United States of America v. Arthur Charles Smith, a/k/a Marvon Anderson

Arthur Smith was sentenced as a career offender based in part

on his prior North Carolina state conviction for common-law robbery. In this appeal, he

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No. 16-6720 United States v. Smith Page 2

contends that North Carolina common-law robbery does not qualify as a “crime of violence”

within the meaning of § 4B1.1(a) of the United States Sentencing Guidelines. This is the second

time Smith has asked us to resolve this question. In 2014, another panel of this court heard

Smith’s case and concluded that North Carolina common-law robbery indeed qualifies as a crime

of violence under the Guidelines’ so-called residual clause. The Supreme Court vacated that

decision, however, after its decision in Johnson v. United States, 135 S. Ct. 2551 (2015), which

cast the constitutionality of the Guidelines’ residual clause into doubt. Since then, another

Supreme Court decision, Beckles v. United States, 137 S. Ct. 886 (2017), has clarified that the

Guidelines’ residual clause remains valid even after Johnson. We therefore reaffirm our prior

conclusion that North Carolina common-law robbery is a crime of violence within the meaning

of the Guidelines’ residual clause. Accordingly, Smith was properly classified as a career

offender.

The United States Sentencing Guidelines (“USSG” or “Guidelines”) provide longer

sentences for defendants who qualify as “career offenders.” A defendant qualifies as a career

offender if “(1) the defendant was at least eighteen years old at the time the defendant committed

the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a

crime of violence or a controlled substance offense; and (3) the defendant has at least two prior

felony convictions of either a crime of violence or a controlled substance offense.” USSG

§ 4B1.1(a). At issue here is the final requirement that Smith have at least two qualifying prior

convictions.

On April 23, 2013, Smith pleaded guilty to three federal counts stemming from his armed

robbery of a CVS pharmacy in Sevierville, Tennessee. The government contended that Smith

qualified as a career offender based on two prior state-court convictions: one for drug trafficking

under South Carolina law and the other for common-law robbery under North Carolina law.

Smith admitted that the South Carolina drug-trafficking conviction was a predicate offense, but

maintained that the North Carolina common-law robbery conviction was not.

No. 16-6720 United States v. Smith Page 3

When Smith was originally sentenced on September 30, 2013, the applicable version of

the Guidelines (the 2012 edition) defined “crime of violence” as follows:

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 burglary of a dwelling, arson, or extortion, involves use of explosives,

or otherwise involves conduct that presents a serious potential risk of

physical injury to another.

USSG § 4B1.2(a) (2012). Subsection (1) is commonly known as the “elements” clause.

Subsection (2) is generally divided into the “enumerated-offense” clause (“is burglary of a

dwelling, arson, or extortion, involves use of explosives”) and the “residual” clause (“or

otherwise involves conduct that presents a serious potential risk of physical injury to another”).1

At Smith’s original sentencing hearing, the district court concluded that North Carolina

common-law robbery qualifies as a crime of violence under the residual clause. The court thus

applied the career-offender enhancement, which increased Smith’s Guidelines range from 194–

221 months up to 262–327 months. The district court opted for the bottom of the range, and

Smith was sentenced to 262 months’ imprisonment.

Smith appealed, and we affirmed his sentence in an unpublished opinion that relied on

the residual clause. United States v. Smith (Smith I), 582 F. App’x 590 (6th Cir. 2014). After

our decision in Smith I, however, the Supreme Court invalidated the Armed Career Criminal

Act’s identically worded residual clause, finding that it was void for vagueness. Johnson, 135 S.

Ct. at 2563. In light of Johnson, the Supreme Court vacated our judgment in Smith I and

remanded for reconsideration. Smith v. United States, 135 S. Ct. 2930 (2015).

While the remand in Smith’s case was pending, we extended the reasoning of Johnson to

hold the Guidelines’ residual clause void for vagueness as well. United States v. Pawlak,

1In 2016, the U.S. Sentencing Commission removed the residual clause and replaced it with a fuller list of

enumerated offenses. The 2016 version of USSG § 4B1.2(a)(2) provides that an offense is a crime of violence if it

“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).”

