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United States v. Winston

United States Court of Appeals, Fourth Circuit

March 13, 2017

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
ROBERT MCKINLEY WINSTON, Defendant-Appellant.

          Argued: October 27, 2016

         Appeal from the United States District Court for the Western District of Virginia, at Charlottesville. Norman K. Moon, Senior District Judge. (3:01-cr-00079-NKM-RSB-1; 3:16-cv-81187-NKM)

         ARGUED:

          Lisa M. Lorish, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charlottesville, Virginia, for Appellant.

          Jean Barrett Hudson, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee.

         ON BRIEF:

          Larry W. Shelton, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appellant.

          John P. Fishwick, Jr., United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.

          Vacated and remanded by published opinion. Judge Keenan wrote the opinion, in which Judge Shedd and Senior Judge Davis joined.

          Before SHEDD and KEENAN, Circuit Judges, and DAVIS, Senior Circuit Judge.

          BARBARA MILANO KEENAN, Circuit Judge.

         Robert Winston was convicted in 2002 on a federal firearm charge and was sentenced to serve a term of 275 months' imprisonment. His sentence included an enhancement under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), based in part on his prior conviction for the Virginia crime of common law robbery (Virginia common law robbery) as a qualifying predicate "violent felony." Winston filed a motion under 28 U.S.C. § 2255 for post-conviction relief, contending that his robbery conviction no longer qualified as a predicate offense under the ACCA after the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015) (Johnson II), which invalidated a portion of the ACCA's definition of "violent felony."

         The district court denied Winston's motion, concluding that Virginia common law robbery continues to qualify as a violent felony because the crime 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 court also rejected the government's argument that Winston was barred from obtaining post-conviction relief on procedural grounds.

         Upon our review, we agree with the district court's rejection of the government's procedural arguments, because Winston sufficiently has shown that he relied on a new rule of constitutional law. However, we disagree with the district court's substantive conclusion and hold that Winston's conviction for Virginia common law robbery does not constitute a violent felony under the ACCA, because the full range of conduct covered by the Virginia crime does not necessarily include the use of "force capable of causing physical pain or injury to another person." See Johnson v. United States, 559 U.S. 133, 140 (2010) (Johnson I). We therefore vacate the judgment of the district court, and remand the case for further proceedings.

         I.

         In 2002, Winston was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). In determining Winston's sentence, the district court concluded that Winston qualified as an armed career criminal under the ACCA, 18 U.S.C. § 924(e), which mandates a fifteen-year minimum sentence for defendants convicted of a firearm offense who have three or more prior convictions for violent felonies or serious drug offenses. Without these predicate convictions, Winston would not have qualified as an armed career criminal and would have been subject to a ten-year maximum sentence. See 18 U.S.C. 924(a)(2).

         The ACCA defines the term "violent felony" as any crime punishable by a term of imprisonment exceeding one year that:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another (the force clause); or
(ii) is burglary, arson, or extortion, involves use of explosives (enumerated crimes clause), or otherwise involves conduct that presents a serious potential risk of ...

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