PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

________________ 

No. 16-3995 

UNITED STATES OF AMERICA

v. 

SHAUN L. GRAVES, 

 Appellant 

________________ 

On Appeal from the United States District Court 

for the Middle District of Pennsylvania 

(D. C. Criminal No. 1-15-cr-00158-001) 

District Judge: Honorable William W. Caldwell 

________________ 

Argued on May 24, 2017 

Before: HARDIMAN, ROTH and FISHER, Circuit Judges

(Opinion filed: December 13, 2017) 
2

Ronald A. Krauss, Esq. (ARGUED)

Office of Federal Public Defender

100 Chestnut Street

Suite 306

Harrisburg, PA 17101

Counsel for Appellant

Stephen R. Cerutti, II, Esq. (ARGUED)

Office of United States Attorney

228 Walnut Street, P.O. Box 11754

220 Federal Building and Courthouse

Harrisburg, PA 17108

Counsel for Appellee

________________

OPINION

________________

ROTH, Circuit Judge

Shaun Graves appeals his conviction and sentence for 

unlawful possession of a firearm, arguing that his suppression 

motion was wrongfully denied and that he was improperly 

sentenced as a career offender. For the reasons set forth 

below, we will affirm both the conviction and the sentence.
3

I. FACTS

On the evening of October 16, 2014, Officer Dennis 

Simmons of the Harrisburg Police Department was 

conducting an undercover surveillance operation in a highcrime area of the city while dressed in plainclothes and sitting

in an unmarked car. While in his car, Officer Simmons heard 

a radio dispatch about possible gunshots in an unspecified 

area east of his location. The dispatch went on to describe 

two potential suspects walking away from the location of the 

gunshots: Both men wore dark-colored hooded sweatshirts 

and were described as calmly walking west, away from the 

gunshots. Less than five minutes later, Officer Simmons 

observed two men—including Graves—in dark-colored 

hooded sweatshirts walking west towards Simmons’ vehicle. 

Officer Simmons then drove around the block to the next 

street in order to intercept the two men. At this point, he 

noticed Graves walking with a “pronounced, labored” gait 

suggesting that “he may have concealed something heavy in 

his waistband or pocket on [his right] side.”1

 Officer 

Simmons also testified that Graves held his arms in a tense 

manner, further suggesting that he was armed.

As Graves and the other individual passed Officer 

Simmons’ vehicle, Officer Simmons made eye contact with 

Graves; Graves raised his hands over his head in the shape of 

a Y, and Officer Simmons nodded. Officer Simmons testified 

at the suppression hearing that Graves’ behavior “was 

consistent with a drug dealer or someone who sells something 

illegal in the street.”2 Officer Simmons admitted, however,

 1 JA 25.

2 JA 27.
4

that “it could be more like a challenge, more or less someone 

saying what are you looking at, why are you looking at me 

that way.”3

 Officer Simmons then proceeded to drive one 

block south and wait. Graves left his companion and turned 

south, walking directly towards Officer Simmons’ car at a 

quickened pace. As Graves neared the vehicle, Officer 

Simmons displayed his badge, yelled “Police,” and 

handcuffed Graves. 

Believing that there was a possibility that Graves was 

armed, Officer Simmons conducted a pat-down search of 

Graves’ clothing. During this pat-down, Officer Simmons 

felt “multiple small hard objects” in both of Graves’ front 

pockets. The feel of these objects was consistent with that of 

crack cocaine.4

 Officer Simmons proceeded to remove the 

objects from Graves’ pockets. They turned out to be multiple 

packets of the antidepressant Depakote5 and one live .22 

caliber bullet. At this point, other officers arrived. After 

being read his rights, Graves told Officer Simmons that he 

carried the bullet as a tribute to his brother, who had been 

killed by a .22 caliber weapon. Graves did not answer Officer 

Simmons’ questions about whether he had a gun for the 

bullet. Officer Simmons then placed Graves in another 

officer’s vehicle, and Graves was taken approximately two 

blocks south. Upon further questioning, Graves admitted that 

he had a loaded .380 pistol in his boot, where it had fallen 

 3 Id.

4 JA 31.

5 Depakote, a prescription medication for certain mental 

health conditions, is not a controlled substance for purposes 

of federal law. Graves purportedly told Simmons, however, 

that he planned to sell the Depakote as crack cocaine. 
5

from his waistband during his arrest. Graves maintained, 

however, that he was holding the gun only temporarily for his 

companion.

