United States v. Kareem Doctor

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4764

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KAREEM ANTWAN DOCTOR,

Defendant – Appellant,

Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, Senior
District Judge. (2:13-cr-00811-PMD-1)

Argued: September 23, 2016 Decided: November 21, 2016

Before GREGORY, Chief Judge, and WILKINSON and DIAZ, Circuit
Judges.

Affirmed by published opinion. Chief Judge Gregory wrote the
opinion, in which Judge Wilkinson and Judge Diaz joined. Judge
Wilkinson wrote a separate concurring opinion.

ARGUED: Emily Deck Harrill, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Columbia, South Carolina, for Appellant. Robert Frank
Daley, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Columbia,
South Carolina, for Appellee. ON BRIEF: William N. Nettles,
United States Attorney, Columbia, South Carolina, Sean Kittrell,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charleston, South Carolina, for Appellee.
GREGORY, Chief Judge:

Kareem Antwan Doctor appeals his fifteen-year sentence for

unlawful possession of a firearm. The district court imposed an

enhanced sentence pursuant to the Armed Career Criminal Act

(“ACCA”), 18 U.S.C. § 924(e), after finding that Doctor had two

predicate drug offenses and one predicate violent felony.

Doctor challenges the district court’s determination that his

prior conviction for South Carolina strong arm robbery qualifies

as a violent felony under the ACCA. Finding no error with the

district court’s application of the ACCA enhancement, we affirm.

I.

In April 2012, North Charleston police officers received a

call from a woman who alleged that Doctor had stolen a cell

phone and was inside the residence at 5309 Alvie Street with a

gun. The officers arrived on the scene and, after reading

Doctor his Miranda rights, questioned him about the firearm.

Doctor led the officers to a .380 caliber pistol on the couch.

Doctor eventually pleaded guilty to being a felon in possession

of a firearm in violation of 18 U.S.C. § 922(g)(1).

The probation officer recommended that Doctor be sentenced

under the ACCA, which mandates a minimum of fifteen years’

imprisonment for a defendant who violates § 922(g) and “has

three previous convictions” for a “violent felony or a serious

2
drug offense, or both.” 18 U.S.C. § 924(e)(1). Doctor had two

prior convictions for possession with intent to distribute

cocaine, which he did not contest qualified as serious drug

offenses, as well as a prior conviction for South Carolina

strong arm robbery (“South Carolina robbery”). 1 At sentencing,

the district court held, over Doctor’s objection, that the

robbery conviction was an ACCA violent felony. The district

court designated Doctor an armed career criminal based on his

three predicate offenses and imposed the mandatory minimum

sentence of fifteen years.

II.

We review de novo whether a prior conviction qualifies as

an ACCA violent felony. United States v. Hemingway, 734 F.3d

323, 331 (4th Cir. 2013). The ACCA defines “violent felony,” in

pertinent part, as “any crime punishable by imprisonment for a

term exceeding one year” that “has 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). 2 The issue on

1
South Carolina strong arm robbery and common law robbery
are “synonymous terms for a common law offense whose penalty is
provided for by statute.” State v. Rosemond, 560 S.E.2d 636,
640 (S.C. Ct. App. 2002) (footnote omitted). For ease of
reference, we refer to the offense as South Carolina robbery.
2
The ACCA separately defines “violent felony” as “any crime
punishable by imprisonment for a term exceeding one year” that
(Continued)
3
appeal is whether South Carolina robbery meets the definition of

violent felony in § 924(e)(2)(B)(i), known as the “force

clause.”

To determine whether South Carolina robbery matches this

definition and can thus be used to enhance a criminal sentence,

we apply the “categorical approach.” United States v. Baxter,

642 F.3d 475, 476 (4th Cir. 2011). The categorical approach

directs courts to examine only the elements of the state offense

and the fact of conviction, not the defendant’s conduct. 3 Id.

In conducting this analysis, “we focus ‘on the minimum conduct’”

required to sustain a conviction for the state crime, United

States v. Gardner, 823 F.3d 793, 803 (4th Cir. 2016) (quoting

Castillo v. Holder, 776 F.3d 262, 267 (4th Cir. 2015)), although

there must be a “realistic probability, not a theoretical

possibility,” that a state would actually punish that conduct,

“is burglary, arson, or extortion, involves use of explosives,
or otherwise involves conduct that presents a serious potential
risk of physical injury to another.” 18 U.S.C.
§ 924(e)(2)(B)(ii). That subsection has no application here, as
robbery is not an enumerated crime and the Supreme Court deemed
the clause concerning risk of physical injury unconstitutionally
vague in Johnson v. United States (“Johnson II”), 135 S. Ct.
2551, 2557 (2015).
3 Courts apply the “modified categorical approach” where the
prior state offense is divisible, meaning it sets out multiple
elements in the alternative and at least one set of elements
matches the federal definition. Descamps v. United States, 133
S. Ct. 2276, 2284 (2013). Because South Carolina robbery is a
nondivisible offense, the modified categorical approach “has no
role to play in this case.” Id. at 2285.

