United States v. Smith

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4032
TYRONE SMITH, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(CR-02-70)
Argued: October 31, 2003
Decided: March 2, 2004
Before WILKINS, Chief Judge, and KING and
GREGORY, Circuit Judges.
Affirmed by published opinion. Chief Judge Wilkins wrote the opin-
ion, in which Judge King and Judge Gregory joined.
COUNSEL
ARGUED: Mary Elizabeth Maguire, Assistant Federal Public
Defender, Richmond, Virginia, for Appellant. Olivia N. Hawkins,
Assistant United States Attorney, Richmond, Virginia, for Appellee.
ON BRIEF: Frank W. Dunham, Jr., Federal Public Defender, Rich-
mond, Virginia, for Appellant. Paul J. McNulty, United States Attor-
ney, Richmond, Virginia, for Appellee.
2 UNITED STATES v. SMITH
OPINION
WILKINS, Chief Judge:
Tyrone Smith, Jr. pleaded guilty to one count of distributing her-
oin. He now appeals the sentence imposed by the district court, argu-
ing that his prior Virginia conviction for larceny from the person
should not have been counted as a predicate offense for purposes of
applying the career offender guideline, see United States Sentencing
Guidelines Manual § 4B1.1 (2002). We affirm.
I.
On November 14, 2001, Smith sold quantities of heroin totaling .07
gram to two undercover officers in Richmond, Virginia. He was sub-
sequently charged with distributing heroin, see 21 U.S.C.A.
§ 841(b)(1)(C) (West Supp. 2003), and pleaded guilty without a plea
agreement.
The presentence report (PSR) recommended application of the
career offender guideline because Smith was at least 18 years old at
the time of the offense of conviction (he was 42); the offense of con-
viction was a felony controlled substance offense; and Smith had pre-
viously been convicted of two felonies that were either controlled
substance offenses or crimes of violence. See U.S.S.G. § 4B1.1(a). As
the predicate offenses, the PSR identified two state convictions: a
2000 conviction for possession of heroin with the intent to distribute,
and a 1987 conviction for larceny from the person.
Application of the career offender guideline increased Smith’s
offense level from 10 to 29, see id. § 4B1.1(b)(D), but did not affect
Smith’s Criminal History Category, which was VI even without appli-
cation of the career offender guideline. Smith’s offense level of 29
and his Criminal History Category of VI resulted in a guideline range
of 151-188 months; absent the higher offense level required by the
career offender guideline, Smith’s guideline range would have been
24-30 months.
At sentencing, Smith objected to the use of the 1987 conviction as
a predicate offense, arguing that larceny from the person is not a
UNITED STATES v. SMITH 3
crime of violence. The district court rejected this argument and sen-
tenced Smith to 151 months imprisonment. Smith now appeals.
II.
The guidelines provide that a defendant must be sentenced as a
career offender
if (1) the defendant was at least eighteen years old at the
time the defendant committed the instant offense of convic-
tion; (2) the instant offense of conviction is a felony that is
either a crime of violence or a controlled substance offense;
and (3) the defendant has at least two prior felony convic-
tions of either a crime of violence or a controlled substance
offense.
U.S.S.G. § 4B1.1(a). Smith does not dispute that he was at least 18
years old when he committed the instant offense and that the offense
of conviction is a felony controlled substance offense. Rather, he
argues that the district court erred in determining that his 1987 con-
viction for larceny from the person is a "crime of violence" within the
meaning of the guideline. This is a legal question subject to de novo
review. See United States v. Dickerson, 77 F.3d 774, 775 (4th Cir.
1996).
"Crime of violence" is defined by the guidelines as
any offense under federal or state law, punishable by impris-
onment 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 burglary of a dwelling, arson, or extortion, involves
use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
another.
U.S.S.G. § 4B1.2(a). Larceny from the person is not one of the
offenses enumerated in § 4B1.2(a)(2), nor does it contain as an ele-
4 UNITED STATES v. SMITH
ment the use, attempted use, or threatened use of physical force, see
Va. Code Ann. § 18.2-95 (Michie Supp. 2003); Graves v. Common-
wealth, 462 S.E.2d 902, 903 (Va. Ct. App. 1995), adopted on rehear-
ing en banc, 468 S.E.2d 710 (Va. Ct. App. 1996). Therefore, larceny
from the person is a crime of violence only if it "otherwise involves
conduct that presents a serious potential risk of physical injury to
another." U.S.S.G. § 4B1.2(a)(2).
The relevant commentary prohibits "a wideranging inquiry into the
specific circumstances surrounding a conviction" in determining
whether an offense is a crime of violence. United States v. Johnson,
953 F.2d 110, 113 (4th Cir. 1991) (stating that the commentary to
U.S.S.G. § 4B1.2 makes clear that "a sentencing court must confine
its factual inquiry to those facts charged in the indictment"). Consis-
tent with this limitation, we have stated that
in assessing whether a particular offense satisfies the "other-
wise clause" of [U.S.S.G. § 4B1.2(a)(2)], a sentencing court
must confine its factual inquiry to those facts charged in the
indictment. If the sentencing court cannot glean the circum-
stances surrounding the defendant’s commission of the
crime from the indictment, the question for the sentencing
court becomes whether that crime, in the abstract, involves
conduct that presents a serious potential risk of physical
injury to another.
