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United States v. Doctor

United States Court of Appeals, Fourth Circuit

November 21, 2016

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
KAREEM ANTWAN DOCTOR, Defendant-Appellant,

          Argued: September 23, 2016

         Appeal 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)

         ARGUED:

          Emily Deck Harrill, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant.

          Robert Frank Daley, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

         ON BRIEF:

          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.

          Before GREGORY, Chief Judge, and WILKINSON and DIAZ, Circuit Judges.

         Affirmed 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.

         Kareem 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.

         I.

         In 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. § 922(g)(1).

         The 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").[1] 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 fifteen years.

         II.

         We 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).[2] The issue on appeal is whether South Carolina robbery meets the definition of violent felony in § 924(e)(2)(B)(i), known as the "force clause."

         To 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.[3] 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.

         In 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. 1989)).

         If 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 ...


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