PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 22-1272

____________

UNITED STATES OF AMERICA

v.

NYLERE STANFORD,

Appellant

____________

On Appeal from the United States District Court

for the District of Delaware

(D.C. No. 1-20-cr-00003-001)

District Judge: Honorable Leonard P. Stark

____________

Submitted Under Third Circuit L.A.R. 34.1(a)

January 24, 2023

Before: HARDIMAN, KRAUSE, and MATEY, Circuit 

Judges

(Filed: July 28, 2023)
2

Eleni Kousoulis

Mary K. Healy

David Pugh

Office of Federal Public Defender

800 King Street

Suite 200

Wilmington, DE 19801

Counsel for Appellant

David C. Weiss

Michael F. McTaggart

Kevin P. Pierce

Jesse S. Wenger

Office of United States Attorney

1313 North Market Street

Hercules Building

Suite 400

Wilmington, DE 19801

Counsel for Appellee

___________

OPINION OF THE COURT

____________

HARDIMAN, Circuit Judge.

This appeal requires us to decide whether Delaware 

first- and second-degree robbery are crimes of violence under 

the United States Sentencing Guidelines. We hold they are. We 

also hold the District Court did not err when it applied the 
3

good-faith exception to the exclusionary rule to deny a motion 

to suppress evidence.

I

A

On September 18, 2019, Appellant Nylere Stanford, his 

girlfriend, and two or three others allegedly robbed a 

convenience store in Winston-Salem, North Carolina. Almost 

three weeks later, the North Carolina authorities obtained a 

warrant for Stanford’s arrest. The warrant alleged that Stanford

helped steal $3,000 from the convenience store using a pistol 

and rifle. The day the warrant was issued, North Carolina 

police contacted Detective Justin Cannon of the Wilmington

Police Department to seek help apprehending Stanford, whom

they believed had fled to Delaware.

About two weeks later, Detective Cannon applied for a 

search warrant authorizing the use of a cell-site simulator to 

locate Stanford’s cell phone. Cannon alleged that Stanford was 

“originally from the Wilmington, Delaware area” and that he 

had “numerous family members” and “associates” who could 

“assist him [] while on the run from North Carolina.” App. 58.

He also requested authorization to use electronic investigation 

techniques for three days from the date of the warrant 

application because, once Stanford’s cell phone was located, 

law enforcement would need to “conduct surveillance to 

establish probable cause for a residence search warrant.” Id. A 

judge issued the warrant the same day.

Warrant in hand, law enforcement quickly discovered 

that Stanford was staying at 615 S. Buttonwood Street in 

Wilmington (the Residence). While conducting surveillance, 
4

police approached a woman who exited the Residence and 

asked her if Stanford was there. She said Stanford and Naki 

Gibson—who turned out to be Stanford’s brother and was 

wanted on other charges—were inside.

Based on that tip, officers knocked, announced, and 

entered the unlocked door to the Residence. Stanford concedes 

that he was found “lying on a couch with a sheet and a pillow,” 

having “slept there the night before” as an “overnight guest.” 

App. 39, 105. Stanford and his brother were taken into custody 

without incident. 

Detective Cannon later applied for a warrant to search

the Residence for evidence of the North Carolina robbery—

any firearms or clothing matching the convenience store’s 

security camera footage, or documents suggesting a secondary 

residence. Cannon’s affidavit (the Affidavit) alleged that 

Stanford was wanted in connection with the robbery, and North 

Carolina authorities knew Stanford had fled to Delaware and

was “staying” at the Residence. App. 31. It also stated that a 

woman had advised law enforcement that Stanford was inside 

the Residence with Stanford’s brother, and that Stanford had 

been apprehended inside the Residence that morning. Finally, 

and most significantly for this appeal, paragraph three of the

Affidavit averred:

During the investigation by the North Carolina 

authorities it was learned that Stanford and three 

other accomplices entered a convenience store 

and robbed it at gun point. Two of the subjects 

were armed, one with a rifle with a high capacity 

magazine and another with a black and silver 

hand gun with laser. The Sheriff’s office was 

able to arrest three out of the four subjects and 
5

Stanford is the last outstanding subject to be 

apprehended. They also advised that the firearms 

used in the robbery are believed to still be 

outstanding.

