United States v. Shaun Graves , 877 F.3d 494 ( 2017 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 16-3995
UNITED STATES OF AMERICA
v.
SHAUN L. GRAVES,
Appellant
________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D. C. Criminal No. 1-15-cr-00158-001)
District Judge: Honorable William W. Caldwell
________________
Argued on May 24, 2017
Before: HARDIMAN, ROTH and FISHER, Circuit Judges
(Opinion filed: December 13, 2017)
Ronald A. Krauss, Esq. (ARGUED)
Office of Federal Public Defender
100 Chestnut Street
Suite 306
Harrisburg, PA 17101
Counsel for Appellant
Stephen R. Cerutti, II, Esq. (ARGUED)
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
Counsel for Appellee
________________
OPINION
________________
ROTH, Circuit Judge
Shaun Graves appeals his conviction and sentence for
unlawful possession of a firearm, arguing that his suppression
motion was wrongfully denied and that he was improperly
sentenced as a career offender. For the reasons set forth
below, we will affirm both the conviction and the sentence.
2
I. FACTS
On the evening of October 16, 2014, Officer Dennis
Simmons of the Harrisburg Police Department was
conducting an undercover surveillance operation in a high-
crime area of the city while dressed in plainclothes and sitting
in an unmarked car. While in his car, Officer Simmons heard
a radio dispatch about possible gunshots in an unspecified
area east of his location. The dispatch went on to describe
two potential suspects walking away from the location of the
gunshots: Both men wore dark-colored hooded sweatshirts
and were described as calmly walking west, away from the
gunshots. Less than five minutes later, Officer Simmons
observed two men—including Graves—in dark-colored
hooded sweatshirts walking west towards Simmons’ vehicle.
Officer Simmons then drove around the block to the next
street in order to intercept the two men. At this point, he
noticed Graves walking with a “pronounced, labored” gait
suggesting that “he may have concealed something heavy in
his waistband or pocket on [his right] side.” 1 Officer
Simmons also testified that Graves held his arms in a tense
manner, further suggesting that he was armed.
As Graves and the other individual passed Officer
Simmons’ vehicle, Officer Simmons made eye contact with
Graves; Graves raised his hands over his head in the shape of
a Y, and Officer Simmons nodded. Officer Simmons testified
at the suppression hearing that Graves’ behavior “was
consistent with a drug dealer or someone who sells something
illegal in the street.” 2 Officer Simmons admitted, however,
1
JA 25.
2
JA 27.
3
that “it could be more like a challenge, more or less someone
saying what are you looking at, why are you looking at me
that way.” 3 Officer Simmons then proceeded to drive one
block south and wait. Graves left his companion and turned
south, walking directly towards Officer Simmons’ car at a
quickened pace. As Graves neared the vehicle, Officer
Simmons displayed his badge, yelled “Police,” and
handcuffed Graves.
Believing that there was a possibility that Graves was
armed, Officer Simmons conducted a pat-down search of
Graves’ clothing. During this pat-down, Officer Simmons
felt “multiple small hard objects” in both of Graves’ front
pockets. The feel of these objects was consistent with that of
crack cocaine. 4 Officer Simmons proceeded to remove the
objects from Graves’ pockets. They turned out to be multiple
packets of the antidepressant Depakote 5 and one live .22
caliber bullet. At this point, other officers arrived. After
being read his rights, Graves told Officer Simmons that he
carried the bullet as a tribute to his brother, who had been
killed by a .22 caliber weapon. Graves did not answer Officer
Simmons’ questions about whether he had a gun for the
bullet. Officer Simmons then placed Graves in another
officer’s vehicle, and Graves was taken approximately two
blocks south. Upon further questioning, Graves admitted that
he had a loaded .380 pistol in his boot, where it had fallen
3
Id.
4
JA 31.
