PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-4764

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KAREEM ANTWAN DOCTOR,

Defendant – Appellant,

Appeal from the United States District Court for the District of 

South Carolina, at Charleston. Patrick Michael Duffy, Senior 

District Judge. (2:13-cr-00811-PMD-1)

Argued: September 23, 2016 Decided: November 21, 2016 

Before GREGORY, Chief Judge, and WILKINSON and DIAZ, Circuit 

Judges.

Affirmed by published opinion. Chief Judge Gregory wrote the 

opinion, in which Judge Wilkinson and Judge Diaz joined. Judge

Wilkinson wrote a separate concurring opinion.

ARGUED: Emily Deck Harrill, OFFICE OF THE FEDERAL PUBLIC 

DEFENDER, Columbia, South Carolina, for Appellant. Robert Frank 

Daley, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Columbia, 

South Carolina, for Appellee. ON BRIEF: William N. Nettles, 

United States Attorney, Columbia, South Carolina, Sean Kittrell, 

Assistant United States Attorney, OFFICE OF THE UNITED STATES 

ATTORNEY, Charleston, South Carolina, for Appellee.
2

GREGORY, Chief Judge:

Kareem Antwan Doctor appeals his fifteen-year sentence for 

unlawful possession of a firearm. The district court imposed an 

enhanced sentence pursuant to the Armed Career Criminal Act 

(“ACCA”), 18 U.S.C. § 924(e), after finding that Doctor had two 

predicate drug offenses and one predicate violent felony. 

Doctor challenges the district court’s determination that his 

prior conviction for South Carolina strong arm robbery qualifies 

as a violent felony under the ACCA. Finding no error with the 

district court’s application of the ACCA enhancement, we affirm.

I.

In April 2012, North Charleston police officers received a 

call from a woman who alleged that Doctor had stolen a cell 

phone and was inside the residence at 5309 Alvie Street with a 

gun. The officers arrived on the scene and, after reading 

Doctor his Miranda rights, questioned him about the firearm. 

Doctor led the officers to a .380 caliber pistol on the couch. 

Doctor eventually pleaded guilty to being a felon in possession

of a firearm in violation of 18 U.S.C. § 922(g)(1).

The probation officer recommended that Doctor be sentenced 

under the ACCA, which mandates a minimum of fifteen years’ 

imprisonment for a defendant who violates § 922(g) and “has 

three previous convictions” for a “violent felony or a serious 
3

drug offense, or both.” 18 U.S.C. § 924(e)(1). Doctor had two 

prior convictions for possession with intent to distribute 

cocaine, which he did not contest qualified as serious drug 

offenses, as well as a prior conviction for South Carolina 

strong arm robbery (“South Carolina robbery”).1 At sentencing, 

the district court held, over Doctor’s objection, that the 

robbery conviction was an ACCA violent felony. The district 

court designated Doctor an armed career criminal based on his 

three predicate offenses and imposed the mandatory minimum 

sentence of fifteen years.

II.

We review de novo whether a prior conviction qualifies as 

an ACCA violent felony. United States v. Hemingway, 734 F.3d 

323, 331 (4th Cir. 2013). The ACCA defines “violent felony,” in 

pertinent part, as “any crime punishable by imprisonment for a 

term exceeding one year” that “has as an element the use, 

attempted use, or threatened use of physical force against the 

person of another.” 18 U.S.C. § 924(e)(2)(B)(i).2 The issue on 

 1 South Carolina strong arm robbery and common law robbery 

are “synonymous terms for a common law offense whose penalty is 

provided for by statute.” State v. Rosemond, 560 S.E.2d 636, 

640 (S.C. Ct. App. 2002) (footnote omitted). For ease of 

reference, we refer to the offense as South Carolina robbery.

2 The ACCA separately defines “violent felony” as “any crime 

punishable by imprisonment for a term exceeding one year” that 

(Continued)
4

appeal is whether South Carolina robbery meets the definition of 

violent felony in § 924(e)(2)(B)(i), known as the “force 

clause.”

To determine whether South Carolina robbery matches this 

definition and can thus be used to enhance a criminal sentence, 

we apply the “categorical approach.” United States v. Baxter, 

642 F.3d 475, 476 (4th Cir. 2011). The categorical approach 

directs courts to examine only the elements of the state offense 

and the fact of conviction, not the defendant’s conduct.3 Id. 

In conducting this analysis, “we focus ‘on the minimum conduct’” 

required to sustain a conviction for the state crime, United 

States v. Gardner, 823 F.3d 793, 803 (4th Cir. 2016) (quoting 

Castillo v. Holder, 776 F.3d 262, 267 (4th Cir. 2015)), although 

there must be a “realistic probability, not a theoretical 

possibility,” that a state would actually punish that conduct, 

 

“is burglary, arson, or extortion, involves use of explosives, 

or otherwise involves conduct that presents a serious potential 

risk of physical injury to another.” 18 U.S.C. 