Graves was subsequently charged with one count of 

possession of a firearm with an obliterated serial number in 

violation of 18 U.S.C. §§ 922(k) and 924(a)(1)(B) and one 

count of unlawful possession of a firearm in violation of 18 

U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e). He filed a motion 

to suppress all physical evidence and statements obtained at 

the time of his arrest. 

At the suppression hearing before the District Court, 

Officer Simmons testified to the above facts, as well as about 

his nine years of experience as a police officer, during which 

he had made hundreds of arrests for drug offenses and violent 

crimes. After crediting Officer Simmons’ testimony in its 

entirety, the District Court denied Graves’ motion to 

suppress. Graves then entered a guilty plea to one count of 

unlawful possession of a firearm.6

 At sentencing, the District 

Court treated Graves as a career offender over Graves’

objection, finding that his two prior convictions for North 

Carolina common law robbery were the categorical 

equivalent of the enumerated crime of robbery in § 2K2.1 of 

the U.S. Sentencing Guidelines. Applying this enhancement, 

the District Court sentenced Graves to a term of 

imprisonment of 100 months—the bottom of the Guidelines 

range.

 6 Graves’ guilty plea was conditioned on his right to appeal 

the propriety of the denial of his motion to suppress and of 

the sentence imposed.
6

Graves appealed.

II. DISCUSSION7

Graves raises two issues on appeal. First, he appeals 

the denial of his motion to suppress, arguing that Officer 

Simmons lacked reasonable suspicion to stop and frisk him

or, in the alternative, that Officer Simmons exceeded the 

scope of a valid frisk by focusing on more than just potential 

weapons on his person. Second, he appeals the District 

Court’s decision to treat North Carolina common law robbery 

as the categorical equivalent of generic robbery and the

resultant enhancement of his sentence. We treat each issue in 

turn. Because the facts underlying both issues are not in 

dispute, we need only determine their legal significance; our 

review of such legal questions is plenary.8

A. The Search

Graves advances two theories why Officer Simmons’ 

behavior ran afoul of the Fourth Amendment. First, he argues 

that Officer Simmons lacked reasonable suspicion to justify 

 7 The District Court had jurisdiction over Graves’ criminal 

prosecution pursuant to 18 U.S.C. § 3231. We have 

jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 

18 U.S.C. § 3742. 8 See United States v. Pavulak, 700 F.3d 651, 660 (3d Cir. 

2012) (citation omitted) (suppression); United States v. 

Johnson, 587 F.3d 203, 207 (3d Cir. 2009) (citation omitted)

(career offender enhancement).
7

stopping and frisking him.

9

 Second, he argues that Officer 

Simmons exceeded the proper scope of an investigatory 

search by searching him for drugs, rather than weapons. Each 

argument is addressed separately.

Although the Fourth Amendment generally requires 

that a seizure be effectuated pursuant to a warrant supported 

by probable cause, an officer may constitutionally conduct a 

“brief, investigatory stop [and frisk]” without a warrant if he

has “a reasonable, articulable suspicion that criminal activity 

is afoot.”10 This “reasonable suspicion” standard is lower 

than probable cause; rather, an officer need only “a minimal 

level of objective justification”11 that is “specific to the 

person who is detained.”12 We review the totality of the 

circumstances leading up to the moment of the defendant’s 

seizure.13 In doing so, however, we “give considerable 

deference to police officers’ determinations of reasonable 

suspicion” given “their own experience and specialized 

training to make inferences from and deductions about the 

cumulative information available to them that ‘might well 

 9 Although raised as two separate issues in Graves’ brief, the 

standards governing both are identical in this case; as such, 

both are addressed together.

10 Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (citation 

omitted).

