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Argument preview: Do “slight force” robberies count for enhancing Armed Career Criminal Act sentences?

Questions arising under the Armed Career Criminal Act have plagued the Supreme Court since the statute was enacted in 1984 and amended in 1986. The statute imposes a 15-year mandatory-minimum imprisonment sentence on federal firearms offenders who have three prior “serious” drug or “violent” felony convictions, even if the prior convictions were under state law. But there is a remarkable variety among the 50 states regarding precisely how state criminal statutes are written, and how exactly those statutes are then interpreted by state courts across the nation. On October 9, the court will spend two hours considering three cases (two are consolidated for the second hour) that reveal, once again, the vagaries of the ACCA. It seems likely that the justices will have all three cases (as well as their prior expressions of unhappiness with the ACCA) in mind during the arguments. So the preview in United States v. Stitt and Sims, as well as this one, should be read for a full picture of the justices’ perspectives.

The first case on the October 9 docket is Stokeling v. United States. The question is what state law crimes of “robbery” should count as prior “violent felonies” under the ACCA. Denard Stokeling was convicted of an unarmed robbery in Florida in 1997; then in 2016 he was convicted federally for being a “felon in possession” of a firearm. If Stokeling’s 1997 prior robbery conviction counts as a “violent felony,” then his federal prison sentence in the current case would increase dramatically, from a 10-year maximum to the ACCA’s 15-year minimum.

The ACCA lists a few specific crimes, such as burglary, arson and extortion, that count as “violent felonies” for the statutory enhancement. Robbery is not on the list (although it was in 1984, before Congress deleted it in 1986). But in addition to listing specific felonies, the ACCA provides a general definition of qualifying “violent felon[ies]:” “[A]ny crime” punishable by more than a year in prison that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” To apply this definition, one might think that a court could look at the facts of Stokeling’s 1997 robbery to see whether it involved physical force. But 28 years ago in Taylor v. United States (1990), the court ruled that because the ACCA definition requires that “an element” of the crime must include physical force, federal courts must use a “categorical” approach to decide whether state-law crimes meet the ACCA definition. In other words, the question for an ACCA “violent felony” becomes whether the state statute that defines the crime, as construed by definitive state-court cases, includes a requirement of physical force. If the state has defined a crime so that it can theoretically be committed without “physical force,” then it does not qualify as a “violent felony” under the ACCA, regardless of how the crime was actually committed by any particular defendant.

Thus for Stokeling, an examination of Florida’s definition of “robbery” (by statute as well as in Florida caselaw) is required. Does it “categorically” require the sort of “physical force” that the ACCA requires?

This is where Stokeling’s case gets murky. In another ACCA case from 2010 (Curtis Johnson v. United States — which is not same Supreme Court ACCA case as the Samuel Johnson v. United States decision from 2015, in which the court struck down as unconstitutionally vague another ACCA definitional section, the “residual clause”), the court defined “physical force” for purposes of the ACCA. Curtis Johnson held that “the phrase ‘physical force’ means violent force – that is, force capable of causing physical pain or injury” — in other words, “force strong enough to constitute ‘power.’” Now, like most states, Florida’s robbery statute defines robbery as taking property from another by “the use of force … or … fear.” In addition, the Florida Supreme Court has ruled that there must be “resistance by the victim that is overcome by the physical force of the offender.” But this is not the end of the debate. Instead – and this is why the case is here — Stokeling argues that Florida caselaw also makes it clear that even “slight force” is sufficient to prove robbery (saying “any degree of force,” in one case). This relatively common doctrine has been developed by some states (but not all) over the years to ensure that “robbery” can reach “snatchings,” such as quickly taking a necklace off a person’s neck or grabbing cash out of their hand. Stokeling argues that Florida state robbery caselaw encompasses such “slight force” robberies, and that it therefore does not “categorically” meet the ACCA’s higher standard of “violent force” under Curtis Johnson.

The U.S. Court of Appeals for the 11th Circuit ruled in Stokeling’s case that the Florida state robbery crime does categorically meet the ACCA definition. But the U.S. Court of Appeals for the 9th Circuit recently ruled to the contrary (in United States v. Geozos, in 2017), finding that only “minimal” force is required under Florida law. Because Florida robbers apparently travel all across the country, the ACCA is invoked wherever they may subsequently commit a federal firearms crime. Certiorari was granted to resolve the circuit split.

