United States v. Arthur Smith , 582 F. App'x 590 ( 2014 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0724n.06
No. 13-6322
FILED
UNITED STATES COURT OF APPEALS Sep 16, 2014
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff - Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
) EASTERN DISTRICT OF TENNESSEE
ARTHUR CHARLES SMITH, aka Marvon )
Anderson )
)
Defendant - Appellant. )
Before: BOGGS and DONALD, Circuit Judges; and HOOD, District Judge.*
BOGGS, Circuit Judge. This case presents the question whether a conviction for
common-law robbery under North Carolina law is categorically a “crime of violence” under
§ 4B1.2 of the Guidelines Manual. Arthur Smith pleaded guilty to multiple counts relating to his
armed robbery of a CVS pharmacy in Sevierville, Tennessee. The district court sentenced Smith
as a career offender, under § 4B1.1(c) of the Guidelines Manual, to 262 months of imprisonment.
It relied on Smith’s prior conviction for North Carolina common-law robbery. Smith argues
that: 1) his past conviction cannot serve as a predicate offense because it does not constitute a
“crime of violence” under the Guidelines Manual; and 2) judicial fact-finding of prior
convictions violates the Sixth Amendment. Because the district court correctly held both that
*
The Honorable Denise Page Hood, United States District Judge for the Eastern District
of Michigan, sitting by designation.
1
North Carolina common-law robbery qualifies as a “crime of violence” and that Supreme Court
precedent forecloses Smith’s Sixth Amendment claim, we affirm the district court’s sentence.
I
On April 23, 2013, Arthur Smith pleaded guilty, without a plea agreement, to: robbing a
pharmacy, in violation of 18 U.S.C. § 2118(a); brandishing a firearm during and in relation to a
crime of violence, in violation of § 924(c)(1); and being a felon in possession of a firearm, in
violation of § 922(g)(1).
A. Presentence Report
Smith’s presentence report1 determined that U.S.S.G. § 2B3.1(a) provided a base offense
level of 20 for the pharmacy-robbery conviction. Because Smith took controlled substances
from the pharmacy during the robbery, the presentence report increased his offense level by one,
under § 2B3.1(b)(6). And because the loss resulting from Smith’s robbery was more than
$10,000, the presentence report increased his offense level by one additional level, under
§ 2B3.1(b)(7)(B). The presentence report assigned Smith a total offense level of 22 for the
pharmacy-robbery conviction.
Additionally, the presentence report determined that § 2K2.1 provided the base offense
level for the sentencing of offenses under 18 U.S.C. § 922(g). Because Smith had at least two
prior felony convictions for controlled-substance offenses or for what the Manual refers to as
“crimes of violence,” his base offense level was 24, under § 2K2.1(a)(2).
The presentence report noted that § 2K2.4 applies to the sentencing of offenses under
§ 924(c), the statute proscribing brandishing a firearm during a crime of violence. The report
1
The United States Probation Office prepared the report using the 2012 edition of the United
States Sentencing Commission Guidelines Manual.
2
noted that, under § 2K2.4(b), the guideline sentence for a § 924(c) conviction is the minimum
term of imprisonment required by statute. The report further noted that the statutory minimum in
Smith’s case was seven years, consecutive to the punishment for the underlying crime.
The presentence report determined that Smith’s criminal history qualified him as a
“career offender” under § 4B1.1(a). Specifically, the report found that Smith was at least
eighteen years old at the time he committed the robbery, that one of Smith’s current convictions
was for either a crime of violence or a controlled-substance offense, and that Smith had at least
two prior felony convictions for controlled-substance offenses or crimes of violence. Ordinarily,
a career offender’s offense level, if greater than the offense level otherwise applicable, derives
from the career-offender table in § 4B1.1(b). The report, however, noted that this table was not
applicable because § 4B1.1(c) specifically contains a separate method of calculating the
guideline range for career offenders convicted of violating § 924(c), i.e., possessing a firearm
during a crime of violence. In particular, the Guidelines Manual instructs that the guideline
range for a § 924(c) defendant, who also has other counts of conviction, is the greater of: (A) the
sum of the mandatory minimum penalty under § 924(c) and the minimum and maximum of the
otherwise applicable guideline range for the non-§ 924(c) counts; or (B) the guideline range
determined using the special § 924(c) career-offender table in § 4B1.1(c)(3). The presentence
report ultimately determined that Smith’s guideline range was 262–327 months, which results
from the special § 924(c) career-offender table. Although the presentence report did not “show
its math,” it presumably determined that this guideline range was greater than the sum of seven
years—i.e., Smith’s mandatory minimum penalty under § 924(c)—and the guideline range for
Smith’s non-§ 924(c) counts.