4
id. (quoting Moncrieffe v. Holder, 133 S. Ct. 1678, 1684-85

(2013)). We look to state court decisions to determine the

minimum conduct needed to commit an offense, id., and to

identify the elements of a state common law offense, Hemingway,

734 F.3d at 332. We then compare those elements to the

definition of violent felony in the force clause.

In State v. Rosemond, the South Carolina Supreme Court

defined robbery as the “felonious or unlawful taking of money,

goods, or other personal property of any value from the person

of another or in his presence by violence or by putting such

person in fear.” 589 S.E.2d 757, 758 (S.C. 2003). A defendant

can thus commit robbery in South Carolina by alternative means

of “violence” or “intimidation.” Id. at 758-59. When

evaluating intimidation, courts ask whether an “ordinary,

reasonable person in the victim’s position would feel a threat

of bodily harm from the perpetrator’s acts.” Id. at 759 (citing

United States v. Wagstaff, 865 F.2d 626 (4th Cir. 1989)).

If either robbery by means of violence or by means of

intimidation fails to match the force clause definition, the

crime is not a violent felony. See Gardner, 823 F.3d at 803.

Doctor offers several reasons why South Carolina robbery is not

a categorical match, largely focusing on robbery by

intimidation. He first contends that a robber may intimidate a

5
victim without “the use, attempted use, or threatened use of

physical force.”

A review of South Carolina law reveals, however, that

intimidation necessarily involves threatened use of physical

force. The South Carolina Supreme Court has indicated that a

robber intimidates a victim by threatening force. See State v.

Mitchell, 675 S.E.2d 435, 437 (S.C. 2009) (stating that robbery

involves either “employment of force or threat of force”)

(quoting State v. Moore, 649 S.E.2d 84, 88 (S.C. Ct. App.

2007)). The issue, then, is whether intimidation under South

Carolina law requires the force threatened to be “physical

force” within the meaning of the ACCA. The Supreme Court has

defined “physical force” as “violent force--that is, force

capable of causing physical pain or injury to another person.”

Johnson v. United States (“Johnson I”), 559 U.S. 133, 140

(2010). To constitute intimidation in South Carolina, a robbery

victim must “feel a threat of bodily harm” based on the

defendant’s acts. Rosemond, 589 S.E.2d at 759. We find that

these two standards align. There is no meaningful difference

between a victim feeling a threat of bodily harm and feeling a

threat of physical pain or injury. See United States v. McNeal,

818 F.3d 141, 154 (4th Cir. 2016). It follows that to

constitute intimidation in South Carolina, a robbery victim must

feel a threat of physical force based on the defendant’s acts.

6
In other words, a defendant intimidates a victim by threatening

physical force.

Notably, the South Carolina Supreme Court modeled its

definition of intimidation in robbery cases after the one this

Circuit uses in federal bank robbery cases under 18 U.S.C.

§ 2113(a). The Rosemond definition--whether an ordinary victim

feels a threat of bodily harm from the robber’s acts--adopts and

indeed cites the definition from our Wagstaff decision.

Rosemond, 589 S.E.2d at 759 (citing Wagstaff, 865 F.2d at 626);

see Wagstaff, 865 F.2d at 627 (“[T]aking ‘by intimidation’ under

section 2113(a) occurs when an ordinary person in the teller’s

position reasonably could infer a threat of bodily harm from the

defendant’s acts.” (emphasis omitted) (quoting United States v.

Higdon, 832 F.2d 312, 315 (5th Cir. 1987)). This Court recently

confirmed in McNeal that intimidation in the context of

§ 2113(a) bank robbery necessarily entails a threat of violent

force. 818 F.3d at 153. Because South Carolina uses

effectively the same definition of intimidation that we use in

§ 2113(a) bank robbery cases, this holding lends persuasive

support to our conclusion here that intimidation in the context

of South Carolina robbery requires the threatened use of

physical force. Indeed, like the defendants in McNeal, Doctor

has not “identified a single [] robbery prosecution where the

7
victim feared bodily harm”--that is, was intimidated--by

“something other than violent physical force.” Id. at 156.

Doctor instead highlights how a defendant can effectuate a

robbery with only a slight threat. He seizes on the following

discussion of constructive force 4 in the South Carolina Court of

Appeals opinion in State v. Rosemond: “[r]egardless of how

slight the cause creating the fear is or by what other

circumstances the taking is accomplished, if the transaction is

accompanied by circumstances of terror, such as threatening by

word or gesture, . . . the victim is placed in fear.” 560

S.E.2d 636, 641 (S.C. Ct. App. 2002) (emphasis added). But

whether a robber’s threat is slight does not resolve the force

clause inquiry; what matters is whether, as Rosemond explains,

the threat creates a fear of bodily injury in a reasonable

person. Under the right circumstances, a slight threat--“you

better hand over the money, or else,” or even just a menacing

stare--can communicate an intent to cause great bodily injury.