Id. A magistrate judge issued the warrant (the Search Warrant) 

the same day. 

Officer Robert DiRocco of the Wilmington Police 

Department led the search of the Residence, which yielded a 

loaded handgun and a cell phone. The handgun was found 

beneath a cushion on the couch where Stanford was laying

when he was arrested. 

B

A federal grand jury indicted Stanford on one count of 

illegal firearm possession in violation of 18 U.S.C. 

§§ 922(g)(1) and 924(a)(2). Stanford moved to suppress the 

evidence found in the search of the Residence. He claimed the 

good-faith exception to the exclusionary rule could not save 

the search because the Affidavit was so void of indicia of 

probable cause that the officers’ belief in the existence of 

probable cause was entirely unreasonable. Stanford also

argued that the Affidavit contained recklessly false, material 

information. Finally, he requested a hearing under Franks v. 

Delaware, 438 U.S. 154 (1978), to contest the Search 

Warrant’s constitutionality. 

The Government opposed Stanford’s motion, and the 

District Court denied it. The Court bypassed whether the 

Affidavit established probable cause and applied the good-faith

exception because the Affidavit’s “alleged inaccuracies” were 

not material to the probable cause finding. United States v. 
6

Stanford, 500 F. Supp. 3d 264, 270 (D. Del. 2020). The Court 

denied a Franks hearing for the same reason. Id. at 271–72.

Stanford pleaded guilty but preserved his right to appeal 

the order denying his motion to suppress. After the District 

Court accepted the plea, the United States Probation and 

Pretrial Services issued a Presentence Investigation Report 

(PSR) that calculated an advisory Guidelines range of 46 to 57 

months’ imprisonment. The PSR based the range in part on the 

judgment that Stanford committed his § 922(g) offense after 

being convicted of a felony crime of violence—first-degree 

robbery in violation of Delaware law—as defined in Guideline

§ 4B1.2(a). See U.S.S.G. § 2K2.1(a)(4)(A). The PSR also 

noted Stanford’s Delaware convictions for second-degree 

robbery and attempted second-degree robbery.

Stanford objected to the PSR, arguing that because he 

had not been convicted of a crime of violence, his Base Offense 

Level was improperly set at 20 under the Guidelines. After a 

hearing, oral argument, and extensive briefing, the District 

Court overruled Stanford’s objection. The Court found that 

“first-degree and second-degree robbery under Delaware law 

are crimes of violence within the meaning of the U.S. 

Sentencing Guidelines.” United States v. Stanford, 2022 WL 

611066, at *5 (D. Del. Feb. 1, 2022).

The Court sentenced Stanford to 46 months’ 

imprisonment and three years’ supervised release. Stanford 

appealed.1

1 The District Court had jurisdiction under 18 U.S.C. § 3231. 

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. 

§ 3742(a). 
7

II

Before we consider the legal questions of first 

impression raised in this appeal, we turn first to Stanford’s 

challenge to the denial of his motion to suppress. Stanford 

claims the District Court erred when it applied the good-faith

exception to the exclusionary rule. He contends that the 

Affidavit was: (1) so lacking in indicia of probable cause that 

it was entirely unreasonable to believe probable cause existed,

and (2) deliberately or recklessly false.

We review the District Court’s factual findings for clear 

error and its legal conclusions de novo. United States v. 

McCants, 952 F.3d 416, 421 (3d Cir. 2020). “Under the goodfaith exception to the exclusionary rule, if an officer relies in 

good faith on a warrant later found to be deficient, evidence 

obtained pursuant to that warrant should be suppressed only if 

the officer had—or may be fairly charged with—knowledge of 

the deficiency.” United States v. Fallon, 61 F.4th 95, 108 

(2023).

To merit a Franks hearing, Stanford had to make a 

“substantial preliminary showing” that false statements in the 

Affidavit were “material to the finding of probable cause” and 

were made “knowingly or with reckless disregard for the 

truth.” United States v. Yusuf, 461 F.3d 374, 383 (3d Cir. 2006) 

(cleaned up). 