§ 924(e)(2)(B)(ii). That subsection has no application here, as 

robbery is not an enumerated crime and the Supreme Court deemed 

the clause concerning risk of physical injury unconstitutionally 

vague in Johnson v. United States (“Johnson II”), 135 S. Ct. 

2551, 2557 (2015).

3 Courts apply the “modified categorical approach” where the 

prior state offense is divisible, meaning it sets out multiple 

elements in the alternative and at least one set of elements 

matches the federal definition. Descamps v. United States, 133 

S. Ct. 2276, 2284 (2013). Because South Carolina robbery is a 

nondivisible offense, the modified categorical approach “has no 

role to play in this case.” Id. at 2285.
5

id. (quoting Moncrieffe v. Holder, 133 S. Ct. 1678, 1684-85 

(2013)). We look to state court decisions to determine the 

minimum conduct needed to commit an offense, id., and to 

identify the elements of a state common law offense, Hemingway,

734 F.3d at 332. We then compare those elements to the

definition of violent felony in the force clause.

In State v. Rosemond, the South Carolina Supreme Court 

defined robbery as the “felonious or unlawful taking of money, 

goods, or other personal property of any value from the person 

of another or in his presence by violence or by putting such 

person in fear.” 589 S.E.2d 757, 758 (S.C. 2003). A defendant 

can thus commit robbery in South Carolina by alternative means 

of “violence” or “intimidation.” Id. at 758-59. When 

evaluating intimidation, courts ask whether an “ordinary, 

reasonable person in the victim’s position would feel a threat 

of bodily harm from the perpetrator’s acts.” Id. at 759 (citing 

United States v. Wagstaff, 865 F.2d 626 (4th Cir. 1989)).

If either robbery by means of violence or by means of 

intimidation fails to match the force clause definition, the 

crime is not a violent felony. See Gardner, 823 F.3d at 803. 

Doctor offers several reasons why South Carolina robbery is not 

a categorical match, largely focusing on robbery by 

intimidation. He first contends that a robber may intimidate a 
6

victim without “the use, attempted use, or threatened use of 

physical force.”

A review of South Carolina law reveals, however, that 

intimidation necessarily involves threatened use of physical 

force. The South Carolina Supreme Court has indicated that a 

robber intimidates a victim by threatening force. See State v. 

Mitchell, 675 S.E.2d 435, 437 (S.C. 2009) (stating that robbery 

involves either “employment of force or threat of force”) 

(quoting State v. Moore, 649 S.E.2d 84, 88 (S.C. Ct. App. 

2007)). The issue, then, is whether intimidation under South 

Carolina law requires the force threatened to be “physical 

force” within the meaning of the ACCA. The Supreme Court has 

defined “physical force” as “violent force--that is, force 

capable of causing physical pain or injury to another person.” 

Johnson v. United States (“Johnson I”), 559 U.S. 133, 140 

(2010). To constitute intimidation in South Carolina, a robbery 

victim must “feel a threat of bodily harm” based on the 

defendant’s acts. Rosemond, 589 S.E.2d at 759. We find that 

these two standards align. There is no meaningful difference 

between a victim feeling a threat of bodily harm and feeling a 

threat of physical pain or injury. See United States v. McNeal, 

818 F.3d 141, 154 (4th Cir. 2016). It follows that to 

constitute intimidation in South Carolina, a robbery victim must 

feel a threat of physical force based on the defendant’s acts. 
7

In other words, a defendant intimidates a victim by threatening 

physical force.

Notably, the South Carolina Supreme Court modeled its 

definition of intimidation in robbery cases after the one this 

Circuit uses in federal bank robbery cases under 18 U.S.C. 

§ 2113(a). The Rosemond definition--whether an ordinary victim 

feels a threat of bodily harm from the robber’s acts--adopts and 

indeed cites the definition from our Wagstaff decision. 

Rosemond, 589 S.E.2d at 759 (citing Wagstaff, 865 F.2d at 626); 

see Wagstaff, 865 F.2d at 627 (“[T]aking ‘by intimidation’ under 

section 2113(a) occurs when an ordinary person in the teller’s 

position reasonably could infer a threat of bodily harm from the 

defendant’s acts.” (emphasis omitted) (quoting United States v. 

Higdon, 832 F.2d 312, 315 (5th Cir. 1987)). This Court recently 

confirmed in McNeal that intimidation in the context of 

§ 2113(a) bank robbery necessarily entails a threat of violent 

force. 818 F.3d at 153. Because South Carolina uses

effectively the same definition of intimidation that we use in 

§ 2113(a) bank robbery cases, this holding lends persuasive 

support to our conclusion here that intimidation in the context 

of South Carolina robbery requires the threatened use of 

physical force. Indeed, like the defendants in McNeal, Doctor 

has not “identified a single [] robbery prosecution where the 
8

victim feared bodily harm”--that is, was intimidated--by 

“something other than violent physical force.” Id. at 156.