5
Depakote, a prescription medication for certain mental
health conditions, is not a controlled substance for purposes
of federal law. Graves purportedly told Simmons, however,
that he planned to sell the Depakote as crack cocaine.
4
from his waistband during his arrest. Graves maintained,
however, that he was holding the gun only temporarily for his
companion.
Graves was subsequently charged with one count of
possession of a firearm with an obliterated serial number in
violation of 18 U.S.C. §§ 922(k) and 924(a)(1)(B) and one
count of unlawful possession of a firearm in violation of 18
U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e). He filed a motion
to suppress all physical evidence and statements obtained at
the time of his arrest.
At the suppression hearing before the District Court,
Officer Simmons testified to the above facts, as well as about
his nine years of experience as a police officer, during which
he had made hundreds of arrests for drug offenses and violent
crimes. After crediting Officer Simmons’ testimony in its
entirety, the District Court denied Graves’ motion to
suppress. Graves then entered a guilty plea to one count of
unlawful possession of a firearm. 6 At sentencing, the District
Court treated Graves as a career offender over Graves’
objection, finding that his two prior convictions for North
Carolina common law robbery were the categorical
equivalent of the enumerated crime of robbery in § 2K2.1 of
the U.S. Sentencing Guidelines. Applying this enhancement,
the District Court sentenced Graves to a term of
imprisonment of 100 months—the bottom of the Guidelines
range.
6
Graves’ guilty plea was conditioned on his right to appeal
the propriety of the denial of his motion to suppress and of
the sentence imposed.
5
Graves appealed.
II. DISCUSSION 7
Graves raises two issues on appeal. First, he appeals
the denial of his motion to suppress, arguing that Officer
Simmons lacked reasonable suspicion to stop and frisk him
or, in the alternative, that Officer Simmons exceeded the
scope of a valid frisk by focusing on more than just potential
weapons on his person. Second, he appeals the District
Court’s decision to treat North Carolina common law robbery
as the categorical equivalent of generic robbery and the
resultant enhancement of his sentence. We treat each issue in
turn. Because the facts underlying both issues are not in
dispute, we need only determine their legal significance; our
review of such legal questions is plenary. 8
A. The Search
Graves advances two theories why Officer Simmons’
behavior ran afoul of the Fourth Amendment. First, he argues
that Officer Simmons lacked reasonable suspicion to justify
7
The District Court had jurisdiction over Graves’ criminal
prosecution pursuant to 18 U.S.C. § 3231. We have
jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and
18 U.S.C. § 3742.
8
See United States v. Pavulak, 700 F.3d 651, 660 (3d Cir.
2012) (citation omitted) (suppression); United States v.
Johnson, 587 F.3d 203, 207 (3d Cir. 2009) (citation omitted)
(career offender enhancement).
6
stopping and frisking him. 9 Second, he argues that Officer
Simmons exceeded the proper scope of an investigatory
search by searching him for drugs, rather than weapons. Each
argument is addressed separately.
Although the Fourth Amendment generally requires
that a seizure be effectuated pursuant to a warrant supported
by probable cause, an officer may constitutionally conduct a
“brief, investigatory stop [and frisk]” without a warrant if he
has “a reasonable, articulable suspicion that criminal activity
is afoot.” 10 This “reasonable suspicion” standard is lower
than probable cause; rather, an officer need only “a minimal
level of objective justification” 11 that is “specific to the
person who is detained.” 12 We review the totality of the
circumstances leading up to the moment of the defendant’s
seizure. 13 In doing so, however, we “give considerable
deference to police officers’ determinations of reasonable
suspicion” given “their own experience and specialized
training to make inferences from and deductions about the
cumulative information available to them that ‘might well
9
Although raised as two separate issues in Graves’ brief, the
standards governing both are identical in this case; as such,
both are addressed together.
10
Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (citation
omitted).
11
United States v. Whitfield, 634 F.3d 741, 744 (3d Cir. 2010)
(considering “the totality of the circumstances” and taking
into account “everything that occurred until the moment [the
defendant] was seized . . .”).
