PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 19-4886
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERRY ANTONIO WHITE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:19−cr−00348−NCT−1)
Argued: December 11, 2020 Decided: January 27, 2022
Before NIEMEYER and WYNN, Circuit Judges, and KEENAN, Senior Circuit Judge.
Vacated and remanded by published opinion. Senior Judge Keenan wrote the opinion, in which Judge Niemeyer and Judge Wynn joined.
ARGUED: Mark A. Jones, BELL, DAVIS & PITT, PA, Winston-Salem, North Carolina, for Appellant. Michael Francis Joseph, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF: Matthew G.T. Martin, United States Attorney, Terry M. Meinecke, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. BARBARA MILANO KEENAN, Senior Circuit Judge:
The facts and history of this case are set forth in this Court’s prior opinion, United
States v. White, 987 F.3d 340 (4th Cir. 2021). Terry Antonio White was convicted of being
a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). In
determining White’s sentence, the district court held that White qualified as an armed
career criminal under 18 U.S.C. § 924(e) (the Armed Career Criminal Act, or the ACCA),
based on three prior convictions for “violent felonies,” including Virginia common law
robbery. The court therefore imposed the ACCA’s mandatory minimum sentence of 180
months’ imprisonment.
White maintains on appeal that he did not qualify as an armed career criminal
because Virginia common law robbery can be committed without the actual, attempted, or
threatened use of physical force, by threatening to accuse the victim of having committed
sodomy. Upon our initial review, we found that there was “no controlling Virginia
precedent” enabling us to determine whether the district court’s view of Virginia common
law robbery was correct. White, 987 F.3d at 345. Therefore, we certified a question of law
to the Supreme Court of Virginia (the Virginia court), id. at 341, pursuant to Virginia
Supreme Court Rule 5:40, which requires that certified questions be “determinative” in the
pending proceeding. See Va. Sup. Ct. R. 5:40(a). The Virginia court accepted our request
to answer the following question:
Under Virginia common law, can an individual be convicted of robbery by means of threatening to accuse the victim of having committed sodomy?
2 White v. United States, 863 S.E.2d 483, 483 (Va. 2021). As explained below, the Virginia
court responded, “yes if the accusation of ‘sodomy’ involves a crime against nature under
extant criminal law.” Id.
The Virginia court’s decision compels our holding here, namely, that Virginia
common law robbery can be committed without proving as an element the “use, attempted
use, or threatened use of physical force.” See 18 U.S.C. § 924(e)(2)(B)(i); White, 987 F.3d
at 345. Such an element is required for prior convictions to qualify as predicate offenses
under the relevant provision of the ACCA. 18 U.S.C. § 924(e)(2)(B)(i). Accordingly, we
vacate White’s sentence and remand for resentencing.
I.
In 2019, White entered into a plea agreement in federal district court, pleading guilty
to the offense of being a felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). In the presentence report, the probation officer recommended
an enhanced sentence under the ACCA, 18 U.S.C. § 924(e), based on White’s prior
convictions for three predicate “violent felonies,” namely, common law robbery and
breaking and entering under North Carolina law, and common law robbery under Virginia
law. White objected to this sentencing recommendation and argued that Virginia common
law robbery does not qualify as a “violent felony” under the ACCA’s applicable “force
clause.” See 18 U.S.C. § 924(e)(2)(B)(i). That provision defines the term “violent felony”
as any crime punishable by a term of imprisonment exceeding one year that “has as an
3 element the use, attempted use, or threatened use of physical force against the person of
another.” 1 Id.
White argued that Virginia common law robbery could be committed without
proving as an element the threat of physical force, namely, by threatening to accuse the
victim of having committed sodomy. The district court overruled White’s objection based
on two conclusions of law.