Stanford focuses on the third paragraph of the Affidavit 

(quoted above). He identifies three deficiencies. He contends 

that the use of the passive phrasing “it was learned” 

misleadingly suggests that someone other than North Carolina 

law enforcement alleged Stanford’s involvement in the 

convenience store robbery. Next, Stanford observes that 
8 

paragraph three fails to mention that law enforcement 

misidentified the female suspect and dismissed all charges 

against her. Last, Stanford notes that the paragraph 

inaccurately claims that “three out of the four subjects” had 

been arrested and that Stanford was the “last outstanding” 

subject when only two suspects had been apprehended, one 

wrongfully. 

The Government does not contest these inaccuracies, 

but argues they were not material to the probable cause finding. 

To determine whether they were material, we consider a 

corrected Affidavit, which would have read:

During the investigation by the North Carolina 

authorities the authorities came to believe it 

was learned that Stanford and three other 

accomplices entered a convenience store and 

robbed it at gun point. Two of the subjects were 

armed, one with a rifle with a high capacity 

magazine and another with a black and silver 

hand gun with laser. The Sheriff’s office was 

able to arrest three two out of the four subjects, 

one of whom was released due to 

misidentification and Stanford is the last 

outstanding subject to be apprehended. They also 

advised that the firearms used in the robbery are 

believed to still be outstanding. 

As the District Court noted, Stanford “offer[s] nothing 

more than conclusory statements on [the] materiality” of those 

alterations to the Affidavit. Stanford, 500 F. Supp. 3d at 270–

71. Nor does the Affidavit so lack indicia of probable cause 

that Officer DiRocco was “entirely unreasonable” to think 

probable cause existed when he executed the Search Warrant. 
9

United States v. Hodge, 246 F.3d 301, 308 (3d Cir. 2001) 

(cleaned up). The Affidavit alleged that: (1) an arrest warrant 

had issued for Stanford about two weeks prior; (2) Stanford

had fled North Carolina to Delaware to stay with family; 

(3) Stanford had been tracked to the Residence, where a 

witness confirmed he was staying with a man known to be his

brother; and (4) Stanford had been apprehended there that 

morning. Plus, firearms from the robbery were still missing, 

and firearms are “durable goods useful to their owners” well 

after a crime’s commission. See United States v. Ponzo, 853 

F.3d 558, 573 (1st Cir. 2017) (cleaned up). These allegations 

establish more than a bare link between the Residence and 

Stanford’s “status as a suspect” in the North Carolina robbery. 

Reply Br. 4. 

Stanford counters that law enforcement did not know 

how long he had been staying at the Residence, and that they

believed him to be staying at many locations. That argument is 

unpersuasive because though Stanford could have been staying 

at multiple locations, that does not mean the police lacked 

probable cause to search the one place they had reason to think

he was staying. Indeed, we have already rejected the 

proposition that a magistrate may not infer probable cause to 

search a suspect’s residence just because there were other 

places the suspect might hide his contraband. United States v. 

Stearn, 597 F.3d 540, 560 (3d Cir. 2010). 

The same principle applies to reliance on a warrant. 

Here, the Affidavit alleged law enforcement thought the 

Residence contained information about Stanford’s “secondary

residence” where “evidence” relating to the North Carolina 

robbery might be found. App. 30. That belief reflected

Stanford’s fugitive status. Stanford suggests “[c]ommon 

sense” would lead a fugitive to “distance” himself from 
10

incriminating evidence. Stanford Br. 17. That’s true in some 

cases. But it would not be unreasonable for police to think that 

a fugitive (like Stanford) would keep his gun at the ready while 

trying to evade capture. For these reasons, the Affidavit as 

altered would have created at least a “fair probability” that the 

Residence contained evidence of Stanford’s involvement in the 

North Carolina robbery. Stearn, 597 F.3d at 560 (cleaned up). 

And this istrue even if another location were an “equally likely 

repository” of that evidence. Id.

