ACCA Challenge Falls Outside Appeal Waiver; Virginia Robbery May Be ACCA Predicate

US v. White: White pleaded guilty to being a felon in possession of a firearm. At sentencing, the main issue was whether he qualified for sentencing under the Armed Career Criminal Act. The district court concluded that he did, based on a prior Virginia conviction for robbery. White had argued that robbery in Virginia was not a "violent felony" because it could be committed "by means of threatening to accuse the victim of having committed sodomy."

 

On appeal, the Fourth Circuit certified the question of whether robbery in Virginia could be committed that way to the Virginia Supreme Court. White's argument was based on a 1890 state supreme court case in which, nonetheless, the defendant "presented a firearm and struck the victim." Finding "no controlling Virginia precedent to guide our decision," the court certified the question. In doing so, however, the court made to holdings relevant to ACCA issues regardless of how the certified question is answered. First, the court held that the Supreme Court's decision in Stokeling abrogated the Fourth Circuit's decision in Winston that Virginia's common-law based robbery offense did not have an element of violent force. That's why it was necessary to determine the certified question in the first place. Second, the court rejected the Government's attempt to dismiss the appeal altogether because White had waived his right to appeal in his plea agreement. The agreement contained an exception for appealing a sentence "in excess of the statutory maximum," which his ACCA sentence would be if he did not qualify for ACCA sentencing. Note that, regardless of the language in a plea agreement, a defendant can never waive his right not to be sentenced above the applicable statutory maximum, so the holding here really applies to any case where there's an appellate waiver. 

 

UPDATE: The Virginia Supreme Court has answered the court's question, concluding that the force element of robbery can be committed by threatening to accuse another person of sodomy - so it appears a robbery conviction from Virginia will not qualify as a violent felony.