               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0724n.06

                                          No. 13-6322
                                                                                     FILED
                          UNITED STATES COURT OF APPEALS                       Sep 16, 2014
                               FOR THE SIXTH CIRCUIT                       DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA,                       )
                                                )
       Plaintiff - Appellee,                    )
                                                )
v.                                              )     ON APPEAL FROM THE UNITED
                                                )     STATES DISTRICT COURT FOR THE
                                                )     EASTERN DISTRICT OF TENNESSEE
ARTHUR CHARLES SMITH, aka Marvon                )
Anderson                                        )
                                                )
       Defendant - Appellant.                   )



       Before: BOGGS and DONALD, Circuit Judges; and HOOD, District Judge.*

       BOGGS, Circuit Judge.       This case presents the question whether a conviction for

common-law robbery under North Carolina law is categorically a “crime of violence” under

§ 4B1.2 of the Guidelines Manual. Arthur Smith pleaded guilty to multiple counts relating to his

armed robbery of a CVS pharmacy in Sevierville, Tennessee. The district court sentenced Smith

as a career offender, under § 4B1.1(c) of the Guidelines Manual, to 262 months of imprisonment.

It relied on Smith’s prior conviction for North Carolina common-law robbery. Smith argues

that: 1) his past conviction cannot serve as a predicate offense because it does not constitute a

“crime of violence” under the Guidelines Manual; and 2) judicial fact-finding of prior

convictions violates the Sixth Amendment. Because the district court correctly held both that




       *
        The Honorable Denise Page Hood, United States District Judge for the Eastern District
of Michigan, sitting by designation.
                                               1
North Carolina common-law robbery qualifies as a “crime of violence” and that Supreme Court

precedent forecloses Smith’s Sixth Amendment claim, we affirm the district court’s sentence.

                                                I

       On April 23, 2013, Arthur Smith pleaded guilty, without a plea agreement, to: robbing a

pharmacy, in violation of 18 U.S.C. § 2118(a); brandishing a firearm during and in relation to a

crime of violence, in violation of § 924(c)(1); and being a felon in possession of a firearm, in

violation of § 922(g)(1).



                                     A. Presentence Report

       Smith’s presentence report1 determined that U.S.S.G. § 2B3.1(a) provided a base offense

level of 20 for the pharmacy-robbery conviction. Because Smith took controlled substances

from the pharmacy during the robbery, the presentence report increased his offense level by one,

under § 2B3.1(b)(6). And because the loss resulting from Smith’s robbery was more than

$10,000, the presentence report increased his offense level by one additional level, under

§ 2B3.1(b)(7)(B). The presentence report assigned Smith a total offense level of 22 for the

pharmacy-robbery conviction.

       Additionally, the presentence report determined that § 2K2.1 provided the base offense

level for the sentencing of offenses under 18 U.S.C. § 922(g). Because Smith had at least two

prior felony convictions for controlled-substance offenses or for what the Manual refers to as

“crimes of violence,” his base offense level was 24, under § 2K2.1(a)(2).

       The presentence report noted that § 2K2.4 applies to the sentencing of offenses under

§ 924(c), the statute proscribing brandishing a firearm during a crime of violence. The report

1
  The United States Probation Office prepared the report using the 2012 edition of the United
States Sentencing Commission Guidelines Manual.
                                                2
noted that, under § 2K2.4(b), the guideline sentence for a § 924(c) conviction is the minimum

term of imprisonment required by statute. The report further noted that the statutory minimum in

Smith’s case was seven years, consecutive to the punishment for the underlying crime.

