UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4959
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ENNIS TREVOR BILLUPS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:14-cr-00142-WO-1)
Argued: March 24, 2016 Decided: June 14, 2016
Before MOTZ, GREGORY, and KEENAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
opinion. Judge Keenan wrote the opinion, in which Judge Motz
and Judge Gregory joined.
ARGUED: Robert Lynn McClellan, IVEY, MCCLELLAN, GATTON &
SIEGMUND, LLP, Greensboro, North Carolina, for Appellant.
Ripley Eagles Rand, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee. ON BRIEF: Michael F.
Joseph, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
BARBARA MILANO KEENAN, Circuit Judge:
In this appeal, we consider whether the district court
properly determined that Ennis Billups qualified as an armed
career criminal based on his prior convictions for felony common
law robbery in North Carolina (North Carolina common law
robbery). Upon our review, we conclude that Billups’ prior
convictions for North Carolina common law robbery are not
categorically violent felonies, and that Billups does not
qualify otherwise as an armed career criminal. Because we
issued our precedential holding that North Carolina common law
robbery is not categorically a violent felony in United States
v. Gardner, No. 14-4533, slip op. at 18, 20 (4th Cir. May 18,
2016), while Billups’ direct appeal was pending before this
Court, Billups is entitled to the benefit of that holding
despite his failure to raise the issue in the district court.
See Henderson v. United States, 133 S. Ct. 1121, 1130-31 (2013).
Thus, we conclude that the district court committed plain error
in classifying Billups as an armed career criminal, and we
vacate Billups’ sentence and remand the case for re-sentencing.
I.
Ennis Billups pleaded guilty to possession of a firearm by
a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). In
the presentence report (PSR) prepared in Billups’ case, the
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probation officer classified Billups as an armed career criminal
under the Armed Career Criminal Act (ACCA), 18 U.S.C. §
924(e)(2), based on one prior North Carolina state conviction
for felony drug trafficking and seven prior convictions for
North Carolina common law robbery.
Billups objected to application of the ACCA enhancement on
various grounds and also moved to withdraw his guilty plea,
contending that his plea was not knowing and voluntary because
he had not taken his medications on the day of his plea hearing.
The district court rejected Billups’ challenges to the armed
career criminal designation, and denied his motion to withdraw
his guilty plea. The court adopted the recommendation in the
PSR that Billups be classified as an armed career criminal, and
sentenced him to the statutory minimum of 180 months’
imprisonment. This appeal followed. 1
1 Billups’ counsel originally filed an appellate brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating
that he found no meritorious grounds for appeal but asking this
Court to review the record for any prejudicial error. While
Billups’ appeal was pending, the Supreme Court issued a decision
in Johnson v. United States, 135 S. Ct. 2551 (2015), and
invalidated the residual clause of the ACCA. We ordered
supplemental briefing to address whether, in light of the
Court’s decision in Johnson, the district court committed
reversible error by treating Billups’ robbery offenses as
violent felonies under the ACCA.
3
II.
Before turning to the parties’ arguments, we briefly
summarize the relevant statutory provision. Under the ACCA, a
violent felony is defined as any crime “punishable by
imprisonment for a term exceeding one year” that either “has as
an element the use, attempted use, or threatened use of physical
force against the person of another” (the force clause), or “is
burglary, arson, or extortion, [or] involves use of explosives”
(the enumerated language), or “otherwise involves conduct that
presents a serious potential risk of physical injury to another”
(the residual clause). 18 U.S.C. § 924(e)(2)(B)(i), (ii).
Billups argues that his previous convictions for North
Carolina common law robbery do not qualify as predicate offenses
under the ACCA because North Carolina common law robbery does
not categorically match any of the enumerated offenses, nor does
it necessarily require the “use, attempted use, or threatened
use of physical force against the person of another.” See 18
U.S.C. § 924(e)(2)(B). Also, because the Supreme Court held in
Johnson v. United States, 135 S. Ct. 2551 (2015), that the
ACCA’s residual clause is unconstitutional, Billups observes
that his robbery convictions cannot qualify as violent felonies
under that portion of the ACCA.