At this point, lawyers may recall differing cases and hypotheticals from their 1L Criminal Law class: Does snatching a purse or chain or cash constitute “robbery”? Cases and definitions on this question of “how much force?” are split across the country. The answer is necessary in most states to distinguish simple theft from robbery, which can elevate a misdemeanor to a felony as well as make the difference between probation and prison time. Moreover, the ruling will apply to any other states that define “robbery” as Florida does. Thus the question presented in Stokeling is nationally important, and will affect the administration of the ACCA in federal courts around the country.

For his part, Stokeling points to a number of Florida state-court robbery cases that he says involved “only a slight degree of force.” He argues that the 11th Circuit’s view ignored not only the words but also the definitional spirit of Justice Antonin Scalia’s 2010 Curtis Johnson opinion, in which the “violent” in the ACCA’s “violent felony” was emphasized. He points out that in a subsequent decision (United States v. Castleman, in 2014), the court cited Johnson for the proposition that “the word ‘violent’ … standing alone ‘connotes a substantial degree of force.’” He argues that he should prevail on “a straightforward application of Curtis Johnson.”

Yet the U.S. solicitor general contends that its position is the true Johnson position, and that it is Stokeling who seeks to “deviate from,” “rewrite” or “narrow” that precedent. The government argues that “force sufficient to overcome a victim’s resistance” – the Florida definition of robbery force – “is necessarily ‘force capable of causing physical pain or injury’” (internal quote from Johnson). The government places much reliance on that phrase from Johnson, and then parses the facts of three Florida cash-snatching robbery cases to argue that each involved force “capable of causing injury.” The government argues that, upon such careful analysis, Florida law definitely distinguishes forceful robberies from thefts involving no force, such that all Florida robberies must involve ACCA force. Finally, the government argues that the Supreme Court should accept the 11th Circuit’s assessment of Florida state law, asserting that “this Court typically defers to regional courts of appeal on … construction of state law.” But that unremarkable general idea does not distinguish the “regional court of appeal” construction of Florida law offered by the 9th Circuit in Geozos, which the government’s briefing markedly ignores.

Perhaps most interestingly, the government’s brief places great weight on the legislative history of the ACCA. The original 1984 version specifically listed “robbery” as a violent felony, but in 1986 the statute was amended to omit the term in favor of the current, general definition. As usual, one might draw different conclusions from this fact. The justice most dismissive of legislative history, who wrote Curtis Johnson and was a driving force in many of the court’s other ACCA precedents, was Scalia, now gone. It will be interesting to hear, at argument, what the current justices think of such legislative history reliance.

Ultimately this case may produce just a simple resolution of whether “slight force” robberies should, or should not, satisfy the ACCA’s violent-felony standard. A short and clear answer will leave the lower federal courts with useful certainty, whichever way it goes.

But as I have previously explained for this blog, the “categorical” approach to the ACCA has been questioned by a number of justices. Justices Samuel Alito and Clarence Thomas have consistently argued that it is not definitively required by the statute — and last term Justice Neil Gorsuch stated in Sessions v. Dimaya (concurring) that he “remain[s] open to different arguments about our precedent and the proper reading of language” in the statute. Chief Justice John Roberts also disagreed in Dimaya with the way the “categorical” approach was applied (albeit to a slightly different statute); and Gorsuch noted that “Congress remains free at any time … to write” new statutory definitions. The justices’ discontent with ACCA, and the many circuit splits it produces due to state-law disuniformity, has been growing. Thus, if only eight justices are on the bench to hear argument on October 9, I think there is a possibility of a 4-4 tie here, which could result either in automatic affirmance (the result when the Supreme Court is evenly divided) or (as happened in the 2015 Johnson) in a reargument once the court is back to nine justices. In the 2015 Johnson decision, the justices’ discontent boiled over to declare a nearby definitional section of the ACCA unconstitutionally vague. The October 9 arguments seem likely to provide more fuel for the ACCA fire.

Recommended Citation: Rory Little, Argument preview: Do “slight force” robberies count for enhancing Armed Career Criminal Act sentences?, SCOTUSblog (Oct. 2, 2018, 12:14 PM),