11 United States v. Whitfield, 634 F.3d 741, 744 (3d Cir. 2010)

(considering “the totality of the circumstances” and taking 

into account “everything that occurred until the moment [the 

defendant] was seized . . .”). 12 United States v. Navedo, 694 F.3d 463, 468 (3d Cir. 2012).

13 Whitfield, 634 F.3d at 744.
8

elude an untrained person.’”14 Thus, a trained officer may 

find reasonable suspicion “based on acts capable of innocent 

explanation.”15

Although Officer Simmons acted on limited 

information in stopping Graves, we nonetheless believe that 

the totality of the circumstances gave rise to reasonable 

suspicion. First, Officer Simmons explained that he was 

parked in a high crime area.

16 Second, Graves and his 

companion were leaving the scene of the gunshots dressed in 

similar garb to the suspects described in the police broadcast. 

Third, Officer Simmons observed Graves walking in a 

manner indicating, in Officer Simmons’ experience, that 

Graves was armed. 

While these factors standing in isolation may not have 

been sufficient,17 together they satisfied the low threshold of 

reasonable suspicion—particularly in light of the close 

 14 United States v. Brown, 765 F.3d 278, 290 (3d Cir. 2014) 

(citations omitted).

15 Whitfield, 634 F.3d at 744 (internal quotation marks and 

citation omitted). 16 See Wardlow, 528 U.S. at 124 (noting that location in a 

high crime area is “among the relevant contextual 

considerations” in determining the reasonableness of a stop).

17 See United States v. Brown, 448 F.3d 239, 247-48 (3d Cir. 

2006) (finding that the bare fact that defendants matched a 

generalized description of suspects as black men wearing 

dark sweatshirts insufficient to satisfy reasonable suspicion); 

United States v. Ubiles, 224 F.3d 213, 218 (3d Cir. 2000) 

(noting that evidence of gun possession may not, standing 

alone, be sufficient to create reasonable suspicion).
9

temporal proximity between the gunshots and Officer 

Simmons’ encounter with Graves. Further, Officer Simmons’

suspicions were increased when he observed Graves raise his 

arms over his head in a manner consistent with that of an 

individual seeking to sell drugs, or, in the alternative, looking 

at Officer Simmons in a challenging manner. Graves then 

departed from his companion to approach Officer Simmons’ 

vehicle, quickening his pace. This combination of events 

gave rise to the reasonable inference by Officer Simmons that 

Graves was armed and engaged in potentially unlawful 

conduct.18 On appeal, Graves advances innocent 

explanations for all his conduct and points to other evidence 

undercutting the likelihood that he was engaged in criminal 

activity. However, the mere possibility of such an innocent 

explanation does not undermine Officer Simmons’ 

determination at the time.

Accordingly, we find that Officer Simmons had 

reasonable suspicion that criminal activity was underway 

when he stopped and frisked Graves.

However, when an officer exceeds the proper bounds 

of a search, an individual subject to a valid investigatory stop 

and frisk may nonetheless assert constitutional error. An 

officer may only “search . . . the outer clothing of [seized] 

persons in an attempt to discover weapons which might be 

 18 See United States v. Murray, 821 F.3d 386, 393 (3d Cir. 

2016) (finding that evidence of defendant’s involvement in 

drug trafficking was sufficient to support reasonable 

suspicion that he was armed).
10

used to assault him.”19 While “[t]he purpose of this limited 

search is not to discover evidence of crime,” the Supreme 

Court has held that an officer “may seize contraband detected 

during the lawful execution of [such a] search” under the 

plain feel doctrine.20 Once the validity of a protective frisk is 

established, “the dispositive question . . . is whether the 

officer who conducted the search was acting within . . . lawful 

bounds . . . at the time he gained probable cause to believe 

that the lump in [the defendant’s pocket] was contraband.”21 

We must focus on “whether the officer had probable cause to 

believe an object was contraband before he knew it not to be 

a weapon and whether he acquired that knowledge in a 

manner consistent with a routine frisk.”22

Graves argues that Officer Simmons was not entitled 

to conduct any further search of his person once Officer 

Simmons realized that the objects in his pockets were not 

weapons. In so arguing, however, Graves advances a broad

theory. Graves proposes that if a police officer is conducting 

a protective frisk, by definition, he must determine if what he 

is feeling is a weapon. Graves asserts that, if Officer

Simmons determined that the right front pocket did not hold a 

weapon, his search of the interior of the pocket was 

impermissible; a determination that an object is not a weapon 

must end the search.

