United States v. Nylere Stanford ( 2023 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 22-1272
____________
UNITED STATES OF AMERICA
v.
NYLERE STANFORD,
Appellant
____________
On Appeal from the United States District Court
for the District of Delaware
(D.C. No. 1-20-cr-00003-001)
District Judge: Honorable Leonard P. Stark
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
January 24, 2023
Before: HARDIMAN, KRAUSE, and MATEY, Circuit
Judges
(Filed: July 28, 2023)
Eleni Kousoulis
Mary K. Healy
David Pugh
Office of Federal Public Defender
800 King Street
Suite 200
Wilmington, DE 19801
Counsel for Appellant
David C. Weiss
Michael F. McTaggart
Kevin P. Pierce
Jesse S. Wenger
Office of United States Attorney
1313 North Market Street
Hercules Building
Suite 400
Wilmington, DE 19801
Counsel for Appellee
___________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
This appeal requires us to decide whether Delaware
first- and second-degree robbery are crimes of violence under
the United States Sentencing Guidelines. We hold they are. We
also hold the District Court did not err when it applied the
2
good-faith exception to the exclusionary rule to deny a motion
to suppress evidence.
I
A
On September 18, 2019, Appellant Nylere Stanford, his
girlfriend, and two or three others allegedly robbed a
convenience store in Winston-Salem, North Carolina. Almost
three weeks later, the North Carolina authorities obtained a
warrant for Stanford’s arrest. The warrant alleged that Stanford
helped steal $3,000 from the convenience store using a pistol
and rifle. The day the warrant was issued, North Carolina
police contacted Detective Justin Cannon of the Wilmington
Police Department to seek help apprehending Stanford, whom
they believed had fled to Delaware.
About two weeks later, Detective Cannon applied for a
search warrant authorizing the use of a cell-site simulator to
locate Stanford’s cell phone. Cannon alleged that Stanford was
“originally from the Wilmington, Delaware area” and that he
had “numerous family members” and “associates” who could
“assist him [] while on the run from North Carolina.” App. 58.
He also requested authorization to use electronic investigation
techniques for three days from the date of the warrant
application because, once Stanford’s cell phone was located,
law enforcement would need to “conduct surveillance to
establish probable cause for a residence search warrant.” Id. A
judge issued the warrant the same day.
Warrant in hand, law enforcement quickly discovered
that Stanford was staying at 615 S. Buttonwood Street in
Wilmington (the Residence). While conducting surveillance,
3
police approached a woman who exited the Residence and
asked her if Stanford was there. She said Stanford and Naki
Gibson—who turned out to be Stanford’s brother and was
wanted on other charges—were inside.
Based on that tip, officers knocked, announced, and
entered the unlocked door to the Residence. Stanford concedes
that he was found “lying on a couch with a sheet and a pillow,”
having “slept there the night before” as an “overnight guest.”
App. 39, 105. Stanford and his brother were taken into custody
without incident.
Detective Cannon later applied for a warrant to search
the Residence for evidence of the North Carolina robbery—
any firearms or clothing matching the convenience store’s
security camera footage, or documents suggesting a secondary
residence. Cannon’s affidavit (the Affidavit) alleged that
Stanford was wanted in connection with the robbery, and North
Carolina authorities knew Stanford had fled to Delaware and
was “staying” at the Residence. App. 31. It also stated that a
woman had advised law enforcement that Stanford was inside
the Residence with Stanford’s brother, and that Stanford had
been apprehended inside the Residence that morning. Finally,
and most significantly for this appeal, paragraph three of the
Affidavit averred:
During the investigation by the North Carolina
authorities it was learned that Stanford and three
other accomplices entered a convenience store
and robbed it at gun point. Two of the subjects
were armed, one with a rifle with a high capacity
magazine and another with a black and silver
hand gun with laser. The Sheriff’s office was
able to arrest three out of the four subjects and
4
Stanford is the last outstanding subject to be
apprehended. They also advised that the firearms
used in the robbery are believed to still be
outstanding.