Put simply, the slight or implicit nature of a threat does not

render it nonviolent.

4 Though the South Carolina Court of Appeals did not
explicitly define the term, “constructive force” generally means
“[t]hreats and intimidation to gain control or prevent
resistance; esp., threatening words or gestures directed against
a robbery victim.” Constructive Force, Black’s Law Dictionary
(10th ed. 2014).

8
 Doctor next argues that South Carolina robbery is not an

ACCA violent felony because it does not match the force clause

requirement that force be directed “against the person of

another.” Again focusing on robbery by intimidation, he asserts

that a defendant can commit the crime even where his or her

threatening behavior is not specifically aimed at the victim.

Doctor suggests that the facts of Rosemond illustrate that a

defendant can be convicted for applying force against property

rather than people.

The defendant in Rosemond entered a convenience store

around 9:00 p.m. and, after spending a few minutes in the

bathroom, immediately “went behind the counter to the register”

and “glare[d]” at the store clerk who stood “just a few feet”

away. 589 S.E.2d at 758. When the defendant tried and failed

to open the cash register, he grabbed the “heavy” register,

flipped it into the air, picked it up again, and slammed it down

once more, finally popping it open. Id. at 759. The store

clerk testified that she was scared by both the defendant’s

glare and his slamming of the cash register. Id. at 758. The

South Carolina Supreme Court upheld the defendant’s conviction,

finding that a reasonable person in the clerk’s position “would

have felt a threat of bodily harm from petitioner’s acts.” Id.

at 759. The court, then, did not affirm just because the clerk

was generally fearful during the defendant’s assault on the cash

9
register. It sustained the conviction after specifically

finding that the defendant’s actions threatened a similar use of

violent force against the clerk. Rosemond thus confirms that a

defendant’s use or threatened use of force must be directed

“against the person of another.” This interpretation makes

sense given that intimidation means the threatened use of

physical force--a concept that, common sense tells us, involves

people. Indeed, the very purpose of threatening physical force

is to prevent a person from resisting the taking. See Rosemond,

560 S.E.2d at 641.

Doctor also argues that South Carolina robbery is not a

violent felony because it can be committed without an

intentional use or threat of physical force. This position is

rooted in Leocal v. Ashcroft, 543 U.S. 1 (2004), which

considered whether Florida’s offense of driving under the

influence of alcohol constituted a “crime of violence” under the

force clause in 18 U.S.C. § 16(a). There, the Supreme Court

held that the ordinary meaning of “use . . . of physical force

against” a person “most naturally suggests a higher degree of

intent than negligent or merely accidental conduct.” Id. at 9.

Because a Florida conviction for driving under the influence

could be based on negligent or accidental conduct, it lacked the

level of intent needed to be a crime of violence. Id. at 9-10.

We later held that an assault conviction premised on reckless

10
force was not a crime of violence for the same reason. See

Garcia v. Gonzales, 455 F.3d 465, 468-69 (4th Cir. 2006).

South Carolina robbery incorporates the elements of

larceny, which includes an intent to steal, see Broom v. State,

569 S.E.2d 336, 337 (S.C. 2002), but it does not contain an

explicit mens rea requirement as to the force or intimidation

element. Doctor takes this to mean that South Carolina robbery

lacks the intent requirement needed for it to qualify as a

violent felony. But he fails to cite a single case in South

Carolina where a defendant negligently or recklessly used force

in the commission of a robbery, 5 or where a defendant negligently

or recklessly intimidated a victim. This is unsurprising

because the intentional taking of property, by means of violence

or intimidation sufficient to overcome a person’s resistance,

must entail more than accidental, negligent, or reckless

conduct. In considering § 2113(a) bank robbery, the Supreme

Court held that the crime requires general intent, meaning a

5
Doctor does point us to United States v. Dixon, in which
the Ninth Circuit concluded that robbery under California Penal
Code § 211 could be committed with accidental force. 805 F.3d
1193, 1197 (9th Cir. 2015). That holding, however, hinged on a
stranger-than-fiction California Supreme Court case where a
defendant broke into an unoccupied car in a parking garage,
stole the car, and then accidentally ran over the car’s owner
after exiting the garage. Id. (discussing People v. Anderson,
252 P.3d 968 (Cal. 2011)). We have found no indication that a
defendant can similarly commit South Carolina robbery with
accidental force.