Stanford further objects that Detective Cannon 

requested a three-day cell-site simulator search warrant 

because, “once the device [was] located,” Cannon would need 

to “conduct surveillance to establish probable cause for a 

residence search warrant.” App. 58. Stanford argues that,

because Cannon did not conduct three days of surveillance on 

the Residence after tracing the cell signal to it, the Search 

Warrant could not have rested on probable cause. But new 

evidence of Stanford’s connection to the Residence—

including the tip that he was inside and the fact that he had been 

staying there since law enforcement located his cell phone the 

day before—rendered more surveillance unnecessary. Finally, 

Stanford asserts that the information in the Affidavit was 

“stale” because the North Carolina robbery occurred more than

a month before the search. Stanford Br. 17. We agree with the 

District Court, however, that the Affidavit’s statement of the 

date on which Stanford’s arrest warrant issued “provid[ed] a 

reasonable basis” for inferring that the robbery was recent and 

that evidence of it may not have disappeared. Stanford, 500 F. 

Supp. 3d at 271. And though Stanford suggests that he would 

not still have his share of the stolen $3,000 a month after the 

robbery, the Affidavit did not allege that the robbery proceeds

were at the Residence. 
11

Nor has Stanford shown that Detective Cannon 

“deliberately or recklessly fals[ified]” the Affidavit. Hodge, 

246 F.3d at 308 (cleaned up). To obtain a Franks hearing, 

Stanford needed to “present an offer of proof contradicting the 

[A]ffidavit, including materials such as sworn affidavits or 

otherwise reliable statements from witnesses.” United States v. 

Desu, 23 F.4th 224, 234 (3d Cir. 2022) (cleaned up). And even 

substantiated assertions of mere negligent misrepresentation 

don’t suffice. Franks, 438 U.S. at 171. Stanford argues that 

Cannon had no excuse for the errors in paragraph three given 

that the Affidavit “detail[ed] [Cannon’s] communications with 

North Carolina law enforcement.” Reply Br. 5. But these 

communications are as consistent with the proposition that 

North Carolina authorities erred in conveying the facts to 

Cannon as they are with the proposition that Cannon was 

reckless with the truth. 

* * *

The record supports the District Court’s holding that 

law enforcement officers acted in good faith when they relied 

on the Search Warrant. And because Stanford did not show that 

the Affidavit was deliberately or recklessly false, he did not 

make the “substantial preliminary showing” necessary for a 

Franks hearing. Desu, 23 F.4th at 234 (cleaned up). The Court 

did not err when it denied Stanford’s motion to suppress. 

III

We turn now to the sentencing issues that raise 

questions of first impression: are Stanford’s prior Delaware 

offenses for first- and second-degree robbery “conviction[s] of 

. . . crime[s] of violence” that justify his Base Offense Level of 

20 under Guideline § 2K2.1(a)(4)(A)? See Stanford, 2022 WL 
12

611066, at *4–5. We review de novo the District Court’s 

conclusion that they are. United States v. Scott, 14 F.4th 190, 

194 (3d Cir. 2021). In so doing we employ the “categorical 

approach.” McCants, 952 F.3d at 425. That framework focuses 

our analysis on the statutory elements of the offense of 

conviction rather than the facts comprising its commission. 

Scott, 14 F.4th at 194. 

Under the Sentencing Guidelines, a “crime of violence” 

may be determined by reference to the “elements” clause, 

U.S.S.G. § 4B1.2(a)(1), or the “enumerated offenses” clause, 

id. § 4B1.2(a)(2).2 The Government claims Stanford’s 

Delaware convictions for first- and second-degree robbery are 

crimes of violence under both clauses. Stanford contests both 

arguments. The District Court based the enhancement on an 

2 Under § 4B1.2 of the Guidelines, 

(a) The term “crime of violence” means any 

offense under federal or state law, punishable by 

imprisonment for a term exceeding one year, 

that—

(1) has as an element the use, attempted 

use, or threatened use of physical force 

against the person of another, or 

(2) is murder, voluntary manslaughter, 

kidnapping, aggravated assault, a forcible 

sex offense, robbery, arson, extortion, or 

the use or unlawful possession of a 

firearm described in 26 U.S.C. § 5845(a) 

or explosive material as defined in 18 

U.S.C. § 841(c).
13

analysis of only the enumerated offenses clause, see Stanford, 

2022 WL 611066, at *4, but, on our de novo review, we may 

affirm the enhancement on any ground the record supports, 

United States v. Henderson, 64 F.4th 111, 116 (3d Cir. 2023).