Id. A magistrate judge issued the warrant (the Search Warrant)
the same day.
Officer Robert DiRocco of the Wilmington Police
Department led the search of the Residence, which yielded a
loaded handgun and a cell phone. The handgun was found
beneath a cushion on the couch where Stanford was laying
when he was arrested.
B
A federal grand jury indicted Stanford on one count of
illegal firearm possession in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). Stanford moved to suppress the
evidence found in the search of the Residence. He claimed the
good-faith exception to the exclusionary rule could not save
the search because the Affidavit was so void of indicia of
probable cause that the officers’ belief in the existence of
probable cause was entirely unreasonable. Stanford also
argued that the Affidavit contained recklessly false, material
information. Finally, he requested a hearing under Franks v.
Delaware, 438 U.S. 154 (1978), to contest the Search
Warrant’s constitutionality.
The Government opposed Stanford’s motion, and the
District Court denied it. The Court bypassed whether the
Affidavit established probable cause and applied the good-faith
exception because the Affidavit’s “alleged inaccuracies” were
not material to the probable cause finding. United States v.
5
Stanford, 500 F. Supp. 3d 264, 270 (D. Del. 2020). The Court
denied a Franks hearing for the same reason. Id. at 271–72.
Stanford pleaded guilty but preserved his right to appeal
the order denying his motion to suppress. After the District
Court accepted the plea, the United States Probation and
Pretrial Services issued a Presentence Investigation Report
(PSR) that calculated an advisory Guidelines range of 46 to 57
months’ imprisonment. The PSR based the range in part on the
judgment that Stanford committed his § 922(g) offense after
being convicted of a felony crime of violence—first-degree
robbery in violation of Delaware law—as defined in Guideline
§ 4B1.2(a). See U.S.S.G. § 2K2.1(a)(4)(A). The PSR also
noted Stanford’s Delaware convictions for second-degree
robbery and attempted second-degree robbery.
Stanford objected to the PSR, arguing that because he
had not been convicted of a crime of violence, his Base Offense
Level was improperly set at 20 under the Guidelines. After a
hearing, oral argument, and extensive briefing, the District
Court overruled Stanford’s objection. The Court found that
“first-degree and second-degree robbery under Delaware law
are crimes of violence within the meaning of the U.S.
Sentencing Guidelines.” United States v. Stanford, 2022 WL
611066, at *5 (D. Del. Feb. 1, 2022).
The Court sentenced Stanford to 46 months’
imprisonment and three years’ supervised release. Stanford
appealed. 1
1
The District Court had jurisdiction under 18 U.S.C. § 3231.
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a).
6
II
Before we consider the legal questions of first
impression raised in this appeal, we turn first to Stanford’s
challenge to the denial of his motion to suppress. Stanford
claims the District Court erred when it applied the good-faith
exception to the exclusionary rule. He contends that the
Affidavit was: (1) so lacking in indicia of probable cause that
it was entirely unreasonable to believe probable cause existed,
and (2) deliberately or recklessly false.
We review the District Court’s factual findings for clear
error and its legal conclusions de novo. United States v.
McCants, 952 F.3d 416, 421 (3d Cir. 2020). “Under the good-
faith exception to the exclusionary rule, if an officer relies in
good faith on a warrant later found to be deficient, evidence
obtained pursuant to that warrant should be suppressed only if
the officer had—or may be fairly charged with—knowledge of
the deficiency.” United States v. Fallon, 61 F.4th 95, 108
(2023).
To merit a Franks hearing, Stanford had to make a
“substantial preliminary showing” that false statements in the
Affidavit were “material to the finding of probable cause” and
were made “knowingly or with reckless disregard for the
truth.” United States v. Yusuf, 461 F.3d 374, 383 (3d Cir. 2006)
(cleaned up).