11
defendant must possess “knowledge with respect to the actus reus

of the crime (here, the taking of property of another by force

and violence or intimidation).” Carter v. United States, 530

U.S. 255, 268 (2000); see also McNeal, 818 F.3d at 155

(recognizing Carter). We see no reason why South Carolina

robbery should be viewed any differently. While hypothetical

scenarios can surely be concocted to support robbery convictions

based on accidental, negligent, or reckless conduct, given the

total absence of case law, there is not a realistic probability

that South Carolina would punish such conduct.

Finally, Doctor argued for the first time at oral argument

that South Carolina robbery can be committed with de minimis

actual force. Several courts have found that if robbery can be

accomplished with minimal actual force--grazing a victim’s

shoulder while lifting a purse, for instance--the crime does not

meet the physical force requirement outlined in Johnson I

(“force capable of causing physical pain or injury to another

person”). See, e.g., United States v. Parnell, 818 F.3d 974,

979 (9th Cir. 2016) (holding that Massachusetts armed robbery,

which requires only “minimal, nonviolent force,” does not meet

the physical force threshold). We reached that result in

Gardner with respect to North Carolina common law robbery.

Gardner, 823 F.3d at 804. In doing so, we cited the Supreme

Court of North Carolina’s statement that “[a]lthough actual

12
force implies personal violence, the degree of force used is

immaterial, so long as it is sufficient to compel the victim to

part with his property.” Id. at 803 (emphasis added) (quoting

State v. Sawyer, 29 S.E.2d 34, 37 (N.C. 1944)).

Here, by contrast, there is no indication that South

Carolina robbery by violence can be committed with minimal

actual force. As noted, South Carolina robbery can be committed

“by violence or putting [a] person in fear.” Rosemond, 589

S.E.2d at 758. Unlike the definition of North Carolina robbery,

the definition of South Carolina robbery does not suggest that

the degree of actual force used is “immaterial.” There is no

general statement from the South Carolina Supreme Court or

intermediate appellate court to that effect. And Doctor

provides no examples of South Carolina cases that find de

minimis actual force sufficient to sustain a conviction for

robbery by violence. 6 Therefore, there is no basis for the

conclusion that South Carolina robbery can be accomplished with

force below the physical force threshold. Recognizing that each

6 At oral argument, defendant’s counsel cited two cases for
the first time--State v. Gagum, 492 S.E.2d 822 (S.C. Ct. App.
1997) and Humbert v. State, 548 S.E.2d 862 (S.C. 2001)--in
support of the argument that South Carolina robbery can be
committed with slight actual force. Neither case, however,
addresses the minimum amount of actual force needed to sustain a
robbery conviction in South Carolina. In fact, it is not clear
from the face of either appellate decision whether the juries
(or, more precisely, at least some of the jurors) convicted the
defendants of robbery by violence or robbery by intimidation.

13
“State is entitled to define its crimes as it sees fit,” McNeal,

818 F.3d at 153, South Carolina robbery differs from North

Carolina robbery in this critical respect.

In sum, South Carolina has defined its common law robbery

offense, whether committed by means of violence or intimidation,

to necessarily include as an element the “use, attempted use, or

threatened use of physical force against the person of another.”

Accordingly, we conclude that Doctor’s prior conviction for

South Carolina robbery qualifies as a predicate violent felony

within the meaning of the ACCA.

III.

For the foregoing reasons, the judgment of the district

court is

AFFIRMED.

14
WILKINSON, Circuit Judge, concurring:

I am pleased to join Chief Judge Gregory’s fine opinion. It

reaches the right result, and for the right reasons. The ACCA’s

force clause covers acts of intimidation and a strong arm

robbery is the quintessential act of intimidation – whether or

not actual physical force is used. This was a point we made in

United States v. McNeal, 818 F.3d 141 (4th Cir. 2016). I hope

that the panel opinion will mark a turning point toward a more

realistic application of the categorical approach, because all

too often that approach has pushed criminal sentencing to the

very last place that sentencing ought to be, that is at an

untenable remove from facts on the ground.

As refreshing as the panel’s analysis is, I write to

express a general concern that the categorical approach to

predicate crimes of violence is moving beyond what the Supreme

Court originally anticipated. Its overactive application is

undermining the efforts of Congress, the role of district courts

in sentencing, and the public’s need for a sense of basic

protection against the most violent forms of criminal behavior.

While it need not be discarded, the categorical approach should

be adapted to return to sentencing courts a greater measure of

their historical discretion.

15
 I.

It surprises me that we have arrived at this point, because

in theory, the categorical approach makes a good deal of sense.

I had high hopes for it. District courts would be spared the

practical difficulties of probing the underlying conduct of

predicate convictions. And the approach promised to strike a

balance between exempting from sentencing enhancements

defendants convicted of non-violent conduct and vindicating

Congress’s desire to punish the most violent recidivists. But

what was fine in theory has sometimes proven to be less so in

practice.

