United States v. Joseph Williams ( 2023 )

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-7131
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSEPH E. WILLIAMS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Leonie M. Brinkema, District Judge. (1:04-cr-00160-LMB-1; 1:16-cv-00773-LMB)
Argued: January 26, 2023 Decided: March 27, 2023
Before GREGORY, Chief Judge, HARRIS, and QUATTLEBAUM, Circuit Judges.
Vacated and remanded by published opinion. Chief Judge Gregory wrote the opinion, in
which Judge Harris and Judge Quattlebaum joined.
ARGUED: Geremy C. Kamens, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Richard Daniel Cooke, OFFICE OF THE UNITED
STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Frances H. Pratt,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Jessica D. Aber, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
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GREGORY, Chief Judge:
Joseph Williams was convicted of two firearm possession offenses in violation of
18 U.S.C. § 922(g). In determining Williams’s sentence, the trial court applied the Armed
Career Criminal Act (“ACCA”) sentence enhancement, 18 U.S.C. § 924(e)(1), based on
Williams’s prior state felony convictions.
Williams now moves to vacate and correct his sentence pursuant to 18 U.S.C.
§ 2255, challenging the sentencing court’s application of the ACCA enhancement. After
concluding that Williams’s three Virginia robbery convictions qualified as predicate
“violent felonies” under § 924(e), the district court denied his motion. While Williams’s
appeal of that decision was pending, this Court held that Virginia common-law robbery is
not a violent felony for purposes of § 924(e). See United States v. White, 24 F.4th 378, 382
(4th Cir. 2022). We conclude that White controls this case and precludes Williams’s
robbery convictions from qualifying as valid ACCA predicates. Accordingly, we vacate
the district court’s order denying Williams’s § 2255 motion and remand for further
proceedings.
I.
A.
In 2004, a federal grand jury indicted Williams for possessing a firearm as a felon in
violation of 18 U.S.C. § 922(g)(1), and for possessing a firearm as an unlawful drug user in
violation of § 922(g)(3). Following a trial, a jury convicted Williams of both counts. The
jury also answered several special interrogatories in which it found that the Government had
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proven beyond a reasonable doubt that Williams had deliberately and maliciously shot and
killed a neighbor during the commission or attempted commission of a robbery.
At Williams’s sentencing, the court applied the ACCA sentence enhancement after
finding that Williams had at least “three previous convictions . . . for a violent felony . . .,
committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). In total, Williams
had six prior convictions under Virginia law: three for robbery (Va. Code § 18.2-58), and three
for using or displaying a firearm while committing a felony (Va. Code § 18.2-53.1). These
convictions stemmed from three separate robberies Williams committed in 1977 and 1982.
While § 922(g) offenses normally carry a maximum sentence of ten years’ imprisonment, the
ACCA sentence enhancement mandates a prison term of at least fifteen years. After merging
Williams’s two § 922(g) convictions and applying the ACCA enhancement and U.S.
Sentencing Guidelines, the court sentenced Williams to life imprisonment.
On direct appeal, this Court affirmed Williams’s conviction. United States v. Williams,
445 F.3d 724, 741 (4th Cir. 2006), cert. denied, 549 U.S. 933 (2006). However, we vacated
his sentence and remanded for resentencing because the trial court had sentenced Williams
before the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005), which
established that the Sentencing Guidelines are advisory rather than mandatory. Williams, 445
F.3d at 741. On remand, the court again sentenced Williams to life imprisonment, and we
affirmed. United States v. Williams, 257 F. App’x 674, 678 (4th Cir. 2007).
B.
In April 2009, Williams filed his first motion to vacate and correct his sentence
pursuant to 28 U.S.C. § 2255. The district court dismissed the motion, and we declined to
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grant a certificate of appealability. United States v. Williams, 381 F. App’x 269, 269 (4th
Cir. 2010).