A

Stanford claims Delaware’s first- and second-degree 

robbery statutes are indivisible. We disagree. A statute is 

“divisible” if it “list[s] elements in the alternative, and thereby 

define[s] multiple crimes.” Mathis v. United States, 579 U.S. 

500, 505 (2016). Stanford was convicted of first- and seconddegree robbery in August 2008.3 At that time, Delaware’s theft 

statute stated: “A person is guilty of theft when the person 

takes, exercises control over or obtains property of another 

person intending to deprive that person of it or appropriate it.” 

11 Del. C. § 841(a). Delaware’s second-degree robbery statute 

incorporated that definition:

(a) A person is guilty of robbery in the second 

degree when, in the course of committing theft, 

the person uses or threatens the immediate use of 

force upon another person with intent to:

(1) Prevent or overcome resistance to the 

taking of the property or to the retention 

thereof immediately after the taking; or

3 We discuss only the 2008 provisions of the Delaware Code.

But because none of those provisions has been materially 

amended, our conclusions apply equally to the same statutes 

today. 
14

(2) Compel the owner of the property or 

another person to deliver up the property 

or to engage in other conduct which aids 

in the commission of the theft.

Robbery in the second degree is a class E 

felony.

(b) In addition to its ordinary meaning, the 

phrase “in the course of committing theft” 

includes any act which occurs in an attempt to 

commit theft or in immediate flight after the 

attempt or commission of the theft.

Id. § 831. And Delaware’s first-degree robbery statute 

incorporated second-degree robbery: 

(a) A person is guilty of robbery in the first 

degree when the person commits the crime of 

robbery in the second degree and when, in the 

course of the commission of the crime or of 

immediate flight therefrom, the person or 

another participant in the crime: 

(1) Causes physical injury to any person 

who is not a participant in the crime; or 

(2) Displays what appears to be a deadly 

weapon or represents by word or conduct 

that the person is in possession or control 

of a deadly weapon; or 

(3) Is armed with and uses or threatens the 

use of a dangerous instrument; or 
15

(4) Commits said crime against a person 

who is 62 years of age or older.

Robbery in the first degree is a class B felony.

Id. § 832. 

1

The Delaware first-degree robbery statute resembles the 

Pennsylvania robbery statute we construed in United States v. 

Peppers, 899 F.3d 211 (3d Cir. 2018). That statute too broke 

out subprovisions with the disjunctive “or.” See id. at 231. 

“Given [its] clearly laid out alternative elements,” we held, that 

statute was “obviously divisible.” Id. at 232 (cleaned up). 

Delaware’s first-degree robbery statute also resemblesthe New 

Jersey robbery statute we construed in McCants that likewise 

used “or.” See 952 F.3d at 425. Here, as in those cases, the 

“phrasing and structure” of the first-degree statute convey its 

divisibility. Id. at 426. We hold that § 832(a) is divisible. 

Stanford resists the statute’s divisibility by asserting 

that § 832(a)’s subsections (1) through (4) are “means” of 

satisfying a single statutory element. Reply Br. 6. But he does 

not identify the element those putative means might be 

“illustrative examples” of, and we see none. Id. (quoting 

Mathis, 579 U.S. at 518 (cleaned up)). And though Mathis held

that “[i]f statutory alternatives carry different punishments, 

then . . . they must be elements,” 579 U.S. at 518, it does not 

follow that such alternatives cannot be elements if they do not 

carry different punishments. Alternatively defined offenses can 

trigger the same penalty. That they do so does not make their 

subsections means rather than elements.
16

The Delaware Supreme Court’s decision in Word v. 