3
The presentence report detailed Smith’s extensive criminal history, noting dozens of prior
convictions, pending charges, and other arrests. The report noted that most prior convictions did
not qualify for criminal-history points, largely because they were too old or insubstantial
according to the Guidelines Manual. Importantly, the presentence report identified two prior
convictions qualifying Smith as a “career offender” under § 4B1.1(a): 1) a January 9, 2008,
controlled-substances conviction, from Greenville, South Carolina; and 2) a February 9, 2009,
common-law robbery conviction, from Buncombe County, North Carolina. The North Carolina
robbery conviction forms the basis of Smith’s present appeal.
Smith objected to the presentence report’s classification of him as a career offender.
Specifically, Smith argued that his North Carolina conviction for common-law robbery did not
qualify as a “crime of violence” within the meaning of § 4B1.2(a) of the Guidelines Manual.
The probation officer considered Smith’s objection and concluded that the robbery conviction
properly qualified. The officer also stated that Smith’s guideline range would be 110–137
months if the court determined that Smith was not a career offender.
B. Sentencing
On September 30, 2013, United States District Judge Amul R. Thapar held a sentencing
hearing. At sentencing, Smith renewed his previously raised objection to the career-offender
designation. Smith argued that his North Carolina robbery conviction was not a “crime of
violence” under the Manual. After extensive oral argument on the issue, the district court
overruled Smith’s objection. The district court also issued a cogent written opinion on the issue,
ordering the clerk to docket an appeal on Smith’s behalf once judgment issued.2 See United
2
At the close of sentencing, Judge Thapar told Smith: “I think you’re going to want to appeal,
and I frankly think you should because your attorney has raised a couple nonfrivolous
arguments. . . . I’m going to direct the clerk to file [a notice of appeal] on your behalf so that
4
States v. Smith, Crim. No. 13-5-(3)-ART (E.D. Tenn. Sept. 30, 2013), ECF No. 74. First, the
court held that North Carolina common-law robbery is not categorically a “crime of violence”
under § 4B1.2(a)(1), the “physical-force clause.” Smith, Crim. No. 13-5-(3)-ART, slip op. at 3.
Second, the court held that North Carolina common-law robbery does qualify as a “crime of
violence” under § 4B1.2(a)(1), the “residual clause.” Smith, Crim. No. 13-5-(3)-ART, slip op. at
5. The district court, after discussion with counsel and the government, agreed that Smith’s
guideline range was 262–327 months.
The district judge conducted a thorough discussion with counsel about the § 3553 factors
and about whether a below-guidelines variance was warranted. The government argued that
Smith was “the epitome of a career offender” and that his case presented “basically no
redeeming qualities.” Smith’s counsel emphasized Smith’s age and poor health. The district
court, noting Smith’s “37 arrests” and “multiple robberies,” declined to vary below the bottom
end of the guideline range. But in light of “the combination of [Smith’s] upbringing, his poor
health, [and] his age,” the district court imposed a sentence of 262 months of imprisonment, the
bottom end of the guideline range.
On appeal, Smith argues that North Carolina common-law robbery does not constitute a
“crime of violence” under § 4B1.1(a) of the Guidelines Manual and that he lacks the predicate
offenses to qualify as a career offender. He also argues, as he did below, that the Sixth
Amendment requires that the fact of prior conviction, if it increases the penalty, must be charged
in the indictment and submitted to a jury and that the Supreme Court’s decision in Almendarez-
Torres v. United States, 523 U.S. 224 (1998), should be overruled.
your rights can be protected.” Smith’s notice of appeal notes that it was “prepared and entered as
directed by Judge in open Court.”
5
The crime-of-violence issue is important because were Smith not sentenced as a career
offender, his sentence would be significantly lower than the 262-month sentence that he
received.