For starters, the purported administrative benefits of the

categorical approach have not always worked as advertised.

Judges have simply swapped factual inquiries for an endless

gauntlet of abstract legal questions. Consider the decisional

costs: Courts must first construe the predicate crime, which

requires combing through state court decisions and “peek[ing]”

at various documents to discern whether each statutory phrase is

a separate element or merely an alternative means of satisfying

the element. See Mathis v. United States, 136 S. Ct. 2243, 2256–

57 (2016). After decoding the definition of the offense, courts

must then assess whether “the minimum conduct criminalized” by

the statutory elements “categorically fits” within the generic

“federal offense that serves as a point of comparison.”

16
Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013). But because

there is no agreed-upon metric for what constitutes a match,

this inquiry also involves an exhaustive review of state law as

courts search for a non-violent needle in a haystack or conjure

up some hypothetical situation to demonstrate that the predicate

state crime just might conceivably reach some presumably less

culpable behavior outside the federal generic.

The Supreme Court has sensibly cautioned judges to use

common sense in applying the categorical approach and not to

indulge in imaginative flights. See Gonzales v. Duenas-Alvarez,

549 U.S. 183, 193 (2007). And yet the insistent injunction that

we begin the inquiry with the presumption that the conviction

“rested upon [nothing] more than the least of th[e] acts”

criminalized, see Johnson v. United States, 559 U.S. 133, 137

(2010), virtually ensures that our legal imagination will be

utilized to posit an outlier set of facts or scenarios. The

upshot of this “counterintuitive” exercise, see Mathis, 136 S.

Ct. at 2251, is that the categorical approach can serve as a

protracted ruse for paradoxically finding even the worst and

most violent offenses not to constitute crimes of violence.

The categorical approach, too aggressively applied,

eviscerates Congress’s attempt to enhance penalties for violent

recidivist behavior. The ACCA addresses the most culpable sector

of the criminal population, the repeat offenders Congress found

17
responsible for the majority of violent crimes in America. H.R.

REP. NO. 98-1073, at 1-3 (1984); S. REP. NO. 98-190, at 5-6

(1983). This is no rookie class of criminals. They are the exact

opposite of those first-offense or non-violent offenders who are

the focus of sensible sentencing reform efforts. Doctor, for

instance, has been convicted of assault and battery of a police

officer, domestic violence, strong arm robbery, and a series of

drug distribution offenses. This cohort of offenders are those

Congress unequivocally sought to “incapacitate.” H.R. REP. NO.

98-1073, at 2; S. REP. NO. 98-190, at 9. Yet the categorical

approach has too often flipped this objective on its head,

facilitating a regime that ostensibly seeks every possible

opportunity to eschew recidivist punishment. Whatever Congress

meant when it tethered the ACCA’s sentencing enhancement to

prior “convictions,” see Taylor v. United States, 495 U.S. 575,

600 (1990), it did not pass a statute aimed at violent acts only

to have patently violent acts called by some other name.

Explanations of the categorical approach repeatedly advance

its sentencing windfall as a necessary consequence. It does not

matter that “a sentencing judge knows (or can easily discover)

that the defendant carried out [a crime of violence].” See

Mathis, 136 S. Ct. at 2251. “Whether the [defendant’s] actual

conduct involved such facts is quite irrelevant.” Moncrieffe,

133 S. Ct. at 1684. The reasons for this contention are well-

18
known and understandable, but I wonder if it is sustainable over

the long term to have a criminal sentencing regime so frankly

and explicitly at odds with reality.

I understand that the ACCA carries a mandatory minimum

term, which already strips trial courts of a portion of their

ability to craft an individualized sentence. But while one may

certainly object to Congress’s overuse of mandatory minimums, it

does not follow that courts should double the damage by

depriving sentencing judges of an additional measure of their

discretion to find facts related to predicate convictions. Many

of the arguments that critics legitimately level at the overuse

of mandatory minimums can likewise be raised against the overuse

of the categorical approach – each removes much needed

discretion from the sentencing court.

The most aggressive applications of the categorical

approach have operated as another exclusionary rule that limits

the ability of courts to see beyond the judicial sanctuary and

to fashion an informed sentence. Even when the record starkly

reveals that the predicate crime was committed in a violent

manner, violent predators are thrown in the hopper with all

other offenders because judges generally may not consider any

facts underlying the predicate offense. The alluring theoretical

terminology of the categorical approach has too often served to

isolate us in a judicial bubble, sealed conveniently off from

19
the real-life dangers that confront American citizens in their

actual lives.