State, 801 A.2d 927 (Del. 2002), supports our reading of 

§ 832(a). Word held that first-degree robbery required proof of 

the elements of second-degree robbery “plus one additional 

statutory element.” Id. at 929–30. “For example,” the court

continued, “a defendant may be convicted of first degree 

robbery if, in the course of committing the robbery, the 

defendant displays what appears to be a deadly weapon.” Id. at 

930 (cleaned up). So in that case, the State “had to prove that 

[Defendant] displayed what appeared to be a deadly weapon” 

during the robbery. Id. (emphasis added). Elements are

“constituent parts” of a crime that “the prosecution must prove 

to sustain a conviction.” Elements of Crime, Black’s Law 

Dictionary (11th ed. 2019). Means, on the other hand, are 

“legally extraneous.” Descamps v. United States, 570 U.S. 254, 

270 (2013). Section 832(a) lists alternative elements, not 

means. Thus, a conviction for a first-degree robbery like the 

one Stanford committed must be reversed when the evidence 

fails to establish beyond reasonable doubt the “necessary 

statutory element that the defendant ‘displays what appears to 

be a deadly weapon.’” Walton v. State, 821 A.2d 871, 873 (Del. 

2003) (emphasis added).

Nor is the Delaware Supreme Court’s decision in 

Coffield v. State, 794 A.2d 588 (Del. 2002), to the contrary. 

Coffield held that one commits first-degree robbery by 

committing second-degree robbery “in combination with one 

or more of four additional circumstances.” Id. at 592. Stanford 

thinks this line “supports the conclusion that [§ 832(a)’s] 

subsections are means.” Reply Br. 6. Not so. Offenses “often 

require” for guilt—that is, have as elements—the “presence or 

absence of attendant circumstances.” Wayne R. LaFave, 

Substantive Criminal Law § 1.2(c) (3d ed. 2022) (West). And 
17

as for Coffield’s “one or more” language, a person can commit 

first-degree robbery by violating more than one of the divisible 

subprovisions: say, by committing second-degree robbery 

against a 62-year-old while displaying a deadly weapon. 11 

Del. C. § 832(a)(2), (4). That principle is also true of the 

Pennsylvania robbery statute we found divisible in Peppers. 

See 899 F.3d at 231.

Finally, the sample jury instructions in the record 

strongly support our reading of the statute and caselaw. The 

instructions for first-degree robbery under § 832(a)(1) 

(physical injury) and § 832(a)(2) (display of a deadly weapon) 

both comprise five elements that must be proved beyond a 

reasonable doubt. Four of those elements are the same for both 

crimes. But the instructions are distinct because each requires 

proof of an element the other does not: (a)(1) requires a finding 

of proof of “physical injury,” whereas (a)(2) requires a finding 

of proof of the display of what appears to be a “deadly 

weapon.” See App. 208, 210. The instructions confirm that 11 

Del. C. § 832(a) is divisible: the jury must find the relevant 

alternative element beyond a reasonable doubt. See Descamps, 

570 U.S. at 272.

To sum up, the first-degree robbery statute “on its face” 

resolves the divisibility question, state court decisions

“definitively answer[]” it too, and jury instructions confirm our 

conclusion. Mathis, 579 U.S. at 517–18. We agree with the 

District Court that Delaware’s first-degree robbery statute is 

divisible. See Stanford, 2022 WL 611066, at *3. 

2

Delaware’s second-degree robbery statute is divisible 

for similar reasons. It too uses the disjunctive “or” to separate 
18

its subprovisions. See McCants, 952 F.3d at 425; Peppers, 899 

F.3d at 231. Stanford argues that the statute is indivisible “on 

its face” because it “does not provide different penalties for 

violations of the alternative clauses” and because it grades all 

second-degree robberies as class E felonies. Stanford Br. 23–

24. But we have already rejected the view that alternatively 

phrased statutes list elements rather than means only when 

their subsections carry different punishments. McCants, 952 

F.3d at 425. So too for grading. The grading provision of the 

divisible New Jersey robbery statute, for instance, stated that 

“[r]obbery is a crime of the second degree” (though it added a 

first-degree upgrade that was not triggered by circumstances 

detailed in any of the robbery statute’s subprovisions). See id.