No. 16-6720 United States v. Smith Page 4

822 F.3d 902, 911 (6th Cir. 2016). Thus, when we took up Smith’s case on remand, the

Guidelines’ residual clause was not available as a basis to determine that North Carolina

common-law robbery qualifies as a crime of violence. We accordingly sent his case back to the

district court for resentencing in light of Pawlak. United States v. Smith, 667 F. App’x 536, 537

(6th Cir. 2016).

Smith was resentenced on November 15, 2016. Because Pawlak was binding precedent

at the time, the district court did not consider the residual clause, and instead held that North

Carolina common-law robbery qualifies as a crime of violence under the elements clause and the

enumerated-offense clause. However, several months after Smith’s resentencing, the Supreme

Court decided Beckles, 137 S. Ct. at 886. Beckles held that the advisory Guidelines are not

subject to void-for-vagueness challenges, and that therefore the Guidelines’ residual clause “is

not void for vagueness.” Id. at 892. In so holding, the Supreme Court effectively abrogated our

decision in Pawlak and reinstated the Guidelines’ residual clause as a basis on which to conclude

that offenses qualify as crimes of violence.

Smith I held that North Carolina common-law robbery categorically qualifies as a crime

of violence under the residual clause. Because the residual clause is valid post-Beckles, we may

reach the same conclusion in this case so long as Smith I’s reasoning has not been otherwise

undermined.2 A thorough examination of both Smith I and the reasons Smith offers to depart

from it shows that the logic of Smith I remains sound, and therefore North Carolina common-law

robbery is a crime of violence under the Guidelines’ residual clause.

Under North Carolina law, common-law robbery is “the felonious, non-consensual taking

of money or personal property from the person or presence of another by means of violence or

fear.” State v. Bell, 603 S.E.2d 93, 117 (N.C. 2004) (quoting State v. Moss, 418 S.E.2d 213, 217

(N.C. 1992)). Smith I correctly applied the categorical approach to determine that North

Carolina common-law robbery qualifies as a crime of violence under the residual clause.

See generally United States v. Yates, 866 F.3d 723, 728 (6th Cir. 2017) (explaining the

2We apply the version of the Guidelines in effect when Smith was originally sentenced. 18 U.S.C.

§ 3742(g)(1); United States v. Taylor, 648 F.3d 417, 424 (6th Cir. 2011). When Smith was first sentenced on

September 30, 2013, the 2012 Guidelines (which contain the residual clause) were in effect, and so govern this case.

No. 16-6720 United States v. Smith Page 5

categorical approach). Its analysis turned on the final part of the offense definition—that the

taking must be accomplished “by means of violence or fear.” Smith conceded that robbery

committed by means of violence does present a “serious risk of physical injury to another” as

required by the residual clause, but contended that robbery committed by means of fear does not.

Smith I, 582 F. App’x at 596. We disagreed, observing that, under North Carolina Supreme

Court precedent, the fear element requires that the victim be induced to part with his property

“for the sake of his person,” see State v. Sawyer, 29 S.E.2d 34, 37 (N.C. 1944), which means the

victim must be placed in fear of bodily injury. Smith I, 582 F. App’x at 597. This, we reasoned,

“does generally present a serious risk of physical injury to another.” Id. Smith responded that

fear “for the sake of one’s person” could possibly include threats of things other than physical

injury, such as a threat to fire or financially ruin the victim. We rejected this argument, however,

explaining that, even if it were theoretically possible to commit common-law robbery through

threats of something other than physical injury (like a threat to terminate the victim’s

employment), the relevant inquiry is how North Carolina common-law robbery is committed in

the “ordinary case,” and “in the ordinary case, robbing someone by means of placing him in fear

for his person does present a serious risk of physical injury.” Id. (emphasis in original). Having

thus held that North Carolina common-law robbery qualifies as a crime of violence under the

residual clause, we declined to consider whether it might also qualify under the elements or

enumerated-offense clause. Id. at 598.