On June 26, 2016, Williams sought and received authorization to file a second or
successive § 2255 motion. In his second § 2255 motion, he argues that his life sentence
should be vacated and corrected because he no longer qualifies as an armed career criminal
after the Supreme Court’s decision in Johnson v. United States, 576 U.S. 591 (2015). In
Johnson, the Supreme Court struck down the “residual clause” in § 924(e)—which set out
one way a predicate offense could qualify as a violent felony—as unconstitutionally
vague. 1 As a result of that decision, Williams’s ACCA sentence enhancement is valid only
if at least three of his Virginia convictions satisfy § 924(e)’s “elements clause.” 2 That
clause defines a “violent felony” as any crime punishable by more than one year of
imprisonment that “has as an element the use, attempted use, or threatened use of physical
force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). The Supreme Court has
defined “physical force” as “violent force—that is, force capable of causing physical pain
1
Williams filed his second § 2255 motion within one year of the Johnson decision,
which made the motion timely. See 28 U.S.C. § 2255(f)(3) (providing that a movant may
file a § 2255 motion within one year of “the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly recognized by the Supreme
Court and made retroactive to cases on collateral review”). The new rule the Supreme
Court recognized in Johnson applies retroactively to cases on collateral review. See Welch
v. United States, 578 U.S. 120, 135 (2016).
2
Section 924(e) also enumerates four specific crimes that qualify as violent felonies:
burglary, arson, extortion, and crimes involving the use of explosives. See 18 U.S.C.
§ 924(e)(2)(B)(ii). However, Williams’s Virginia robbery and firearm convictions do not
align with any of the enumerated offenses.
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or injury to another person.” Johnson v. United States, 559 U.S. 133, 140 (2010) (emphasis
in original).
After staying the proceedings pending further guidance from this Court and the
Supreme Court, the district court dismissed Williams’s § 2255 motion in May 2020. It
held that Johnson’s invalidation of § 924(e)’s residual clause did not affect Williams’s
sentence because his three Virginia robbery convictions qualify as violent felonies under
the elements clause. To reach that conclusion, the court largely relied on the Supreme
Court’s decision in Stokeling v. United States, which held that Florida common-law
robbery is a violent felony because it requires a level of “force necessary to overcome a
victim’s resistance,” which amounts to “physical force” under the elements clause. 139 S.
Ct. 544, 555 (2019). Looking to Virginia case law, the district court concluded that
Virginia common-law robbery, like Florida common-law robbery, “requires the use of
force sufficient to overcome a victim’s resistance.” J.A. 116.
Most relevant to this appeal, the district court was unpersuaded by Williams’s
argument that Virginia common-law robbery does not require “physical force” because a
person may commit the offense by threatening to accuse the victim of sodomy (the
“sodomy-threat theory”). For support, Williams cited a few Virginia cases that appeared
to recognize the sodomy-threat theory, the most recent of which was decided in 1938.
However, the district court found those references to the theory insufficient to establish
that Virginia common-law robbery could be committed without “physical force.” The
court emphasized that the discussions of the sodomy-threat theory were mere dicta in cases
that did not actually involve prosecutions for sodomy-threat robbery, and the court was
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“unaware of any Virginia case, let alone a recent case, in which a defendant has been
prosecuted for robbery committed via a threatened charge of sodomy.” J.A. 118–19. It
also noted that the Virginia General Assembly had enacted a robbery statute in 1975 that
appeared to exclude the sodomy-threat theory, which suggested that “that conduct is no
longer considered a robbery crime.” J.A. 119.
Based on this analysis, the district court upheld Williams’s sentence enhancement
without addressing whether his three convictions for violating Virginia’s use-or-display-
of-firearm statute also qualify as violent felonies. Williams timely appealed.
C.
While Williams’s appeal was pending, we decided United States v. White, which
addressed whether Virginia common-law robbery qualifies as a violent felony under the
ACCA. 3 Like Williams, the defendant in White argued that Virginia common-law robbery
does not satisfy § 924(e)’s elements clause because a person can commit the offense “by
threatening to accuse the [robbery] victim of having committed sodomy.” United States v.