II
We review de novo a district court’s legal conclusions underlying the guideline range
chosen. United States v. Bolds, 511 F.3d 568, 579 (6th Cir. 2007); see, e.g., United States v.
Rodriguez, 664 F.3d 1032, 1035 (6th Cir. 2011) (de novo review of whether aggravated assault,
under Ohio law, qualified as a “crime of violence”).
III
A. Career Offender
The Guidelines Manual instructs sentencing courts, when calculating a defendant’s
guideline range, to determine the offense-guideline section applicable to the offense of
conviction. § 1B1.1(a)(1). The presentence report correctly determined that § 2B3.1 is the
guideline section applicable to convictions under 18 U.S.C. § 2118(a), § 2K2.1 is the section
applicable to convictions under 18 U.S.C. § 922(g), and § 2K2.4 is the section applicable to
convictions under § 924(c). Ordinarily, the Manual establishes the total offense level for a
defendant convicted of multiple counts using the rules specified in Part D of Chapter Three.
§ 1B1.1(a)(4). The Manual, however, provides an alternate method of establishing the offense
level for defendants who meet certain criteria and who qualify as what the Manual refers to as
“career offender[s].” §§ 1B1.1(a)(6), 4B1.1. Defendants deemed career offenders generally are
assigned an offense level not from the offense-guideline section applicable to the offense of
conviction but according to the specific rules of § 4B1.1. To qualify as a career offender, a
defendant must meet three criteria: 1) the defendant must be at least 18 at the time of the instant
6
offense; 2) the instant conviction must be a felony either for a crime of violence or a controlled-
substance offense; and 3) the defendant must have at least two prior felony convictions for either
a crime of violence or a controlled-substance offense. § 4B1.1(a).
At issue in this case is the third condition—whether Smith has two prior felony
convictions that count as predicate offenses. Smith’s presentence report lists numerous prior
criminal convictions, two of which served as predicate offenses for career-offender purposes. In
2008, Smith was convicted in South Carolina state court of possession of a controlled substance,
with the intent to distribute; possession of methamphetamine; and possession of heroin. In 1999,
Smith was convicted in North Carolina state court of common-law robbery.
Smith argues that the North Carolina conviction cannot count as a predicate offense
because it is not a “crime of violence” within the meaning of the Guidelines Manual. He does
not dispute that his South Carolina conviction is a controlled-substance offense and a first
predicate offense for career-offender purposes. At issue is whether Smith has a second.
At sentencing, the district court overruled Smith’s objection to counting the North
Carolina conviction because the district court concluded that the offense qualified as a “crime of
violence” under § 4B1.2(a)(2), the “residual clause.” See Smith, Crim No. 13-5-(3)-ART, slip
op. at 5. On appeal, Smith identifies this conclusion as error and argues that his prior North
Carolina conviction does not qualify as a “crime of violence.” The district court observed that
whether North Carolina common-law robbery is a “crime of violence” is a “matter of first
impression” in this circuit.
B. “Crime of Violence”
The Guidelines Manual itself defines “crime of violence.” A “crime of violence” is any
crime punishable by a term of imprisonment greater than one year that “[1] has as an element the
7
use, attempted use, or threatened use of physical force against the person of another; or [2] is
burglary of a dwelling, arson, or extortion, involves use of explosives, or [3] otherwise involves
conduct that presents a serious potential risk of physical injury to another.” § 4B1.2(a).
The Manual’s definition of “crime of violence” closely tracks the definition of “violent
felony” in the Armed Career Criminal Act (ACCA). See § 924(e)(2)(B). The one difference is
that the Manual’s enumerated-offense clause expressly refers to “burglary of a dwelling,”
whereas the ACCA refers only to “burglary.”3 Despite the nearly identical definitions between
the Manual and the ACCA, the Manual expressly states that “the definition[n] of ‘violent felony’
. . . in 18 U.S.C. § 924(e)(2) [is] not identical to the definition[n] of ‘crime of violence’ . . . used
in [the Guidelines Manual].” § 4B1.4 cmt. n.1. Notwithstanding this directive from the
Sentencing Commission, we have previously determined that we decide whether an offense is a
“crime of violence” under the Manual in the same way as we decide whether an offense is a
“violent felony” under the ACCA “because both share essentially the same definitions.” United
States v. Gibbs, 626 F.3d 344, 352 n.6 (6th Cir. 2010); see Johnson v. United States, 559 U.S.
