PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19
- 4886

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,

v. TERRY ANTONIO WHITE , Defendant

- Appellant

. Appeal from the United States District Court for the Middle District of North Carolina , at Greensboro

. N. Carlton Tilley, Jr. , Senior District Judge. ( 1:19−cr−00348−NCT−1 )
Argued : December 11, 2020 Decided: February 5, 2021

Before NIEMEYER , KEENAN , and WYNN , Circuit Judges.

Question certified to the Supreme Court of Virginia by published order. Judge Keenan directed entry of the order with the concurrence s of Judge Niemeyer and Judge Wynn

.

ARGUED: Mark A. Jones, BELL, DAVIS & PITT, PA, Winston

- Salem, North Carolina, for Appellant. Michael Francis Joseph, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF: Matthew G.T. Martin, United States Attorney, Terry M. Meinecke, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.2 ORDER

BARBARA MILANO KEENAN , C ircuit Judge:

I. Question Certified The United States Court of Appeals for the Fourth Circuit, exercising the privilege

a fforded by the Supreme Court of Virginia through its Rule 5:40 to certify questions of law to the Supreme Court of Virginia when a question of Virginia law is determinati ve in a pending action and there is no controlling Virginia precedent, requests that the Supreme Court of Virginia exercise its discretion to answer the following question: Under Virginia common law, can an individual be convicted of robbery by means of th reatening to accuse the victim of having committed sodomy? This Court acknowledges that the Supreme Court of Virginia may restate this question.
See Va. Sup. Ct. R. 5:40(d).

II. Nature of Controversy In 2019, Terry Antonio White entered into a plea a greement in federal district court, pleading guilty to the offense of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). In the presentence report, the probation officer3 recommended an enhanced sentence under t he Armed Career Criminal Act (the ACCA), 18 U.S.C. § 924(e), based on White’s prior convictions for three predicate “violent felonies,” namely, common law robbery and breaking and entering under North Carolina law, and common law robbery under Virginia law , an offense committed in 2013. White

o bjected to this sentencing recommendation and argued that Virginia common law robbery does not qualify as a “ violent felony” under the ACCA’s applicable “force clause

. ” See 18 U.S.C. § 924(e)(2)(B)(i) . That provision defines the term “violent felony” as any crime punishable by a term of imprisonment exceeding one year that “ ha s as an element the use, attempted use, or threatened use of physical force against the person of another. ” 1 Id. Relying on Houston v. Commonwealth , 12 S.E. 385 (Va. 1890), and other decisions by the Supreme Court of Virginia issued prior to 19 39 and discussed below, White argued that Virginia common law robbery could be committed without a threat of physical force, namely, by threate ning to accuse the victim of having committ ed sodomy. The district court overruled White’s objection , reaching two conclusions of law relevant to this appeal. First , the district court addressed this Court’s decision in United States v. Winston , 850 F .3d 677, 68 5 (4th Cir. 2017), in which we held that Virginia common law robbery did not qualify as a violent felony under the ACCA , because the state crime could be committed by a de minimis use of force . The district court held that Winston had been
abro gated by the Supreme Court’s decision in Stokeling v. United States , 139 S. Ct. 544,

1 The ACCA also contains a separate “enumerated crimes” clause for defining violent felonies, but that clause is not applicable here. See 18 U.S.C. § 924(e)(2)(B)(ii).4 550 (2019) (holding that a slight use of force is sufficient under the ACCA’s force clause so long as the force overcomes a victim’s resistance)

. Second , the court reje cted White’s assertion that Virginia common law robbery can be committed by accusing the victim of sodomy . The court reasoned that the Supreme Court of Virginia only had referenced this manner of robbery in dicta in cases prior to 1939 , and never had appl ied such a means of robbery to a particular defendant. Accordingly, the district court determined that White qualified for an ACCA sentencing enhancement and imposed the mandatory minimum sentence of 180 months ’ imprisonment. Without the enhancement, White was subject to a statutory maximum sentence of 120 months’ imprisonment. See 18 U.S.C. § 924(a)(2). White t imely appealed to this Court.

III. Legal Discussion and Relevant Virginia Decisions We observe that under Suprem e Court of Virginia Rule 5:40, the question we certify must be determinative of the proceeding. The district court’s application of White’s sentencing enhancement under the ACCA was premised on two conclusions of law that we must address in this appeal: ( 1) whether the Supreme Court’s decision in Stokeling abrogated our decision in Winston , and (2) whether the commission of robbery by threat of accusing the victim of sodomy is a crime under Virginia common law. Because we agree with the district court’s c onclusion that Stokeling invalidated our analysis in Winston , as5 explained below, the question of Virginia law that we present here is dispositive in White’s appeal. 2 We address each issue in turn.
A.
W e agree with the district court’s holding that Stoke ling abrogated our analysis in
Winston regarding the degree of force necessary to commit Virginia common law robbery.
In Winston , we held that “the minimum conduct necessary to sustain a conviction for Virginia common law robbery does not necessarily inc lude the use, attempted use, or threate ne d use of ‘ violent force

. . . capable of causing physical pain or injury to another
person. ’ ” 850 F.3d at 68 5 ( quoting Johnson v. United States , 559 U.S. 133, 140 (20 1 0)).

