Argued: September 23, 2016
from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, Senior
District Judge. (2:13-cr-00811-PMD-1)
Deck Harrill, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Columbia, South Carolina, for Appellant.
Frank Daley, Jr., OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina, for Appellee.
William N. Nettles, United States Attorney, Columbia, South
Carolina, Sean Kittrell, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South
Carolina, for Appellee.
GREGORY, Chief Judge, and WILKINSON and DIAZ, Circuit Judges.
by published opinion. Chief Judge Gregory wrote the opinion,
in which Judge Wilkinson and Judge Diaz joined. Judge
Wilkinson wrote a separate concurring opinion.
GREGORY, CHIEF JUDGE.
Antwan Doctor appeals his fifteen-year sentence for unlawful
possession of a firearm. The district court imposed an
enhanced sentence pursuant to the Armed Career Criminal Act
("ACCA"), 18 U.S.C. § 924(e), after finding
that Doctor had two predicate drug offenses and one predicate
violent felony. Doctor challenges the district court's
determination that his prior conviction for South Carolina
strong arm robbery qualifies as a violent felony under the
ACCA. Finding no error with the district court's
application of the ACCA enhancement, we affirm.
April 2012, North Charleston police officers received a call
from a woman who alleged that Doctor had stolen a cell phone
and was inside the residence at 5309 Alvie Street with a gun.
The officers arrived on the scene and, after reading Doctor
his Miranda rights, questioned him about the firearm. Doctor
led the officers to a .380 caliber pistol on the couch.
Doctor eventually pleaded guilty to being a felon in
possession of a firearm in violation of 18 U.S.C. §
probation officer recommended that Doctor be sentenced under
the ACCA, which mandates a minimum of fifteen years'
imprisonment for a defendant who violates § 922(g) and
"has three previous convictions" for a
"violent felony or a serious drug offense, or
both." 18 U.S.C. § 924(e)(1). Doctor had two prior
convictions for possession with intent to distribute cocaine,
which he did not contest qualified as serious drug offenses,
as well as a prior conviction for South Carolina strong arm
robbery ("South Carolina robbery"). At sentencing, the district court held,
over Doctor's objection, that the robbery conviction was
an ACCA violent felony. The district court designated Doctor
an armed career criminal based on his three predicate
offenses and imposed the mandatory minimum sentence of
review de novo whether a prior conviction qualifies as an
ACCA violent felony. United States v. Hemingway, 734
F.3d 323, 331 (4th Cir. 2013). The ACCA defines "violent
felony, " in pertinent part, as "any crime
punishable by imprisonment for a term exceeding one
year" 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 issue on
appeal is whether South Carolina robbery meets the definition
of violent felony in § 924(e)(2)(B)(i), known as the
determine whether South Carolina robbery matches this
definition and can thus be used to enhance a criminal
sentence, we apply the "categorical approach."
United States v. Baxter, 642 F.3d 475, 476 (4th Cir.
2011). The categorical approach directs courts to examine
only the elements of the state offense and the fact of
conviction, not the defendant's conduct. Id. In conducting this analysis,
"we focus 'on the minimum conduct'"
required to sustain a conviction for the state crime,
United States v. Gardner, 823 F.3d 793, 803 (4th
Cir. 2016) (quoting Castillo v. Holder, 776 F.3d
262, 267 (4th Cir. 2015)), although there must be a
"realistic probability, not a theoretical possibility,
" that a state would actually punish that conduct,
id. (quoting Moncrieffe v. Holder, 133
S.Ct. 1678, 1684-85 (2013)). We look to state court decisions
to determine the minimum conduct needed to commit an offense,
id., and to identify the elements of a state common
law offense, Hemingway, 734 F.3d at 332. We then
compare those elements to the definition of violent felony in
the force clause.
State v. Rosemond, the South Carolina Supreme Court
defined robbery as the "felonious or unlawful taking of
money, goods, or other personal property of any value from
the person of another or in his presence by violence or by
putting such person in fear." 589 S.E.2d 757, 758 (S.C.
2003). A defendant can thus commit robbery in South Carolina
by alternative means of "violence" or
"intimidation." Id. at 758-59. When
evaluating intimidation, courts ask whether an
"ordinary, reasonable person in the victim's
position would feel a threat of bodily harm from the
perpetrator's acts." Id. at 759 (citing
United States v. Wagstaff, 865 F.2d 626 (4th Cir.
either robbery by means of violence or by means of
intimidation fails to match the force clause definition, the
crime is not a violent felony. See Gardner, 823 F.3d
at 803. Doctor offers several reasons why South Carolina
robbery is not a categorical match, largely focusing on
robbery by intimidation. He first contends that a robber may