On this appeal, Smith reprises his argument that the fear element can be satisfied by

threats of harm other than physical violence—such as threats to the safety of family members,

threats of being fired, or threats of financial ruin—and that, committed this way, common-law

robbery does not pose a “serious potential risk of physical injury to another” as required by the

residual clause. This argument fails for the same reason it failed in Smith I. “[T]he inquiry is not

whether it is possible for a defendant to commit a crime in a way that would not be a violent

felony.” Id. Rather, the question is “whether the conduct encompassed by the elements of the

offense, in the ordinary case, presents a serious potential risk of injury to another.” Id. at 597

(quoting James v. United States, 550 U.S. 192, 208 (2007) (emphasis added in Smith I)). Smith’s

hypotheticals, “though perhaps the stuff of law-school exams,” id., do not represent the ordinary

case of North Carolina common-law robbery. Tellingly, Smith does not cite any case in which

No. 16-6720 United States v. Smith Page 6

North Carolina common-law robbery has been applied based on a threat to injure the victim’s

family, terminate the victim’s employment, financially ruin the victim, or the like. This is

presumably because no such cases exist. As the Supreme Court has cautioned, the categorical

approach “is not an invitation to apply ‘legal imagination’ to the state offense; there must be a

‘realistic probability, not a theoretical possibility, that the State would apply its statute to conduct

that falls outside the generic definition of a crime.’” Moncrieffe v. Holder, 133 S. Ct. 1678,

1684–85 (2013) (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)).

Smith contends that we should depart from our holding in Smith I because, after Johnson

and Beckles, even though the advisory Guidelines are not subject to void-for-vagueness

challenges, the Guidelines’ residual clause is still so difficult to interpret that district courts

commit procedural error if they rely on it to calculate a Guidelines range. In other words, he

argues that, because a sentence is procedurally unreasonable if the district court improperly

calculates the Guidelines range, Gall v. United States, 552 U.S. 38, 51 (2007), and because the

residual clause is so vague that it is impossible to interpret correctly, district courts interpreting

the residual clause will always reach an improper calculation and thus commit procedural error.

This wholesale attack on the residual clause must be rejected. Beckles recently affirmed the

residual clause’s validity, and we have since approved of several post-Beckles Guidelines

calculations that relied on the residual clause. See United States v. Patterson, 853 F.3d 298,

305–06 (6th Cir. 2017); United States v. Goodrich, No. 16-1795, 2017 WL 4350896, at *2 (6th

Cir. Oct. 2, 2017); United States v. Jackson, 704 F. App’x 484, 488 (6th Cir. 2017). Indeed, as

we recently noted, “post-Beckles, every decision issued by the Sixth Circuit involving this

question has concluded that the residual clause can provide an alternative basis for affirmance.”

United States v. Johnson, No. 16-2033, 2017 WL 5625720, at *2 n.2 (6th Cir. Nov. 22, 2017).

Smith’s argument amounts to an attempt to revisit Beckles’ holding that the advisory Guidelines

are not subject to vagueness challenges. We decline to do so.

Smith also argues that the Supreme Court’s pre-Johnson residual-clause caselaw, such as

James v. United States, 550 U.S. 192 (2007), cannot be used to interpret the Guidelines’ residual

clause, because this caselaw was developed in the context of the residual clause of the Armed

Career Criminal Act (“ACCA”), and thus was overruled by Johnson. However, we have already

No. 16-6720 United States v. Smith Page 7

rejected this contention, explaining that James, “while no longer valid for analyzing the residual

clause of the ACCA, [remains] good law for purposes of the Guidelines.” United States v.

Goodson, 700 F. App’x 417, 423 (6th Cir. 2017). The fact that Smith I relied in part on James,

see Smith I, 582 F. App’x at 597–98, does not undermine the reasoning of that decision.

