Virginia Robbery Can Be Committed By Threatening Accusation of Sodomy

White v. US: In March the Fourth Circuit issued a decision called US v. White, in which the defendant argued that because robbery in Virginia can be committed by threatening to accuse the victim of having committed sodomy it was not a violent felony under the Armed Career Criminal Act. The Fourth Circuit agreed that, if that was the case, it was not a violent felony, but certified the question of the scope of Virginia state law to the Virginia Supreme Court. Now the state supreme court has weighed in and agreed that robbery in Virginia can be committed in that manner.

Robbery in Virginia is not defined by statute, but by the common law. Therefore, the court engaged in a lengthy review of English common law treatises and cases about the scope of robbery. While the offense can be committed with actual violence, it can also be committed via threats and not just of force, but, indeed, of threatening to accuse someone else of having committed sodomy. The court held that “sodomy” in this situation means criminal sexual conduct (crimes “against nature”) as defined by then-current law, but noted that Virginia has several of those offense on the books. While this review might seem like enough to settle the question, the court doesn’t rely on it. Instead, it recognized that it had defined the scope of robbery this broadly in several prior (albeit old) cases and, given the solid foundation on which they were based, could not say they were wrongly decided. It’s up to the Virginia legislature to make changes to the common law. But based on the court’s ruling, White’s sentence should be vacated and he should be resentenced without the ACCA enhancement.