133, 140 (2010) (construing “violent felony” under § 924(e) by reference to the statutory
definition of “crime of violence” in 18 U.S.C. § 16).
Under North Carolina law, common-law robbery is “the felonious, non-consenual taking
of money or personal property from the person or presence of another by means of violence or
fear.” State v. Bell, 603 S.E.2d 93, 117 (N.C. 2004) (emphasis added); accord State v. Smith,
292 S.E.2d 264, 270 (N.C. 1982); State v. Lawrence, 136 S.E.2d 595 (N.C. 2004). The North
Carolina Supreme Court has held that a state court may convict for common-law robbery by
3
The Supreme Court has interpreted “burglary” in the ACCA to refer to burglary of “a building
or structure.” Taylor v. United States, 495 U.S. 575, 599 (1990).
8
proving either violence or fear. State v. Sawyer, 29 S.E.2d 34, 37 (N.C. 1944) (“[I]t is not
necessary to prove both violence and putting in fear[—]proof of either is sufficient.”).
North Carolina common-law robbery is not “burglary of a dwelling, arson, or extortion,
[and it does not] involve[e the] use of explosives.” § 4B1.2(a)(2). We determine, then, whether
the statute falls within the Guidelines Manual’s “physical-force clause”—i.e., “has as an element
the use, attempted use, or threatened use of physical force against the person of another”—or
whether the crime falls within the Manual’s “residual offense”—i.e., “otherwise involves
conduct that presents a serious potential risk of physical injury to another.” § 4B1.2(a). Because
the district court determined that North Carolina common-law robbery is a “crime of violence”
under the residual clause, we begin there.
C. The Residual Clause
1
A prior conviction qualifies as a “crime of violence” under the Manual if it “involves
conduct that presents a serious risk of physical injury to another.” § 4B1.2(a)(2). We must
determine whether common-law robbery under North Carolina law meets this criterion.
In order to determine whether an offense qualifies as a predicate under the residual
clause, courts must compare the elements of the prior offense of conviction with the elements
contained in the residual clause. Courts must ask “whether the elements of the offense are of the
type that would justify its inclusion within the residual provision, without inquiring into the
specific conduct of the particular offender.” James v. United States, 550 U.S. 192, 202 (2007)
(emphasis in original). Here, the “pivotal question” is whether taking money or property from
the person or presence of another by means of violence or fear is conduct that presents a serious
risk of physical injury to another. Id. at 203.
9
Certain penal laws are what the Supreme Court calls “divisible” offenses because they
“se[t] out one or more elements of the offense in the alternative.” Descamps v. United States,
133 S. Ct. 2276, 2281 (2013). When a state “list[s] potential offense elements in the alternative,”
it “renders opaque which element played a part in the defendant’s conviction.” Id. at 2283. The
Court gave, as an example of a “divisible” statute, one “stating that burglary involves entry into a
building or an automobile.” Id. at 2281.
Under this understanding, common-law robbery under North Carolina law is a divisible
offense because it “comprises multiple, alternative versions of the crime.” Id. at 2284; see
United States v. Covington, 738 F.3d 759, 764 (6th Cir. 2014) (Michigan prison-escape statute
divisible under Descamps because it “lists several, alternative ways to violate the statute”);
United States v. Hockenberry, 730 F.3d 645, 669 (6th Cir. 2013) (Pennsylvania burglary statute
divisible under Descamps because it “lists alternative elements in the statutory text”). A person
commits common-law robbery in North Carolina when he non-consensually takes “money or
personal property from the person or presence of another by means of violence or fear.” Bell,
603 S.E.2d at 117 (emphasis added). Because the crime has alternative elements, common-law
robbery under North Carolina law, is, as the district court correctly concluded, a divisible
offense.