 19 Navedo, 694 F.3d at 467-68 (quoting Terry v. Ohio, 392 

U.S. 1, 30 (1968) (second alteration in original)).

20 Minnesota v. Dickerson, 508 U.S. 366, 373-75 (1993) 

(internal quotation marks and citation omitted).

21 Id. at 377.

22 United States v. Yamba, 506 F.3d 251, 259 (3d Cir. 2007)

(emphasis removed) (citations omitted).
11

Our decision in United States v. Yamba forecloses this 

argument. There, an officer, conducting a protective frisk,

felt a plastic bag containing a soft, “spongy-like” substance.23 

The officer’s testimony that this “feeling” was, in his 

experience, consistent with the feeling of marijuana was 

sufficient to create probable cause justifying removal of the 

bag. We held that the removal of the bag did not exceed the 

bounds of a protective frisk merely because the officer knew 

that the bag itself contained no weapons; rather, we focused 

on whether the officer encountered the contraband “before he 

determined that Yamba had no gun on his person.”24

The same result is compelled here. In conducting the 

frisk of Graves’ pockets, Officer Simmons testified that he 

knew the materials in Graves’ pockets were consistent in 

feeling with crack cocaine. The District Court credited this 

testimony. Indeed, Graves did not identify any other 

plausible explanations for the feeling of the objects in his 

pockets. The feel of these objects, in light of Officer 

Simmons’ experience with narcotics investigations, gave rise 

to probable cause justifying removal of the objects from 

Graves’ pocket. Moreover, because Officer Simmons had yet 

to determine whether Graves was armed at the time he felt the 

objects, his frisk did not run afoul of the Fourth Amendment.

Accordingly, we hold that Officer Simmons did not 

exceed the bounds of a valid protective frisk in removing the 

Depakote and bullet from Graves’ pockets during the course 

of the search.

 23 Id. at 260. 24 Id.
12

B. The Sentence

Graves next challenges his sentence on the ground that 

the District Court improperly sentenced him as a career 

offender after treating his two prior convictions for North 

Carolina common law robbery as the equivalent of the crime 

of generic federal robbery, as used in the Sentencing 

Guidelines.

Section 4B1.1 of the Sentencing Guidelines designates 

an offender as a “career offender” if, as relevant here, he has

“at least two prior felony convictions of either a crime of 

violence or a controlled substance offense.”25 The Guidelines 

define a “crime of violence” as an offense that “has as an 

element the use, attempted use, or threatened use of physical 

force against the person of another, or [] is murder, voluntary 

manslaughter, kidnapping, aggravated assault, a forcible sex 

offense, robbery, arson, extortion, or the use or unlawful 

possession of a firearm . . . or explosive material . . ..”26

To determinations of whether a prior state court 

conviction constitutes a federally defined crime of violence, 

we apply the categorical approach,

27 i.e., we compare the 

elements of the state offense, forming the basis of the 

defendant’s conviction, with the elements of the “generic”

 25 U.S.S.G. § 4B1.1(a).

26 U.S.S.G. § 4B1.2(a). The offense must also be punishable 

by a term of imprisonment exceeding one year, but it is 

uncontested that North Carolina common law robbery 

satisfies this requirement. 27 Brown, 765 F.3d at 188-89.
13

crime.28 The prior conviction qualifies as a crime of violence

only if the elements of the state offense “are the same as, or 

narrower than, those of the generic offense.”29 If, on the 

other hand, the state offense allows for conviction on a 

broader basis than the generic offense, it may not be 

considered for purposes of sentence enhancement.30 Thus, 

we must first identify the elements of the state offense, then 

identify the elements of the generic offense, and finally 

determine whether the former are the same as or narrower 

than the latter.