Doctor instead highlights how a defendant can effectuate a 

robbery with only a slight threat. He seizes on the following 

discussion of constructive force4 in the South Carolina Court of 

Appeals opinion in State v. Rosemond: “[r]egardless of how 

slight the cause creating the fear is or by what other 

circumstances the taking is accomplished, if the transaction is 

accompanied by circumstances of terror, such as threatening by 

word or gesture, . . . the victim is placed in fear.” 560 

S.E.2d 636, 641 (S.C. Ct. App. 2002) (emphasis added). But 

whether a robber’s threat is slight does not resolve the force 

clause inquiry; what matters is whether, as Rosemond explains,

the threat creates a fear of bodily injury in a reasonable 

person. Under the right circumstances, a slight threat--“you 

better hand over the money, or else,” or even just a menacing 

stare--can communicate an intent to cause great bodily injury. 

Put simply, the slight or implicit nature of a threat does not 

render it nonviolent.

 4 Though the South Carolina Court of Appeals did not 

explicitly define the term, “constructive force” generally means 

“[t]hreats and intimidation to gain control or prevent 

resistance; esp., threatening words or gestures directed against 

a robbery victim.” Constructive Force, Black’s Law Dictionary

(10th ed. 2014).
9

Doctor next argues that South Carolina robbery is not an 

ACCA violent felony because it does not match the force clause 

requirement that force be directed “against the person of 

another.” Again focusing on robbery by intimidation, he asserts 

that a defendant can commit the crime even where his or her 

threatening behavior is not specifically aimed at the victim. 

Doctor suggests that the facts of Rosemond illustrate that a 

defendant can be convicted for applying force against property 

rather than people.

The defendant in Rosemond entered a convenience store 

around 9:00 p.m. and, after spending a few minutes in the 

bathroom, immediately “went behind the counter to the register” 

and “glare[d]” at the store clerk who stood “just a few feet” 

away. 589 S.E.2d at 758. When the defendant tried and failed 

to open the cash register, he grabbed the “heavy” register, 

flipped it into the air, picked it up again, and slammed it down 

once more, finally popping it open. Id. at 759. The store 

clerk testified that she was scared by both the defendant’s 

glare and his slamming of the cash register. Id. at 758. The 

South Carolina Supreme Court upheld the defendant’s conviction, 

finding that a reasonable person in the clerk’s position “would 

have felt a threat of bodily harm from petitioner’s acts.” Id.

at 759. The court, then, did not affirm just because the clerk 

was generally fearful during the defendant’s assault on the cash 
10

register. It sustained the conviction after specifically 

finding that the defendant’s actions threatened a similar use of 

violent force against the clerk. Rosemond thus confirms that a 

defendant’s use or threatened use of force must be directed 

“against the person of another.” This interpretation makes 

sense given that intimidation means the threatened use of 

physical force--a concept that, common sense tells us, involves 

people. Indeed, the very purpose of threatening physical force 

is to prevent a person from resisting the taking. See Rosemond, 

560 S.E.2d at 641.

Doctor also argues that South Carolina robbery is not a 

violent felony because it can be committed without an 

intentional use or threat of physical force. This position is 

rooted in Leocal v. Ashcroft, 543 U.S. 1 (2004), which 

considered whether Florida’s offense of driving under the 

influence of alcohol constituted a “crime of violence” under the 

force clause in 18 U.S.C. § 16(a). There, the Supreme Court 

held that the ordinary meaning of “use . . . of physical force

against” a person “most naturally suggests a higher degree of 

intent than negligent or merely accidental conduct.” Id. at 9. 

Because a Florida conviction for driving under the influence 

could be based on negligent or accidental conduct, it lacked the 

level of intent needed to be a crime of violence. Id. at 9-10. 

We later held that an assault conviction premised on reckless 
11

force was not a crime of violence for the same reason. See

Garcia v. Gonzales, 455 F.3d 465, 468-69 (4th Cir. 2006).

South Carolina robbery incorporates the elements of 

larceny, which includes an intent to steal, see Broom v. State, 

569 S.E.2d 336, 337 (S.C. 2002), but it does not contain an 

explicit mens rea requirement as to the force or intimidation 

element. Doctor takes this to mean that South Carolina robbery 

lacks the intent requirement needed for it to qualify as a 

violent felony. But he fails to cite a single case in South 

Carolina where a defendant negligently or recklessly used force 

in the commission of a robbery,5 or where a defendant negligently 

or recklessly intimidated a victim. This is unsurprising 

because the intentional taking of property, by means of violence 

or intimidation sufficient to overcome a person’s resistance, 

must entail more than accidental, negligent, or reckless 

conduct. In considering § 2113(a) bank robbery, the Supreme 

Court held that the crime requires general intent, meaning a 

 5 Doctor does point us to United States v. Dixon, in which 

the Ninth Circuit concluded that robbery under California Penal 

Code § 211 could be committed with accidental force. 805 F.3d 

1193, 1197 (9th Cir. 2015). That holding, however, hinged on a 

stranger-than-fiction California Supreme Court case where a 

defendant broke into an unoccupied car in a parking garage, 

stole the car, and then accidentally ran over the car’s owner 

after exiting the garage. Id. (discussing People v. Anderson,

252 P.3d 968 (Cal. 2011)). We have found no indication that a 

defendant can similarly commit South Carolina robbery with

accidental force.
12

defendant must possess “knowledge with respect to the actus reus

of the crime (here, the taking of property of another by force 

and violence or intimidation).” Carter v. United States, 530 

U.S. 255, 268 (2000); see also McNeal, 818 F.3d at 155 

(recognizing Carter). We see no reason why South Carolina 

robbery should be viewed any differently. While hypothetical 

scenarios can surely be concocted to support robbery convictions 

based on accidental, negligent, or reckless conduct, given the 

total absence of case law, there is not a realistic probability 

that South Carolina would punish such conduct.