White, 987 F.3d 340, 341–42 (4th Cir. 2021). The defendant called attention to the same
decades-old Virginia precedents that endorsed the sodomy-threat theory. Id. at 344. After
finding no controlling precedent on this issue, we certified the following question to the
Virginia Supreme Court: “Under Virginia common law, can an individual be convicted of
3
We had previously determined that Virginia common-law robbery did not qualify
as a violent felony under § 924(e)’s elements clause because it “can be committed when a
defendant uses only a ‘slight’ degree of force that need not harm a victim.” United States
v. Winston, 850 F.3d 677, 685 (4th Cir. 2017). However, we have since recognized that
our holding in Winston was abrogated by Stokeling. See United States v. White, 987 F.3d
340, 343 (4th Cir. 2021).
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robbery by means of threatening to accuse the victim of having committed sodomy?” Id.
at 341.
The Virginia Supreme Court answered our question in the affirmative, holding that
a person can commit Virginia common-law robbery by means of a threatened sodomy
accusation “if the accusation of ‘sodomy’ involves a crime against nature under extant
criminal law.” White v. United States, 863 S.E.2d 483, 483 (Va. 2021). Based on that
answer, we held that Virginia common-law robbery does not qualify as a violent felony
under the elements clause because it “can be committed without proving as an element the
‘use, attempted use, or threatened use of physical force.’” White, 24 F.4th at 380 (quoting
18 U.S.C. § 924(e)(2)(B)(i)).
With that recent decision in mind, we granted Williams a certificate of appealability
“on the issue of whether [he] no longer qualifies as an armed career criminal in light of
[White].” Order, United States v. Williams, No. 20-7131 (4th Cir. Feb. 1, 2022), ECF No. 12.
II.
“We review de novo a district court’s legal conclusions concerning a denial of
§ 2255 relief, including whether certain prior convictions qualify as violent felonies under
the ACCA.” United States v. Dinkins, 928 F.3d 349, 353 (4th Cir. 2019). When deciding
whether an offense satisfies § 924(e)’s elements clause, we must follow the categorical
approach, “focusing on the elements of the crime of conviction and not on the underlying
facts.” Id. at 354. Under that approach, all that matters is whether Williams could have
been convicted of sodomy-threat robbery under Virginia law; if so, then his robbery
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convictions did not necessarily require “physical force” and therefore do not satisfy the
elements clause. To identify the elements of a state offense and the minimum conduct
needed to prove them, we “look to state law” and “the interpretation of [the] offense
articulated by that state’s courts.” Id. (quoting United States v. Bell, 901 F.3d 455, 469
(4th Cir. 2018)).
The Virginia Supreme Court’s opinion in White made clear that Virginia common-
law robbery does not satisfy § 924(e)’s elements clause because one method of committing
the offense—robbery by threatened sodomy accusation—does not involve the “use,
attempted use, or threatened use of physical force.” However, the Government argues that
White is not controlling because Williams was convicted and sentenced under a version of
the Virginia robbery statute, Va. Code § 18.2-58, that clearly excluded the sodomy-threat
theory. But Williams and the defendant in White were convicted under the same version
of the robbery statute, which the Virginia Supreme Court addressed in its White opinion.
Therefore, despite the Government’s arguments to the contrary, the Virginia Supreme
Court’s conclusion in White applies with equal force here and precludes Williams’s
robbery convictions from satisfying the elements clause.
A.
