Thursday, July 20, 2017

NC robbery with a dangerous weapon qualifies as ACCA predicate under force clause

US v. Burns-Johnson:  The mandatory minimum 15-year term of imprisonment imposed here was upheld by the Fourth Circuit, which found that even though robbery is not an enumerated offense, statutory armed robbery in North Carolina qualifies as a violent felony under the force clause of the ACCA.  Under a categorical approach, the Fourth Circuit held that robbery with a dangerous weapon categorically qualified as a violent felony under the ACCA force clause.

Burns-Johnson argued on appeal that his prior conviction did not qualify as a violent felony because the crime did not require the use of violent physical force “capable of causing physical pain and injury to another person,” e.g. administering poison.  The Fourth Circuit disagreed, holding that Torres-Miguel was not dispositive here, and even if NC statutory armed robbery could by committed by use of poison, the crime would still entail the use, attempted use, or threatened use of violent physical force under the ACCA, based on its holding in In re Irby and the Supreme Court’s holding in Castleman.

Burns-Johnson also argued that his prior conviction did not constitute a violent felony because it did not explicitly require that a person intentionally use or threaten to use force, which argument the Fourth Circuit foreclosed in its recent decision, United States v. Doctor.  The Fourth Circuit found that it would require the exercise of pure “legal imagination” to suppose that NC appellate courts would apply this statute when a robbery occurred with the unintentional use of a dangerous weapon.

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