Opinion analysis: Interesting 5-4 coalition holds that the ACCA reaches robberies that require force sufficient to overcome resistance (Corrected)
on Jan 16, 2019 at 7:10 pm
In the first 5-4 decision of this term (Stokeling v. United States), the Supreme Court ruled yesterday that state robbery statutes that require “resistance … overcome by physical force,” even if the force used is “minimal,” are sufficient to satisfy the prior-conviction requirement of the federal Armed Career Criminal Act. This result was not as surprising as the grouping of the justices. Justice Clarence Thomas’ majority opinion was joined by Justice Stephen Breyer, while Justice Sonia Sotomayor’s dissent was joined by Chief Justice John Roberts as well as Justices Ruth Bader Ginsburg and Elena Kagan.
Meanwhile, no justice expressed criticism of the ACCA’s statutory language or structure (something that some, notably Justice Samuel Alito, have done in the past). This is the second ACCA opinion of the term; the opinion in United States v. Stitt back in December was unanimous. Predictions are always risky, but with Justice Antonin Scalia (a repeat critic of the statute) gone, and no court criticism voiced today, perhaps the justices have agreed to silence their previously expressed concerns about the ACCA’s language and application (although the court recently granted review of a third ACCA case, Quarles v. United States).
How do state law robbery statutes interact with the ACCA?
As I wrote in my preview, this case involves the ACCA’s 15-year mandatory minimum sentence enhancement for certain firearms offenders who have three qualifying felony convictions. The question here was whether a state robbery statute that permits conviction when the defendant uses physical “force sufficient to overcome a victim’s resistance” can constitute a prior conviction for a “violent felony” for purposes of applying the ACCA enhancement.
Denard Stokeling was convicted in 2015 of a federal felon-in-possession violation. If his prior 1997 Florida robbery conviction qualified as a “violent felony” under the ACCA, he was required to be sentenced to a minimum term of 15 years in prison. A district judge concluded that the particular facts of Stokeling’s 1997 robbery “did not justify an enhancement” and sentenced him to seven years. The U.S. Court of Appeals for the 11th Circuit, however, noted that it was error for the district court to examine the particular facts; instead a “categorical” examination of the Florida robbery statute was required. Sotomayor’s dissent yesterday provides as simple an explanation of the “categorical approach” to the ACCA as I’ve ever read: “[T]hat method requires asking whether the least culpable conduct covered by the [state] statute ‘has as an element the use, attempted use, or threatened use of physical force.’” The 11th Circuit concluded in Stokeling’s case that the Florida robbery statute, which requires sufficient force to overcome “resistance by the victim,” sufficed to support the ACCA statutory definition.
Yesterday’s majority affirmed the 11th Circuit’s view. Thomas’ opinion is based largely on his evaluation of the common law’s definition of force sufficient to distinguish robbery from simple theft. Citing 1828 and 1903 treatises, Thomas explains that “common-law authorities frequently used the terms ‘violence’ and ‘force’ interchangeably.” The 1905 treatise stated that when a victim’s “resistance is overcome, there is sufficient violence to make the taking robbery, however slight the resistance.” Thomas concludes that Congress intended to adopt this common-law concept in the ACCA, and that Florida’s robbery statute is consistent with it. This is true even though Congress in 1986 dropped the word “robbery” from the ACCA; Thomas pointedly notes that the title of that legislation was “Expansion of Predicate Offenses for Armed Career Criminal Penalties.” He adds that somewhere between 31 and 46 states also appear to have adopted this definition, and that Congress as well as the Supreme Court’s ACCA precedents have expressed a desire to accommodate rather than “render inapplicable” the criminal felony statutes of “many States.”
Responding directly to Sotomayor’s dissent, the majority says that its ruling “comports with Johnson v. United States,” a 2010 Scalia decision finding that mere physical contact was insufficient to meet the “physical force” requirement of the ACCA. (This Johnson is not the same as Scalia’s 2015 decision in a different Johnson case, which held that a related definitional section of the ACCA was unconstitutionally vague.) Thomas accuses Stokeling (and by clear reference, the dissenters) of “cherry pick[ing] adjectives from parentheticals in” Johnson to support an argument that a “heightened degree of force” is required for the ACCA. He then embraces a definition found in Johnson and endorsed last term in Sessions v. Dimaya: “’[P]hysical force’ [in the ACCA] means ‘force capable of causing physical pain or injury.’” This requires, the majority explains, not “likelihood or probability,” but rather “only potentiality.” The bottom line is that although Johnson held that “common-law battery does not require ‘force capable of causing physical pain or injury,’” robbery does, “even if” the pain or injury that could be caused by the force involved in a robbery might be “minimal.”
At 19 pages, Sotomayor’s dissent is half again as long as the majority opinion. More interesting than the details of her arguments, perhaps, is that the chief justice joined her opinion, while Breyer broke ranks with the more liberal justices to provide the deciding vote.
On the merits, Sotomayor concludes that Congress did not, expressly or necessarily, adopt a common-law “minimal force” definition for robbery in the ACCA. Meanwhile, she argues, Johnson clearly decided that “physical force” meant “violent force.” She criticizes the majority for “parsing cherry-picked adjectives” rather than “looking to how Johnson actually answered th[e] question,” and she includes a long block quote from Johnson in which Scalia used the terms “a substantial degree of force” “great physical force” “strong physical force,” and “active violence.” (Scalia took that last phrase from a decision written by Breyer when he was chief judge of the U.S. Court of Appeals for the 1st Circuit.) Even if “any first-year [law] student” learns that minimal force might constitute sufficient force at common law, Sotomayor argues that Johnson clearly indicated that “a heightened degree of force” is required under the ACCA. In writing the ACCA, Sotomayor contends, Congress did not intend that a mandatory 15-year prison term be applied to “glorified pickpockets.” And she accuses the majority of announcing a “brave new world of textual interpretation” and “bury[ing]” Scalia’s first Johnson opinion.
Conclusion
It is perhaps unsurprising that a relatively conservative court has now twice this term ratified broad ACCA statutory applications that tend to favor the government. Yet as I noted above, the court has granted certiorari in another ACCA case to be argued this term (Quarles) and also a case that seeks to further implement the second Johnson’s constitutional vagueness ruling (United States v. Davis). Quarles involves the common-law versus ACCA definitions as they apply to the details of state burglary statutes, and is a follow-on to Stitt. Meanwhile, the defendant in Davis seeks to apply the 2015 Johnson’s unconstitutionally-vague rationale to a neighboring provision of the federal criminal code that employs a definition of “crime of violence” similar to that in the ACCA. Davis is a follow-on not just to the 2015 Johnson, but also to last term’s Sessions v. Dimaya, in which the court decided 5-4 that the similar definition of “violent felony” in an immigration statute was unconstitutionally vague.
The ACCA currently survives as a somewhat schizophrenic (or to use Sotomayor’s phrase from yesterday, “Janus-faced”) criminal sentencing statute: mandatorily harsh for those to whom it is found to apply, yet unconstitutionally vague for other offenders. Yesterday’s opinion seems to cement a majority view that when the court concludes that common law or modern state law is clear, even if harsh, it will not depart from those definitions for ACCA purposes.
A previous version of this post confused two recent grants of certiorari, Quarles v. United States and United States v. Davis. The post has been revised to correct this error.
* * *
Past cases linked to in this post:
Johnson v. United States, 130 S. Ct. 1265 (2010)
Johnson v. United States, 135 S. Ct. 2551 (2015)
Sessions v. Dimaya, 138 S. Ct. 1204 (2018)