This exclusion is simply contrary to the sentencing

function, which relies on district judges to consider a broad

swath of information bearing on the individual defendant’s

“background, character, and conduct.” See 18 U.S.C. § 3661

(2012). In fact, “[n]o limitation shall be placed” on the

consideration of such information. Id. The Sixth Amendment need

not bar a judge from finding what a previous crime involved or

guilty plea determined. See Mathis, 136 S. Ct. 2258 (Kennedy,

J., concurring) (“Apprendi . . . does not compel the elements

based approach.”). Nonetheless, with an exclusive focus on

elements, we have converted traditional questions of fact into

byzantine questions of law that amount almost to willful

blindness to what the defendant actually did. The categorical

approach thus increasingly transfers the sentencing function

from the trial courts to appellate courts, a turf battle which

the appellate courts may be equipped to win but at the expense

of those whose ground-level view and fact-finding capacities

were heretofore thought to be the heart of the sentencing

function.

II.

This should not mean jettisoning the categorical approach

and its admitted advantages altogether, but rather loosening its

20
present rigid grip upon criminal sentencing. The U.S. Sentencing

Commission has already begun this process: in light of

complaints that the doctrine was “cumbersome and overly

legalistic,” it recently eliminated the categorical approach

from many of the illegal reentry guidelines. See U.S. SENTENCING

COMM’N, AMENDMENTS TO THE SENTENCING GUIDELINES 26 (2016). As judges,

there is a way to apply the categorical approach in a realistic

manner that would serve its original and laudable purposes. The

categorical approach need not be the exclusive standard.

District courts should be free to apply it as the default

inquiry, but should retain the discretion to consider the

defendant’s actual conduct when it can be clearly derived from

the record.

Four Justices have now expressed, albeit for varying

reasons and to varying degrees, some uneasiness with aspects of

the categorical approach. See Mathis, 136 S. Ct. at 2258

(Kennedy, J., concurring); id. at 2263-66 (Breyer, J., joined by

Ginsburg, J., dissenting); id. at 2267-71 (Alito, J.,

dissenting). I recognize of course that four is not five, and we

have an obligation to follow a strict elements-based inquiry so

long as a majority of the Supreme Court adheres to it. The lower

courts have attempted in good faith to do just that. See, e.g.,

United States v. Parral-Dominguez, 794 F.3d 440 (4th Cir. 2015)

(North Carolina conviction for knowingly discharging a firearm

21
into an occupied building was not a crime of violence); United

States v. Shell, 789 F.3d 335 (4th Cir. 2015) (North Carolina

conviction for rape of a mentally disabled person was not a

crime of violence); United States v. Torres-Miguel, 701 F.3d 165

(4th Cir. 2012) (California conviction for threatening to commit

a crime “which will result in death or great bodily injury to

another” was not a crime of violence); United States v.

Hernandez-Montes, 831 F.3d 284 (5th Cir. 2016) (Florida

attempted second-degree murder was not a crime of violence);

United States v. Najera-Mendoza, 683 F.3d 627 (5th Cir. 2012)

(Oklahoma kidnapping was not a crime of violence); United States

v. McMurray, 653 F.3d 367 (6th Cir. 2011) (Tennessee aggravated

assault was not a crime of violence); United States v. Jordan,

812 F.3d 1183 (8th Cir. 2016) (Arkansas conviction for

aggravated assault creating a “substantial danger of death or

serious physical injury” was not a crime of violence); United

States v. Parnell, 818 F.3d 974 (9th Cir. 2016) (Massachusetts

armed robbery was not a crime of violence); United States v.

Cisneros, 826 F.3d 1190 (9th Cir. 2016) (Oregon first-degree

burglary did not “categorical[ly] match” generic burglary and

was not a crime of violence); United States v. Madrid, 805 F.3d

1204 (10th Cir. 2015) (Texas conviction for aggravated sexual

assault of a child was not a crime of violence).

22
 I do not intend to fault the aforementioned cases. Whether

one agrees with them or not (and I often have not), they

conscientiously attempted, as they should have, to apply the

categorical approach correctly. And yet hidden within their

binding holdings are heinous and indisputably violent acts which

sentencing courts might have found if only given the

opportunity. The foregoing is no more than a smattering of cases

that makes no attempt to be exhaustive, but it should serve to

illustrate the windfall that many criminal defendants have

received from having their violent depredations on their fellow

citizens obscured in what two experienced counsel have termed,

perhaps too excitedly, “a morass of jurisprudential goo.” See

STEVEN KALAR & JODI LINKER, FED. DEFENDERS SERVS. OFFICE, GLORIOUS GOO: THE

TAYLOR/SHEPARD CATEGORICAL AND MODIFIED CATEGORICAL ANALYSES 2 (2012) (“It

is particularly glorious goo, because the confusion almost

inevitably helps our clients.”). I acknowledge that the

sentencing enterprise is a matter of endless disputation and

perpetual difficulty. It is hard to get right. But the heart of

the endeavor has historically been the sentencing courts’ fact-

finding capability and guided legal discretion, and the rigid

categorical approach to predicate crimes of violence has blown

us far off course.