First, the district court addressed this Court’s decision in United States v. Winston,
850 F.3d 677, 685 (4th Cir. 2017), in which we held that Virginia common law robbery
did not qualify as a violent felony under the ACCA, because the state crime could be
committed by a de minimis use of force. The district court held that Winston had been
abrogated by the Supreme Court’s decision in Stokeling v. United States, 139 S. Ct. 544,
550 (2019) (holding that a slight use of force is sufficient under the ACCA’s force clause
so long as the force overcomes a victim’s resistance). We addressed this issue in our prior
opinion in this case, in which we agreed with the district court’s analysis of Stokeling and
affirmatively held that Stokeling abrogated our prior decision in Winston. White, 987 F.3d
at 343-44.
The district court also rejected White’s assertion that Virginia common law robbery
can be committed by accusing the victim of having committed sodomy. The court reasoned
that the Virginia court only had referenced this theory of robbery in dicta in decisions
1 The ACCA also contains a separate “enumerated crimes” clause for defining violent felonies, but that clause is not applicable here. See 18 U.S.C. § 924(e)(2)(B)(ii). And the ACCA’s “residual clause” contained in Section 924(e)(2)(B)(ii) has been invalidated. United States v. Johnson, 576 U.S. 591, 597 (2015). 4 issued before 1939, and never had applied such a theory of robbery to a particular
defendant. The district court therefore concluded that a required element of the crime of
Virginia common law robbery is the use of “physical force, physical violence or threats of
imminent physical force or violence.” Accordingly, the district court determined that
White qualified for an ACCA sentencing enhancement and imposed the mandatory
minimum sentence of 180 months’ imprisonment.
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PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 19-4886
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERRY ANTONIO WHITE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:19−cr−00348−NCT−1)
Argued: December 11, 2020 Decided: January 27, 2022
Before NIEMEYER and WYNN, Circuit Judges, and KEENAN, Senior Circuit Judge.
Vacated and remanded by published opinion. Senior Judge Keenan wrote the opinion, in which Judge Niemeyer and Judge Wynn joined.
ARGUED: Mark A. Jones, BELL, DAVIS & PITT, PA, Winston-Salem, North Carolina, for Appellant. Michael Francis Joseph, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF: Matthew G.T. Martin, United States Attorney, Terry M. Meinecke, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. BARBARA MILANO KEENAN, Senior Circuit Judge:
The facts and history of this case are set forth in this Court’s prior opinion, United
States v. White, 987 F.3d 340 (4th Cir. 2021). Terry Antonio White was convicted of being
a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). In
determining White’s sentence, the district court held that White qualified as an armed
career criminal under 18 U.S.C. § 924(e) (the Armed Career Criminal Act, or the ACCA),
based on three prior convictions for “violent felonies,” including Virginia common law
robbery. The court therefore imposed the ACCA’s mandatory minimum sentence of 180
months’ imprisonment.
White maintains on appeal that he did not qualify as an armed career criminal
because Virginia common law robbery can be committed without the actual, attempted, or
threatened use of physical force, by threatening to accuse the victim of having committed
sodomy. Upon our initial review, we found that there was “no controlling Virginia
precedent” enabling us to determine whether the district court’s view of Virginia common
law robbery was correct. White, 987 F.3d at 345. Therefore, we certified a question of law
to the Supreme Court of Virginia (the Virginia court), id. at 341, pursuant to Virginia
Supreme Court Rule 5:40, which requires that certified questions be “determinative” in the
pending proceeding. See Va. Sup. Ct. R. 5:40(a). The Virginia court accepted our request
to answer the following question:
Under Virginia common law, can an individual be convicted of robbery by means of threatening to accuse the victim of having committed sodomy?
2 White v. United States, 863 S.E.2d 483, 483 (Va. 2021). As explained below, the Virginia
court responded, “yes if the accusation of ‘sodomy’ involves a crime against nature under
extant criminal law.” Id.
