Wake Forest Law Review

By John Van Swearingen

On March 13, 2017, the Fourth Circuit issued a published opinion in the criminal case United States v. Winston. Robert Winston (“Appellant”), currently serving a 275-month sentence for a federal firearms charge from 2002, filed a motion for post-conviction relief under 28 U.S.C. § 2255 (2012) in the United States District Court for the Western District of Virginia. Appellant asserted the sentencing enhancements applied to his case were invalidated by Johnson v. United States (“Johnson II“), a 2015 Supreme Court decision striking part of the Armed Career Criminal Act (“ACCA”) and narrowing the scope of “violent felonies” included thereunder. No. 13–7120, slip op. at 15 (U.S. June 26, 2015). The district court rejected Appellant’s arguments. On appeal, the Fourth Circuit reversed the district court, holding Virginia’s common law robbery no longer qualified as a “violent felony” under the ACCA, and remanded the case for further proceedings.

Facts and Procedural History

In 2002, Appellant was sentenced to 275 month’s imprisonment for a federal firearms charge. Appellant’s sentence was enhanced under the ACCA, which mandates a fifteen-year minimum sentence for any person convicted of a firearms offense who has three prior “violent felonies” or serious drug offenses. At the time, the ACCA had categories of “violent felonies:” those established under the statute’s force clause and those under the statute’s residual clause, which included burglaries, arsons, and any other conduct that posed a serious risk of injury to another person. Appellant had four prior then-qualifying convictions: (1) rape under the Uniform Code of Military Justice (“UCMJ”), (2) common law robbery in Virginia, (3) possession of cocaine with intent to distribute in Virginia, and (4) a federal conviction for distribution of cocaine base.

After the Supreme Court published its 2015 opinion in Johnson II, which limited the definition of “violent felony” under the ACCA by striking the residual clause for vagueness, Appellant filed the instant action asserting that neither the UCMJ rape conviction nor the Virginia robbery conviction satisfied the new definition of “violent felony.” Without the ACCA sentencing enhancements, Appellant’s maximum sentence in 2002 would have been ten years, meaning Appellant would be immediately available for release.

The district court has not yet addressed Appellant’s rape conviction. The matter before the Fourth Circuit focused solely on Appellant’s common law robbery conviction. The government argued two points to challenge Appellant’s motion for relief. First, the government argued that, since Appellant could not prove that his robbery conviction was defined a “violent felony” under the now-stricken residual clause of the ACCA, Appellant did not rely on a new rule of constitutional law and was thus foreclosed from requesting relief. Second, the government argued that common law robbery still satisfied the limited definition of “violent felony” under the ACCA.

The district court disagreed with the government’s procedural assertion but agreed with the government’s substantive assertion, and it accordingly held the Virginia crime of common law robbery was a “violent felony” under the ACCA. Appellant timely filed the instant appeal.

Appellant Relied on a New Rule of Constitutional Law for the Motion for Post-Conviction Relief.

28 U.S.C. §§ 2244(b)(2)(A), 2244(b)(4) (2012) requires that motions for post-conviction relief rely on a new rule of constitutional law. The record never established that Appellant’s common law robbery conviction was only considered for enhancement by the sentencing court under the residual clause of the ACCA struck in Johnson II. Thus, the government argued, Appellant could not show reliance on the holding in Johnson II and was, therefore, barred from moving for relief.

The Fourth Circuit agreed with the district court that the sentencing court’s failure to disclose the clause or clauses of the ACCA under which it considered Appellant’s convictions could not be fatal to Appellant’s claim. The Fourth Circuit held that any movant seeking post-conviction relief, where that movant’s conviction may have been enhanced based on the now-void residual clause struck in Johnson II, may challenge their sentence. To hold otherwise, according to the Fourth Circuit, would punish defendants for a sentencing court’s discretion in failing to disclose the clauses of the ACCA under which it evaluated the defendant’s enhancements.

The Virginia Crime of Common Law Robbery Is Not a Violent Crime under the ACCA

Appellant challenged the district court’s holding that the Virginia crime of common law robbery was a “violent felony” under the ACCA. Since the residual clause was struck from the ACCA, all violent felonies must meet the definition established in the statute’s force clause, 18 U.S.C. § 924(e)(2)(B)(i) (2012), which requires an element of “use, attempted use, or threatened use of physical force against the person of another.” The force clause was clarified in the Supreme Court’s 2010 decision in United States v. Johnson (“Johnson I”), which defined “physical force” in the statute to mean only “violent force” that could cause injury or pain. No. 08–6925, slip op. at 6 (U.S. Mar. 2, 2010).

The Fourth Circuit noted that the Supreme Court’s decision in Moncrieffe v. Holder required the reviewing court to consider the “minimum conduct criminalized” by a state criminal law. No. 11–702, slip op. at 5 (U.S. Apr. 23, 2013). In Virginia, a common law robbery conviction can be sustained where a defendant steals the property of another by “violence or intimidation.” Pierce v. Commonwealth, 138 S.E.2d 28, 31 (Va. 1964). The “violence” element of the crime can be satisfied by the bare minimum of physical force needed to overcome a victim’s resistance. Maxwell v. Commonwealth, 183 S.E. 452, 454 (Va. 1936).

A conviction for common law robbery could therefore be sustained where only a minimum amount of “violence” is used – for example, turning someone’s body in order to grab their purse. Injurious “violent force” is not an element of the crime. The crime is therefore not a “violent felony” for sentencing enhancements under the ACCA. Thus, the Fourth Circuit reversed the district court’s holding and held the Virginia crime of common law robbery did not meet the standard set by the force clause of the ACCA, as clarified in Johnson I.