12
United States v. Navedo, 694 F.3d 463, 468 (3d Cir. 2012).
13
Whitfield, 634 F.3d at 744.
7
elude an untrained person.’” 14 Thus, a trained officer may
find reasonable suspicion “based on acts capable of innocent
explanation.” 15
Although Officer Simmons acted on limited
information in stopping Graves, we nonetheless believe that
the totality of the circumstances gave rise to reasonable
suspicion. First, Officer Simmons explained that he was
parked in a high crime area. 16 Second, Graves and his
companion were leaving the scene of the gunshots dressed in
similar garb to the suspects described in the police broadcast.
Third, Officer Simmons observed Graves walking in a
manner indicating, in Officer Simmons’ experience, that
Graves was armed.
While these factors standing in isolation may not have
been sufficient, 17 together they satisfied the low threshold of
reasonable suspicion—particularly in light of the close
14
United States v. Brown, 765 F.3d 278, 290 (3d Cir. 2014)
(citations omitted).
15
Whitfield, 634 F.3d at 744 (internal quotation marks and
citation omitted).
16
See Wardlow, 528 U.S. at 124 (noting that location in a
high crime area is “among the relevant contextual
considerations” in determining the reasonableness of a stop).
17
See United States v. Brown, 448 F.3d 239, 247-48 (3d Cir.
2006) (finding that the bare fact that defendants matched a
generalized description of suspects as black men wearing
dark sweatshirts insufficient to satisfy reasonable suspicion);
United States v. Ubiles, 224 F.3d 213, 218 (3d Cir. 2000)
(noting that evidence of gun possession may not, standing
alone, be sufficient to create reasonable suspicion).
8
temporal proximity between the gunshots and Officer
Simmons’ encounter with Graves. Further, Officer Simmons’
suspicions were increased when he observed Graves raise his
arms over his head in a manner consistent with that of an
individual seeking to sell drugs, or, in the alternative, looking
at Officer Simmons in a challenging manner. Graves then
departed from his companion to approach Officer Simmons’
vehicle, quickening his pace. This combination of events
gave rise to the reasonable inference by Officer Simmons that
Graves was armed and engaged in potentially unlawful
conduct. 18 On appeal, Graves advances innocent
explanations for all his conduct and points to other evidence
undercutting the likelihood that he was engaged in criminal
activity. However, the mere possibility of such an innocent
explanation does not undermine Officer Simmons’
determination at the time.
Accordingly, we find that Officer Simmons had
reasonable suspicion that criminal activity was underway
when he stopped and frisked Graves.
However, when an officer exceeds the proper bounds
of a search, an individual subject to a valid investigatory stop
and frisk may nonetheless assert constitutional error. An
officer may only “search . . . the outer clothing of [seized]
persons in an attempt to discover weapons which might be
18
See United States v. Murray, 821 F.3d 386, 393 (3d Cir.
2016) (finding that evidence of defendant’s involvement in
drug trafficking was sufficient to support reasonable
suspicion that he was armed).
9
used to assault him.” 19 While “[t]he purpose of this limited
search is not to discover evidence of crime,” the Supreme
Court has held that an officer “may seize contraband detected
during the lawful execution of [such a] search” under the
plain feel doctrine. 20 Once the validity of a protective frisk is
established, “the dispositive question . . . is whether the
officer who conducted the search was acting within . . . lawful
bounds . . . at the time he gained probable cause to believe
that the lump in [the defendant’s pocket] was contraband.” 21
We must focus on “whether the officer had probable cause to
believe an object was contraband before he knew it not to be
a weapon and whether he acquired that knowledge in a
manner consistent with a routine frisk.” 22
Graves argues that Officer Simmons was not entitled
to conduct any further search of his person once Officer
Simmons realized that the objects in his pockets were not
weapons. In so arguing, however, Graves advances a broad
theory. Graves proposes that if a police officer is conducting
a protective frisk, by definition, he must determine if what he
is feeling is a weapon. Graves asserts that, if Officer
Simmons determined that the right front pocket did not hold a
weapon, his search of the interior of the pocket was
impermissible; a determination that an object is not a weapon
must end the search.
