United States v. Richard Orr , 685 F. App'x 263 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4455
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RICHARD ARTHUR ORR,
Defendant – Appellant.
Appeal from the United States District Court for the Western District of North Carolina,
at Statesville. Richard L. Voorhees, District Judge. (5:15-cr-00059-RLV-DCK-1)
Submitted: March 31, 2017 Decided: April 21, 2017
Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John Parke Davis, Interim Executive Director, Joshua B. Carpenter, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina,
for Appellant. Jill Westmoreland Rose, United States Attorney, Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Richard Arthur Orr appeals from his 180-month sentence, entered pursuant to his
guilty plea to possession of a firearm by a convicted felon. At sentencing, Orr was found
to be an armed career criminal. On appeal, he contends that his prior Florida robbery
convictions were improper predicate offenses under the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e) (2012), and, as such, he was wrongly sentenced under the
ACCA. We affirm.
The ACCA applies only if the defendant “has three previous convictions . . . for a
violent felony or a serious drug offense, or both.” 18 U.S.C. § 924(e)(1). A felony is
considered “violent” only if it “has as an element the use, attempted use, or threatened
use of physical force against the person of another” or “is burglary, arson, or extortion,
[or] involves use of explosives.” 18 U.S.C. § 924(e)(2)(B). The Supreme Court has held
that “’physical force’ means 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).
We look to state law to determine the minimum conduct required to commit an
offense. United States v. Doctor, 842 F.3d 306, 309 (4th Cir. 2016), petition for cert.
filed (Mar. 17, 2017) (No. 16-8435). Florida law defines robbery as
the taking of money or other property which may be the subject of larceny
from the person or custody of another, with intent to either permanently or
temporarily deprive the person or the owner of the money or other property,
when in the course of the taking there is the use of force, violence, assault,
or putting in fear.
Fla. Stat. § 812.13(1).
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Orr proffers various arguments in support of his contention that his Florida
robbery convictions do not satisfy the ACCA’s definition of a violent felony. First, Orr
relies on our decision in United States v. Gardner, 823 F.3d 793 (4th Cir. 2016), which
held that North Carolina common-law robbery is categorically not an ACCA predicate.
In Gardner, we first examined whether “the minimum conduct necessary for a violation
under state law” satisfies the “violent force” threshold described in Johnson. We
concluded that, because “even de minimis contact can constitute the ‘violence’ necessary
for a [North Carolina] common law robbery conviction,” the offense does not qualify as
an ACCA predicate. Gardner, 823 F.3d at 803. Orr contends that the Florida and North
Carolina statutes and interpreting case law are functionally equivalent.
However, the Eleventh Circuit has concluded that a Florida robbery conviction
under § 812.13(1) categorically qualifies as a “crime of violence” under the force clause
of the career offender guidelines, which contains a force clause identical to the force
clause in the ACCA. United States v. Lockley, 632 F.3d 1238, 1240 & n.1 (11th Cir.
2011). The court explained that § 812.13(1) requires either the use of force or violence,
the threat of imminent force or violence coupled with apparent ability, “or some act that
puts the victim in fear of death or great bodily harm.” Id. at 1245. The court found “it
inconceivable that any act which causes the victim to fear death or great bodily harm
would not involve the use or threatened use of physical force.” Id. Thus, the Eleventh
Circuit held that a conviction under § 812.13(1) categorically qualified as a predicate
under the force clause of the career offender guidelines. Id. The Eleventh Circuit has
since confirmed the continued validity of Lockley’s holding, even in light of more recent
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developments. United States v. Fritts, 841 F.3d 937, 942 (11th Cir. 2016) (finding that
Lockley was binding on the question of whether the defendant’s Florida robbery
conviction qualified as an ACCA predicate under the force clause), petition for cert. filed
(Nov. 8, 2016) (No. 16-7883); United States v. Seabrooks, 839 F.3d 1326, 1342–43 (11th
Cir. 2016) (same), petition for cert. filed (Feb. 16, 2017) (No. 16-8072).
While Orr correctly notes that these cases did not explicitly address whether the
force required under the Florida robbery statute encompassed minimal-force offenses, all
of the cited Eleventh Circuit cases were decided after the Supreme Court’s decision in
Johnson, which outlined the level of force required by the ACCA. Moreover, Florida
state court decisions also support the conclusion that more than de minimis force is
required for a robbery conviction. See Robinson v. Florida, 692 So. 2d 883, 886-87 (Fla.