Stanford focuses on the third paragraph of the Affidavit
(quoted above). He identifies three deficiencies. He contends
that the use of the passive phrasing “it was learned”
misleadingly suggests that someone other than North Carolina
law enforcement alleged Stanford’s involvement in the
convenience store robbery. Next, Stanford observes that
7
paragraph three fails to mention that law enforcement
misidentified the female suspect and dismissed all charges
against her. Last, Stanford notes that the paragraph
inaccurately claims that “three out of the four subjects” had
been arrested and that Stanford was the “last outstanding”
subject when only two suspects had been apprehended, one
wrongfully.
The Government does not contest these inaccuracies,
but argues they were not material to the probable cause finding.
To determine whether they were material, we consider a
corrected Affidavit, which would have read:
During the investigation by the North Carolina
authorities the authorities came to believe it
was learned that Stanford and three other
accomplices entered a convenience store and
robbed it at gun point. Two of the subjects were
armed, one with a rifle with a high capacity
magazine and another with a black and silver
hand gun with laser. The Sheriff’s office was
able to arrest three two out of the four subjects,
one of whom was released due to
misidentification and Stanford is the last
outstanding subject to be apprehended. They also
advised that the firearms used in the robbery are
believed to still be outstanding.
As the District Court noted, Stanford “offer[s] nothing
more than conclusory statements on [the] materiality” of those
alterations to the Affidavit. Stanford, 500 F. Supp. 3d at 270–
71. Nor does the Affidavit so lack indicia of probable cause
that Officer DiRocco was “entirely unreasonable” to think
probable cause existed when he executed the Search Warrant.
8
United States v. Hodge, 246 F.3d 301, 308 (3d Cir. 2001)
(cleaned up). The Affidavit alleged that: (1) an arrest warrant
had issued for Stanford about two weeks prior; (2) Stanford
had fled North Carolina to Delaware to stay with family;
(3) Stanford had been tracked to the Residence, where a
witness confirmed he was staying with a man known to be his
brother; and (4) Stanford had been apprehended there that
morning. Plus, firearms from the robbery were still missing,
and firearms are “durable goods useful to their owners” well
after a crime’s commission. See United States v. Ponzo, 853
F.3d 558, 573 (1st Cir. 2017) (cleaned up). These allegations
establish more than a bare link between the Residence and
Stanford’s “status as a suspect” in the North Carolina robbery.
Reply Br. 4.
Stanford counters that law enforcement did not know
how long he had been staying at the Residence, and that they
believed him to be staying at many locations. That argument is
unpersuasive because though Stanford could have been staying
at multiple locations, that does not mean the police lacked
probable cause to search the one place they had reason to think
he was staying. Indeed, we have already rejected the
proposition that a magistrate may not infer probable cause to
search a suspect’s residence just because there were other
places the suspect might hide his contraband. United States v.
Stearn, 597 F.3d 540, 560 (3d Cir. 2010).
The same principle applies to reliance on a warrant.
Here, the Affidavit alleged law enforcement thought the
Residence contained information about Stanford’s “secondary
residence” where “evidence” relating to the North Carolina
robbery might be found. App. 30. That belief reflected
Stanford’s fugitive status. Stanford suggests “[c]ommon
sense” would lead a fugitive to “distance” himself from
9
incriminating evidence. Stanford Br. 17. That’s true in some
cases. But it would not be unreasonable for police to think that
a fugitive (like Stanford) would keep his gun at the ready while
trying to evade capture. For these reasons, the Affidavit as
altered would have created at least a “fair probability” that the
Residence contained evidence of Stanford’s involvement in the
North Carolina robbery. Stearn, 597 F.3d at 560 (cleaned up).