Finally, Doctor argued for the first time at oral argument 

that South Carolina robbery can be committed with de minimis 

actual force. Several courts have found that if robbery can be 

accomplished with minimal actual force--grazing a victim’s 

shoulder while lifting a purse, for instance--the crime does not 

meet the physical force requirement outlined in Johnson I

(“force capable of causing physical pain or injury to another

person”). See, e.g., United States v. Parnell, 818 F.3d 974, 

979 (9th Cir. 2016) (holding that Massachusetts armed robbery, 

which requires only “minimal, nonviolent force,” does not meet 

the physical force threshold). We reached that result in 

Gardner with respect to North Carolina common law robbery. 

Gardner, 823 F.3d at 804. In doing so, we cited the Supreme 

Court of North Carolina’s statement that “[a]lthough actual 
13

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.” Id. at 803 (emphasis added) (quoting 

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

Here, by contrast, there is no indication that South 

Carolina robbery by violence can be committed with minimal 

actual force. As noted, South Carolina robbery can be committed 

“by violence or putting [a] person in fear.” Rosemond, 589 

S.E.2d at 758. Unlike the definition of North Carolina robbery, 

the definition of South Carolina robbery does not suggest that 

the degree of actual force used is “immaterial.” There is no 

general statement from the South Carolina Supreme Court or 

intermediate appellate court to that effect. And Doctor 

provides no examples of South Carolina cases that find de 

minimis actual force sufficient to sustain a conviction for 

robbery by violence.6 Therefore, there is no basis for the 

conclusion that South Carolina robbery can be accomplished with 

force below the physical force threshold. Recognizing that each 

 6 At oral argument, defendant’s counsel cited two cases for 

the first time--State v. Gagum, 492 S.E.2d 822 (S.C. Ct. App. 

1997) and Humbert v. State, 548 S.E.2d 862 (S.C. 2001)--in 

support of the argument that South Carolina robbery can be 

committed with slight actual force. Neither case, however, 

addresses the minimum amount of actual force needed to sustain a 

robbery conviction in South Carolina. In fact, it is not clear 

from the face of either appellate decision whether the juries 

(or, more precisely, at least some of the jurors) convicted the 

defendants of robbery by violence or robbery by intimidation.
14

“State is entitled to define its crimes as it sees fit,” McNeal, 

818 F.3d at 153, South Carolina robbery differs from North 

Carolina robbery in this critical respect.

In sum, South Carolina has defined its common law robbery 

offense, whether committed by means of violence or intimidation, 

to necessarily include as an element the “use, attempted use, or 

threatened use of physical force against the person of another.” 

Accordingly, we conclude that Doctor’s prior conviction for 

South Carolina robbery qualifies as a predicate violent felony 

within the meaning of the ACCA.

III.

For the foregoing reasons, the judgment of the district 

court is

AFFIRMED.
15

WILKINSON, Circuit Judge, concurring:

I am pleased to join Chief Judge Gregory’s fine opinion. It 

reaches the right result, and for the right reasons. The ACCA’s 

force clause covers acts of intimidation and a strong arm 

robbery is the quintessential act of intimidation – whether or 

not actual physical force is used. This was a point we made in 

United States v. McNeal, 818 F.3d 141 (4th Cir. 2016). I hope 

that the panel opinion will mark a turning point toward a more 

realistic application of the categorical approach, because all 

too often that approach has pushed criminal sentencing to the 

very last place that sentencing ought to be, that is at an 

untenable remove from facts on the ground.

As refreshing as the panel’s analysis is, I write to 

express a general concern that the categorical approach to 

predicate crimes of violence is moving beyond what the Supreme 

Court originally anticipated. Its overactive application is 

undermining the efforts of Congress, the role of district courts

in sentencing, and the public’s need for a sense of basic 

protection against the most violent forms of criminal behavior. 

While it need not be discarded, the categorical approach should 

be adapted to return to sentencing courts a greater measure of 

their historical discretion. 
16

I.

It surprises me that we have arrived at this point, because 

in theory, the categorical approach makes a good deal of sense. 

I had high hopes for it. District courts would be spared the 

practical difficulties of probing the underlying conduct of 

predicate convictions. And the approach promised to strike a 

balance between exempting from sentencing enhancements 

defendants convicted of non-violent conduct and vindicating 

Congress’s desire to punish the most violent recidivists. But 

what was fine in theory has sometimes proven to be less so in 

practice. 