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 III.

There is a tension in the way that the Supreme Court is

looking at the role of sentencing judges. One set of cases seeks

to limit the fact-finding prerogative of trial courts, see

Descamps 133 S. Ct. at 2283; Moncrieffe, 133 S. Ct. at 1684,

while another seeks to expand it, see United States v. Booker,

543 U.S. 220 (2005) (holding the Sentencing Guidelines

advisory); Gall v. United States, 552 U.S. 38 (2007) (holding

district court sentencing generally reviewable under an abuse of

discretion standard). Yet although the categorical approach has

diminished district court discretion on predicate crimes of

violence under the ACCA and other recidivist sentencing

enhancements, it is much to be hoped that district judges retain

a large measure of discretion outside the ACCA and similar

“crimes of violence” sentencing frameworks. In other words,

notwithstanding the doubt that has sometimes been thrown on the

very notion of a crime of violence, does there remain a pathway

for district courts to ensure that the worst behaviors are

appropriately sanctioned?

I believe a pathway does exist, and it is one that fully

respects, as it must, both the pronouncements of Congress and

the emphatic support that Supreme Court decisions have given the

superior sentencing vantage point of our trial judges. As I have

noted, Congress and the Supreme Court have accorded a wide

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degree of latitude to trial judges, both in their capacity to

find facts and to fashion an individualized sentence (subject of

course to statutory maximums and minimums). Congress established

a comprehensive set of objectives for sentencing courts to

review in each case, see 18 U.S.C. § 3553(a) (2012), and

prohibited any limitation on the information a court may

consider, see 18 U.S.C. § 3661 (2012). Likewise, in major

sentencing decisions following Booker, the Supreme Court has

envisioned a scheme in which district courts exercise broad

discretion. As the Court emphasized, “[t]he sentencing judge has

access to, and greater familiarity with, the individual case and

the individual defendant before him than the [Sentencing]

Commission or the appeals court.” Rita v. United States, 551

U.S. 338, 357-58 (2007). The trial court, therefore, is not

bound by the advisory Sentencing Guidelines. Id. at 355. Rather,

judges are empowered to make any number of factual

determinations and conduct an “individualized assessment based

on the facts presented.” Gall, 552 U.S. at 50.

Do trial courts then retain significant sentencing

discretion? The signals are mixed. The categorical approach is

restrictive, and yet Gall is expansive. Outside the strictures

of the ACCA and other recidivist enhancements that apply the

categorical approach to predicate crimes of violence, a district

court’s fact-finding capabilities are not so constrained. While

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sentencing judges are confined to a narrow set of record

documents when classifying predicate crimes for a sentencing

enhancement, Shepard v. United States, 544 U.S. 13 (2005), there

is no corresponding “limitation on the district’s court’s

consideration of [factual descriptions of an offense] in

crafting its sentence under § 3553(a).” United States v.

Savillon-Matute, 636 F.3d 119, 124 n.8 (4th Cir. 2011); see also

Booker, 543 U.S. at 233 (“For when a trial judge exercises his

discretion to select a specific sentence within a defined range,

the defendant has no right to a jury determination of the facts

that the judge deems relevant.”).

Of course, the scope of a sentencing court’s discretion to

delve into the facts underlying a conviction rendered in another

forum has never been boundless. Federal sentencing proceedings

are not the presumptive forum – unlike habeas corpus actions -

for overturning prior convictions or entertaining constitutional

challenges to them. See Custis v. United States, 511 U.S. 485,

497 (1994). Yet because no comparable presumption attaches

itself to the factual circumstances of prior criminal behavior –

sentencing hearings are, after all, the designated vehicle for

such inquiries - district courts have the option to assess the

seriousness of past conduct if they so choose. Indeed, it would

be the odd sentencing regime that requires a holistic view of

the defendant to be sentenced, see 18 U.S.C. § 3553(a), and yet

26
prevents district courts from finding that a present or prior

crime was committed in a particularly violent manner.

IV.

Accordingly, as the district court sets about this

discretionary exercise, it has various tools to impose a

stricter sentence if it believes that the categorical approach

is ignoring a violent criminal history or disserving the general

aims of sentencing. To be sure, the Guidelines “provide a

framework or starting point” for the trial judge’s sentencing

determination. See Freeman v. United States, 131 S. Ct. 2685,

2692 (2011). But the Guidelines are just a starting point:

sentencing judges have two options for fashioning a sentence

outside the advisory range. In describing the options, I

apologize for accenting the already familiar, but these

discretionary tools have a renewed salience in light of the

restrictions elsewhere placed upon sentencing our most violent

offenders and on the sentencing judge’s role. Although these

alternate pathways will not repair the entire damage that I

respectfully suggest a rigid categorical approach has done to

congressional intent, it may allow a trial judge to reach an

appropriate sentence by considering the very facts the

categorical approach proscribes.