19
Navedo, 694 F.3d at 467-68 (quoting Terry v. Ohio, 392
U.S. 1, 30 (1968) (second alteration in original)).
20
Minnesota v. Dickerson, 508 U.S. 366, 373-75 (1993)
(internal quotation marks and citation omitted).
21
Id. at 377.
22
United States v. Yamba, 506 F.3d 251, 259 (3d Cir. 2007)
(emphasis removed) (citations omitted).
10
Our decision in United States v. Yamba forecloses this
argument. There, an officer, conducting a protective frisk,
felt a plastic bag containing a soft, “spongy-like” substance.23
The officer’s testimony that this “feeling” was, in his
experience, consistent with the feeling of marijuana was
sufficient to create probable cause justifying removal of the
bag. We held that the removal of the bag did not exceed the
bounds of a protective frisk merely because the officer knew
that the bag itself contained no weapons; rather, we focused
on whether the officer encountered the contraband “before he
determined that Yamba had no gun on his person.” 24
The same result is compelled here. In conducting the
frisk of Graves’ pockets, Officer Simmons testified that he
knew the materials in Graves’ pockets were consistent in
feeling with crack cocaine. The District Court credited this
testimony. Indeed, Graves did not identify any other
plausible explanations for the feeling of the objects in his
pockets. The feel of these objects, in light of Officer
Simmons’ experience with narcotics investigations, gave rise
to probable cause justifying removal of the objects from
Graves’ pocket. Moreover, because Officer Simmons had yet
to determine whether Graves was armed at the time he felt the
objects, his frisk did not run afoul of the Fourth Amendment.
Accordingly, we hold that Officer Simmons did not
exceed the bounds of a valid protective frisk in removing the
Depakote and bullet from Graves’ pockets during the course
of the search.
23
Id. at 260.
24
Id.
11
B. The Sentence
Graves next challenges his sentence on the ground that
the District Court improperly sentenced him as a career
offender after treating his two prior convictions for North
Carolina common law robbery as the equivalent of the crime
of generic federal robbery, as used in the Sentencing
Guidelines.
Section 4B1.1 of the Sentencing Guidelines designates
an offender as a “career offender” if, as relevant here, he has
“at least two prior felony convictions of either a crime of
violence or a controlled substance offense.” 25 The Guidelines
define a “crime of violence” as an offense that “has as an
element the use, attempted use, or threatened use of physical
force against the person of another, or [] is murder, voluntary
manslaughter, kidnapping, aggravated assault, a forcible sex
offense, robbery, arson, extortion, or the use or unlawful
possession of a firearm . . . or explosive material . . ..” 26
To determinations of whether a prior state court
conviction constitutes a federally defined crime of violence,
we apply the categorical approach, 27 i.e., we compare the
elements of the state offense, forming the basis of the
defendant’s conviction, with the elements of the “generic”
25
U.S.S.G. § 4B1.1(a).
26
U.S.S.G. § 4B1.2(a). The offense must also be punishable
by a term of imprisonment exceeding one year, but it is
uncontested that North Carolina common law robbery
satisfies this requirement.
27
Brown, 765 F.3d at 188-89.
12
crime. 28 The prior conviction qualifies as a crime of violence
only if the elements of the state offense “are the same as, or
narrower than, those of the generic offense.” 29 If, on the
other hand, the state offense allows for conviction on a
broader basis than the generic offense, it may not be
considered for purposes of sentence enhancement. 30 Thus,
we must first identify the elements of the state offense, then
identify the elements of the generic offense, and finally
determine whether the former are the same as or narrower
than the latter.