And this is true even if another location were an “equally likely
repository” of that evidence. Id.Stanford further objects that Detective Cannon
requested a three-day cell-site simulator search warrant
because, “once the device [was] located,” Cannon would need
to “conduct surveillance to establish probable cause for a
residence search warrant.” App. 58. Stanford argues that,
because Cannon did not conduct three days of surveillance on
the Residence after tracing the cell signal to it, the Search
Warrant could not have rested on probable cause. But new
evidence of Stanford’s connection to the Residence—
including the tip that he was inside and the fact that he had been
staying there since law enforcement located his cell phone the
day before—rendered more surveillance unnecessary. Finally,
Stanford asserts that the information in the Affidavit was
“stale” because the North Carolina robbery occurred more than
a month before the search. Stanford Br. 17. We agree with the
District Court, however, that the Affidavit’s statement of the
date on which Stanford’s arrest warrant issued “provid[ed] a
reasonable basis” for inferring that the robbery was recent and
that evidence of it may not have disappeared. Stanford, 500 F.
Supp. 3d at 271. And though Stanford suggests that he would
not still have his share of the stolen $3,000 a month after the
robbery, the Affidavit did not allege that the robbery proceeds
were at the Residence.
10
Nor has Stanford shown that Detective Cannon
“deliberately or recklessly fals[ified]” the Affidavit. Hodge,
246 F.3d at 308 (cleaned up). To obtain a Franks hearing,
Stanford needed to “present an offer of proof contradicting the
[A]ffidavit, including materials such as sworn affidavits or
otherwise reliable statements from witnesses.” United States v.
Desu, 23 F.4th 224, 234 (3d Cir. 2022) (cleaned up). And even
substantiated assertions of mere negligent misrepresentation
don’t suffice. Franks, 438 U.S. at 171. Stanford argues that
Cannon had no excuse for the errors in paragraph three given
that the Affidavit “detail[ed] [Cannon’s] communications with
North Carolina law enforcement.” Reply Br. 5. But these
communications are as consistent with the proposition that
North Carolina authorities erred in conveying the facts to
Cannon as they are with the proposition that Cannon was
reckless with the truth.
* * *
The record supports the District Court’s holding that
law enforcement officers acted in good faith when they relied
on the Search Warrant. And because Stanford did not show that
the Affidavit was deliberately or recklessly false, he did not
make the “substantial preliminary showing” necessary for a
Franks hearing. Desu, 23 F.4th at 234 (cleaned up). The Court
did not err when it denied Stanford’s motion to suppress.
III
We turn now to the sentencing issues that raise
questions of first impression: are Stanford’s prior Delaware
offenses for first- and second-degree robbery “conviction[s] of
. . . crime[s] of violence” that justify his Base Offense Level of
20 under Guideline § 2K2.1(a)(4)(A)? See Stanford, 2022 WL
11611066, at *4–5. We review de novo the District Court’s
conclusion that they are. United States v. Scott, 14 F.4th 190,
194 (3d Cir. 2021). In so doing we employ the “categorical
approach.” McCants, 952 F.3d at 425. That framework focuses
our analysis on the statutory elements of the offense of
conviction rather than the facts comprising its commission.
Scott, 14 F.4th at 194.
Under the Sentencing Guidelines, a “crime of violence”
may be determined by reference to the “elements” clause,
U.S.S.G. § 4B1.2(a)(1), or the “enumerated offenses” clause,
id. § 4B1.2(a)(2). 2 The Government claims Stanford’s
Delaware convictions for first- and second-degree robbery are
crimes of violence under both clauses. Stanford contests both
arguments. The District Court based the enhancement on an
2
Under § 4B1.2 of the Guidelines,
(a) The term “crime of violence” means any
offense under federal or state law, punishable by
imprisonment for a term exceeding one year,
that—
(1) has as an element the use, attempted
use, or threatened use of physical force
against the person of another, or
(2) is murder, voluntary manslaughter,
kidnapping, aggravated assault, a forcible
sex offense, robbery, arson, extortion, or
the use or unlawful possession of a
firearm described in 26 U.S.C. § 5845(a)
or explosive material as defined in 18
U.S.C. § 841(c).
12
analysis of only the enumerated offenses clause, see Stanford,
2022 WL 611066, at *4, but, on our de novo review, we may
affirm the enhancement on any ground the record supports,
United States v. Henderson, 64 F.4th 111, 116 (3d Cir. 2023).