For starters, the purported administrative benefits of the 

categorical approach have not always worked as advertised. 

Judges have simply swapped factual inquiries for an endless 

gauntlet of abstract legal questions. Consider the decisional 

costs: Courts must first construe the predicate crime, which 

requires combing through state court decisions and “peek[ing]” 

at various documents to discern whether each statutory phrase is 

a separate element or merely an alternative means of satisfying 

the element. See Mathis v. United States, 136 S. Ct. 2243, 2256–

57 (2016). After decoding the definition of the offense, courts 

must then assess whether “the minimum conduct criminalized” by 

the statutory elements “categorically fits” within the generic 

“federal offense that serves as a point of comparison.” 
17

Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013). But because 

there is no agreed-upon metric for what constitutes a match, 

this inquiry also involves an exhaustive review of state law as 

courts search for a non-violent needle in a haystack or conjure 

up some hypothetical situation to demonstrate that the predicate 

state crime just might conceivably reach some presumably less 

culpable behavior outside the federal generic. 

The Supreme Court has sensibly cautioned judges to use 

common sense in applying the categorical approach and not to 

indulge in imaginative flights. See Gonzales v. Duenas-Alvarez, 

549 U.S. 183, 193 (2007). And yet the insistent injunction that 

we begin the inquiry with the presumption that the conviction 

“rested upon [nothing] more than the least of th[e] acts” 

criminalized, see Johnson v. United States, 559 U.S. 133, 137 

(2010), virtually ensures that our legal imagination will be 

utilized to posit an outlier set of facts or scenarios. The

upshot of this “counterintuitive” exercise, see Mathis, 136 S. 

Ct. at 2251, is that the categorical approach can serve as a 

protracted ruse for paradoxically finding even the worst and 

most violent offenses not to constitute crimes of violence. 

The categorical approach, too aggressively applied, 

eviscerates Congress’s attempt to enhance penalties for violent 

recidivist behavior. The ACCA addresses the most culpable sector 

of the criminal population, the repeat offenders Congress found 
18

responsible for the majority of violent crimes in America. H.R.

REP. NO. 98-1073, at 1-3 (1984); S. REP. NO. 98-190, at 5-6 

(1983). This is no rookie class of criminals. They are the exact 

opposite of those first-offense or non-violent offenders who are 

the focus of sensible sentencing reform efforts. Doctor, for 

instance, has been convicted of assault and battery of a police 

officer, domestic violence, strong arm robbery, and a series of 

drug distribution offenses. This cohort of offenders are those 

Congress unequivocally sought to “incapacitate.” H.R. REP. NO.

98-1073, at 2; S. REP. NO. 98-190, at 9. Yet the categorical 

approach has too often flipped this objective on its head, 

facilitating a regime that ostensibly seeks every possible 

opportunity to eschew recidivist punishment. Whatever Congress 

meant when it tethered the ACCA’s sentencing enhancement to 

prior “convictions,” see Taylor v. United States, 495 U.S. 575, 

600 (1990), it did not pass a statute aimed at violent acts only 

to have patently violent acts called by some other name. 

Explanations of the categorical approach repeatedly advance 

its sentencing windfall as a necessary consequence. It does not 

matter that “a sentencing judge knows (or can easily discover) 

that the defendant carried out [a crime of violence].” See

Mathis, 136 S. Ct. at 2251. “Whether the [defendant’s] actual 

conduct involved such facts is quite irrelevant.” Moncrieffe, 

133 S. Ct. at 1684. The reasons for this contention are well-
19

known and understandable, but I wonder if it is sustainable over 

the long term to have a criminal sentencing regime so frankly 

and explicitly at odds with reality. 

I understand that the ACCA carries a mandatory minimum 

term, which already strips trial courts of a portion of their 

ability to craft an individualized sentence. But while one may 

certainly object to Congress’s overuse of mandatory minimums, it 

does not follow that courts should double the damage by 

depriving sentencing judges of an additional measure of their 

discretion to find facts related to predicate convictions. Many 

of the arguments that critics legitimately level at the overuse 

of mandatory minimums can likewise be raised against the overuse 

of the categorical approach – each removes much needed 

discretion from the sentencing court. 

The most aggressive applications of the categorical 

approach have operated as another exclusionary rule that limits 

the ability of courts to see beyond the judicial sanctuary and 

to fashion an informed sentence. Even when the record starkly 

reveals that the predicate crime was committed in a violent 

manner, violent predators are thrown in the hopper with all 

other offenders because judges generally may not consider any 

facts underlying the predicate offense. The alluring theoretical 

terminology of the categorical approach has too often served to 

isolate us in a judicial bubble, sealed conveniently off from 
20

the real-life dangers that confront American citizens in their 

actual lives. 