       The presentence report determined that Smith’s criminal history qualified him as a

“career offender” under § 4B1.1(a). Specifically, the report found that Smith was at least

eighteen years old at the time he committed the robbery, that one of Smith’s current convictions

was for either a crime of violence or a controlled-substance offense, and that Smith had at least

two prior felony convictions for controlled-substance offenses or crimes of violence. Ordinarily,

a career offender’s offense level, if greater than the offense level otherwise applicable, derives

from the career-offender table in § 4B1.1(b). The report, however, noted that this table was not

applicable because § 4B1.1(c) specifically contains a separate method of calculating the

guideline range for career offenders convicted of violating § 924(c), i.e., possessing a firearm

during a crime of violence. In particular, the Guidelines Manual instructs that the guideline

range for a § 924(c) defendant, who also has other counts of conviction, is the greater of: (A) the

sum of the mandatory minimum penalty under § 924(c) and the minimum and maximum of the

otherwise applicable guideline range for the non-§ 924(c) counts; or (B) the guideline range

determined using the special § 924(c) career-offender table in § 4B1.1(c)(3). The presentence

report ultimately determined that Smith’s guideline range was 262–327 months, which results

from the special § 924(c) career-offender table. Although the presentence report did not “show

its math,” it presumably determined that this guideline range was greater than the sum of seven

years—i.e., Smith’s mandatory minimum penalty under § 924(c)—and the guideline range for

Smith’s non-§ 924(c) counts.




                                                3
       The presentence report detailed Smith’s extensive criminal history, noting dozens of prior

convictions, pending charges, and other arrests. The report noted that most prior convictions did

not qualify for criminal-history points, largely because they were too old or insubstantial

according to the Guidelines Manual. Importantly, the presentence report identified two prior

convictions qualifying Smith as a “career offender” under § 4B1.1(a): 1) a January 9, 2008,

controlled-substances conviction, from Greenville, South Carolina; and 2) a February 9, 2009,

common-law robbery conviction, from Buncombe County, North Carolina. The North Carolina

robbery conviction forms the basis of Smith’s present appeal.

       Smith objected to the presentence report’s classification of him as a career offender.

Specifically, Smith argued that his North Carolina conviction for common-law robbery did not

qualify as a “crime of violence” within the meaning of § 4B1.2(a) of the Guidelines Manual.

The probation officer considered Smith’s objection and concluded that the robbery conviction

properly qualified. The officer also stated that Smith’s guideline range would be 110–137

months if the court determined that Smith was not a career offender.

                                         B. Sentencing

       On September 30, 2013, United States District Judge Amul R. Thapar held a sentencing

hearing. At sentencing, Smith renewed his previously raised objection to the career-offender

designation. Smith argued that his North Carolina robbery conviction was not a “crime of

violence” under the Manual. After extensive oral argument on the issue, the district court

overruled Smith’s objection. The district court also issued a cogent written opinion on the issue,

ordering the clerk to docket an appeal on Smith’s behalf once judgment issued.2 See United



2
  At the close of sentencing, Judge Thapar told Smith: “I think you’re going to want to appeal,
and I frankly think you should because your attorney has raised a couple nonfrivolous
arguments. . . . I’m going to direct the clerk to file [a notice of appeal] on your behalf so that
                                                4
States v. Smith, Crim. No. 13-5-(3)-ART (E.D. Tenn. Sept. 30, 2013), ECF No. 74. First, the

court held that North Carolina common-law robbery is not categorically a “crime of violence”

under § 4B1.2(a)(1), the “physical-force clause.” Smith, Crim. No. 13-5-(3)-ART, slip op. at 3.

Second, the court held that North Carolina common-law robbery does qualify as a “crime of

violence” under § 4B1.2(a)(1), the “residual clause.” Smith, Crim. No. 13-5-(3)-ART, slip op. at

5. The district court, after discussion with counsel and the government, agreed that Smith’s

guideline range was 262–327 months.

       The district judge conducted a thorough discussion with counsel about the § 3553 factors

and about whether a below-guidelines variance was warranted. The government argued that

Smith was “the epitome of a career offender” and that his case presented “basically no

redeeming qualities.” Smith’s counsel emphasized Smith’s age and poor health. The district

court, noting Smith’s “37 arrests” and “multiple robberies,” declined to vary below the bottom

end of the guideline range. But in light of “the combination of [Smith’s] upbringing, his poor

health, [and] his age,” the district court imposed a sentence of 262 months of imprisonment, the

bottom end of the guideline range.