The Fourth Circuit affirmed the district court’s holding regarding the procedural matter but reversed the district court’s substantive holding regarding the status of common law robbery as a “violent felony.” Thus, the district court’s judgment was vacated, and the case was remanded for further consideration regarding Appellant’s rape conviction under the UCMJ.


By Eric Jones

On July 17, 2015, the Fourth Circuit issued a published opinion in the criminal case United States v. Watson.  John Watson, Jr. appealed to the Circuit asking that an order to forcibly medicate him with antipsychotics in order to render him competent to stand trial be reversed.  Because the government failed to establish by clear and convincing evidence that the involuntary medication was substantially likely to restore Watson’s competency, the Fourth Circuit reversed without remand.

The Attempted Destruction of an Aircraft and Medical Opinions

On September 28, 2012, Watson fired a handgun at a Coast Guard helicopter as it flew overhead.  The helicopter was undamaged, and none of the crew members were injured.  After his arrest, Watson was interviewed by a clinical psychologist and informed her that he was a covert operative for the British Special Forces, and had been since he was seven years old.  Watson believed that as a covert operative for the United Kingdom, he was entitled to diplomatic immunity.  It was concluded that Watson was incompetent to stand trial, and he was later diagnosed with Delusional Disorder, Persecutory Type, which is a rare mental illness characterized by the presence of one or more delusions that persist for at least a month.

Watson had never been medicated before, but an expert for the government nevertheless believed that antipsychotic medicine had a good chance of rendering him competent.  This opinion was based on the expert’s prior experience with psychotic patients, and the existing literature on the efficacy of antipsychotics.  Defense expert Dr. James H. Hilkey argued that there was very little existing literature involving double-blind studies on the efficacy of pharmacological treatment of Delusional Disorders.  Hilkey further argued that the Persecutory Type of the disorder was the most resistant to treatment, and opined that the chronic nature of Watson’s illness made treatment less likely to succeed.  Both experts agreed that Watson was not likely to be a threat to himself or to others, given the nature of his delusions.

The Standard for Forcible Medication

If a defendant is not a threat to himself or others, four factors laid out in the Supreme Court case Sell v. United States, 539 U.S. 166 (2003) must be met before he can be forcibly medicated for the sole purpose of rendering him competent to stand trial.  It is important to note that this is an exceptional and rare solution, and is granted only with significant vigilance because of the inherent deprivation of liberty that accompanies the administration of medication which alters the will and mind of the subject.  Each element must be shown by clear and convincing evidence.  First, the government must show that important governmental interests are at stake, and that special circumstances do not mitigate those interests.  Second, the government must show that involuntary medication significantly furthers those interests, which requires proof that the medication is substantially likely to render the defendant competent as well as that it is substantially unlikely to have side effects that will interfere with the defendant’s ability to assist counsel.  Third, the medication must be necessary to further the government’s interests, and less intrusive means must be unlikely to achieve the same results.  Fourth, the court must find that the administration of the drugs is medically appropriate and is in the defendant’s best medical interests.

A magistrate judge recommended that Watson be forcibly medicated, relying on the government’s expert and disregarding Hilkey’s testimony.  The District Court for the Eastern District of Virginia issued a brief order adopting the magistrate’s recommendations, and granting the government’s motion for involuntary medication.  This appeal followed.

The Likelihood of Forcible Medication to Render Watson Competent

The result in this appeal turned on the second prong of the Sell test—whether forcible medication was substantially likely to render Watson competent to stand trial.  In order to support this finding, the Fourth Circuit noted that the proposed treatment plan must be effective for this particular patient, and not simply that it is a generally effective treatment for the medical condition at issue.  In this case, the government’s expert opined that the treatment was likely to be successful based only on his own previous patients and on medical literature. Notably absent was any consideration of Watson’s particular circumstances or condition.  The Fourth Circuit explained that the extraordinary nature of forcible medication requires such particular and specific consideration, and thus held that the District Court had erred.

The Government Could Not Meet Their Burden on the Existing Record

Generally, an appellate court will remand for further consideration in cases similar to this.  Here, the Fourth Circuit took the rare position that a remand would be inappropriate because the burden could not be met by the government.  As explained above, the Circuit examined the evidence offered by the government and found it to be severely lacking.  Upon consideration of Hilkey’s testimony, the Fourth Circuit further held that the clear and convincing standard could not possibly be met.  Hilkey’s arguments focused extensively on Watson’s particular circumstances, and largely discredited the government’s evidence.  For instance, many of the studies cited dealt with psychotic disorders in general, and not delusional disorders in particular.  Furthermore, these studies showed questionable success rates at best with antipsychotic medication, especially in patients with Watson’s illness.  Additionally, based on Watson’s persecutory and paranoid delusions, Hilkey concluded that forcible medication was likely to increase Watson’s fears of persecution.  Given the concerns raised by Hilkey, the total lack of support offered by the government, and the fact that the standard had been established over a decade ago, the Fourth Circuit held that a remand would be ineffective and inappropriate.

The Fourth Circuit Reversed without Remand

One judge dissented, arguing that the standard was met, and that even if it was not, the case should be remanded rather than simply reversed outright.  However, because forcible medication was not substantially likely to render Watson competent, the Fourth Circuit reversed the District Court.  Furthermore, because the Circuit held that the standard could not be met given the facts in this case, the Court refused to remand.