United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (OVERRULING DEFENDANT'S
OBJECTION TO CALCULATION OF U.S. SENTENCING
E. Hudson United States District Judge.
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).
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
[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.
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.
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).
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).
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."
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).
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).
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
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.
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.
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
appropriate Order will accompany this Memorandum Opinion.
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.
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.
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.
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.
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.
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
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
(1) Preventing or overcoming resistance to the taking of the
property or to the retention thereof immediately after the
(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.
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
(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.
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.
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.
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.
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 ...