A
Stanford claims Delaware’s first- and second-degree
robbery statutes are indivisible. We disagree. A statute is
“divisible” if it “list[s] elements in the alternative, and thereby
define[s] multiple crimes.” Mathis v. United States, 579 U.S.
500, 505 (2016). Stanford was convicted of first- and second-
degree robbery in August 2008. 3 At that time, Delaware’s theft
statute stated: “A person is guilty of theft when the person
takes, exercises control over or obtains property of another
person intending to deprive that person of it or appropriate it.”
11 Del. C. § 841(a). Delaware’s second-degree robbery statute
incorporated that definition:
(a) A person is guilty of robbery in the second
degree when, in the course of committing theft,
the person uses or threatens the immediate use of
force upon another person with intent to:
(1) Prevent or overcome resistance to the
taking of the property or to the retention
thereof immediately after the taking; or
3
We discuss only the 2008 provisions of the Delaware Code.
But because none of those provisions has been materially
amended, our conclusions apply equally to the same statutes
today.
13
(2) Compel the owner of the property or
another person to deliver up the property
or to engage in other conduct which aids
in the commission of the theft.
Robbery in the second degree is a class E
felony.
(b) In addition to its ordinary meaning, the
phrase “in the course of committing theft”
includes any act which occurs in an attempt to
commit theft or in immediate flight after the
attempt or commission of the theft.
Id. § 831. And Delaware’s first-degree robbery statute
incorporated second-degree robbery:
(a) A person is guilty of robbery in the first
degree when the person commits the crime of
robbery in the second degree and when, in the
course of the commission of the crime or of
immediate flight therefrom, the person or
another participant in the crime:
(1) Causes physical injury to any person
who is not a participant in the crime; or
(2) Displays what appears to be a deadly
weapon or represents by word or conduct
that the person is in possession or control
of a deadly weapon; or
(3) Is armed with and uses or threatens the
use of a dangerous instrument; or
14
(4) Commits said crime against a person
who is 62 years of age or older.
Robbery in the first degree is a class B felony.
Id. § 832.
1
The Delaware first-degree robbery statute resembles the
Pennsylvania robbery statute we construed in United States v.
Peppers, 899 F.3d 211 (3d Cir. 2018). That statute too broke
out subprovisions with the disjunctive “or.” See id. at 231.
“Given [its] clearly laid out alternative elements,” we held, that
statute was “obviously divisible.” Id. at 232 (cleaned up).
Delaware’s first-degree robbery statute also resembles the New
Jersey robbery statute we construed in McCants that likewise
used “or.” See 952 F.3d at 425. Here, as in those cases, the
“phrasing and structure” of the first-degree statute convey its
divisibility. Id. at 426. We hold that § 832(a) is divisible.
Stanford resists the statute’s divisibility by asserting
that § 832(a)’s subsections (1) through (4) are “means” of
satisfying a single statutory element. Reply Br. 6. But he does
not identify the element those putative means might be
“illustrative examples” of, and we see none. Id. (quoting
Mathis, 579 U.S. at 518 (cleaned up)). And though Mathis held
that “[i]f statutory alternatives carry different punishments,
then . . . they must be elements,” 579 U.S. at 518, it does not
follow that such alternatives cannot be elements if they do not
carry different punishments. Alternatively defined offenses can
trigger the same penalty. That they do so does not make their
subsections means rather than elements.
15
The Delaware Supreme Court’s decision in Word v.