       On appeal, Smith argues that North Carolina common-law robbery does not constitute a

“crime of violence” under § 4B1.1(a) of the Guidelines Manual and that he lacks the predicate

offenses to qualify as a career offender.    He also argues, as he did below, that the Sixth

Amendment requires that the fact of prior conviction, if it increases the penalty, must be charged

in the indictment and submitted to a jury and that the Supreme Court’s decision in Almendarez-

Torres v. United States, 523 U.S. 224 (1998), should be overruled.




your rights can be protected.” Smith’s notice of appeal notes that it was “prepared and entered as
directed by Judge in open Court.”
                                                5
       The crime-of-violence issue is important because were Smith not sentenced as a career

offender, his sentence would be significantly lower than the 262-month sentence that he

received.

                                                II

       We review de novo a district court’s legal conclusions underlying the guideline range

chosen. United States v. Bolds, 511 F.3d 568, 579 (6th Cir. 2007); see, e.g., United States v.

Rodriguez, 664 F.3d 1032, 1035 (6th Cir. 2011) (de novo review of whether aggravated assault,

under Ohio law, qualified as a “crime of violence”).

                                                III

                                       A. Career Offender

       The Guidelines Manual instructs sentencing courts, when calculating a defendant’s

guideline range, to determine the offense-guideline section applicable to the offense of

conviction. § 1B1.1(a)(1). The presentence report correctly determined that § 2B3.1 is the

guideline section applicable to convictions under 18 U.S.C. § 2118(a), § 2K2.1 is the section

applicable to convictions under 18 U.S.C. § 922(g), and § 2K2.4 is the section applicable to

convictions under § 924(c). Ordinarily, the Manual establishes the total offense level for a

defendant convicted of multiple counts using the rules specified in Part D of Chapter Three.

§ 1B1.1(a)(4). The Manual, however, provides an alternate method of establishing the offense

level for defendants who meet certain criteria and who qualify as what the Manual refers to as

“career offender[s].” §§ 1B1.1(a)(6), 4B1.1. Defendants deemed career offenders generally are

assigned an offense level not from the offense-guideline section applicable to the offense of

conviction but according to the specific rules of § 4B1.1. To qualify as a career offender, a

defendant must meet three criteria: 1) the defendant must be at least 18 at the time of the instant



                                                6
offense; 2) the instant conviction must be a felony either for a crime of violence or a controlled-

substance offense; and 3) the defendant must have at least two prior felony convictions for either

a crime of violence or a controlled-substance offense. § 4B1.1(a).

       At issue in this case is the third condition—whether Smith has two prior felony

convictions that count as predicate offenses. Smith’s presentence report lists numerous prior

criminal convictions, two of which served as predicate offenses for career-offender purposes. In

2008, Smith was convicted in South Carolina state court of possession of a controlled substance,

with the intent to distribute; possession of methamphetamine; and possession of heroin. In 1999,

Smith was convicted in North Carolina state court of common-law robbery.

       Smith argues that the North Carolina conviction cannot count as a predicate offense

because it is not a “crime of violence” within the meaning of the Guidelines Manual. He does

not dispute that his South Carolina conviction is a controlled-substance offense and a first

predicate offense for career-offender purposes. At issue is whether Smith has a second.

       At sentencing, the district court overruled Smith’s objection to counting the North

Carolina conviction because the district court concluded that the offense qualified as a “crime of

violence” under § 4B1.2(a)(2), the “residual clause.” See Smith, Crim No. 13-5-(3)-ART, slip

op. at 5. On appeal, Smith identifies this conclusion as error and argues that his prior North

Carolina conviction does not qualify as a “crime of violence.” The district court observed that

whether North Carolina common-law robbery is a “crime of violence” is a “matter of first

impression” in this circuit.

                                     B. “Crime of Violence”

       The Guidelines Manual itself defines “crime of violence.” A “crime of violence” is any

crime punishable by a term of imprisonment greater than one year that “[1] has as an element the



                                                7
use, attempted use, or threatened use of physical force against the person of another; or [2] is

burglary of a dwelling, arson, or extortion, involves use of explosives, or [3] otherwise involves

conduct that presents a serious potential risk of physical injury to another.” § 4B1.2(a).