1997) (holding that robbery requires showing of more force than that required simply to
remove the property from the victim and that “there must be resistance by the victim that
is overcome by the physical force of the offender”); Owens v. Florida, 787 So. 2d 143,
144 (Fla. Dist. Ct. App. 2001) (finding that, absent resistance or the holding or striking of
the victim, the showing of force was insufficient to sustain conviction). Given the weight
of the case law, we find that, contrary to Orr’s argument, more than de minimis force is
required under the Florida robbery statute, thus distinguishing this case from Gardner.
Next, Orr argues that, even if Florida’s robbery statute currently requires more
than de minimis force, this was not the case prior to the Robinson decision in 1997. Thus,
all of Orr’s Florida convictions which took place prior to 1997 (all but one of his robbery
convictions) were improper ACCA predicates. The ACCA analysis is indeed a
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backwards-looking inquiry that requires the court to consult the law at the time of the
prior conviction. McNeill v. United States, 563 U.S. 816, 820 (2011). If there is a
“realistic probability, not a theoretical possibility” that the state statute would have
applied to conduct outside of the ACCA’s definition of a “violent felony,” then the state
conviction is not an appropriate predicate. See Gardner, 823 F.3d at 803.
In Fritts, the Eleventh Circuit rejected a claim identical to Orr’s, ruling that
Florida’s robbery statute has never included “mere snatching” because such a theft does
not involve the degree of physical force necessary to sustain a robbery conviction. 841
F.3d at 942. The Eleventh Circuit ruled that, when the Florida Supreme Court decided
Robinson, the Florida Supreme Court stated “what the statute always meant.” Id. at 943.
Based on the decision in Fritt and the limited relevance of Orr’s cited supporting case
law regarding pre-1997 law, we find that he has failed to show a “realistic probability”
that, prior to 1997, the Florida robbery statute would be extended to non-violent crimes
outside of the ACCA’s definition.
Next, Orr contends that, even if the Florida statute has always required “violent”
force, the offense would still not qualify as an ACCA predicate because the “putting in
fear” component does not satisfy the force clause. Orr points to a “robbery by poison” to
demonstrate a crime that would satisfy the Florida statute but not arise from violent,
physical force. Orr relies on United States v. Torres-Miguel, 701 F.3d 165 (4th Cir.
2012), which examined a California statute criminalizing a threat “to commit a crime
which will result in death or great bodily injury.” We ruled that the crime did not
constitute a crime of violence under the Guidelines, reasoning that a crime may result in
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death or serious injury without the use of physical force, such as in a case of poisoning.
Id. at 166-69.
However, after Torres-Miguel, the Supreme Court held that the use of force in a
poisoning is the “act of employing poison knowingly as a device to cause physical harm”;
thus the administration of poison is the use of force, just as pulling the trigger of a gun is
the use of force. Castleman v. United States, 134 S. Ct. 1405, 1414-15 (2014)
(considering a state force clause and expressly declining to determine whether the statute
required violent force under Johnson’s definition). Moreover, we have even more
recently rejected the same argument proffered by Orr as applied to the federal bank
robbery statute, noting that defendants failed to identify “a single bank robbery
prosecution where the victim feared bodily harm from something other than violent
physical force.” United States v. McNeal, 818 F.3d 141, 156 (4th Cir. 2016), cert.
denied, 137 S. Ct. 164 (2016); see also Lockley, 632 F.3d at 1245 (finding “it
inconceivable that any act which causes the victim to fear death or great bodily harm
would not involve the use or threatened use of physical force”). Again, Orr’s supporting
case law is too equivocal to show a realistic probability that the Florida robbery statute
would be applied to actions insufficient to satisfy the ACCA definition of a crime of
violence.
Finally, Orr contends that his robbery convictions do not satisfy the force clause
because the offense does not require an intentional use of force. Orr admits that our
decision in Doctor is essentially fatal to his claim. In Doctor, we held that, because the
defendant had not identified a single South Carolina robbery case “based on accidental,
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negligent or reckless conduct,” there was not a “realistic probability” that South Carolina
would punish that conduct. 842 F.3d at 311. While Orr contends that the “realistic
probability” test is not applicable to a determination of whether a state predicate is a
crime of violence, we decided otherwise in Gardner. 823 F.3d at 803. In both Gardner
and Doctor, we looked to the lack of actual prosecutions for non-violent conduct under
the relevant statute as one factor to be considered, along with state case law interpreting
the statute, in determining the breadth of the statute. See id.; 842 F.3d at 311. Because
Orr concedes that, if Doctor is applied, his claim is foreclosed, his claim is without merit.
Accordingly, we find that Orr’s prior Florida robbery convictions constituted
crimes of violence under the ACCA. * Thus, Orr was properly sentenced as an armed
career criminal, and we affirm his sentence. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
*
Because Orr was sentenced to the statutory mandatory minimum under the
ACCA, we decline to address Orr’s claim that his Guidelines range was incorrectly
calculated.
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