For each of his three robbery offenses, Williams was convicted and sentenced under
Va. Code § 18.2-58. Importantly, this statute “prescribes the degrees of punishments for
robbery, but not its elements.” White, 863 S.E.2d at 484. Virginia courts “look[] to the
common law definition for the offense.” Branch v. Commonwealth, 300 S.E.2d 758, 759
(Va. 1983); see also Durham v. Commonwealth, 198 S.E.2d 603, 605 (Va. 1973) (“In
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Virginia, . . . there is no statutory definition of robbery.”). In Virginia, common-law
robbery is defined as “the taking, with intent to steal, of the personal property of another,
from his person or in his presence, against his will, by violence or intimidation.” Durham,
198 S.E.2d at 605 (quoting Jones v. Commonwealth, 1 S.E.2d 300, 301 (Va. 1939)).
We look to the version of § 18.2-58 that was in effect at the time of Williams’s 1978
and 1982 convictions to determine whether those convictions satisfy § 924(e)’s elements
clause. See, e.g., United States v. Alfaro, 835 F.3d 470, 472–73 (4th Cir. 2016). That
version read as follows:
Robbery; how punished.—If any person commit robbery by partial
strangulation, or suffocation, or by striking or beating, or by other violence
to the person, or by assault or otherwise putting a person in fear of serious
bodily harm or by the threat of [sic] 4 presenting of firearms, or other deadly
weapon or instrumentality whatsoever, he shall be guilty of a felony and shall
be punished by confinement in the penitentiary for life or any term not less
than five years.
Va. Code Ann. § 18.2-58 (1975).
Although § 18.2-58 does not define the elements of robbery, the Government
contends that the 1975 version of the statute did not provide any means of punishing
sodomy-threat robbery and therefore must have abrogated this common-law rule. See Va.
Code Ann. § 18.2-16 (1975) (“A common-law offense, for which punishment is prescribed
by statute, shall be punished only in the mode so prescribed.”). To support its position, the
Government points out that versions of the statute that preceded and followed the 1975
version included a catch-all clause designed to capture all possible forms of robbery, but
4
In 1978, the General Assembly corrected this grammatical error (replacing “of”
with “or”), but otherwise made no changes to the statute. See 1975 Va. Acts 1001.
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the 1975 version did not. For instance, the 1960 version of the statute covered “robbery in
any other mode.” 5 Va. Code. Ann. § 18.1-91 (1960). Similarly, a 2021 amendment—
which replaced the 1975 version—makes “[a]ny person who commits robbery by using
threat or intimidation or any other means not involving a deadly weapon [] guilty of a Class
6 felony.” 6 Va. Code Ann. § 18.2-58(B)(4) (2021). By contrast, the 1975 statute included
no such catch-all clause. According to the Government, this shows that the 1975 statute
excluded the sodomy-threat theory of robbery.
However, the Virginia Supreme Court’s opinion in White forecloses this argument.
To begin, the defendant in White, like Williams, was convicted of Virginia common-law
robbery when the 1975 version of § 18.2-58 was in effect. See White, 987 F.3d at 341.
Further, we highlighted the statutory issue in our opinion certifying the question to the
Virginia Supreme Court. We noted that § 18.2-58, “when detailing various means of
commission of the crime, does not mention robbery by threatening to accuse the victim of
sodomy,” but recognized that the statute was not necessarily “dispositive of the question
presented, because we look to the common law for [the crime’s] definition.” Id. at 344
(internal quotation marks omitted).
5
The General Assembly first removed the catch-all clause from the robbery statute
in 1966. Compare 1960 Va. Acts 433 with 1966 Va. Acts 557. In 1975, the General
Assembly made minor amendments to the statute but did not reintroduce a catch-all
provision. See 1975 Va. Acts 1265.
6
The 2021 amendment assigned different felony levels to robbery offenses based
on the method of commission. See Va. Code Ann. § 18.2-58 (2021).
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Most importantly, the Virginia Supreme Court addressed the possible effects of the
statute when answering our certified question. In concluding that a defendant may be
convicted of robbery under the sodomy-threat theory, the court clarified that “the General
Assembly has not abrogated the [sodomy-threat] doctrine.” White, 863 S.E.2d at 492
(emphasis added). From this statement, we can infer that the court considered the 1975
version of the statute and determined that it did not modify the common-law rule.