In response, the government argues that the district court
correctly classified Billups as an armed career criminal,
4
because robbery necessarily requires the “use, attempted use, or
threatened use” of physical force against another person. The
government relies on decisions in which we have held that the
crime of common law robbery in other jurisdictions qualified as
a violent felony under the force clause. See United States v.
Presley, 52 F.3d 64, 69 (4th Cir. 1995) (concluding that
Virginia common law robbery involved the use or threatened use
of force and therefore was a predicate offense under the ACCA’s
force clause); United States v. Wilson, 951 F.2d 586, 588 (4th
Cir. 1991) (holding that Maryland common law robbery was a
“crime of violence” under the force clause of the career
offender provision in the sentencing guidelines).
Because Billups did not preserve in the district court the
issue whether North Carolina common law robbery categorically
matched the definition of a “violent felony” under the ACCA, 2 we
review the district court’s decision for plain error.
See United States v. Carthorne, 726 F.3d 503, 509 (4th Cir.
2
Billups argued to the district court that, in light of
this Court’s decision in United States v. Simmons, 649 F.3d 237
(4th Cir. 2011) (en banc), his robbery convictions did not
qualify as predicate felonies because they were not punishable
by a term of imprisonment exceeding one year. He also argued
that his seven robbery convictions should only count as a single
predicate offense because they were consolidated into one
judgment. Billups reasserts his Simmons argument in his pro se
brief. Because we vacate his sentence on other grounds, we do
not address this alternative argument.
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2013). To establish plain error, Billups must show “(1) that an
error was made; (2) that the error was plain; and (3) that the
error affected his substantial rights.” Id. at 510. An error
is plain “if the settled law of the Supreme Court or this
circuit establishes that an error has occurred.” Id. at 516
(internal quotation and citation omitted). And, notably,
regardless whether the question was settled when the district
court made its decision, “it is enough that an error be ‘plain’
at the time of appellate consideration” to constitute plain
error. Henderson, 133 S. Ct. at 1130-31 (internal quotation and
citation omitted).
North Carolina 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.” North
Carolina v. Smith, 292 S.E.2d 264, 270 (N.C. 1982). As we
recently have explained, a conviction for North Carolina common
law robbery may be based on the use of only de minimis contact
in accomplishing the taking of another person’s property. See
Gardner, No. 14-4533, slip op. at 17. Because the ACCA’s force
clause requires “force capable of causing physical pain or
injury to another person,” and does not include the “slightest
offensive touching,” we held that North Carolina common law
robbery does not categorically constitute a violent felony under
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the ACCA force clause. 3 See id., slip op. at 16, 18 (quoting
Johnson v. United States, 559 U.S. 133, 139 (2010)).
When Billups was sentenced in the district court, we had
not yet issued our decision in Gardner that North Carolina
common law robbery does not qualify as a violent felony. 4
Nevertheless, to constitute plain error, it is enough that the
district court’s error is plain at the time of our appellate
consideration here. See Henderson, 133 S. Ct. at 1130-31.
Given our conclusion in Gardner, we hold that the district court
plainly erred in determining that Billups’ North Carolina common
law robbery convictions qualified as violent felonies under the
ACCA. This error affected Billups’ substantial rights, because
it triggered the ACCA’s mandatory 15-year minimum sentence, when
he otherwise would have been subject to a maximum sentence of
ten years’ imprisonment. See 18 U.S.C. § 924(a)(2).
Accordingly, we vacate Billups’ sentence applying the ACCA
3We also concluded that North Carolina common law robbery
does not match any of the ACCA’s enumerated offenses, and cannot
qualify as a violent felony pursuant to the ACCA’s invalidated
residual clause. See Gardner, slip op. at 13 n.5.
4Our decision in United States v. Bowden, 975 F.2d 1080,
1082 (4th Cir. 1992), on which the government relies, merely
acknowledged the parties’ agreement in that case, which is not
binding on us here, that North Carolina common law robbery
qualified as a violent felony under the force clause of the
ACCA.
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enhancement, and remand the case to the district court for re-
sentencing.
III.
In accordance with Anders, we have reviewed the entire
record and find no other error. Therefore, we affirm Billups’
conviction, but vacate his sentence and remand the case to the
district court for re-sentencing.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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