2 We reject the government’s argument that White’s appeal is barred by the appeal waiv er provisions in his plea agreement. The terms of the plea agreement reserved the right to appeal any sentence imposed “in excess of the statutory maximum , ” singular (emphasis added)

. The agreement plainly stated that White was exposed to a “maximum term of imprisonment provided by law” of ten years , even if it also noted that White “ could be subject to the enhanced penalty provisions of [the ACCA]” (emphasis added). Th e applicable statutory maximum term of imprisonment is ten years , prescribed by 18 U.S .C. § 924(a)(2), which, along with Section 922(g)(1), formed the basis for White’s charged offense. Accordingly, we hold that the waiver provisions in the plea agreement do not bar White’s appeal of his enhanced, fifteen

- year sentence. See United States v. Jones , 743 F.3d 826, 831 n.2 (11th Cir. 2014)

. We also reject White’s argument that the Supreme Court’s decision in Almendarez

Torres v. United States , 523 U.S. 224 (1998), “should be overruled.” In that decision, the Supreme Court recognized an exception to the Sixth Amendment, under which “a sentencing judge [is permitted] to find the fact of a defendant's prior convictions instead of a jury, even when this fact increases the statutory maximum or minimum penalty.” United Sta tes v. Bell , 901 F.3d 455, 467

- 68 (4th Cir. 2018) (describing the holding in Almendarez

Torres ). White contends that when a prior conviction is a factor in setting the punishment for a crime, that conviction is an element of the offense that must be prove d beyond a reasonable doubt under the Fifth and Sixth Amendments. Not only is this Court unable to “overrule” Supreme Court precedent, but we recently rejected a similar argument in Bell , 901 F.3d at 467

- 68.6 We explained that our review of decisions by appellate courts in Virginia demonstrated that “Virginia common law robbery can be committed when a defendant uses only a ‘slight’ degree of force that need not harm a victim,” encompassing a range of de minimis contact by a defendant. Id. Notably, t he parties did not argue, nor did we address in Winston , whether robbery by means of threat ening to accuse the victim of committing sodomy qualified as a crime under Virginia law. Two years after we issued W inston , the Supreme Court of the United States held that a robbery offense that “require[s] the criminal to overcome the victim’s resistance” is sufficient to satisfy the ACCA’s force clause. Stokeling , 139 S. Ct. at 550. “Thus, instead of relying solely on the quantum of force r equired under the state law, the critical factor under Stokeling in determining whether a particular robbery offense satisfies the ACCA’s force clause is whether the offense requires that the offender ‘physically over[come] the victim’s resistance, “howeve r slight” that resistance might be.’” United States v. Dinkins , 928 F.3d 349, 355 (4th Cir. 2019) (quoting Stokeling , 139 S. Ct. at 550). We conclude that this new framework set forth in Stokeling invalidated our analysis
in Winston , in which we held that because Virginia robbery can be committed by a de minimis use of force, the crime did not qualify as a violent felony under the ACCA. See id. at 357

- 58 (holding that after Stokeling , North Carolina common law robbery qualifies as an ACCA predicate an d abrogating United States v. Gardner , 823 F.3d 793 (4th Cir. 2016)). The definition of Virginia common law robbery, as described in decisions issued after 1938 , aligns with the definition of robbery under Florida law that the Supreme Court
in Stokeling d escribed as the “quintessential ACCA

- predicate crime.” Stokeling , 139 S.7 Ct. at 551. Compare Johnson v. Commonwealth , 163 S.E.2d 570, 572

- 73 ( Va. 1968 ) (Virginia robbery is “the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation.” ), with Fla. Stat. § 812.13(1) (defining Florida robbery as “the taking of money or other property

. . . from the person or custody of another,

. . . when in the course of the taking there is the use of force, violence, assault, or putting in fear.”)

. This definition of Virginia common law robbery also aligns with the definition of North Carolina common law robbery which, after Stokeling , we have held qualifies as a violent felony un der the ACCA. 3 See Dinkins , 928 F.3d at 357

- 58. For these reasons, we conclude that the district court correctly held that Stokeling abrogated our prior holding in Winston

. B. Nevertheless, Virginia robbery will not qualify as an ACCA predicate offense if the state crime can be committed purely by intimidation without a “threatened use of force,” namely, by threatening to accuse the victim of sodomy. See 18 U.S.C. § 924(e)(2)(B)(i)

. As we have explained , we must “l ook to state law and the interpretation of [the] offense articulated by that state’s courts” to determine whether a predicate state offense meets the

3 In Winston , we relied on the circumstanc es in Jones v. Commonwealth , 496 S.E.2d 668, 670 (Va. Ct. App. 1998), to demonstrate the use of de minimis force to commit Virginia robbery. In Jones , the defendant’s act of “physically jerking” the victim by pulling her shoulder caused the victim to turn and face the defendant, permitting him to take the victim’s purse from under her arm. Id. at 685. This degree of force, although slight, was sufficient to overcome the victim’s resistance and, thus, under Stokeling would qualify as a violent crime under the ACCA. See Stokeling , 139 S. Ct. at 550.8 definition of the ACCA’s force clause. Dinkins , 928 F.3d at 354 ( internal quotations and citation omitted ). White relies on several decades

