recognized that “this holding puts us at odds with the Eleventh Circuit, which has held, post-Johnson I, that both Florida robbery and (necessarily) armed robbery are ‘violent felonies’ under the force clause. But we are bound by our own precedent—which may differ from the Eleventh Circuit’s interpretation.”
Moreover, Stokeling relies on the Ninth Circuit’s finding that “the Eleventh Circuit, in focusing on the fact that Florida robbery requires a use of force sufficient to overcome the resistance of the victim, has overlooked the fact that, if the resistance itself is minimal, then the force used to overcome that resistance is not necessarily violent force.”
Stokeling further argues that the Eleventh Circuit’s decision directly conflicts with the Court’s decision in Mathis v. United States, 136 S. Ct. 2243 (2016), which requires courts using the categorical approach to first determine the least culpable conduct necessary for a conviction. Stokeling opines that if the court had done so, “it would have found ample confirmation for what the Florida Supreme Court has explicitly held: robbery can be committed with ‘[a]ny degree of force’” [citation omitted].
Equating the ACCA’s “physical force” to “violent force,” which Stokeling contends requires a “substantial degree of force” and does not include a “minor” use of force, renders the government’s “capable” approach lacking. Stokeling notes that Florida’s robbery requires only a slight degree of force.
Accordingly, and this is where Oliver Twist comes in, Stokeling notes that “robbery can occur in Florida where a pickpocket caught in the act merely seeks to pull free from the victim’s grasp. And robbery can occur where the offender does no more than grab cash from someone’s closed fist, tearing the bill without touching the person.” Thus, Stokeling concludes, such “slight degree of force used in such cases falls well short of ‘violent force.’” And “[t]he Court should not expand the elements clause to rebrand Oliver Twist a ‘violent felon.’”
The Court made it clear in Johnson that “the meaning of ‘physical force’ in § 924(e)(2)(B)(i) is a question of federal law, not state law. And in answering that question [it was] not bound by a state court’s interpretation of a similar—or even identical—state statute.” However, the Court also noted that it was “bound by the Florida Supreme Court’s interpretation of state law.”
To that end, both parties are correct about the Court’s Johnson definition of “physical force,” to which it said: “We think it clear that in the context of a statutory definition of ‘violent felony,’ the phrase ‘physical force’ means violent force—that is, force capable of causing physical pain or injury to another person.”
The government is not misguided when it looks to the “capable of” part of the definition. However, the Court did not address the significance of that adjective in its definition. And Stokeling is not off base to rely on the Court’s further clarification of its definition that “[e]ven by itself, the word ‘violent’ in § 924(e)(2) (B) connotes a substantial degree of force. . . [And] [w]hen the adjective ‘violent’ is attached to the noun ‘felony,’ its connotation of strong physical force is even clearer.” Indeed, in Johnson, the Court rejected the lower court’s conclusion that a Florida battery conviction that required “‘[a]ctually and intentionally touch[ing]’ another person constitutes the use of ‘physical force’ within the meaning of [the ACCA’s elements clause],” and reversed the defendant’s enhanced sentence.
Thus, the ultimate question will be what the Court determines is the controlling Florida Supreme Court’s definition of robbery at the time of Stokeling’s conviction in 1997, and whether under the categorical approach, the least culpable criminalized conduct in that definition fits within the Johnson definition of “physical force” under the elements clause of the ACCA.
Since its enactment, the ACCA and its “legendary ambiguity” has spawned so much litigation that SCOTUSblog contributor John Elwood noted, “there are now more Armed Career Criminal Act appeals than there are armed career criminals.” Notwithstanding, a decision in this case has significant potential to chart the course for many future (and any currently holding) ACCA litigants.
It is also possible that the impact of the decision may be limited to similarly situated Florida robbery/ACCA petitioners who could benefit from a ruling in favor of Denard Stokeling. If the court finds that a Florida robbery conviction does not qualify as a “violent felony” under the elements clause of the ACCA, untold numbers of repeat offenders will not receive enhanced sentences under the ACCA based on Florida robbery convictions.
As for those ACCA robbery petitioners from states whose robbery statutes are dissimilar to Florida’s, it is uncertain what impact, if any, a decision in this case will have on them. If the Court modifies the categorical approach or further defines what constitutes sufficient force under the elements clause in a robbery case, for example, offers guidance on the significance of the adjective “capable” in its Johnson definition of “physical force,” then its decision will have more far-reaching significance.
However, the Second Circuit Criminal Law Blog predicts: “‘force clause’ litigation will apparently continue until there is a definitive ruling about whether every state criminal offense qualifies under the categorical or modified categorical approach, or until Congress decides that the mechanical application of the Armed Career Criminal Act should not carry the harsh sentencing consequences that it currently does.”
Mary Phelan D’Isa is a Distinguished Professor Emerita at Western Michigan University Thomas M. Cooley Law School. She can be reached at email@example.com.
PREVIEW of United States Supreme Court Cases 46, no. 1 (October 1, 2018): 26–29. © 2018 American Bar Association
For Petitioner Denard Stokeling (Brenda G. Bryn, 954.356.7436)
For Respondent United States (Noel J. Francisco, Solicitor General, 202.514.2217)
In Support of Petitioner Denard Stokeling
National Association of Criminal Defense Lawyers (Hyland Hunt, 202.868.6915)