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United States v. Wyche

United States District Court, E.D. Virginia, Richmond Division

July 21, 2017

UNITED STATES OF AMERICA
v.
ERIC WYCHE, Defendant.

          MEMORANDUM OPINION (OVERRULING DEFENDANT'S OBJECTION TO CALCULATION OF U.S. SENTENCING GUIDELINES)

          Henry E. Hudson United States District Judge.

         On April 24, 2017, the Defendant, Eric Wyche ("Wyche"), entered a plea of guilty to possession of a firearm by a convicted felon, pursuant to a written plea agreement. Sentencing was deferred pending the completion of a Presentence Investigation Report ("PSR"). In preparing the PSR, the United States probation officer calculated Wyche's sentencing guidelines. She determined that Wyche had a Total Offense Level of 25, fourteen criminal history points putting him in Category VI, and a resulting guideline range of 110-120 months. In computing Wyche's total offense level, the probation officer applied two enhancements to his base offense level of 22. The officer applied a two-level adjustment for obstruction of justice under United States Sentencing Guidelines ("U.S.S.G.") § 3C 1.1 and a four-level adjustment based on the firearms use in the commission of another felony under § 2K2.1(b)(6)(B).

         Presently at issue is the probation officer's determination that Wyche's base offense level is 22. According to the PSR, the probation officer's calculation is derived from U.S.S.G. § 2K2.1(a)(3). This section reads in pertinent part:

[The applicable] Base Offense Level [is] 22, if (A) the offense involved a (i) semiautomatic firearm that is capable of accepting a large capacity magazine; or (ii) firearm that is described in 26 U.S.C. § 5845(a); and (B) the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense.

U.S.S.G. §2K2.1(a)(3).

         Specifically, Wyche's objection focuses on whether his robbery conviction in 2009 in the Circuit Court of the City of Richmond is a crime of violence as that term is employed in U.S.S.G. § 2K2.1(a)(3). Resolution of this issue is guided by the application notes to § 2K2.1, specifically the definition of "crime of violence." The application note indicates that "'[c]rime of violence' has the meaning given that term in § 4B 1.2(a) and Application Note 1 of the Commentary to § 4B1.2." U.S.S.G. § 2K2.1 cmt. n.l.

         Turning to U.S.S.G. § 4B1.2, it provides the following definition of a "crime of violence":

The term "crime of violence" means any offense under federal or state law, punishable by imprisonment 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 murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).

U.S.S.G. §4B1.2(a)(l-2).

         Wyche argues that his 2009 robbery conviction meets neither of the definitional criteria for a crime of violence under U.S.S.G. § 4B1.2. His challenge has two facets. First, that the common law definition of robbery historically employed in Virginia requires a lesser level of force than envisioned under § 4B 1.2(a)(1), and second, that the Virginia common law definition of robbery is broader than the contemporary generic definition, which must be relied upon in applying § 4B 1.2(a)(2). Because robbery is an enumerated offense under § 4B 1.2(a)(2) and common law robbery in Virginia is consistent with the contemporary generic definition of that offense, the Court need not venture into § 481.2(a)(1).[1]

         Wyche argues that even though robbery is included as an enumerated offense under the definition of "crime of violence" in U.S.S.G. § 4B1.2(a)(2), it must still meet the similarity-of-elements standard using the categorical approach articulated in Taylor v. United States, 495 U.S. 575, 598-602 (1990). In Taylor, the Supreme Court found that with regard to prior crimes enumerated in a sentencing enhancement statute, Congress intended to refer to the "generic, contemporary meaning" of the crime. Id. at 598. Such meaning, the Court explained, can be derived from "the generic sense in which the term is now used in the criminal codes of most States." Id.

         Courts must compare the state statute under which the defendant was previously convicted to the enumerated crime's "generic" definition. United States v. Flores-Granados, 783 F.3d 487, 491 (4th Cir. 2015). "If the defendant was previously convicted in a State where the generic definition has been adopted or where the state statute is narrower than the generic view then there is no problem because in both cases the conviction necessarily implies that the defendant has been found guilty of all the elements of [the] generic [crime]." Id. (quotation marks omitted; alterations in original). "However, if the state statute 'criminalizes[s] a broader scope of conduct than the Guideline crime [then it] is not categorically a crime of violence." Id. (quoting United States v. Perez-Perez, 737 F.3d 950, 953 (4th Cir. 2013)) (alterations in original).

         In Virginia, the punishment for robbery is fixed by statute, Va. Code § 18.2-58, but the offense is not statutorily defined, and Virginia courts must look to the common law for its definition. "Robbery at common law is defined as the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation." George v. Commonwealth, 242 Va. 264, 277 (1991) (internal quotation marks and citations omitted); see also Commonwealth v. Anderson, 278 Va. 419, 424 (2009).

