Blogs

Posted on Thursday, February 14, 2019

Is A State Robbery Offense That Has As An Element The Use Of Force Sufficient To Overcome A Victim’s Resistance Categorically A “violent felony” Under The Armed Career Criminal Act (ACCA)

Stokeling v. United States, ___ U.S. ___, No. 17-5554 (15 January 2019)

Denard Stokeling was either an inept criminal or just plain unlucky. 

In the course of his checkered career, he managed to acquire three felony convictions; home invasion, kidnapping, and robbery.  Then, he acquired a fourth felony conviction, being felon in possession of a firearm in violation of 18 U.S.C. §922(g)(1).  The Armed Career Criminal Act (ACCA) provides that a person who violates §922(g) and who has three previous convictions for a “violent felony” shall be imprisoned for a minimum of 15 years. 18 U.S.C. §924(e).  Facing a mandatory minimum sentence of 15 years, Stokeling argued that his prior robbery conviction was not a “violent felony” and could not be used as a predicate crime to enhance his sentence. 

The district court evaluated whether the facts of Stokeling’s Florida robbery conviction were serious enough to classify the crime as a violent felony under the ACCA.  The court concluded that, although Stokeling grabbed the victim by the neck and tried to remove her necklaces as she held onto them, his actions did not justify an enhancement.  The 11th Circuit reversed.  It held that the district court erred in making its own factual determination about the level of violence involved in Stokeling’s particular robbery offense.  The court also rejected Stokeling’s argument that Florida robbery does not categorically require sufficient force to constitute a violent felony under the ACCA.    

The ACCA says that a “violent felony” is any crime punishable by imprisonment for a term exceeding one year that

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of

explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. §924(e)(2)(B)(Italics supplied).

Clause (i) of §924(e)(2)(B) is often called the “elements clause” (or “force clause”), because it requires each qualifying crime to have an element involving force. The first part of clause (ii) is often called the “enumerated clause,” because it enumerates certain generic crimes—such as burglary—that Congress sought to cover. The final part of clause (ii), often called the “residual clause,” once offered a catchall to sweep in otherwise uncovered convictions, but the Court struck it down as unconstitutionally vague in 2015. See Johnson v. United States, 576 U. S. ___, ___ (2015).  The elements clause and the enumerated clause are now the only channels by which a prior conviction can qualify as an ACCA “violent felony.”

Oddly, robbery is not mentioned as a predicate crime in the enumerated clause.  Therefore, whether Stokeling was subject to the ACCA’s 15-year mandatory minimum hinged on whether his 1997 conviction for Florida robbery, qualified under the elements clause.  That is, does robbery under Florida law have as an element the use of physical force against the person of another, sufficient to make the robbery a “violent felony” under the ACCA.

In determining whether a state crime, such as robbery, is a violent felony for purposes of federal sentencing enhancement, federal courts look to, and are constrained by, state courts’ interpretations of state law.  As relevant here, Florida law defines robbery as “the taking of money or other property . . . from the person or custody of another . . . when in the course of the taking there is the use of force, violence, assault, or putting in fear.” Fla. Stat. §812.13(1) (2017). The Florida Supreme Court has interpreted the statute’s reference to force to require force sufficient to overcome a victim’s resistance. Robinson v. State, 692 So. 2d 883, 887 (1997).

The issue before the U.S. Supreme Court was whether the “force” required to commit robbery under Florida law qualifies as “physical force” for purposes of the ACCA’s elements clause.  Put differently, if, under Florida law, an element of robbery is the use of physical force sufficient to overcome a victim’s resistance, then does that amount of physical force make the crime a violent felony within the meaning of the ACCA, §924(e)(2)(B)(i)?

Common law robbery required the use of force or violence.  An unlawful taking was merely larceny, unless the crime involved violence.  The Supreme Court said that Congress intended that the force required for common law robbery would be sufficient to justify an enhanced sentence under the ACCA.  Violence was committed if sufficient force was exerted to overcome the resistance encountered.  Furthermore, the force necessary to overcome a victim’s resistance is inherently violent.  That is the degree of force required under Florida law, and that degree of force satisfies the force element in the ACCA.

The Court’s understanding of “physical force” is buttressed by the widely accepted definitions of robbery in the States when the ACCA was enacted.  A significant majority of the States defined the crime of robbery as requiring force that overcomes the victim’s resistance.  If the applicability of a federal criminal statute requires a state conviction, the Supreme Court has repeatedly declined to construe the statute in a way that would render it inapplicable in many states. See, e.g., United States v. Castleman, 572 U.S. 157, 164 (2014).  Robbery has always been within the category of violent crimes that Congress meant to include in the ACCA.

The Court held that crime of robbery under Florida law qualifies as a violent felony under the elements cause of the ACCA.

This was a five-to-four decision.  Justice Thomas wrote the majority opinion joined by Justices Breyer, Alito, Gorsuch and Kavanaugh. 

Justice Sotomayor wrote a dissenting opinion joined by Chief Justice Roberts and Justices Ginsburg and Kagan.  The dissent said that to determine whether a conviction qualifies as a violent felony under the ACCA, courts should apply a method called the categorical approach. See Taylor v. United States, 495 U.S. 575, 600–602 (1990).  In the elements-clause context, that method requires asking whether the least culpable conduct covered by the statute at issue nevertheless has as an element of physical force against the person of another.  If it does not, then the statute is too broad to qualify as a predicate crime under the ACCA.  The dissent contended that the element of force under Florida law is so broadly construed that it “can mean essentially no force at all.”  Therefore, according to the dissent, robbery under Florida law is not a predicate crime under the elements clause of the ACCA.

John Polk is a Special Counsel at Berenzweig Leonard, LLP. John can be reached at JPolk@BerenzweigLaw.com.