        The Manual’s definition of “crime of violence” closely tracks the definition of “violent

felony” in the Armed Career Criminal Act (ACCA). See § 924(e)(2)(B). The one difference is

that the Manual’s enumerated-offense clause expressly refers to “burglary of a dwelling,”

whereas the ACCA refers only to “burglary.”3 Despite the nearly identical definitions between

the Manual and the ACCA, the Manual expressly states that “the definition[n] of ‘violent felony’

. . . in 18 U.S.C. § 924(e)(2) [is] not identical to the definition[n] of ‘crime of violence’ . . . used

in [the Guidelines Manual].”       § 4B1.4 cmt. n.1.       Notwithstanding this directive from the

Sentencing Commission, we have previously determined that we decide whether an offense is a

“crime of violence” under the Manual in the same way as we decide whether an offense is a

“violent felony” under the ACCA “because both share essentially the same definitions.” United

States v. Gibbs, 626 F.3d 344, 352 n.6 (6th Cir. 2010); see Johnson v. United States, 559 U.S.

133, 140 (2010) (construing “violent felony” under § 924(e) by reference to the statutory

definition of “crime of violence” in 18 U.S.C. § 16).

        Under North Carolina law, common-law robbery is “the felonious, non-consenual taking

of money or personal property from the person or presence of another by means of violence or

fear.” State v. Bell, 603 S.E.2d 93, 117 (N.C. 2004) (emphasis added); accord State v. Smith,

292 S.E.2d 264, 270 (N.C. 1982); State v. Lawrence, 136 S.E.2d 595 (N.C. 2004). The North

Carolina Supreme Court has held that a state court may convict for common-law robbery by




3
 The Supreme Court has interpreted “burglary” in the ACCA to refer to burglary of “a building
or structure.” Taylor v. United States, 495 U.S. 575, 599 (1990).
                                                   8
proving either violence or fear. State v. Sawyer, 29 S.E.2d 34, 37 (N.C. 1944) (“[I]t is not

necessary to prove both violence and putting in fear[—]proof of either is sufficient.”).

       North Carolina common-law robbery is not “burglary of a dwelling, arson, or extortion,

[and it does not] involve[e the] use of explosives.” § 4B1.2(a)(2). We determine, then, whether

the statute falls within the Guidelines Manual’s “physical-force clause”—i.e., “has as an element

the use, attempted use, or threatened use of physical force against the person of another”—or

whether the crime falls within the Manual’s “residual offense”—i.e., “otherwise involves

conduct that presents a serious potential risk of physical injury to another.” § 4B1.2(a). Because

the district court determined that North Carolina common-law robbery is a “crime of violence”

under the residual clause, we begin there.

                                      C. The Residual Clause

                                                  1

       A prior conviction qualifies as a “crime of violence” under the Manual if it “involves

conduct that presents a serious risk of physical injury to another.” § 4B1.2(a)(2). We must

determine whether common-law robbery under North Carolina law meets this criterion.

       In order to determine whether an offense qualifies as a predicate under the residual

clause, courts must compare the elements of the prior offense of conviction with the elements

contained in the residual clause. Courts must ask “whether the elements of the offense are of the

type that would justify its inclusion within the residual provision, without inquiring into the

specific conduct of the particular offender.” James v. United States, 550 U.S. 192, 202 (2007)

(emphasis in original). Here, the “pivotal question” is whether taking money or property from

the person or presence of another by means of violence or fear is conduct that presents a serious

risk of physical injury to another. Id. at 203.



                                                  9
       Certain penal laws are what the Supreme Court calls “divisible” offenses because they

“se[t] out one or more elements of the offense in the alternative.” Descamps v. United States,

133 S. Ct. 2276, 2281 (2013). When a state “list[s] potential offense elements in the alternative,”

it “renders opaque which element played a part in the defendant’s conviction.” Id. at 2283. The

Court gave, as an example of a “divisible” statute, one “stating that burglary involves entry into a

building or an automobile.” Id. at 2281.

