Wake Forest Law Review

Weekly Roundup: 2/12-2/16

By: Mary Kate Gladstone & Robert Tucci

U.S. v. Cowden

In this case, the defendant, a former lieutenant with a West Virginia Sheriff’s Office, appealed his conviction for deprivation of rights under the color of law in violation 18 U.S.C. § 242 after he assaulted an arrestee.  On appeal, the defendant argued that the district court erred in admitting evidence of his prior uses of force; that the evidence was insufficient to support his conviction; that the jury was improperly instructed on the elements of the offense; and that he should not have been held liable for injuries to the arrestee when a different officer was the one arresting him, but the Fourth Circuit affirmed on all accounts.

Intl. Refugee Assistance v. Donald J. Trump

This is a consolidated appeal of three separate cases seeking injunctive and declaratory relief, asserting that Proclamation No. 9645, Enhancing Vetting Capabilities and Process for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats, and Executive Order 13,780, Protecting the Nation From Foreign Terrorist Entry into the United States, violate the Immigration and Nationality Act, the Establishment Clause of the First Amendment, the Free Speech and Free Association Clauses of the First Amendment, the equal protection and procedural due process guarantees of the Due Process Clause of the Fifth Amendment, the Religious Freedom Restoration Act, the Refugee Act, and the Administrative Procedure Act. The Fourth Circuit affirmed the preliminary injunction granted by the district court, noting that the Executive Order and Proclamation were “unconstitutionally tainted with animus toward Islam” based on their contents and the context of official statements made by President Trump.

U.S. v. Smith

In this case, defendant Antoine Smith appealed his enhanced prison sentence under 18 U.S.C. § 924(e)(2)(B)(i), the Armed Career Criminal Act (ACCA), arguing that one of his prior convictions, voluntary manslaughter (a North Carolina crime), is not a violent felony within the meaning of the force clause of the ACCA. The Fourth Circuit disagreed, holding that voluntary manslaughter in North Carolina requires an intentional killing, thus involving “the use, attempted use, or threatened use of physical force against the person of another” as required by the force clause of the ACCA.

Salgado-Sosa v. Sessions

In this case, plaintiff and Honduras citizen Reynaldo Salgado-Sosa petitioned for review of the denial of his asylum application, and requested the court to grant a withholding of removal and protection under the Convention Against Torture. In requesting relief, Salgado-Sosa stated that he feared he would face persecution if he was returned to Honduras, as the gang MS-13 has repeatedly attacked his family for resisting extortion demands. The Fourth Circuit vacated and remanded in part, finding that the Board of Immigration Appeals erroneously rejected Salgado-Sosa’s withholding of removal on the grounds that Salgado-Sosa could not establish a “nexus” between MS-13’s threats and membership in a cognizable “particular social group” – his family – and remanded the asylum claim for consideration of whether the untimely application exception in Zambrano v. Sessions is applicable in Salgado-Sosa’s case. 

E.W. v. Dolgos

Plaintiff E.W., a minor and elementary school student, appealed the district court’s grant of summary judgment for defendant Dolgos, a school resource officer, in E.W.’s 42 U.S.C. § 1983 action, which alleged that Dolgos used excessive force in handcuffing a calm and compliant E.W. for an altercation with another student that occurred several days prior, thus violating the Fourth Amendment and several state law claims. The Fourth Circuit affirmed the district court’s decision, finding that Dolgos was entitled to both federal qualified immunity an state statutory immunity under the Maryland Tort Claims Act.

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.

Disposition

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.