Dickerson, 77 F.3d at 776 (internal quotation marks & citations omit-
ted). Thus, determining whether an offense is a crime of violence
under the "otherwise" clause involves a two-part inquiry. First, we
must consider the indictment pertaining to the offense of which the
defendant was convicted. If that effort is unavailing, we must then
consider whether the offense of conviction is a crime of violence in
the abstract. "[M]ost, if not all, instances of an offense should involve
a serious potential risk of injury in order for that offense to constitute
a crime of violence in the abstract." United States v. Martin, 215 F.3d
470, 475 (4th Cir. 2000).
Here, the indictment—which initially charged Smith with robbery,
but which was amended to charge larceny from the person—does not
provide any of the circumstances surrounding the commission of the
UNITED STATES v. SMITH 5
offense. Accordingly, it is necessary to consider whether larceny from
the person under Virginia law, considered in the abstract, is a crime
of violence.1
The Fourth Circuit has not yet addressed this question. However,
virtually all of our sister circuits have concluded that larceny from the
person and similar offenses are crimes of violence. See, e.g., United
States v. Howze, 343 F.3d 919, 923-24 (7th Cir. 2003);2 United States
v. Griffith, 301 F.3d 880, 885 (8th Cir. 2002), cert. denied, 537 U.S.
1225 (2003); United States v. Payne, 163 F.3d 371, 374-75 (6th Cir.
1998); United States v. Hawkins, 69 F.3d 11, 13 (5th Cir. 1995);
United States v. De Jesus, 984 F.2d 21, 23-25 (1st Cir. 1993). And,
in United States v. Mobley, 40 F.3d 688 (4th Cir. 1994), we held that
pickpocketing under District of Columbia law is a crime of violence.
See Mobley, 40 F.3d at 695-96. We reasoned that because the statute
required that property be taken "from the person or immediate actual
possession of another," there is always the potential for an ordinary
pickpocketing to "progress into something far uglier." Id. at 696
(internal quotation marks omitted).
In light of these authorities, we hold that larceny from the person
is a crime of violence. Under Virginia law, a theft is larceny from the
person if property is taken either from the victim’s physical posses-
sion or from "his immediate custody and control." Garland v. Com-
monwealth, 446 S.E.2d 628, 630 (Va. Ct. App. 1994). The offense
"recognizes an enhanced societal concern for conduct that implicates
at least a potential for personal assault, conduct that involves the per-
son of the victim and jeopardizes his personal security." Id. In Payne,
1
Smith alleges that because the indictment was amended by crossing
out the word "rob" and replacing it with "commit larceny from the per-
son," the state court determined that no force or violence was involved
in the crime. Even if this were true—although the record contains no evi-
dence concerning the circumstances of the amendment—it would not
help Smith. While the amendment of the indictment may indicate the
absence of violence, the question here is whether the offense in general
involves a risk of violence.
2
Howze overruled United States v. Lee, 22 F.3d 736, 740-41 (7th Cir.
1994) (holding that theft from the person is not a crime of violence), on
which Smith relies. See Howze, 343 F.3d at 924.
6 UNITED STATES v. SMITH
the Sixth Circuit held that larceny from the person under Michigan
law—which also requires that property be taken from the person or
immediate presence of the victim—was a crime of violence, reason-
ing that "[t]his is clearly the type of situation that could result in vio-
lence. Any person falling victim to a crime involving such an invasion
of personal space would likely resist or defend in a manner that could
lead to immediate violence." Payne, 163 F.3d at 375. Similarly, in
Mobley we reasoned that the District of Columbia pickpocketing stat-
ute, requiring a taking from the person or immediate presence of the
victim, was a crime of violence. See Mobley, 40 F.3d at 696.
In arguing that larceny from the person is not a crime of violence,
Smith relies heavily on Martin, in which we held that bank larceny
is not a crime of violence. We reached that conclusion after noting
that "[a]lthough some bank larcenies may present a risk of physical
confrontation, bank larceny may be committed by numerous means
that present no such risk"—including obtaining money by false pre-
tenses, forging a certified check, or using one’s position as a bank
employee to take money from a teller drawer. Martin, 215 F.3d at
475; see id. ("The vast array of means of committing bank larceny
that pose no potential risk of physical injury to another, let alone a
serious one, precludes a determination that the offense in the abstract
is a crime of violence.").
Martin is not controlling. The key difference between the bank lar-
ceny statute at issue in Martin and the offense of larceny from the
person is that the latter offense must be committed in the immediate
presence of the victim. In contrast, bank larceny can be committed in
ways that do not involve any human contact—such as using an auto-
mated teller machine to deposit a forged check and withdraw the pro-
ceeds. Additionally, in most instances of larceny from the person the
victim knows or is likely to discover that the offense is happening as
it occurs, raising a significant possibility of resistance. In contrast,
some forms of bank larceny—such as obtaining money by false
pretenses—are unlikely to be discovered until the perpetrator has left
the scene. In short, larceny from the person presents a potential risk
of injury that simply does not inhere in bank larceny.
UNITED STATES v. SMITH 7
III.
For the reasons set forth above, we conclude that larceny from the
person is a crime of violence in the abstract. We therefore affirm the
sentence imposed by the district court.
AFFIRMED