In order to compare the elements of an offense to those in the residual clause, courts
employ what the Supreme Court has “labeled (not very inventively) the ‘modified categorical
approach.’”4 Decsamps, 133 S. Ct. at 2281. This approach is a two-step process. First, courts
4
Since the Supreme Court decided Descamps last year, we have repeatedly applied the modified
categorical approach to divisible statutes when conducting a residual-clause analysis. See United
States v. Mitchell, 743 F.3d 1054, 1060–67 (6th Cir. 2014) (convictions under Tennessee robbery
statutes are categorically violent felonies under the residual clause); United States v. Covington,
738 F.3d 759, 764–65 (6th Cir. 2014) (convictions under Michigan prison-escape statute are not
10
determine whether “one alternative (say, a building) matches [the] element[s]” in the residual
clause” but whether “the other (say, an automobile) does not.” Ibid. (parentheticals in original).
If that is the case, then courts can “consult a limited class of documents, such as indictments and
jury instructions, to determine which alternative formed the basis of the defendant’s prior
conviction.” Ibid. Only then can the court “do what the categorical approach demands: compare
the elements of the crime of conviction . . . with the elements” contained within the residual
clause. Ibid.
As explained above, common-law robbery under North Carolina law is a divisible
offense. Consider two alternatives of the elements provided by the North Carolina Supreme
Court. One version requires taking money or property from a person by means of violence.
Another requires taking money or property from a person by means of fear. In order for North
Carolina common-law robbery categorically to be a “crime of violence” under the Guidelines
Manual, we must conclude that both alternative sets of elements—taking by means of violence
and taking by means of fear—present a serious risk of physical injury to another. See, e.g.,
United States v. Mitchell, 743 F.3d 1054, 1065 –66 (6th Cir. 2014). Smith does not argue that
taking money or property by means of violence does not present a serious risk of physical injury
to another. Our focus, then, is whether accomplishing the robbery by means of fear presents a
serious risk of physical injury to another.
categorically violent felonies under the residual clause); United States v. Denson, 728 F.3d 603,
608–10 (6th Cir. 2013) (convictions under Ohio inciting-violence statute are not categorically
crimes of violence under the residual clause but defendant’s conviction was a crime of violence
in light of Shepard documents); United States v. Johnson, 530 F. App’x 528, 532–33 (6th Cir.
2013) (convictions under Tennessee robbery are not categorically violent felonies under the
residual clause but defendant’s robbery conviction was a violent felony in light of Shepard
documents).
11
The North Carolina Supreme Court has interpreted the word “fear” as an element of
robbery. In State v. Moore, the defendant in a robbery case argued that the evidence was
insufficient to support his conviction because the victim testified “that he ‘was not scared or in
fear of (his) life.’” 183 S.E.2d 546, 547 (N.C. 1971). The North Carolina Supreme Court
interpreted “fear” expansively: it noted that the word “fear” in the definition of common-law
robbery “is not confined to fear of death” and that common-law robbery does not require “the
use or threatened use of a firearm or other dangerous weapon.”5 Although fear of death is not
necessary, the state supreme court has contemplated that “fear” refers to fear of bodily injury:
No matter how slight the cause creating the fear may be or by what other
circumstances the taking may be accomplished, if the transaction is attended with
such circumstances of terror, such threatening by word or gesture, as in common
experience are likely to create an apprehension of danger and induce a man to part
with his property for the sake of his person, the victim is put in fear.
State v. Sawyer, 29 SE.2d 34, 37 (N.C. 1944) (emphasis added) (internal quotation marks
omitted); accord State v. Elkins, 702 S.E.2d 744, 748 (N.C. App. 2011).
Based on the North Carolina Supreme Court’s interpretation of “fear,” Smith argues that
North Carolina common-law robbery covers conduct that does not present a serious risk of
physical injury. Surely Smith is correct that the offense definition could cover some conduct that
does not present a serious risk of physical injury. One can imagine a robbery that reasonably
places a person in fear yet does not present a serious risk of physical injury. Smith argues that
“fear does not have to be [fear] of physical injury.”6 Yet the law is just the opposite: a person
5
This statement, technically, was dicta, as the defendant in Moore was charged not with
common-law robbery but under N.C. Gen. Stat. § 14-87, “Robbery with firearms or other
dangerous weapons.” Nonetheless, we defer to the North Carolina Supreme Court on the
interpretation of North Carolina law.
