Friday, December 08, 2017

North Carolina Robbery Matches "Generic" Robbery Listed In Guidelines

US v. Gattis: Gattis was convicted of being a felon in possession of a firearm. Of the many Guideline calculation issues in his case the primary one was whether his prior conviction for robbery in North Carolina was a "crime of violence" that would drive up his base offense level. Gattis was sentenced under the current/post-Johnson Guidelines, so to qualify as a crime of violence it either had to involve as an element the use of force or match one of the offenses specifically set forth in the Guidelines - which now includes robbery. The district court concluded it did qualify as a crime of violence and sentenced Gattis accordingly.

On appeal, the Fourth Circuit affirmed. The court recognized that, based on Gardner, robbery in North Carolina does not require the use of "violent force" and could not qualify as crime of violence under the force clause. Therefore, the court dove into, for the first time so far as I can tell, defining what "generic" robbery under the Guideline meant. The court ultimately rejected the Model Penal Code formulation in favor of the one used by Professor LeFave. This is because the MPC version - which requires "serious bodily injury" (or the threat thereof) has "not been widely adopted" in the states. Instead, relying on LeFave, the court concluded that "generic robbery is defined as the 'misappropriation of property under circumstances involving [immediate] danger to the person.'" The court went on to concluded that "immediate danger" is "categorically satisfied by the taking of property 'from a person or a person's presence by means of force or putting in fear.'" It distinguishes robbery from larceny from the person as occurring "only when the offender takes property by using force or by threatening immediate physical harm." Such a threat "may be express or implicit but it must be sufficient to include the victim to part company with the property." Applying this definition, North Carolina robbery was a "clean match" where "North Carolina common law robbery is thus subsumed within - and is a categorical match with - generic robbery." The amount of force necessary to match the generic offense is less than needed under the force clause.

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