The North Carolina Supreme Court has defined 

common law robbery as “the felonious, non-consensual 

taking of money or personal property from the person or 

presence of another by means of violence or fear.”31 North 

Carolina has delineated six necessary elements for common 

law robbery: (1) the taking away of property; (2) from the 

person or presence of another; (3) without consent; (4) with 

specific intent to permanently deprive the owner of the 

 28 Id. at 189 (internal quotation marks and citation omitted).

29 Id. 30 Id.

31 State v. Smith, 292 S.E.2d 264, 270 (N.C. 1982) (citations 

omitted).
14

property; (5) with knowledge of the property’s ownership; 

and (6) through use of violence or putting the victim in fear.32 

Only the final element—the use of violence or fear—is 

at issue here.33 North Carolina’s courts have interpreted this 

element as a “force” requirement, explaining that “[a]lthough 

actual force implies personal violence, the degree of force 

used is immaterial, so long as it is sufficient to compel the 

victim to part with his property or property in his

 32 N.C. Pattern Jury Instructions 217.10; accord State v. 

Lunsford, 49 S.E.2d 410, 412 (N.C. 1948). Some North 

Carolina courts appear to have collapsed the elements of lack 

of consent and specific intent into the first element. See, e.g., 

State v. Hedgecoe, 415 S.E.2d 777, 780 (N.C. Ct. App. 1992) 

(citation omitted). The substantive elements, however, 

appear to remain unchanged.

33 The government does not argue that the possibility that the 

offense be committed through use of violence or through use 

of fear renders North Carolina common law robbery a 

divisible offense, nor would we find any such argument 

convincing. North Carolina courts do not require that a jury 

unanimously agree as to whether a defendant used violence or 

used fear. See N.C. Pattern Jury Instructions 217.10; see also

United States v. Gardner, 823 F.3d 793, 802-03 (4th Cir. 

2016). Accordingly, the statute is indivisible, insofar as 

“violence” and “fear” are not alternative elements, but 

together form one element of the offense. Id.; see Descamps 

v. United States, 133 S. Ct. 2276, 2290 (2013) (noting that a 

statute is indivisible, even if it lists alternatives, if the jury 

need not agree as to the exact way in which the defendant 

committed the offense).
15

possession.”34 The parties agree that this interpretation

means that a defendant may be convicted of North Carolina 

common law robbery even if he used only de minimis force, 

which posed no threat of injury to another. Convictions for 

common law robbery in North Carolina courts support this 

reading of the offense. In State v. Chance, for example, the 

North Carolina Court of Appeals affirmed a conviction where 

the only “force” demonstrated at trial was the defendant’s act 

of pushing the victim’s hands off of a box of cigarettes.35 

The Fourth Circuit Court of Appeals, which appears to be the 

only other circuit to consider North Carolina common law 

robbery, has reached the same conclusion.36

Accordingly, we find that North Carolina common law 

robbery requires only the use of de minimis force.

 34 State v. Carter, 650 S.E.2d 650, 653 (N.C. Ct. App. 2007) 

(quoting State v. Sawyer, 29 S.E.2d 34, 37 (N.C. 1944))

(emphasis removed). 35 662 S.E.2d 405 (Table), 2008 WL 2415981, at *3-*4 (N.C. 

Ct. App. 2008). Two U.S. district courts in Tennessee have 

found that North Carolina common law robbery requires 

more than de minimis force. See Smith v. United States, No. 

2:03 CR 73, 2016 WL 7365634, at *4 (E.D. Tenn. Dec. 16, 

2016), certificate of appealability denied, No. 17-5016, ECF 

No. 13 (6th Cir. Aug. 10, 2017); United States v. Smith, No. 

3:13 CR 5, 2016 WL 6875877, at *5 (E.D. Tenn. Nov. 21, 

2016). Both decisions have been appealed to the Sixth 

Circuit. We are not persuaded by the relatively cursory 

discussions of the issue in each opinion, particularly in light 

of North Carolina courts’ repeated pronouncements on the 

issue.