The Virginia court’s decision compels our holding here, namely, that Virginia
common law robbery can be committed without proving as an element the “use, attempted
use, or threatened use of physical force.” See 18 U.S.C. § 924(e)(2)(B)(i); White, 987 F.3d
at 345. Such an element is required for prior convictions to qualify as predicate offenses
under the relevant provision of the ACCA. 18 U.S.C. § 924(e)(2)(B)(i). Accordingly, we
vacate White’s sentence and remand for resentencing.
I.
In 2019, White entered into a plea agreement in federal district court, pleading guilty
to the offense of being a felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). In the presentence report, the probation officer recommended
an enhanced sentence under the ACCA, 18 U.S.C. § 924(e), based on White’s prior
convictions for three predicate “violent felonies,” namely, common law robbery and
breaking and entering under North Carolina law, and common law robbery under Virginia
law. White objected to this sentencing recommendation and argued that Virginia common
law robbery does not qualify as a “violent felony” under the ACCA’s applicable “force
clause.” See 18 U.S.C. § 924(e)(2)(B)(i). That provision defines the term “violent felony”
as any crime punishable by a term of imprisonment exceeding one year that “has as an
3 element the use, attempted use, or threatened use of physical force against the person of
another.” 1 Id.
White argued that Virginia common law robbery could be committed without
proving as an element the threat of physical force, namely, by threatening to accuse the
victim of having committed sodomy. The district court overruled White’s objection based
on two conclusions of law.
First, the district court addressed this Court’s decision in United States v. Winston,
850 F.3d 677, 685 (4th Cir. 2017), in which we held that Virginia common law robbery
did not qualify as a violent felony under the ACCA, because the state crime could be
committed by a de minimis use of force. The district court held that Winston had been
abrogated by the Supreme Court’s decision in Stokeling v. United States, 139 S. Ct. 544,
550 (2019) (holding that a slight use of force is sufficient under the ACCA’s force clause
so long as the force overcomes a victim’s resistance). We addressed this issue in our prior
opinion in this case, in which we agreed with the district court’s analysis of Stokeling and
affirmatively held that Stokeling abrogated our prior decision in Winston. White, 987 F.3d
at 343-44.
The district court also rejected White’s assertion that Virginia common law robbery
can be committed by accusing the victim of having committed sodomy. The court reasoned
that the Virginia court only had referenced this theory of robbery in dicta in decisions
1 The ACCA also contains a separate “enumerated crimes” clause for defining violent felonies, but that clause is not applicable here. See 18 U.S.C. § 924(e)(2)(B)(ii). And the ACCA’s “residual clause” contained in Section 924(e)(2)(B)(ii) has been invalidated. United States v. Johnson, 576 U.S. 591, 597 (2015). 4 issued before 1939, and never had applied such a theory of robbery to a particular
defendant. The district court therefore concluded that a required element of the crime of
Virginia common law robbery is the use of “physical force, physical violence or threats of
imminent physical force or violence.” Accordingly, the district court determined that
White qualified for an ACCA sentencing enhancement and imposed the mandatory
minimum sentence of 180 months’ imprisonment. Without the enhancement, White was
subject to a statutory maximum sentence of 120 months’ imprisonment. See 18 U.S.C.
§ 924(a)(2).
II.
State courts, not federal courts, are the proper forum to “identify the elements of a
state common law offense.” United States v. Doctor, 842 F.3d 306, 309 (4th Cir. 2016);
see also United States v. Dinkins, 928 F.3d 349, 354 (4th Cir. 2019) (explaining that we
“look to state law” to determine whether a predicate state offense meets the definition of
the ACCA’s force clause (citation omitted)). Therefore, we asked the Virginia court to
answer the determinative question in this case, namely, whether Virginia common law
robbery can be committed by threatening to accuse the victim of sodomy, an offense that
would not have 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).