State, 801 A.2d 927 (Del. 2002), supports our reading of
§ 832(a). Word held that first-degree robbery required proof of
the elements of second-degree robbery “plus one additional
statutory element.” Id. at 929–30. “For example,” the court
continued, “a defendant may be convicted of first degree
robbery if, in the course of committing the robbery, the
defendant displays what appears to be a deadly weapon.” Id. at
930 (cleaned up). So in that case, the State “had to prove that
[Defendant] displayed what appeared to be a deadly weapon”
during the robbery. Id. (emphasis added). Elements are
“constituent parts” of a crime that “the prosecution must prove
to sustain a conviction.” Elements of Crime, Black’s Law
Dictionary (11th ed. 2019). Means, on the other hand, are
“legally extraneous.” Descamps v. United States, 570 U.S. 254,
270 (2013). Section 832(a) lists alternative elements, not
means. Thus, a conviction for a first-degree robbery like the
one Stanford committed must be reversed when the evidence
fails to establish beyond reasonable doubt the “necessary
statutory element that the defendant ‘displays what appears to
be a deadly weapon.’” Walton v. State, 821 A.2d 871, 873 (Del.
2003) (emphasis added).
Nor is the Delaware Supreme Court’s decision in
Coffield v. State, 794 A.2d 588 (Del. 2002), to the contrary.
Coffield held that one commits first-degree robbery by
committing second-degree robbery “in combination with one
or more of four additional circumstances.” Id. at 592. Stanford
thinks this line “supports the conclusion that [§ 832(a)’s]
subsections are means.” Reply Br. 6. Not so. Offenses “often
require” for guilt—that is, have as elements—the “presence or
absence of attendant circumstances.” Wayne R. LaFave,
Substantive Criminal Law § 1.2(c) (3d ed. 2022) (West). And
16
as for Coffield’s “one or more” language, a person can commit
first-degree robbery by violating more than one of the divisible
subprovisions: say, by committing second-degree robbery
against a 62-year-old while displaying a deadly weapon. 11
Del. C. § 832(a)(2), (4). That principle is also true of the
Pennsylvania robbery statute we found divisible in Peppers.
See 899 F.3d at 231.
Finally, the sample jury instructions in the record
strongly support our reading of the statute and caselaw. The
instructions for first-degree robbery under § 832(a)(1)
(physical injury) and § 832(a)(2) (display of a deadly weapon)
both comprise five elements that must be proved beyond a
reasonable doubt. Four of those elements are the same for both
crimes. But the instructions are distinct because each requires
proof of an element the other does not: (a)(1) requires a finding
of proof of “physical injury,” whereas (a)(2) requires a finding
of proof of the display of what appears to be a “deadly
weapon.” See App. 208, 210. The instructions confirm that 11
Del. C. § 832(a) is divisible: the jury must find the relevant
alternative element beyond a reasonable doubt. See Descamps,
570 U.S. at 272.
To sum up, the first-degree robbery statute “on its face”
resolves the divisibility question, state court decisions
“definitively answer[]” it too, and jury instructions confirm our
conclusion. Mathis, 579 U.S. at 517–18. We agree with the
District Court that Delaware’s first-degree robbery statute is
divisible. See Stanford, 2022 WL 611066, at *3.
2
Delaware’s second-degree robbery statute is divisible
for similar reasons. It too uses the disjunctive “or” to separate
17
its subprovisions. See McCants, 952 F.3d at 425; Peppers, 899
F.3d at 231. Stanford argues that the statute is indivisible “on
its face” because it “does not provide different penalties for
violations of the alternative clauses” and because it grades all
second-degree robberies as class E felonies. Stanford Br. 23–
24. But we have already rejected the view that alternatively
phrased statutes list elements rather than means only when
their subsections carry different punishments. McCants, 952
F.3d at 425. So too for grading. The grading provision of the
divisible New Jersey robbery statute, for instance, stated that
“[r]obbery is a crime of the second degree” (though it added a
first-degree upgrade that was not triggered by circumstances
detailed in any of the robbery statute’s subprovisions). See id.
Like its first-degree counterpart, the second-degree
robbery statute includes alternative subprovisions. Sections
831(a)(1) and 831(a)(2) proscribe different conduct: using
force to overcome resistance, and using force to compel any
person to engage in conduct that aids the commission of the
theft. The Delaware Supreme Court has referred to § 831(a)(2)
as an “element[]” of second-degree robbery. Walton, 821 A.2d
at 874; see also Johnson v. State, 588 A.2d 1142, at *2 (Del.