6
For this proposition, Smith’s citation is “See Moore at 204-205.” State v. Moore does not
appear on pages 204–05 of South Eastern Reporter Second or of North Carolina Reports. In the
context of his brief, Smith appears to attempt to cite Smith v. White, 142 N.C. App. 201, 204–05,
12
must be in fear “for the sake of his person.” Sawyer, 29 S.E.2d at 37. Taking money or property
from the person or presence of another by placing that person in fear of bodily injury, then, does
generally present a serious risk of physical injury to another.
Our conclusion would not be different even if Smith were correct that the element of fear
in North Carolina common-law robbery did not require fear of physical injury. He, cleverly,
offers examples of robbery by means of “fear of losing a job” and “fear of financial ruin.” These
kinds of robberies are, indeed, conceivable: “Give me your money, or else I’ll tell my uncle to
fire you!” and “Give me your money, or else I’ll expose your Ponzi scheme!” These
hypotheticals, though perhaps the stuff of law-school exams, are not the basis of the analysis.
There are, of course, ways of committing robbery that do not “pose a realistic risk of
confrontation or injury to anyone.” James, 550 U.S. at 207. But the Supreme Court has held
that analysis under the residual clause, even when the analysis addresses a portion of a divisible
statute, rests on “inherently probabilistic concepts.” Ibid. “[T]he proper inquiry . . . is whether
the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious
potential risk of injury to another.” Id. at 208 (emphasis added). We think that, in the ordinary
case, robbing someone by means of placing him in fear for his person does present a serious risk
of physical injury. Here, the mere possibility that a person could, conceivably, commit the
offense without creating a serious risk of physical injury to another is insufficient to move North
Carolina common-law robbery outside the residual clause.
Additionally, focusing on exceptional, hypothetical cases is a misapplication of the
modified categorical approach. We have sometimes said that “[i]f it is possible to violate the
542 S.E.2d 265, 268 (N.C. App. 2001). Nothing in White suggests that “fear does not have to be
[fear] of physical injury.” White, in fact, contains the same quotation from State v. Sawyer
offered above. See White, 542 S.E.2d at 268.
13
statute in a way that would constitute a crime of violence and in a way that would not, the court
may consider the indictment, guilty plea, or similar documents to determine whether they
necessarily establish the nature of the prior conviction.” Gibbs, 626 F.3d at 352. In light of
recent Supreme Court decisions, we clarify that this is not quite right. “One can always
hypothesize unusual cases in which even a prototypically violent crime might not present a
genuine risk of injury.” James, 550 U.S. at 208. Accordingly, the inquiry is not whether it is
possible for a defendant to commit a crime in a way that would not be a violent felony. As the
Supreme Court said last year, the sentencing court must “look only to the fact that the defendant
ha[s] been convicted of crimes falling within certain categories, and not to the facts underlying
the prior convictions.” Descamps, 131 S. Ct. at 2286. Here, the mere fact that Smith was
convicted of North Carolina common-law robbery—regardless under which version of
elements—is sufficient to make that offense a “crime of violence” under the Guidelines Manual.
We need not consider whether the offense also qualifies as a crime of violence under the
physical-force clause.
2
In light of the difficulties presented by analysis under the residual clause,7 our circuit has
at times reached varying results about whether various state theft offenses qualify as crimes of
violence. In United States v. Mekediak, we held that the crime of unarmed robbery under Mich.
Comp. Laws § 750.530—a felony committed without a weapon “by force and violence, or by
assault or putting in fear”—“fits comfortably within the residual clause of ‘crime of violence.’”
510 F. App’x 348, 353 (6th Cir. 2013). Similarly, we have held that larceny and attempted
larceny under Mich. Comp. Laws § 750.530— a felony committed “by stealing from the person
7
See Sykes, 131 S. Ct. 2267, 2284 (2011) (Scalia, J., dissenting).
14
of another”—falls within the residual clause and, therefore, is a “crime of violence” under the
Guidelines Manual. United States v. Payne, 163 F.3d 371, 375 (6th Cir. 1998) (larceny); United
States v. Taylor, 696 F.3d 628, 631 (6th Cir. 2012) (attempted larceny). Our decision rested on
the observation that Michigan interprets its larceny statute “narrowly to require that the property
be taken from the possession of the victim or be taken from within the immediate presence or
area of control of the victim.” Payne, 163 F.3d at 375. The Michigan decisions are squarely on
point, given that § 750.530 contains the same violence-or-fear language as the North Carolina
statute.