The North Carolina Supreme Court has defined
common law robbery as “the felonious, non-consensual
taking of money or personal property from the person or
presence of another by means of violence or fear.” 31 North
Carolina has delineated six necessary elements for common
law robbery: (1) the taking away of property; (2) from the
person or presence of another; (3) without consent; (4) with
specific intent to permanently deprive the owner of the
28
Id. at 189 (internal quotation marks and citation omitted).
29
Id.
30
Id.
31
State v. Smith, 292 S.E.2d 264, 270 (N.C. 1982) (citations
omitted).
13
property; (5) with knowledge of the property’s ownership;
and (6) through use of violence or putting the victim in fear. 32
Only the final element—the use of violence or fear—is
at issue here. 33 North Carolina’s courts have interpreted this
element as a “force” requirement, explaining that “[a]lthough
actual 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 or property in his
32
N.C. Pattern Jury Instructions 217.10; accord State v.
Lunsford, 49 S.E.2d 410, 412 (N.C. 1948). Some North
Carolina courts appear to have collapsed the elements of lack
of consent and specific intent into the first element. See, e.g.,
State v. Hedgecoe, 415 S.E.2d 777, 780 (N.C. Ct. App. 1992)
(citation omitted). The substantive elements, however,
appear to remain unchanged.
33
The government does not argue that the possibility that the
offense be committed through use of violence or through use
of fear renders North Carolina common law robbery a
divisible offense, nor would we find any such argument
convincing. North Carolina courts do not require that a jury
unanimously agree as to whether a defendant used violence or
used fear. See N.C. Pattern Jury Instructions 217.10; see also
United States v. Gardner, 823 F.3d 793, 802-03 (4th Cir.
2016). Accordingly, the statute is indivisible, insofar as
“violence” and “fear” are not alternative elements, but
together form one element of the offense. Id.; see Descamps
v. United States, 133 S. Ct. 2276, 2290 (2013) (noting that a
statute is indivisible, even if it lists alternatives, if the jury
need not agree as to the exact way in which the defendant
committed the offense).
14
possession.” 34 The parties agree that this interpretation
means that a defendant may be convicted of North Carolina
common law robbery even if he used only de minimis force,
which posed no threat of injury to another. Convictions for
common law robbery in North Carolina courts support this
reading of the offense. In State v. Chance, for example, the
North Carolina Court of Appeals affirmed a conviction where
the only “force” demonstrated at trial was the defendant’s act
of pushing the victim’s hands off of a box of cigarettes. 35
The Fourth Circuit Court of Appeals, which appears to be the
only other circuit to consider North Carolina common law
robbery, has reached the same conclusion. 36
Accordingly, we find that North Carolina common law
robbery requires only the use of de minimis force.
34
State v. Carter, 650 S.E.2d 650, 653 (N.C. Ct. App. 2007)
(quoting State v. Sawyer, 29 S.E.2d 34, 37 (N.C. 1944))
(emphasis removed).
35
662 S.E.2d 405 (Table), 2008 WL 2415981, at *3-*4 (N.C.
Ct. App. 2008). Two U.S. district courts in Tennessee have
found that North Carolina common law robbery requires
more than de minimis force. See Smith v. United States, No.
2:03 CR 73, 2016 WL 7365634, at *4 (E.D. Tenn. Dec. 16,
2016), certificate of appealability denied, No. 17-5016, ECF
No. 13 (6th Cir. Aug. 10, 2017); United States v. Smith, No.
3:13 CR 5, 2016 WL 6875877, at *5 (E.D. Tenn. Nov. 21,
2016). Both decisions have been appealed to the Sixth
Circuit. We are not persuaded by the relatively cursory
discussions of the issue in each opinion, particularly in light
of North Carolina courts’ repeated pronouncements on the
issue.
36
Gardner, 823 F.3d at 803-04.