Finally, Smith cites a decision of the Fourth Circuit, United States v. Gardner, 823 F.3d

793 (4th Cir. 2016), which holds that North Carolina common-law robbery does not qualify as a

violent felony under the ACCA. However, Gardner is not on point. Gardner was an ACCA

case decided after Johnson, and therefore it could not consider the ACCA’s residual clause;

instead, it was decided solely under the ACCA’s elements clause. See id. at 803–04. Whether

North Carolina common-law robbery “has as an element the use, attempted use, or threatened

use of physical force against the person of another,” as the ACCA’s elements clause requires, see

18 U.S.C. § 924(e)(2)(B)(i), has no bearing on the dispositive question in this case, which is

whether North Carolina common-law robbery necessarily “involves conduct that presents a

serious potential risk of physical injury to another.” Moreover, since Gardner the Fourth Circuit

has recognized that North Carolina common-law robbery does qualify as a crime of violence

under the Guidelines, albeit under the enumerated-offense clause rather than under the residual

clause. United States v. Gattis, 877 F.3d 150, 156–60 (4th Cir. 2017).

For these reasons, the district court correctly concluded that North Carolina common-law

robbery is a crime of violence as that term is used in the Guidelines.

Smith also argues that his sentence is substantively unreasonable. A sentence is

substantively unreasonable if the district court “selects a sentence arbitrarily, bases the sentence

on impermissible factors, fails to consider relevant sentencing factors, or gives an unreasonable

amount of weight to any pertinent factor.” United States v. Conatser, 514 F.3d 508, 520 (6th

Cir. 2008) (citing United States v. Webb, 403 F.3d 373, 385 (6th Cir. 2005)). Smith not only

bears the burden to show substantive unreasonableness, United States v. Woodard, 638 F.3d 506,

510 (6th Cir. 2011) (citing United States v. Houston, 529 F.3d 743, 756 (6th Cir. 2008)), but

because his sentence was within the Guidelines range, he must also overcome a rebuttable

presumption that it is reasonable, United States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008) (en

banc).

No. 16-6720 United States v. Smith Page 8

Smith does not meet this burden. He does not point to any way in which the district court

selected his bottom-of-the-Guidelines sentence arbitrarily, based it on impermissible factors, or

unreasonably applied the proper factors. He instead argues only that the career-offender

guideline is generally unreasonable, because, in his view, it arbitrarily over-punishes those

defendants who qualify, without sufficient evidence that it deters crime or protects the public.

But the career-offender guideline is on the books, and “the mere fact that a sentencing court has

the discretion to disagree with the guidelines on policy grounds does not mean that it is required

to do so.” United States v. Ekasala, 596 F.3d 74, 76 (1st Cir. 2010) (internal citation omitted).

Thus, Smith has not identified anything to rebut the presumption that his within-Guidelines

sentence is substantively reasonable.

Smith’s final argument is that his Sixth Amendment right to a jury trial was violated

when the district court used the fact of his prior convictions to enhance his sentence, even though

the fact of those convictions was neither charged by indictment nor proven to a jury beyond a

reasonable doubt. This argument is foreclosed by Supreme Court precedent. In Almendarez-

Torres v. United States, 523 U.S. 224, 239–247 (1998), the Court held that a sentencing court

may use the fact of a defendant’s recidivism to increase his sentence even if the defendant’s prior

convictions are neither alleged in the indictment nor found by a jury beyond a reasonable doubt.

The Supreme Court has since declined to revisit Almendarez-Torres on several occasions. See

Alleyne v. United States, 133 S. Ct. 2151, 2160 n.1 (2013); Apprendi v. New Jersey, 530 U.S.

466, 489–90 (2000). Smith argues that Apprendi, Alleyne, and Shepard v. United States,

544 U.S. 13 (2005), have called Almendarez-Torres into question such that it is no longer viable.

However, “Almendarez-Torres is still good law and will remain so until the Supreme Court

explicitly overrules it.” United States v. Nagy, 760 F.3d 485, 488 (6th Cir. 2014) (quoting

United States v. Anderson, 695 F.3d 390, 398 (6th Cir. 2012)).

For the foregoing reasons, we affirm Smith’s sentence.