This exclusion is simply contrary to the sentencing 

function, which relies on district judges to consider a broad 

swath of information bearing on the individual defendant’s 

“background, character, and conduct.” See 18 U.S.C. § 3661 

(2012). In fact, “[n]o limitation shall be placed” on the 

consideration of such information. Id. The Sixth Amendment need

not bar a judge from finding what a previous crime involved or 

guilty plea determined. See Mathis, 136 S. Ct. 2258 (Kennedy, 

J., concurring) (“Apprendi . . . does not compel the elements 

based approach.”). Nonetheless, with an exclusive focus on 

elements, we have converted traditional questions of fact into 

byzantine questions of law that amount almost to willful 

blindness to what the defendant actually did. The categorical 

approach thus increasingly transfers the sentencing function 

from the trial courts to appellate courts, a turf battle which 

the appellate courts may be equipped to win but at the expense 

of those whose ground-level view and fact-finding capacities 

were heretofore thought to be the heart of the sentencing 

function.

II.

This should not mean jettisoning the categorical approach 

and its admitted advantages altogether, but rather loosening its 
21

present rigid grip upon criminal sentencing. The U.S. Sentencing 

Commission has already begun this process: in light of 

complaints that the doctrine was “cumbersome and overly 

legalistic,” it recently eliminated the categorical approach 

from many of the illegal reentry guidelines. See U.S. SENTENCING 

COMM’N, AMENDMENTS TO THE SENTENCING GUIDELINES 26 (2016). As judges, 

there is a way to apply the categorical approach in a realistic 

manner that would serve its original and laudable purposes. The

categorical approach need not be the exclusive standard. 

District courts should be free to apply it as the default 

inquiry, but should retain the discretion to consider the 

defendant’s actual conduct when it can be clearly derived from 

the record. 

Four Justices have now expressed, albeit for varying 

reasons and to varying degrees, some uneasiness with aspects of 

the categorical approach. See Mathis, 136 S. Ct. at 2258 

(Kennedy, J., concurring); id. at 2263-66 (Breyer, J., joined by 

Ginsburg, J., dissenting); id. at 2267-71 (Alito, J., 

dissenting). I recognize of course that four is not five, and we 

have an obligation to follow a strict elements-based inquiry so 

long as a majority of the Supreme Court adheres to it. The lower 

courts have attempted in good faith to do just that. See, e.g.,

United States v. Parral-Dominguez, 794 F.3d 440 (4th Cir. 2015) 

(North Carolina conviction for knowingly discharging a firearm 
22

into an occupied building was not a crime of violence); United 

States v. Shell, 789 F.3d 335 (4th Cir. 2015) (North Carolina 

conviction for rape of a mentally disabled person was not a 

crime of violence); United States v. Torres-Miguel, 701 F.3d 165 

(4th Cir. 2012) (California conviction for threatening to commit 

a crime “which will result in death or great bodily injury to 

another” was not a crime of violence); United States v. 

Hernandez-Montes, 831 F.3d 284 (5th Cir. 2016) (Florida 

attempted second-degree murder was not a crime of violence); 

United States v. Najera-Mendoza, 683 F.3d 627 (5th Cir. 2012) 

(Oklahoma kidnapping was not a crime of violence); United States 

v. McMurray, 653 F.3d 367 (6th Cir. 2011) (Tennessee aggravated 

assault was not a crime of violence); United States v. Jordan, 

812 F.3d 1183 (8th Cir. 2016) (Arkansas conviction for 

aggravated assault creating a “substantial danger of death or 

serious physical injury” was not a crime of violence); United 

States v. Parnell, 818 F.3d 974 (9th Cir. 2016) (Massachusetts 

armed robbery was not a crime of violence); United States v. 

Cisneros, 826 F.3d 1190 (9th Cir. 2016) (Oregon first-degree 

burglary did not “categorical[ly] match” generic burglary and 

was not a crime of violence); United States v. Madrid, 805 F.3d 

1204 (10th Cir. 2015) (Texas conviction for aggravated sexual 

assault of a child was not a crime of violence). 
23

I do not intend to fault the aforementioned cases. Whether 

one agrees with them or not (and I often have not), they 

conscientiously attempted, as they should have, to apply the 

categorical approach correctly. And yet hidden within their 

binding holdings are heinous and indisputably violent acts which 

sentencing courts might have found if only given the 

opportunity. The foregoing is no more than a smattering of cases 

that makes no attempt to be exhaustive, but it should serve to 

illustrate the windfall that many criminal defendants have 

received from having their violent depredations on their fellow 

citizens obscured in what two experienced counsel have termed, 

perhaps too excitedly, “a morass of jurisprudential goo.” See

STEVEN KALAR & JODI LINKER, FED. DEFENDERS SERVS. OFFICE, GLORIOUS GOO: THE 

TAYLOR/SHEPARD CATEGORICAL AND MODIFIED CATEGORICAL ANALYSES 2 (2012) (“It 

is particularly glorious goo, because the confusion almost 

inevitably helps our clients.”). I acknowledge that the 

sentencing enterprise is a matter of endless disputation and 

perpetual difficulty. It is hard to get right. But the heart of 

the endeavor has historically been the sentencing courts’ factfinding capability and guided legal discretion, and the rigid 

categorical approach to predicate crimes of violence has blown 

us far off course. 
24

III.