Our analysis of Tennessee’s robbery laws, however, has produced contradictory results in
recent years. In a series of cases, we have interpreted two Tennessee robbery statutes—both of
which list violence or fear as alternative elements—to determine whether convictions under them
may serve as predicate offenses under the Manual and under the ACCA: Tenn. Code. Ann. § 39-
13-401(a)—prohibiting “the intentional or knowing theft of property from the person of another
by violence or putting the person in fear” and the now-repealed Tenn. Code. Ann. § 39-2-
501(a)—prohibiting “the felonious and forcible taking from the person of another, goods or
money of any value, by violence or putting the person in fear.”
First, in United States v. Gloss, a published opinion, we held that facilitation of
aggravated robbery under Tennessee law—which requires that the crime be accomplished “with
a deadly weapon or by display of an article used or fashioned to lead the victim to reasonably
believe it to be a deadly weapon” or where “the victim suffers serious bodily injury”—is a
“violent felony” under the ACCA. 661 F.3d 317, 318–19 (6th Cir. 2011). That decision rested
squarely on the physical-force clause—not the residual clause. See id. at 318, 320 (“not
decid[ing] whether the [offense] also qualifies under the residual clause”). Second, in United
15
States v. Fraker, an unpublished opinion, we held that robbery under § 39-13-401(a), the current
Tennessee law, is not a violent felony. 458 F. App’x 461, 463 (6th Cir. 2012). In Fraker, we
said that an offense qualifies as a predicate offense if it is a felony “that has an element the use,
attempted use, or threatened use of physical force against the person of another.” Ibid. We
concluded that Tennessee’s “robbery statute includes criminal activity outside the scope of the
ACCA because a defendant can violate the statute by employing only fear, rather than physical
violence or force.” Ibid. (emphasis added). Fraker did not address or refer to the enumerated-
offense clause or the residual clause in any way, but our holding that Tennessee robbery is not a
violent felony necessarily determined that the offense does not qualify under any of the three
possible avenues.8
The following year, in United States v. Johnson, another unpublished opinion, we
considered convictions under the substantively identical but now-repealed § 39-2-501(a). 530 F.
App’x 528, 531–32 (6th Cir. 2013). Johnson “follow[ed] the reasoning of Fraker,” rather than
Gloss, and declined to hold that a robbery conviction under § 39-2-501(a) “is categorically a
violent felony” because “the robbery . . . within [the] statute of conviction can be violated by
employing only fear and not violence.” Id. at 532.9 Earlier this year, in a published opinion, we
held, “[c]ontrary to Fraker and Johnson,” that robbery under both Tennessee’s repealed statute
and its current statute qualify as violent felonies. United States v. Mitchell, 743 F.3d 1054,
1058–63 (6th Cir. 2014); accord United States v. Huntley, -- F. App’x --, No. 14-5097, 2014 WL
3015020 (6th Cir. July 7, 2014) (robbery under Tenn. Code. Ann. § 39-13-401 also a “crime of
8
In Fraker, the court proceeded to affirm the defendant’s sentence under the ACCA because the
Shepard analysis revealed that the defendant admitted to robbery by means of violence. Fraker,
458 F. App’x at 464.
9
In Johnson, as in Fraker, the court ultimately affirmed the defendant’s sentence under the
ACCA because “application of the modified categorical approach resolve[d] the matter in the
government’s favor.” Johnson, 530 F. App’x at 532.
16
violence” under the Guidelines Manual). We concluded that robbery under Tennessee law
categorically is a violent felony under both the physical-force clause and the residual clause.
Mitchell, 743 F.3d at 1060. We declined to follow Fraker and Johnson because we said that
those decisions “turned to the colloquial understanding of fear” and “failed to apply the
definition of ‘fear’ enunciated by the Tennessee Supreme Court.” Id. at 1059–60. Relevant to
the Mitchell court was that the Tennessee Supreme Court interpreted “fear” in its robbery statutes
to refer to “fear of bodily injury and of present personal peril from violence offered or
impending.” Id. at 1059 (quoting State v. Taylor, 771 S.W.2d 387, 398 (Tenn. 1989)).