       Under this understanding, common-law robbery under North Carolina law is a divisible

offense because it “comprises multiple, alternative versions of the crime.” Id. at 2284; see

United States v. Covington, 738 F.3d 759, 764 (6th Cir. 2014) (Michigan prison-escape statute

divisible under Descamps because it “lists several, alternative ways to violate the statute”);

United States v. Hockenberry, 730 F.3d 645, 669 (6th Cir. 2013) (Pennsylvania burglary statute

divisible under Descamps because it “lists alternative elements in the statutory text”). A person

commits common-law robbery in North Carolina when he non-consensually takes “money or

personal property from the person or presence of another by means of violence or fear.” Bell,

603 S.E.2d at 117 (emphasis added). Because the crime has alternative elements, common-law

robbery under North Carolina law, is, as the district court correctly concluded, a divisible

offense.

       In order to compare the elements of an offense to those in the residual clause, courts

employ what the Supreme Court has “labeled (not very inventively) the ‘modified categorical

approach.’”4 Decsamps, 133 S. Ct. at 2281. This approach is a two-step process. First, courts



4
  Since the Supreme Court decided Descamps last year, we have repeatedly applied the modified
categorical approach to divisible statutes when conducting a residual-clause analysis. See United
States v. Mitchell, 743 F.3d 1054, 1060–67 (6th Cir. 2014) (convictions under Tennessee robbery
statutes are categorically violent felonies under the residual clause); United States v. Covington,
738 F.3d 759, 764–65 (6th Cir. 2014) (convictions under Michigan prison-escape statute are not
                                                10
determine whether “one alternative (say, a building) matches [the] element[s]” in the residual

clause” but whether “the other (say, an automobile) does not.” Ibid. (parentheticals in original).

If that is the case, then courts can “consult a limited class of documents, such as indictments and

jury instructions, to determine which alternative formed the basis of the defendant’s prior

conviction.” Ibid. Only then can the court “do what the categorical approach demands: compare

the elements of the crime of conviction . . . with the elements” contained within the residual

clause. Ibid.

       As explained above, common-law robbery under North Carolina law is a divisible

offense. Consider two alternatives of the elements provided by the North Carolina Supreme

Court. One version requires taking money or property from a person by means of violence.

Another requires taking money or property from a person by means of fear. In order for North

Carolina common-law robbery categorically to be a “crime of violence” under the Guidelines

Manual, we must conclude that both alternative sets of elements—taking by means of violence

and taking by means of fear—present a serious risk of physical injury to another. See, e.g.,

United States v. Mitchell, 743 F.3d 1054, 1065 –66 (6th Cir. 2014). Smith does not argue that

taking money or property by means of violence does not present a serious risk of physical injury

to another. Our focus, then, is whether accomplishing the robbery by means of fear presents a

serious risk of physical injury to another.




categorically violent felonies under the residual clause); United States v. Denson, 728 F.3d 603,
608–10 (6th Cir. 2013) (convictions under Ohio inciting-violence statute are not categorically
crimes of violence under the residual clause but defendant’s conviction was a crime of violence
in light of Shepard documents); United States v. Johnson, 530 F. App’x 528, 532–33 (6th Cir.
2013) (convictions under Tennessee robbery are not categorically violent felonies under the
residual clause but defendant’s robbery conviction was a violent felony in light of Shepard
documents).
                                                11
       The North Carolina Supreme Court has interpreted the word “fear” as an element of

robbery. In State v. Moore, the defendant in a robbery case argued that the evidence was

insufficient to support his conviction because the victim testified “that he ‘was not scared or in

fear of (his) life.’” 183 S.E.2d 546, 547 (N.C. 1971). The North Carolina Supreme Court

interpreted “fear” expansively: it noted that the word “fear” in the definition of common-law

robbery “is not confined to fear of death” and that common-law robbery does not require “the

use or threatened use of a firearm or other dangerous weapon.”5 Although fear of death is not

necessary, the state supreme court has contemplated that “fear” refers to fear of bodily injury:

       No matter how slight the cause creating the fear may be or by what other
       circumstances the taking may be accomplished, if the transaction is attended with
       such circumstances of terror, such threatening by word or gesture, as in common
       experience are likely to create an apprehension of danger and induce a man to part
       with his property for the sake of his person, the victim is put in fear.

State v. Sawyer, 29 SE.2d 34, 37 (N.C. 1944) (emphasis added) (internal quotation marks

omitted); accord State v. Elkins, 702 S.E.2d 744, 748 (N.C. App. 2011).