1991) (table). We therefore hold that Delaware’s second-
degree robbery statute is divisible.
B
Because 11 Del. C. §§ 831(a) and 832(a) are divisible,
we normally would apply the modified categorical approach,
consulting Stanford’s Shepard documents to discern his
statutory offenses. McCants, 952 F.3d at 427. We need not do
so here, however, because every Delaware first- and second-
degree robbery offense is a crime of violence under the
elements clause of the Guidelines.
18
The elements clause defines a “crime of violence” as an
offense punishable by over a year in prison that “has as an
element the use, attempted use, or threatened use of physical
force against the person of another.” U.S.S.G. § 4B1.2(a)(1).
Section 831(a)’s plain language “closely tracks” the language
of the elements clause. United States v. Chapman, 866 F.3d
129, 134 (3d Cir. 2017). One commits Delaware second-degree
robbery “when, in the course of committing theft, the person
uses or threatens the immediate use of force upon another
person”—intentionally. 11 Del. C. § 831(a) (emphasis added).
And § 832(a) incorporates second-degree robbery as an
element. Because Delaware first- and second-degree robbery
require proof of that “use of force” element, those statutes are
“crimes of violence” under the Guidelines.
Stanford resists this conclusion. He notes that the
elements clause requires “violent force—that is, force capable
of causing physical pain or injury to another person.” Johnson
v. United States, 559 U.S. 133, 140 (2010). He observes that
force can cause physical injury when it “is sufficient to
overcome a victim’s resistance.” Stokeling v. United States,
139 S. Ct. 544, 554 (2019). And he believes that Delaware
second-degree robbery “does not require force overcoming a
victim’s resistance.” Stanford Br. 24. We disagree. The
second-degree robbery statute requires that force be used
intentionally “upon another person” to “[p]revent or overcome
resistance” (under § 831(a)(1)) or to “compel” him to aid the
commission of the theft (under § 831(a)(2)). That is not de
minimis force.
Stanford quotes State v. Dawson as evidence that the
robbery victim “need not resist for an offense to constitute
robbery.” Reply Br. 11. It is true that Dawson—an unpublished
lower court opinion—says that the “degree of resistance to the
19
taking is immaterial to the defendant’s guilt” under 11 Del. C.
§ 832(a)(4). 2004 WL 838858, at *3 (Del. Super. Ct. Apr. 12,
2004) (emphasis added). But the court also said that the 77-
year-old robbery victim “relinquished” her purse only because
it was “forcibly taken” from her, and that she eventually “chose
not to wrestle with” the purse snatcher. Id. at *1, *4. She was
“confronted by her assailant head on” and “h[eld] her purse
tightly” before surrendering it. Id. at *4. That situation,
including the robber’s use of force, squares with the elements
clause, which requires only that the use of force suffice to
“overpower” the will of “even a feeble or weak-willed victim.”
Stokeling, 139 S. Ct. at 553. And the force need not “cause pain
or injury or even be prolonged.” Id. (cleaned up). For those
reasons, Dawson shows only that force sufficient to overcome
resistance need not be met with meaningful resistance to
constitute robbery, and that lesson fits with Stokeling.
Stanford also cites United States v. Parnell, 818 F.3d
974 (9th Cir. 2016). Parnell interpreted a Massachusetts armed
robbery statute, which had been read to require only that
“degree of force . . . sufficient to obtain the victim’s property
against his will.” Id. at 978 (cleaned up). But Stokeling later
held that kind of force to satisfy the elements clause. See 139
S. Ct. at 554. So Parnell is no help to Stanford either.
Finally, Stanford argues that his statutory offense
criminalizes reckless conduct and that the elements clause does
not encompass “offenses criminalizing reckless conduct.”