15
Turning to generic robbery, as used in the Guidelines
career offender enhancement, we must determine whether
generic robbery requires the use of more than de minimis
force. To identify the elements of the generic offense of
robbery, we will examine the Model Penal Code (MPC), state
laws, and learned treatises. 37 The MPC defines “robbery” as
requiring one of three things to occur in the course of
committing a theft: the offender must “(a) inflict[] serious
bodily injury upon another; or (b) threaten[] another with or
purposively put him in fear of immediate serious bodily
injury; or (c) commit[] or threaten[] immediately to commit
any felony of the first or second degree.” Thus, the MPC
requires that there be some actual or threatened injury to
another person for a theft to qualify as robbery. It appears
that eleven states follow this MPC framework, requiring some
sort of actual or future injury for a theft to become robbery. 38
As the parties acknowledged, however, there are thirty-eight
states which define robbery as theft involving the use of even
de minimis force. 39
37
See United States v. Marrero, 677 F.3d 155, 165 (3d Cir.
2012), cert. granted and judgment vacated on other grounds,
133 S. Ct. 2732 (2013).
38
See United States v. Santiesteban-Hernandez, 469 F.3d
376, 380 n.6 (5th Cir. 2006) (collecting statutes), abrogated
on other grounds by United States v. Rodriguez, 711 F.3d 541
(5th Cir. 2013)
39
See id. at 380 n.5; see also Oral Arg. Recording at 14:45-
15:03,24:35-25:45,
http://www2.ca3.uscourts.gov/oralargument/audio/16-
3995USAv.Graves.mp3 (agreeing to number of state statutes
which do not require more than minimal force).
16
This disjunction between the approach of the MPC and
that of the substantial majority of states has led circuits to
disagree whether generic robbery requires more than de
minimis force. The Fifth Circuit Court of Appeals has
suggested that the generic form of robbery requires something
more than de minimis force, which involves risk of injury to
another. 40 In so holding, it placed primary weight on the
MPC definition of robbery, as well as the minority of state
robbery statutes that include some element of injury. The
Ninth Circuit Court of Appeals has come to the same
conclusion, although it discussed the question only
40
The Fifth Circuit, in one opinion, appeared to adopt the
view that generic robbery required some risk of injury to the
victim. Santiesteban-Hernandez, 469 F.3d at 380. Given that
Rodriguez disavowed the methodology of Santiesteban-
Hernandez, it is not clear whether the Fifth Circuit continues
to believe that generic robbery requires more than de minimis
force. Graves also cites to the Fourth Circuit’s decision in
Gardner for the proposition that generic robbery should
require more than de minimis force. 823 F.3d at 803 (quoting
Johnson v. United States, 559 U.S. 133, 139 (2010)).
However, Gardner dealt only with the elements clause of the
career offender enhancement, and thus only asked whether
North Carolina common law robbery necessarily involved the
use of violent force. Gardner did not consider the definition
of the enumerated crime of generic robbery, as robbery was
not added to the enumerated offenses clause until after the
defendant’s sentencing. Thus, although we have disagreed
with the Fourth Circuit’s reasoning in one previous case, see
United States v. Cornish, 103 F.3d 302, 309 (3d Cir. 1997),
we need not examine Gardner too closely here.
17
cursorily. 41 The Seventh and Eleventh Circuit Courts of
Appeals, however, have disagreed with this conclusion,
finding that generic robbery comports with the majority of
state robbery statutes in requiring only minimal force. 42 We
now join the Seventh and Eleventh Circuits and hold that
generic robbery requires no more than de minimis force.
This is our first confrontation with a situation where
the MPC’s definition of a crime differs in an important
respect from the approach taken by the significant majority of
states. Thus, we must determine which of these sources is
entitled to greater weight in our definition of a generic crime.