- old decisions from the Supreme Court of Virginia that cite the definition of robbery to include a threat ened charge of sodomy, even though

no ne of those decision s involved a defendant charge d under such circumstances

. In
Houston v. Commonwealth , 12 S.E. 385 (Va. 1890), the Supreme Court of Virginia stated that common law robbery includes violence sufficient to “call [] out resistance,” or fear of physical harm, “with the single exception that, if one parts with his good s through fear of a threatened charge of sodomy, the taking is robbery.” Id. at 387 (relying on sources providing the English common law definition for “robbery”); see also Va. Code § 1

- 200 (explaining that “[t] he common law of England , i nsofar as it is n ot repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth , shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly ”). Notably, however, the defendant in Houston presented a firearm and struck the victim. Id

. In Maxwell v. Commonwealth , the Virginia court quoted Houston ’s language regarding the “ sodomy exception ,” but did not apply the exception because the defendant used a pistol to commit the robbery

. 18 3 S .E. 452 , 454 (Va. 1936) ; see also Falden v. Commonwealth , 1 89 S.E. 326, 328 ( Va. 1937) (same); Fleming v. Commonwealth , 196 S.E. 696, 697 (Va. 1938) (same involving physical assault). But see Butts v. Commonwealth , 133 S.E. 764, 767

- 68 (Va. 1926) (definin g robbery without reference to the threat to charge sodomy exception). And, although reference to threatening to accuse9 a robbery victim of sodomy does not appear in Virginia court decisions after 1938, we have found no decision eliminating this means of committing robbery from the common law of Virginia. Moreover, we observe that Virginia Code § 18.2

- 58, the statute addressing punishment for robbery, when detailing various means of commission of the crime, does not mention robbery by threatening to accus e the victim of sodomy. However, this Court is aware that Section 18.2

- 58 does not define the common law crime of robbery, but rather fixes the punishment applicable to certain means of commission of robbery. See Commonwealth v. Hudgins , 611 S.E.2d 362, 365 (Va. 2005) (explaining that Section “18.2

- 58 prescribes the punishment for robbery but does not define the offense”). Accordingly, Section 18.2

- 58 is not dispositive of the question presented, because “we look to the common law for [the crime’s] defin ition.” Durham v. Commonwealth , 198 S.E.2d 603, 605 (Va. 1973). For these reasons, we have found no controlling Virginia precedent to guide our decision. In short, we are uncertain whether the Supreme Court of Virginia would conclude that common law ro bbery can be committed by means of threatening to accuse the victim of sodomy. Accordingly, we respectfully request that the certified question be answered.

IV. Certified Questions Determine This Proceeding As required by the Supreme Court of Virgini a Rule 5:40, the question we have certified is determinative of the proceeding before us . If the answer to the certified question10 is “no,” then the district court’s decision that Virginia common law robbery qualifies as a predicate violent felony under th e ACCA was correct, and the judgment imposing White’s sentence will be affirmed. If, however, the answer to the certified question is “yes,” then Virginia common law robbery can be committed without proof of the use, attempted use, or threatened use of ph ysical force, and does not qualify as an ACCA predicate under 18 U.S.C. § 924(e)(2)(B)(i) . In that case, White’s enhanced sentence would be invalid, and we would vacate the district court’s judgment and remand the case to the district court for resentencing.

V. The Parties and Their Counsel
A. The Plaintiff

- Appellee is the United States of America. Counsel for the Plaintiff

Appellee is: Terry Michael Meinecke, Assistant U.S. Attorney, NCSB number 27586, usancm.ecfcentral@usdoj.gov Office of the United States Attorney Middle District of North Carolina 4th Floor 101 South Edgeworth Street Greensboro, NC 27401 (336) 333

- 5351 (Telephone)

B.11 The Defendant

- Appellant is Terry Antonio White. Counsel for the Defendant

- Appellant is:
Mark A. Jones, NCSB number 36215, mjones@belldavisp i tt.com Bell, Davis & Pitt, PA 100 North Ch erry Street Suite 600 Winston

- Salem, NC 27101 (336) 714

- 4122 (Telephone)

VI. Conclusion
Under the privilege made available by the Supreme Court of Virginia Rule 5:40, we respectfully:

(1) Certify the question stated in Part I of this Order of Certification to the Supreme Court of Virginia for resolution; (2) Order the Clerk of this Court to forwa rd to the Supreme Court of Virginia, under the official seal of this C ourt, a copy of this Order of Certification, together with the original or copies of the record before this Court to the extent requested by the Supreme Court of Virginia; and (3) Order tha t any request for all or part of the record be fulfilled by the Clerk of this C ourt simply upon notification from the Clerk of the Supreme Court of Virginia.

QUESTION CERTIFIED12 FOR THE COURT Barbara Milano Keenan Circu it Judge