Borden v. United States, 141 S. Ct. 1817, 1825 (2021). This
contention falters as well. Stanford believes that Delaware
caselaw “demonstrates” that robbery “does not require
intentional force.” Stanford Br. 27. But the one case he cites
says only that first-degree robbery need not involve the
intention to cause physical injury. See Hackett v. State, 569
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A.2d 79, 80 (Del. 1990). Crimes of violence under the elements
clause need not involve that intention either: “threatened use of
physical force” suffices, and the threat could be insincere.
U.S.S.G. § 4B1.2(a)(1).
Besides, the elements clause requires only that force be
“consciously directed” toward a victim as the force’s “object,”
not that the force be intended to cause the victim physical
injury. Borden, 141 S. Ct. at 1826. Delaware first-degree
robbery satisfies that condition, for it incorporates second-
degree robbery as an element, and that offense requires the
intentional use or threatened use of immediate force “upon
another person.” 11 Del. C. § 831(a). That is true of both
§ 831(a)(1) and § 831(a)(2) because that critical language
appears in the umbrella provision of § 831(a) itself. So under
either provision, the perpetrator must intentionally “employ[]
physical force” against a victim, or at least threaten to. Borden,
141 S. Ct. at 1826. The use of reckless force would not satisfy
that statutory element.
Another case Stanford cites appears at first blush to
support his position but in the end is unavailing. In Bialach v.
State, the Delaware Supreme Court considered a sufficiency-
of-the-evidence challenge to a first-degree robbery offense of
§ 832(a)(1) based on the second-degree offense of § 831(a)(1).
744 A.2d 983, 984–85 (Del. 2000). A store manager had
followed a suspicious shopper (the defendant) into the parking
lot. Id. at 984. The manager “attempted to apprehend” the
defendant. Id. But the defendant locked the car doors, put the
car in reverse, and backed out of his parking space, striking the
manager. Id. at 984–85. The defendant testified that he neither
intended to strike the manager nor knew he had done so. Id. at
984. Yet the court held that the conviction would stand because
a reasonable juror could conclude that the defendant used force
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against the victim with the intent to overcome his resistance
and “get away” from him. Id. at 986.
Though the defendant recklessly used force against the
victim, Bialach does not help Stanford. First, the court’s
discussion of the defendant’s mens rea as to the use of force is
dicta because the sole issue raised on appeal was whether
§ 831(a)(1) can be satisfied when the theft victim does not
know the identity of the stolen chattel. Id. at 984. Second, the
defendant put the vehicle in reverse when the victim was
“behind the vehicle” checking its license plate. Id. Nothing in
the court’s opinion forecloses the inference that the defendant
intended to “force[]” the victim out of the car’s path (to effect
escape) via the nonverbal threat: move or be hit. Id. at 985.
That intention is consistent with the lack of an intent to actually
strike the victim. And, as noted above, the intentional or
knowing threatened use of force satisfies the elements
clause—even when the eventual use of force is only reckless.
Last, Stanford’s hypothetical about a fleeing robber
whose pursuing victim gets injured fails for similar reasons. To
be found guilty, the fleeing robber must use or threaten to use
force upon another person with the intent to prevent or
overcome resistance or to compel the victim to surrender his
property.
* * *
To sum up, Delaware second-degree robbery—both 11
Del. C. § 831(a)(1) and § 831(a)(2)—satisfies the elements
clause of Guideline § 4B1.2(a)(1) and is therefore a crime of
violence. Because the state’s first-degree robbery offense
incorporates second-degree robbery as an element, it too
satisfies the elements clause. So Stanford’s first- and second-
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degree offenses are crimes of violence. We will affirm on this
ground the District Court’s application of the sentence
enhancement, and we need not decide whether Stanford’s
offenses are crimes of violence under the enumerated offenses
clause.
IV
The District Court did not err when it denied Stanford’s
motion to suppress or when it applied the Guidelines
enhancement for a predicate crime of violence. We will affirm
the Court’s judgment of conviction and sentence.
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