First, the Guidelines expressly provide for an upward

departure if “reliable information indicates that the

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defendant’s criminal history category significantly

underrepresents the seriousness” of the defendant’s criminal

history or likelihood of recidivism. U.S. SENTENCING GUIDELINES MANUAL

§ 4A1.3(a)(1) (U.S. SENTENCING COMM’N 2015). Among the factors a

court may consider are the factual circumstances and “nature of

the prior offenses.” See id. cmt. n.2(B); see also United States

v. Yahnke, 395 F.3d 823, 825 (8th Cir. 2005) (concluding that

the “violent nature” of a prior conviction “support[ed] a

finding that [defendant’s] criminal-history category

substantially underrepresented the seriousness of his criminal

history”). Our court, for instance, allows a district court to

classify a defendant as a “de facto career offender” if the

defendant’s previous crimes “were sufficiently analogous to

qualifying [violent felonies] that they could be considered for

all intents and purposes” a violent prior offense. See United

States v. Lawrence, 349 F.3d 724, 726 (4th Cir. 2003). To aid

its inquiry, the sentencing judge may consult presentence

reports and consider the extent to which a defendant’s criminal

history was violent. See United States v. Howard, 773 F.3d 519,

530 (4th Cir. 2014); Lawrence, 349 F.3d at 727-30.

Second, the district court has the discretion to impose a

sentence outside the Guidelines range if it finds that the

§ 3553(a) factors justify a variance sentence. See Gall, 552

U.S. at 50-51. Three of those factors are the “nature and

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circumstances of the offense and the history and characteristics

of the defendant,” the need to “afford adequate deterrence,” and

the need to “protect the public from further crimes of the

defendant.” 18 U.S.C. § 3553(a)(1), (a)(2). Here too, the

sentencing court may tailor its sentence to the nature of the

defendant’s conduct, both past and present. There is no formal

limit on the extent of a district judge’s discretion to deviate

from the Guidelines. See Rita, 551 U.S. at 355; United States v.

Rivera-Santana, 668 F.3d 95, 106 (4th Cir. 2012). Nor is there

any restriction on the trial court’s ability to make factual

findings and probe into the circumstances underlying previous

convictions. See United States v. Hargrove, 701 F.3d 156, 164

(4th Cir. 2012); United States v. Diasdado-Star, 630 F.3d 359,

367 (4th Cir. 2011). In the course of this probe, one which does

not implicate the modified categorical approach, the fact that a

document is not Shepard-approved may go more to the weight of

the evidence than to its admissibility. See U.S SENTENCING GUIDELINES

MANUAL § 6A1.3(a) (U.S. SENTENCING COMM’N 2015) (“In resolving any

dispute concerning a factor important to the sentencing

determination, the court may consider relevant information

without regard to its admissibility under the rules of evidence

applicable at trial, provided that the information has

sufficient indicia of reliability to support its probable

accuracy.”).

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 Consistent with Gall’s appreciation that district courts

are “in a superior position to find facts and judge their

import,” all sentencing decisions – “whether inside, just

outside, or significantly outside the Guidelines range” - are

entitled to “due deference” from appellate courts. Gall, 552

U.S. at 39, 51. While a sentencing judge’s explanation for the

sentence must “support the degree of the variance,” a district

court need not find “extraordinary circumstances” to justify a

deviation from the Guidelines. Id. at 47, 50. Rather,

irrespective of the particulars of “the individual case,” a

“deferential abuse-of-discretion standard of review” applies

across the board. Id. at 52. Even when the district court

calculates the Guidelines range incorrectly, appellate courts

may find that the error is harmless if the evidence suggests

that the sentencing judge would have varied from the Guidelines

anyway and reached the exact same result. See Hargrove, 701 F.3d

at 162; Savillon-Matute, 636 F.3d at 123-24.

In stressing the foregoing, I have once again stated only

the obvious, but there are times when even the obvious needs to

be said. The categorical approach might have increasingly

committed the application of specified sentencing enhancements

to the legal rulings of appellate courts, but that does not mean

that district courts are without recourse to ensure that basic

sentencing objectives are respected and achieved. In other

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words, the district court may decide in the face of an

inconclusive record to apply the categorical approach to

predicate offenses, but it also should enjoy the discretion and

the tools to craft a more individualized sentence when such

would serve the ends of justice. Our standard of review under

Gall remains a deferential one. I do not believe, therefore,

that the Supreme Court, through its categorical approach,

intended to incapacitate district courts and require those

courts to stand idly by and let dangerous individuals re-enter

society prematurely. Their future victims may be nameless and

faceless to us, but they will bear the brunt of violent acts in

intensely personal ways.

31