         A close review of Virginia jurisprudence interpreting and applying the common law definition of robbery demonstrates that the core element is the taking of property from a person against their will. To sustain a robbery conviction, force or intimidation must be directed at the person of the victim. Spencer v. Commonwealth, 592 S.E.2d 400, 403 (Va. Ct. App. 2004). The victim must actually be put in fear by the willful conduct or words of the accused. Harris v. Commonwealth, 351 S.E.2d 356, 357 (Va. Ct. App. 1986). The United States maintains that the time-honored common law definition of robbery in Virginia comports with the so-called generic definition.

         The Court agrees. After reviewing the statutory provisions defining robbery in each of the fifty States, the District of Columbia, and the Model Penal Code, the Court concludes that every jurisdiction in this country defines robbery, essentially, as the taking of property from another person or from the immediate presence of another person by force or fear. (See App. A; see also, e.g., United States v. Walker, 595 F.3d 441, 446 (2d Cir. 2010); United States v. Lockley, 632 F.3d 1238, 1244 (11th Cir. 2011).) Citing the Fourth Circuit's recent decision in United States v. Winston, 850 F.3d 677 (4th Cir. 2017), Defendant argues that because the Supreme Court of Virginia has found that "the commission of common law robbery by violence requires only a 'slight' degree of violence, " id. at 684 (quoting Maxwell v. Commonwealth, 165 Va. 860, 864 (1936)), Virginia's definition of robbery criminalizes a broader scope of conduct than the generic definition.

         However, the Court finds that Virginia's definition of robbery directly mirrors the contemporary generic one in that it criminalizes larceny where the defendant takes property from another against their will-whether by force or fear. This minimal requirement-independent of the level of force required-is uniformly present, without exception, in every jurisdiction throughout the country. Therefore, the Court finds that common law robbery in Virginia comports to "a mainstream [definition]... [and is] not an outlier, " rendering it well within the contemporary generic conception of the crime. Flores-Granados, 783 F.3d at 498.

         Consequently, the Court concludes that Virginia common law robbery qualifies as an enumerated offense under § 4B 1.2(a)(2) and will overrule Defendant's Objection to the PSR. (ECF No.25.)

         An appropriate Order will accompany this Memorandum Opinion.

         APPENDIX A

         Alabama

         Ala. Code $ 13A-8-43(a): A person commits the crime of robbery ... if in the course of committing a theft he-

(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance; or
(2) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property.

         Alaska

         Alaska Stat. $ 11.41.510(a): A person commits the crime of robbery ... if, in the course of taking or attempting to take property from the immediate presence and control of another, the person uses or threatens the immediate use of force upon any person with intent to

(1) Prevent or overcome resistance to the taking of the property or the retention of the property after taking; or
(2) Compel any person to deliver the property or engage in other conduct which might aid in the taking of the property.

         Arizona

         Ariz. Rev. Stat. $ 13-1902(A): A person commits robbery if in the course of taking any property of another from his person or immediate presence and against his will, such person threatens or uses force against any person with intent either to coerce surrender of property or to prevent resistance to such person taking or retaining property.

         Arkansas

         Ark. Code Ann. $ 5-12-102(a): A person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately after committing a felony or misdemeanor theft, the person employs or threatens to immediately employ physical force upon another person.

         California

         Cal. Penal Code § 211: Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.

         Colorado

         Colo. Rev. Stat. § 18-4-30U1): A person who knowingly takes anything of value from the person or presence of another by the use of force, threats, or intimidation commits robbery.

         Connecticut

         Conn. Gen. Stat. $ 53a-133: A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of-

(1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or
(2) Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.

         Delaware

         Del. Code Ann, tit. 11, § 831(a): A person is guilty of robbery ... when, in the course of committing theft, the person uses or threatens the immediate use of force upon another person with intent to:

(1) Prevent or overcome resistance to the taking of the property or to the retention thereof immediately after the taking; or
(2) Compel the owner of the property or another person to deliver up the property or to engage in other conduct which aids in the commission of the theft.

         District of Columbia

         D.C. Code Ann. § 22-2801: Whoever by force or violence, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear, shall take from the person or immediate actual possession of another anything of value, is guilty of robbery.

         Florida

         Fla. Stat. Ann. $ 812.13(U: "Robbery" means the taking of money or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear.

         Georgia

         Ga. Code Ann. § 16-8-4Q(a): A person commits the offense of robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another-

(1)By use of force;
(2) By intimidation, by the use of threat or coercion, or by placing such person in fear of immediate serious bodily injury to himself or to another; or
(3) By sudden snatching.

         Hawaii

         Haw. Rev. Stat. § 708-841(1): A person commits the offense of robbery ... if, in the course of committing theft or non-consensual taking of a motor vehicle-

(a) The person uses force against the person of anyone present with the intent to overcome that person's physical resistance or physical power of resistance;
(b) The person threatens the imminent use of force against the person of anyone who is present with intent to compel acquiescence to the taking of or ...

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