Like its first-degree counterpart, the second-degree 

robbery statute includes alternative subprovisions. Sections

831(a)(1) and 831(a)(2) proscribe different conduct: using 

force to overcome resistance, and using force to compel any 

person to engage in conduct that aids the commission of the 

theft. The Delaware Supreme Court has referred to § 831(a)(2) 

as an “element[]” of second-degree robbery. Walton, 821 A.2d 

at 874; see also Johnson v. State, 588 A.2d 1142, at *2 (Del. 

1991) (table). We therefore hold that Delaware’s seconddegree robbery statute is divisible. 

B

Because 11 Del. C. §§ 831(a) and 832(a) are divisible, 

we normally would apply the modified categorical approach, 

consulting Stanford’s Shepard documents to discern his 

statutory offenses. McCants, 952 F.3d at 427. We need not do 

so here, however, because every Delaware first- and seconddegree robbery offense is a crime of violence under the 

elements clause of the Guidelines.
19

The elements clause defines a “crime of violence” as an

offense punishable by over a year in prison that “has as an 

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

force against the person of another.” U.S.S.G. § 4B1.2(a)(1).

Section 831(a)’s plain language “closely tracks” the language 

of the elements clause. United States v. Chapman, 866 F.3d 

129, 134 (3d Cir. 2017). One commits Delaware second-degree 

robbery “when, in the course of committing theft, the person 

uses or threatens the immediate use of force upon another 

person”—intentionally. 11 Del. C. § 831(a) (emphasis added). 

And § 832(a) incorporates second-degree robbery as an 

element. Because Delaware first- and second-degree robbery 

require proof of that “use of force” element, those statutes are 

“crimes of violence” under the Guidelines.

Stanford resists this conclusion. He notes that the 

elements clause requires “violent force—that is, force capable 

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

v. United States, 559 U.S. 133, 140 (2010). He observes that 

force can cause physical injury when it “is sufficient to 

overcome a victim’s resistance.” Stokeling v. United States, 

139 S. Ct. 544, 554 (2019). And he believes that Delaware 

second-degree robbery “does not require force overcoming a 

victim’s resistance.” Stanford Br. 24. We disagree. The 

second-degree robbery statute requires that force be used 

intentionally “upon another person” to “[p]revent or overcome 

resistance” (under § 831(a)(1)) or to “compel” him to aid the 

commission of the theft (under § 831(a)(2)). That is not de 

minimis force. 

Stanford quotes State v. Dawson as evidence that the 

robbery victim “need not resist for an offense to constitute 

robbery.” Reply Br. 11. It is true that Dawson—an unpublished 

lower court opinion—says that the “degree of resistance to the 
20

taking is immaterial to the defendant’s guilt” under 11 Del. C. 

§ 832(a)(4). 2004 WL 838858, at *3 (Del. Super. Ct. Apr. 12, 

2004) (emphasis added). But the court also said that the 77-

year-old robbery victim “relinquished” her purse only because 

it was “forcibly taken” from her, and that she eventually “chose 

not to wrestle with” the purse snatcher. Id. at *1, *4. She was 

“confronted by her assailant head on” and “h[eld] her purse 

tightly” before surrendering it. Id. at *4. That situation, 

including the robber’s use of force, squares with the elements 

clause, which requires only that the use of force suffice to 

“overpower” the will of “even a feeble or weak-willed victim.” 

Stokeling, 139 S. Ct. at 553. And the force need not “cause pain 

or injury or even be prolonged.” Id. (cleaned up). For those 

reasons, Dawson shows only that force sufficient to overcome 

resistance need not be met with meaningful resistance to 

constitute robbery, and that lesson fits with Stokeling.

Stanford also cites United States v. Parnell, 818 F.3d 

974 (9th Cir. 2016). Parnell interpreted a Massachusetts armed 

robbery statute, which had been read to require only that 

“degree of force . . . sufficient to obtain the victim’s property 

against his will.” Id. at 978 (cleaned up). But Stokeling later

held that kind of force to satisfy the elements clause. See 139 

S. Ct. at 554. So Parnell is no help to Stanford either.

Finally, Stanford argues that his statutory offense 

criminalizes reckless conduct and that the elements clause does 

not encompass “offenses criminalizing reckless conduct.” 