36 Gardner, 823 F.3d at 803-04.
16

Turning to generic robbery, as used in the Guidelines

career offender enhancement, we must determine whether 

generic robbery requires the use of more than de minimis

force. To identify the elements of the generic offense of 

robbery, we will examine the Model Penal Code (MPC), state 

laws, and learned treatises.37 The MPC defines “robbery” as 

requiring one of three things to occur in the course of 

committing a theft: the offender must “(a) inflict[] serious 

bodily injury upon another; or (b) threaten[] another with or 

purposively put him in fear of immediate serious bodily 

injury; or (c) commit[] or threaten[] immediately to commit 

any felony of the first or second degree.” Thus, the MPC 

requires that there be some actual or threatened injury to 

another person for a theft to qualify as robbery. It appears 

that eleven states follow this MPC framework, requiring some 

sort of actual or future injury for a theft to become robbery.38 

As the parties acknowledged, however, there are thirty-eight 

states which define robbery as theft involving the use of even

de minimis force.39

 37 See United States v. Marrero, 677 F.3d 155, 165 (3d Cir. 

2012), cert. granted and judgment vacated on other grounds, 

133 S. Ct. 2732 (2013).

38 See United States v. Santiesteban-Hernandez, 469 F.3d 

376, 380 n.6 (5th Cir. 2006) (collecting statutes), abrogated 

on other grounds by United States v. Rodriguez, 711 F.3d 541 

(5th Cir. 2013)

39 See id. at 380 n.5; see also Oral Arg. Recording at 14:45-

15:03,24:35-25:45, 

http://www2.ca3.uscourts.gov/oralargument/audio/16-

3995USAv.Graves.mp3 (agreeing to number of state statutes

which do not require more than minimal force).
17

This disjunction between the approach of the MPC and 

that of the substantial majority of states has led circuits to 

disagree whether generic robbery requires more than de 

minimis force. The Fifth Circuit Court of Appeals has

suggested that the generic form of robbery requires something 

more than de minimis force, which involves risk of injury to 

another.40 In so holding, it placed primary weight on the 

MPC definition of robbery, as well as the minority of state 

robbery statutes that include some element of injury. The 

Ninth Circuit Court of Appeals has come to the same 

conclusion, although it discussed the question only 

 40 The Fifth Circuit, in one opinion, appeared to adopt the 

view that generic robbery required some risk of injury to the 

victim. Santiesteban-Hernandez, 469 F.3d at 380. Given that 

Rodriguez disavowed the methodology of SantiestebanHernandez, it is not clear whether the Fifth Circuit continues 

to believe that generic robbery requires more than de minimis

force. Graves also cites to the Fourth Circuit’s decision in 

Gardner for the proposition that generic robbery should 

require more than de minimis force. 823 F.3d at 803 (quoting 

Johnson v. United States, 559 U.S. 133, 139 (2010)). 

However, Gardner dealt only with the elements clause of the 

career offender enhancement, and thus only asked whether 

North Carolina common law robbery necessarily involved the 

use of violent force. Gardner did not consider the definition 

of the enumerated crime of generic robbery, as robbery was 

not added to the enumerated offenses clause until after the 

defendant’s sentencing. Thus, although we have disagreed 

with the Fourth Circuit’s reasoning in one previous case, see

United States v. Cornish, 103 F.3d 302, 309 (3d Cir. 1997), 

we need not examine Gardner too closely here.
18

cursorily.

41 The Seventh and Eleventh Circuit Courts of 

Appeals, however, have disagreed with this conclusion, 

finding that generic robbery comports with the majority of 

state robbery statutes in requiring only minimal force.42 We 

now join the Seventh and Eleventh Circuits and hold that 

generic robbery requires no more than de minimis force.

This is our first confrontation with a situation where 

the MPC’s definition of a crime differs in an important 

respect from the approach taken by the significant majority of 

states. Thus, we must determine which of these sources is 

entitled to greater weight in our definition of a generic crime. 

