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GIVE ME YOUR MONEY OR I’LL SAY YOU’RE A @#$!&*%+

Terry Antonio White was convicted of an Armed Career Criminal Act violation. He violated 18 USC § 922(g)(1)’s prohibition on being a felon in possession of a firearm and had three prior crimes of violence (COV), including Virginia common law robbery. That was enough to trigger 18 USC § 924(e)’s mandatory 15-year sentence.

But exactly what constitutes a COV has evolved over the past few years. The COV must be an offense that necessarily must be committed by using or threatening physical force against another. Seems pretty logical, but – as always – the devil’s in the details.

On appeal, Terry argued that Virginia common law robbery can be committed without the actual, attempted, or threatened use of physical force. Terry claimed that at common law, one could commit robbery in Virginia by threatening to accuse the victim of having committed sodomy if he didn’t hand over the loot.

Terry’s claim sent the 4th Circuit to the Supreme Court of Virginia. The Circuit asked whether someone can be convicted of Virginia common law robbery by threatening to accuse the victim of having committed sodomy. The Virginia Supreme Court said, “yes if the accusation of ‘sodomy’ involves a crime against nature under extant criminal law.”

Last week, the 4th Circuit, therefore, held that Virginia common law robbery can be committed without proving as an element the “use, attempted use, or threatened use of physical force.” Thus, Virginia common law robbery cannot be a predicate offense for an ACCA conviction. 

Terry gets time lopped off his sentence, and – while the Circuit didn’t say this – it means that Virginia common law robbery cannot support any 18 USC § 924(c) offense for using a gun during the commission of a Virginia common law robbery, either.

United States v. White, Case No. 19-4886, 2022 U.S. App. LEXIS 2599 (4th Cir., January 27, 2022)

– Thomas L. Root