Borden v. United States, 141 S. Ct. 1817, 1825 (2021). This 

contention falters as well. Stanford believes that Delaware 

caselaw “demonstrates” that robbery “does not require 

intentional force.” Stanford Br. 27. But the one case he cites 

says only that first-degree robbery need not involve the 

intention to cause physical injury. See Hackett v. State, 569 
21

A.2d 79, 80 (Del. 1990). Crimes of violence under the elements 

clause need not involve that intention either: “threatened use of 

physical force” suffices, and the threat could be insincere. 

U.S.S.G. § 4B1.2(a)(1). 

Besides, the elements clause requires only that force be 

“consciously directed” toward a victim as the force’s “object,” 

not that the force be intended to cause the victim physical 

injury. Borden, 141 S. Ct. at 1826. Delaware first-degree 

robbery satisfies that condition, for it incorporates seconddegree robbery as an element, and that offense requires the 

intentional use or threatened use of immediate force “upon 

another person.” 11 Del. C. § 831(a). That is true of both 

§ 831(a)(1) and § 831(a)(2) because that critical language 

appears in the umbrella provision of § 831(a) itself. So under 

either provision, the perpetrator must intentionally “employ[] 

physical force” against a victim, or at least threaten to. Borden, 

141 S. Ct. at 1826. The use of reckless force would not satisfy 

that statutory element. 

Another case Stanford cites appears at first blush to 

support his position but in the end is unavailing. In Bialach v. 

State, the Delaware Supreme Court considered a sufficiencyof-the-evidence challenge to a first-degree robbery offense of

§ 832(a)(1) based on the second-degree offense of § 831(a)(1). 

744 A.2d 983, 984–85 (Del. 2000). A store manager had 

followed a suspicious shopper (the defendant) into the parking 

lot. Id. at 984. The manager “attempted to apprehend” the 

defendant. Id. But the defendant locked the car doors, put the 

car in reverse, and backed out of his parking space, striking the 

manager. Id. at 984–85. The defendant testified that he neither 

intended to strike the manager nor knew he had done so. Id. at 

984. Yet the court held that the conviction would stand because 

a reasonable juror could conclude that the defendant used force 
22

against the victim with the intent to overcome his resistance 

and “get away” from him. Id. at 986. 

Though the defendant recklessly used force against the 

victim, Bialach does not help Stanford. First, the court’s 

discussion of the defendant’s mens rea as to the use of force is 

dicta because the sole issue raised on appeal was whether 

§ 831(a)(1) can be satisfied when the theft victim does not 

know the identity of the stolen chattel. Id. at 984. Second, the 

defendant put the vehicle in reverse when the victim was 

“behind the vehicle” checking its license plate. Id. Nothing in 

the court’s opinion forecloses the inference that the defendant 

intended to “force[]” the victim out of the car’s path (to effect

escape) via the nonverbal threat: move or be hit. Id. at 985. 

That intention is consistent with the lack of an intent to actually 

strike the victim. And, as noted above, the intentional or 

knowing threatened use of force satisfies the elements 

clause—even when the eventual use of force is only reckless. 

Last, Stanford’s hypothetical about a fleeing robber 

whose pursuing victim gets injured fails for similar reasons. To 

be found guilty, the fleeing robber must use or threaten to use 

force upon another person with the intent to prevent or 

overcome resistance or to compel the victim to surrender his 

property. 

* * *

To sum up, Delaware second-degree robbery—both 11 

Del. C. § 831(a)(1) and § 831(a)(2)—satisfies the elements 

clause of Guideline § 4B1.2(a)(1) and is therefore a crime of 

violence. Because the state’s first-degree robbery offense 

incorporates second-degree robbery as an element, it too 

satisfies the elements clause. So Stanford’s first- and second-
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degree offenses are crimes of violence. We will affirm on this 

ground the District Court’s application of the sentence 

enhancement, and we need not decide whether Stanford’s 

offenses are crimes of violence under the enumerated offenses 

clause.

IV

The District Court did not err when it denied Stanford’s 

motion to suppress or when it applied the Guidelines 

enhancement for a predicate crime of violence. We will affirm

the Court’s judgment of conviction and sentence.