There is a tension in the way that the Supreme Court is 

looking at the role of sentencing judges. One set of cases seeks 

to limit the fact-finding prerogative of trial courts, see

Descamps 133 S. Ct. at 2283; Moncrieffe, 133 S. Ct. at 1684,

while another seeks to expand it, see United States v. Booker, 

543 U.S. 220 (2005) (holding the Sentencing Guidelines 

advisory); Gall v. United States, 552 U.S. 38 (2007) (holding 

district court sentencing generally reviewable under an abuse of 

discretion standard). Yet although the categorical approach has 

diminished district court discretion on predicate crimes of 

violence under the ACCA and other recidivist sentencing 

enhancements, it is much to be hoped that district judges retain 

a large measure of discretion outside the ACCA and similar 

“crimes of violence” sentencing frameworks. In other words, 

notwithstanding the doubt that has sometimes been thrown on the 

very notion of a crime of violence, does there remain a pathway 

for district courts to ensure that the worst behaviors are 

appropriately sanctioned? 

I believe a pathway does exist, and it is one that fully 

respects, as it must, both the pronouncements of Congress and 

the emphatic support that Supreme Court decisions have given the 

superior sentencing vantage point of our trial judges. As I have 

noted, Congress and the Supreme Court have accorded a wide 
25

degree of latitude to trial judges, both in their capacity to 

find facts and to fashion an individualized sentence (subject of 

course to statutory maximums and minimums). Congress established 

a comprehensive set of objectives for sentencing courts to 

review in each case, see 18 U.S.C. § 3553(a) (2012), and 

prohibited any limitation on the information a court may 

consider, see 18 U.S.C. § 3661 (2012). Likewise, in major 

sentencing decisions following Booker, the Supreme Court has 

envisioned a scheme in which district courts exercise broad 

discretion. As the Court emphasized, “[t]he sentencing judge has 

access to, and greater familiarity with, the individual case and 

the individual defendant before him than the [Sentencing] 

Commission or the appeals court.” Rita v. United States, 551 

U.S. 338, 357-58 (2007). The trial court, therefore, is not 

bound by the advisory Sentencing Guidelines. Id. at 355. Rather, 

judges are empowered to make any number of factual 

determinations and conduct an “individualized assessment based 

on the facts presented.” Gall, 552 U.S. at 50. 

Do trial courts then retain significant sentencing 

discretion? The signals are mixed. The categorical approach is 

restrictive, and yet Gall is expansive. Outside the strictures 

of the ACCA and other recidivist enhancements that apply the 

categorical approach to predicate crimes of violence, a district 

court’s fact-finding capabilities are not so constrained. While 
26

sentencing judges are confined to a narrow set of record 

documents when classifying predicate crimes for a sentencing 

enhancement, Shepard v. United States, 544 U.S. 13 (2005), there 

is no corresponding “limitation on the district’s court’s 

consideration of [factual descriptions of an offense] in 

crafting its sentence under § 3553(a).” United States v. 

Savillon-Matute, 636 F.3d 119, 124 n.8 (4th Cir. 2011); see also

Booker, 543 U.S. at 233 (“For when a trial judge exercises his 

discretion to select a specific sentence within a defined range, 

the defendant has no right to a jury determination of the facts 

that the judge deems relevant.”). 

Of course, the scope of a sentencing court’s discretion to 

delve into the facts underlying a conviction rendered in another 

forum has never been boundless. Federal sentencing proceedings 

are not the presumptive forum – unlike habeas corpus actions -

for overturning prior convictions or entertaining constitutional 

challenges to them. See Custis v. United States, 511 U.S. 485, 

497 (1994). Yet because no comparable presumption attaches 

itself to the factual circumstances of prior criminal behavior –

sentencing hearings are, after all, the designated vehicle for 

such inquiries - district courts have the option to assess the 

seriousness of past conduct if they so choose. Indeed, it would 

be the odd sentencing regime that requires a holistic view of 

the defendant to be sentenced, see 18 U.S.C. § 3553(a), and yet
27

prevents district courts from finding that a present or prior 

crime was committed in a particularly violent manner.

IV.

Accordingly, as the district court sets about this 

discretionary exercise, it has various tools to impose a 

stricter sentence if it believes that the categorical approach 

is ignoring a violent criminal history or disserving the general 

aims of sentencing. To be sure, the Guidelines “provide a 

framework or starting point” for the trial judge’s sentencing 

determination. See Freeman v. United States, 131 S. Ct. 2685, 

2692 (2011). But the Guidelines are just a starting point: 

sentencing judges have two options for fashioning a sentence 

outside the advisory range. In describing the options, I 

apologize for accenting the already familiar, but these 

discretionary tools have a renewed salience in light of the 

restrictions elsewhere placed upon sentencing our most violent 

offenders and on the sentencing judge’s role. Although these 

alternate pathways will not repair the entire damage that I 

respectfully suggest a rigid categorical approach has done to 

congressional intent, it may allow a trial judge to reach an

appropriate sentence by considering the very facts the 

categorical approach proscribes. 

