US v. Gardner: A confidential informant’s tip to police lead to a traffic stop of Ezekiel Gardner’s vehicle. A subsequent search of the vehicle yielded a firearm of which the informant had advised police. At his sentencing for being a felon in possession, the district court determined that Gardner was an armed career criminal, based upon three prior convictions for felony common law robbery in North Carolina. In this appeal, Gardner challenged the denial of a pre-trial suppression motion, the denial of his motion for a new trial, and the district court’s determination that he was an armed career criminal. The Fourth Circuit vacated his sentence and remanded on the third issue, finding that the district court erred in sentencing Gardner as an armed career criminal.
North Carolina common law robbery can only qualify as a “violent felony” if it matches the definition of a violent felony under the force clause of ACCA. The Fourth Circuit found that the NC common law robbery may be committed by the alternate means of violence or fear that do not constitute different elements of distinct crimes, making the crime an indivisible offense (modified categorical approach is thus improper). Under categorical approach, to match with the force clause of ACCA, it must necessarily have as an element the “use, attempted use, or threatened use of physical force against the person of another,” which means force capable of causing physical pain or injury to another person, not slight offensive touching. Under NC common law, even de minimus contact can constitute the “violence” necessary for a conviction for common law robbery. The Fourth Circuit concluded that the minimum contact necessary for a NC common law robbery does not necessarily include the force requirement by the force clause of ACCA, so it does not categorically qualify as a “violent felony” under the ACCA.