As noted above, the Virginia court held that under Virginia common law, an
individual can be convicted of robbery by threatening a victim with having committed
“sodomy,” to the extent that the accusation involves a crime against nature under existing
5 state law. 2 White, 863 S.E.2d at 483, 485-86 (explaining that the crime of “sodomy”
includes only sex acts that implicate criminal liability, such as “‘carnal knowledge’ with a
‘brute animal’” or certain sex acts with an immediate relative). In reaching this conclusion,
the Virginia court relied on four prior decisions in which it had recognized the historical
English “crime-against-nature doctrine,” which included the crime of common law robbery
by accusing another of having committed sodomy. Id. at 484-86 (citing Houston v.
Commonwealth, 12 S.E. 385 (Va. 1890); Maxwell v. Commonwealth, 183 S.E. 452 (Va.
1936); Falden v. Commonwealth, 189 S.E. 326 (Va. 1937); Fleming v. Commonwealth,
196 S.E. 696 (Va. 1938)). Thus, the Virginia court held that such a crime remains a felony
offense under Virginia common law when the particular act of sodomy that is the subject
of the accusation is still a crime under Virginia law. Id. at 486, 492.
Now that the Virginia court has rendered its decision, principles of federalism
require us to defer to its interpretation of state law. Given the Virginia court’s declaration
that robbery under Virginia common law still can be committed by threatening to accuse
the victim of a crime against nature, we conclude that Virginia common law robbery does
2 Although not referenced by the Virginia court in the present case, the Supreme Court in Lawrence v. Texas, 539 U.S. 558, 563, 578 (2003), held that the right to liberty under the Due Process Clause of the Fourteenth Amendment rendered invalid a Texas law prohibiting “deviate sexual intercourse with another individual of the same sex,” after two men were convicted of engaging in anal intercourse. Based on Lawrence, sodomy between consenting adults no longer is a criminal offense under Virginia law. See MacDonald v. Moose, 710 F.3d 154, 156 (4th Cir. 2013). The Virginia General Assembly later amended Virginia Code § 18.2-361(A), to remove from the penalty statute for crimes against nature the prohibition against carnal knowledge “by the anus or by or with the mouth.” See 2014 Va. Acts ch. 794; Va. Code § 18.2-361 (2014). 6 not require as an element the actual, attempted, or threatened use of physical force. 3 See
United States v. Aparicio-Soria, 740 F.3d 152, 157 (4th Cir. 2014) (en banc) (explaining
that no “exercise of imagination” was needed to analyze the elements of resisting arrest
under Maryland law, because there was “precedent from Maryland’s highest court stating
that” violent force was not required). Accordingly, upon the Virginia court’s clarification
of the contours of Virginia common law robbery, our inquiry into Virginia common law
ends. See Dinkins, 928 F.3d at 355-57; see also Gordon v. Barr, 965 F.3d 252, 260 (4th
Cir. 2020) (holding that petitioner need not “find a case” showing that the state had
prosecuted the conduct in question, when that conduct plainly was prohibited by the state
statute).
We therefore hold that Virginia common law robbery does not qualify as a “violent
felony” under the ACCA’s force clause. See 18 U.S.C. § 924(e)(2)(B)(i). Virginia
common law robbery can be committed by threatening to accuse the victim of having
committed a crime against nature and, thus, does not have as a required element “the use,
attempted use, or threatened use of physical force against the person of another.” Id.
Because the district court relied on White’s prior conviction for Virginia common law
3 We observe that in August 2021, this Court certified a similar question to the Court of Appeals of Maryland: “Under Maryland law, can an individual be convicted of robbery by means of threatening force against property or threatening to accuse the victim of having committed sodomy?” United States v. Dickson, No. 19-4226, 2021 WL 3630032, at *1 (4th Cir. Aug. 17, 2021) (unpublished). The Maryland court heard oral argument on this question on December 2, 2021, but has not yet issued a decision.
7 robbery as a basis for imposing an enhanced sentence under the ACCA, we are required to
vacate White’s sentence.
III.
For these reasons, we vacate White’s sentence imposed by the district court and
remand the case to the district court for resentencing.
VACATED AND REMANDED