A review of the Supreme Court’s jurisprudence demonstrates
the primacy of state statutes in defining the generic version of
an offense. In Taylor v. United States, for example, the Court
appeared to place a greater weight on the approach of a
majority of states. The Court recognized, and rejected, the
federal common law definition of burglary, finding the
definition employed by the vast majority of states more
41
United States v. Becerril-Lopez, 541 F.3d 881, 891 (9th Cir.
2008) (adopting the Fifth Circuit’s rationale from
Santiesteban-Hernandez).
42
See United States v. Lockley, 632 F.3d 1238, 1244 (11th
Cir. 2011) (citation omitted); United States v. Duncan, 833
F.3d 751, 755-56 (7th Cir. 2016) (reaffirming holdings
predating Descamps that generic robbery is satisfied by any
minor force, such as “a slap in the face”). The Sixth Circuit
was faced with the question, but declined to answer it, as it
held that the defendant had waived the argument on appeal.
United States v. Elliott, 757 F.3d 492, 496-97 (6th Cir. 2014).
As discussed supra, note 35, however, an appeal raising this
issue is currently pending in the Sixth Circuit.
18
persuasive. 43 The Sixth Circuit and the Ninth Circuit have
read Taylor to place primary importance on the way the
majority of states define a crime, even over the approach of
the MPC. 44
We agree with the Sixth Circuit and the Ninth Circuit
in their reading of Taylor, and hold today that the most
important factor in defining the generic version of an offense
is the approach of the majority of state statutes defining the
crime. Affording predominant weight to the majority of
states best recognizes that “Congress’ basic goal in passing
the Sentencing Act was to move the sentencing system in the
direction of increased uniformity.” 45 While the MPC is a
useful starting point, its definition of “robbery” does not
43
495 U.S. 575, 592-96 (1990).
44
United States v. Soto-Sanchez, 623 F.3d 317, 322 (6th Cir.
2010) (citing Taylor, 495 U.S. at 598); United States v.
Garcia-Santana, 774 F.3d 528, 534 (9th Cir. 2014) (reading
Taylor to suggest that “[t]he generic definition of an offense
roughly corresponds to the definitions of the offense in a
majority of the States’ criminal codes” (citation, internal
quotation marks, and brackets omitted)).
45
United States v. Booker, 543 U.S. 220, 253 (2005)
(citations omitted).
19
supersede the way in which the majority of states have
defined that offense. 46
Accordingly, we hold that for purposes of the
Sentencing Guidelines, generic federal robbery is defined as it
is in the majority of state robbery statutes, without the
requirement of more than de minimis force. Because both
North Carolina common law robbery and generic federal
robbery thus contain the same elements, the District Court did
46
Santiesteban-Hernandez is, indeed, the only case we have
identified in which a court chose to follow the MPC
definition of an offense over that employed by the majority of
states. Other courts have rejected generic federal definitions
insofar as they conflict with the definitions employed by the
majority of states. See, e.g., Duncan, 833 F.3d at 755-56;
Lockley, 632 F.3d at 1244; United States v. De Jesus Ventura,
565 F.3d 870, 876-78 (D.C. Cir. 2009) (defining kidnapping
in accordance with the definition employed by most states,
rather than that used in the MPC, and describing state
definitions as “[m]ost critical[]” in the process). The Fourth
Circuit appears to have recognized this, rejecting elements in
an MPC definition of an offense where they conflict with the
approach of the majority of states. See United States v.
Flores-Granados, 783 F.3d 487, 496 (4th Cir. 2015). We do
not suggest, however, that the approach of the majority of
states will always be dispositive in crafting any federal
definition of a crime; rather, it is only the most important of
the factors to be considered by the district court in defining a
federal offense. In crafting a generic definition, courts should
also consider various factors such as the margin of the
majority, contrary legislative history, and other evidence of
congressional intent.
20
not err in treating Graves’ convictions for North Carolina
common law robbery as the enumerated crime of robbery and
applying the career offender enhancement to his sentence.
III.
In light of the foregoing, we will affirm both the
conviction and the sentence of the District Court.
21