First, the Guidelines expressly provide for an upward 

departure if “reliable information indicates that the 
28

defendant’s criminal history category significantly 

underrepresents the seriousness” of the defendant’s criminal 

history or likelihood of recidivism. U.S. SENTENCING GUIDELINES MANUAL

§ 4A1.3(a)(1) (U.S. SENTENCING COMM’N 2015). Among the factors a 

court may consider are the factual circumstances and “nature of 

the prior offenses.” See id. cmt. n.2(B); see also United States 

v. Yahnke, 395 F.3d 823, 825 (8th Cir. 2005) (concluding that 

the “violent nature” of a prior conviction “support[ed] a 

finding that [defendant’s] criminal-history category 

substantially underrepresented the seriousness of his criminal 

history”). Our court, for instance, allows a district court to 

classify a defendant as a “de facto career offender” if the 

defendant’s previous crimes “were sufficiently analogous to 

qualifying [violent felonies] that they could be considered for 

all intents and purposes” a violent prior offense. See United 

States v. Lawrence, 349 F.3d 724, 726 (4th Cir. 2003). To aid 

its inquiry, the sentencing judge may consult presentence 

reports and consider the extent to which a defendant’s criminal 

history was violent. See United States v. Howard, 773 F.3d 519, 

530 (4th Cir. 2014); Lawrence, 349 F.3d at 727-30. 

Second, the district court has the discretion to impose a 

sentence outside the Guidelines range if it finds that the 

§ 3553(a) factors justify a variance sentence. See Gall, 552 

U.S. at 50-51. Three of those factors are the “nature and 
29

circumstances of the offense and the history and characteristics 

of the defendant,” the need to “afford adequate deterrence,” and 

the need to “protect the public from further crimes of the 

defendant.” 18 U.S.C. § 3553(a)(1), (a)(2). Here too, the 

sentencing court may tailor its sentence to the nature of the 

defendant’s conduct, both past and present. There is no formal 

limit on the extent of a district judge’s discretion to deviate 

from the Guidelines. See Rita, 551 U.S. at 355; United States v. 

Rivera-Santana, 668 F.3d 95, 106 (4th Cir. 2012). Nor is there 

any restriction on the trial court’s ability to make factual 

findings and probe into the circumstances underlying previous 

convictions. See United States v. Hargrove, 701 F.3d 156, 164 

(4th Cir. 2012); United States v. Diasdado-Star, 630 F.3d 359, 

367 (4th Cir. 2011). In the course of this probe, one which does 

not implicate the modified categorical approach, the fact that a 

document is not Shepard-approved may go more to the weight of 

the evidence than to its admissibility. See U.S SENTENCING GUIDELINES 

MANUAL § 6A1.3(a) (U.S. SENTENCING COMM’N 2015) (“In resolving any 

dispute concerning a factor important to the sentencing 

determination, the court may consider relevant information 

without regard to its admissibility under the rules of evidence

applicable at trial, provided that the information has 

sufficient indicia of reliability to support its probable 

accuracy.”).
30

Consistent with Gall’s appreciation that district courts 

are “in a superior position to find facts and judge their 

import,” all sentencing decisions – “whether inside, just 

outside, or significantly outside the Guidelines range” - are 

entitled to “due deference” from appellate courts. Gall, 552 

U.S. at 39, 51. While a sentencing judge’s explanation for the 

sentence must “support the degree of the variance,” a district 

court need not find “extraordinary circumstances” to justify a 

deviation from the Guidelines. Id. at 47, 50. Rather, 

irrespective of the particulars of “the individual case,” a 

“deferential abuse-of-discretion standard of review” applies 

across the board. Id. at 52. Even when the district court 

calculates the Guidelines range incorrectly, appellate courts 

may find that the error is harmless if the evidence suggests 

that the sentencing judge would have varied from the Guidelines 

anyway and reached the exact same result. See Hargrove, 701 F.3d 

at 162; Savillon-Matute, 636 F.3d at 123-24.

In stressing the foregoing, I have once again stated only 

the obvious, but there are times when even the obvious needs to 

be said. The categorical approach might have increasingly 

committed the application of specified sentencing enhancements 

to the legal rulings of appellate courts, but that does not mean 

that district courts are without recourse to ensure that basic 

sentencing objectives are respected and achieved. In other 
31

words, the district court may decide in the face of an 

inconclusive record to apply the categorical approach to 

predicate offenses, but it also should enjoy the discretion and 

the tools to craft a more individualized sentence when such 

would serve the ends of justice. Our standard of review under 

Gall remains a deferential one. I do not believe, therefore, 

that the Supreme Court, through its categorical approach, 

intended to incapacitate district courts and require those 

courts to stand idly by and let dangerous individuals re-enter 

society prematurely. Their future victims may be nameless and 

faceless to us, but they will bear the brunt of violent acts in 

intensely personal ways.