To be sure, the Virginia Supreme Court did not analyze the specific text of § 18.2-58
in its opinion, instead focusing mostly on English common law and historical Virginia
precedents. See White, 863 S.E.2d at 486–92. Ultimately, though, the Government cannot
escape the court’s express statement that the “General Assembly has not abrogated” the
sodomy-threat theory. Id. at 492. The court’s discussion of the statutory issue was cursory,
but that does not make its conclusion any less clear.
B.
In an attempt to convince us that White is not controlling, the Government contends
that it was possible for the 1975 statute to eliminate the punishment for sodomy-threat
robbery without actually abrogating the common-law rule. It points out that a different
offense—suicide—“remains a common law crime in Virginia” even though “the General
Assembly has rescinded the punishment” for that offense. Wackwitz v. Roy, 418 S.E.2d
861, 864 (Va. 1992). According to the Government, this demonstrates that the 1975
version of § 18.2-58 could have restricted the punishable forms of robbery even if the
common-law definition of robbery remained unchanged. And, the Government asserts, it
would violate both Virginia law and federal due process protections to convict and sentence
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a defendant for sodomy-threat robbery when no statute prescribed any punishment for that
form of the offense.
We find it hard to believe that the Virginia Supreme Court failed to consider this
issue in White. For one, the issue was squarely presented to the court. We expressed our
uncertainty about whether sodomy-threat robbery was punishable under § 18.2-58 when
we certified the question, and the Government’s briefing in the Virginia Supreme Court
specifically argued that “there is no punishment for” sodomy-threat robbery under the 1975
version of the statute. Brief of United States, White, 863 S.E.2d 483, 2021 WL 8315270,
at *32 (Va. May 21, 2021). Moreover, if the 1975 statute had made sodomy-threat robbery
unpunishable, the Virginia Supreme Court would have addressed that issue in White, given
that it very well could have been “determinative” to whether the defendant’s robbery
conviction qualified as a violent felony under § 924(e). White, 863 S.E.2d at 483. For
these reasons, the plain import of the court’s White opinion is that the 1975 statute did not
remove the sodomy-threat theory from the punishable forms of robbery. 7
Finally, as a last resort, the Government asks us to find that the Virginia Supreme
Court interpreted Virginia common law incorrectly in White. But we must decline that
7
The Government separately argues that we must treat § 18.2-58’s penalty
provisions as elements requiring proof beyond a reasonable doubt—and therefore as a
divisible offense from the common-law rule—because the statute imposes a five-year
mandatory minimum sentence. See Alleyne v. United States, 570 U.S. 99, 103 (2013).
Because we read the Virginia Supreme Court’s White opinion as concluding that sodomy-
threat robbery remained punishable under the 1975 statute, we do not need to address this
argument.
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invitation, as we are bound by “the interpretation of the offense articulated by [Virginia]
courts.” See Dinkins, 928 F.3d at 354 (cleaned up).
* * *
In sum, the Virginia Supreme Court’s opinion in White establishes that the version
of § 18.2-58 in effect at the time of Williams’s robbery convictions continued to cover
sodomy-threat robbery. For this reason, Williams’s robbery convictions did not
categorically require “as an element the use, attempted use, or threatened use of physical
force against the person of another,” 18 U.S.C. § 924(e)(2)(B)(i), and therefore do not
constitute ACCA violent felonies.
III.
Because the district court held that Williams’s three Virginia robbery convictions
qualified as violent felonies, it did not address whether his three convictions for violating
Virginia’s use-or-display-of-firearm statute also so qualified. If Williams’s Virginia firearms
convictions do satisfy § 924(e)’s elements clause, they would provide an independent basis
for applying the ACCA sentence enhancement. We take no position as to the answer to that
question and leave it for the district court to address in the first instance on remand.
IV.
For the foregoing reasons, we vacate the district court’s judgment denying
Williams’s § 2255 motion and remand for further proceedings.
VACATED AND REMANDED
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