A review of the Supreme Court’s jurisprudence demonstrates 

the primacy of state statutes in defining the generic version of 

an offense. In Taylor v. United States, for example, the Court

appeared to place a greater weight on the approach of a 

majority of states. The Court recognized, and rejected, the 

federal common law definition of burglary, finding the 

definition employed by the vast majority of states more 

 41 United States v. Becerril-Lopez, 541 F.3d 881, 891 (9th Cir. 

2008) (adopting the Fifth Circuit’s rationale from 

Santiesteban-Hernandez).

42 See United States v. Lockley, 632 F.3d 1238, 1244 (11th 

Cir. 2011) (citation omitted); United States v. Duncan, 833 

F.3d 751, 755-56 (7th Cir. 2016) (reaffirming holdings 

predating Descamps that generic robbery is satisfied by any 

minor force, such as “a slap in the face”). The Sixth Circuit 

was faced with the question, but declined to answer it, as it 

held that the defendant had waived the argument on appeal. 

United States v. Elliott, 757 F.3d 492, 496-97 (6th Cir. 2014). 

As discussed supra, note 35, however, an appeal raising this 

issue is currently pending in the Sixth Circuit.
19

persuasive.43 The Sixth Circuit and the Ninth Circuit have

read Taylor to place primary importance on the way the 

majority of states define a crime, even over the approach of 

the MPC.44

We agree with the Sixth Circuit and the Ninth Circuit 

in their reading of Taylor, and hold today that the most 

important factor in defining the generic version of an offense 

is the approach of the majority of state statutes defining the 

crime. Affording predominant weight to the majority of 

states best recognizes that “Congress’ basic goal in passing 

the Sentencing Act was to move the sentencing system in the 

direction of increased uniformity.”45 While the MPC is a 

useful starting point, its definition of “robbery” does not

 43 495 U.S. 575, 592-96 (1990).

44 United States v. Soto-Sanchez, 623 F.3d 317, 322 (6th Cir. 

2010) (citing Taylor, 495 U.S. at 598); United States v. 

Garcia-Santana, 774 F.3d 528, 534 (9th Cir. 2014) (reading 

Taylor to suggest that “[t]he generic definition of an offense 

roughly corresponds to the definitions of the offense in a 

majority of the States’ criminal codes” (citation, internal 

quotation marks, and brackets omitted)). 45 United States v. Booker, 543 U.S. 220, 253 (2005)

(citations omitted).
20

supersede the way in which the majority of states have 

defined that offense.46

Accordingly, we hold that for purposes of the 

Sentencing Guidelines, generic federal robbery is defined as it 

is in the majority of state robbery statutes, without the 

requirement of more than de minimis force. Because both 

North Carolina common law robbery and generic federal 

robbery thus contain the same elements, the District Court did 

 46 Santiesteban-Hernandez is, indeed, the only case we have 

identified in which a court chose to follow the MPC 

definition of an offense over that employed by the majority of 

states. Other courts have rejected generic federal definitions 

insofar as they conflict with the definitions employed by the 

majority of states. See, e.g., Duncan, 833 F.3d at 755-56; 

Lockley, 632 F.3d at 1244; United States v. De Jesus Ventura, 

565 F.3d 870, 876-78 (D.C. Cir. 2009) (defining kidnapping 

in accordance with the definition employed by most states, 

rather than that used in the MPC, and describing state 

definitions as “[m]ost critical[]” in the process). The Fourth 

Circuit appears to have recognized this, rejecting elements in 

an MPC definition of an offense where they conflict with the 

approach of the majority of states. See United States v. 

Flores-Granados, 783 F.3d 487, 496 (4th Cir. 2015). We do 

not suggest, however, that the approach of the majority of 

states will always be dispositive in crafting any federal 

definition of a crime; rather, it is only the most important of 

the factors to be considered by the district court in defining a 

federal offense. In crafting a generic definition, courts should

also consider various factors such as the margin of the 

majority, contrary legislative history, and other evidence of 

congressional intent.
21

not err in treating Graves’ convictions for North Carolina 

common law robbery as the enumerated crime of robbery and 

applying the career offender enhancement to his sentence.

III.

In light of the foregoing, we will affirm both the 

conviction and the sentence of the District Court.