These prior decisions do not control whether common-law robbery under North Carolina
law is a crime of violence. But the decision we reach is generally consistent with our own prior
published decisions. We note that North Carolina’s definitions of robbery and of “fear” are
similar to Tennessee’s. Our holding is limited to construing the offense of common-law robbery
under North Carolina law. Every state statute, for better or worse, presents a different case when
determining whether it qualifies as a crime of violence under the residual clause. ACCA
decisions do not control beyond the specific statute under consideration in the jurisdiction
issuing the ruling.
3
The decision we reach is also consistent with opinions from other circuits, including the
circuit encompassing North Carolina. Two circuits have held that common-law robbery under
North Carolina law is a crime of violence under the Guidelines Manual. See United States v.
Carmichael, 408 F. App’x 769, 771 (4th Cir. 2011); United States v. Moore, 223 F. App’x 422,
424 (5th Cir. 2007) (per curiam) (with minimal analysis); see also United States v. Ellis,
564 F.3d 370, 377–79 (5th Cir. 2009) (not plain error to count attempted common-law robbery
17
under North Carolina law as a predicate offense). Additionally, the Seventh Circuit has reached
the same result when analyzing Indiana’s robbery statute, which has elements nearly identical to
the North Carolina offense. See United States v. Lewis, 405 F.3d 511, 514 (7th Cir. 2005)
(robbery under Ind. Code 35-42-5-1 is a crime of violence under the residual clause because
“fear” under Indiana law “is fear of physical injury rather than of defamation”).
The district court may have incorrectly suggested that that we are bound by the Fourth
Circuit’s determination about whether a conviction under the law of a state within its jurisdiction
qualifies as a crime of violence. At sentencing, the district court asked Smith’s counsel: “And
you agree that the Fourth Circuit [opinion in Carmichael] is controlling unless the Supreme
Court says otherwise?”; and “Why isn’t [the Fourth Circuit] binding at the very least[?]” We
clarify that whether an offense qualifies as a crime of violence under the Manual or as a violent
felony under the ACCA “is a question of federal law, not state law.” Johnson, 559 U.S. at 138;
accord Mitchell, 743 F.3d at 1058; United States v. Rede-Mendez, 680 F.3d 552, 225 (6th Cir.
2012) (“[W]hether a crime is a crime of violence is a question of federal law.”). Just as we are
not bound by a state high court’s interpretation of federal law, so too are we not bound by
another circuit’s decision. A circuit opinion concerning a state law from within its jurisdiction
may be especially instructive, though reason might also suggest taking a different course. To be
sure, “[w]e are, however, bound by the [North Carolina] Supreme Court’s interpretation of state
law, including its determination of the elements” of common-law robbery. Johnson, 559 U.S. at
138; accord Johnson v. Fankell, 520 U.S. 911, 916 (1997) (No “federal tribunal has any
authority to place a construction on a state statute different from the one rendered by the highest
court of the State.”).
18
IV
Smith also argues, as he did below, that the Sixth Amendment prohibits judicial fact-
finding of a defendant’s prior convictions for the purpose of increasing a sentence. Smith
correctly acknowledges that Supreme Court law forecloses his argument. “[T]he Constitution
does not impose th[e] requirement . . . . that [a defendant’s] recidivism must be treated as an
element of his offense.” Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998). The
fact of prior conviction, even if it increases the maximum penalty for a crime, does not need to
be “charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.”
Apprendi v. United States, 530 U.S. 466, 476 (2000). Smith argues that Almendarez-Torres
should be overruled. “[W]e must follow [Almendarez-Torres] until the Supreme Court expressly
overrules it.” United States v. Mack, 729 F.3d 594, 609 (6th Cir. 2013).
Smith states that he raises the Almendarez-Torres claim solely to preserve the issue. It is
so preserved.
V
The North Carolina Supreme Court interprets “fear” in its robbery statute to refer to fear
of bodily injury. Apart from this, the conduct encompassed by robbery by means of fear, in the
ordinary case, involves fear of bodily harm. In light of this, we conclude that common-law
robbery under North Carolina presents a serious risk of physical injury to another and, thus,
categorically is a crime of violence under § 4B1.2 of the Guidelines Manual. Smith’s Sixth
Amendment claim fails under Almendarez-Torres. We, therefore, AFFIRM the district court’s
sentence.
19