       Based on the North Carolina Supreme Court’s interpretation of “fear,” Smith argues that

North Carolina common-law robbery covers conduct that does not present a serious risk of

physical injury. Surely Smith is correct that the offense definition could cover some conduct that

does not present a serious risk of physical injury. One can imagine a robbery that reasonably

places a person in fear yet does not present a serious risk of physical injury. Smith argues that

“fear does not have to be [fear] of physical injury.”6 Yet the law is just the opposite: a person



5
  This statement, technically, was dicta, as the defendant in Moore was charged not with
common-law robbery but under N.C. Gen. Stat. § 14-87, “Robbery with firearms or other
dangerous weapons.” Nonetheless, we defer to the North Carolina Supreme Court on the
interpretation of North Carolina law.
6
  For this proposition, Smith’s citation is “See Moore at 204-205.” State v. Moore does not
appear on pages 204–05 of South Eastern Reporter Second or of North Carolina Reports. In the
context of his brief, Smith appears to attempt to cite Smith v. White, 142 N.C. App. 201, 204–05,
                                                12
must be in fear “for the sake of his person.” Sawyer, 29 S.E.2d at 37. Taking money or property

from the person or presence of another by placing that person in fear of bodily injury, then, does

generally present a serious risk of physical injury to another.

       Our conclusion would not be different even if Smith were correct that the element of fear

in North Carolina common-law robbery did not require fear of physical injury. He, cleverly,

offers examples of robbery by means of “fear of losing a job” and “fear of financial ruin.” These

kinds of robberies are, indeed, conceivable: “Give me your money, or else I’ll tell my uncle to

fire you!” and “Give me your money, or else I’ll expose your Ponzi scheme!”                 These

hypotheticals, though perhaps the stuff of law-school exams, are not the basis of the analysis.

There are, of course, ways of committing robbery that do not “pose a realistic risk of

confrontation or injury to anyone.” James, 550 U.S. at 207. But the Supreme Court has held

that analysis under the residual clause, even when the analysis addresses a portion of a divisible

statute, rests on “inherently probabilistic concepts.” Ibid. “[T]he proper inquiry . . . is whether

the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious

potential risk of injury to another.” Id. at 208 (emphasis added). We think that, in the ordinary

case, robbing someone by means of placing him in fear for his person does present a serious risk

of physical injury. Here, the mere possibility that a person could, conceivably, commit the

offense without creating a serious risk of physical injury to another is insufficient to move North

Carolina common-law robbery outside the residual clause.

       Additionally, focusing on exceptional, hypothetical cases is a misapplication of the

modified categorical approach. We have sometimes said that “[i]f it is possible to violate the



542 S.E.2d 265, 268 (N.C. App. 2001). Nothing in White suggests that “fear does not have to be
[fear] of physical injury.” White, in fact, contains the same quotation from State v. Sawyer
offered above. See White, 542 S.E.2d at 268.
                                                 13
statute in a way that would constitute a crime of violence and in a way that would not, the court

may consider the indictment, guilty plea, or similar documents to determine whether they

necessarily establish the nature of the prior conviction.” Gibbs, 626 F.3d at 352. In light of

recent Supreme Court decisions, we clarify that this is not quite right.            “One can always

hypothesize unusual cases in which even a prototypically violent crime might not present a

genuine risk of injury.” James, 550 U.S. at 208. Accordingly, the inquiry is not whether it is

possible for a defendant to commit a crime in a way that would not be a violent felony. As the

Supreme Court said last year, the sentencing court must “look only to the fact that the defendant

ha[s] been convicted of crimes falling within certain categories, and not to the facts underlying

the prior convictions.” Descamps, 131 S. Ct. at 2286. Here, the mere fact that Smith was

convicted of North Carolina common-law robbery—regardless under which version of

elements—is sufficient to make that offense a “crime of violence” under the Guidelines Manual.

We need not consider whether the offense also qualifies as a crime of violence under the

physical-force clause.

                                                    2

          In light of the difficulties presented by analysis under the residual clause,7 our circuit has

at times reached varying results about whether various state theft offenses qualify as crimes of

violence. In United States v. Mekediak, we held that the crime of unarmed robbery under Mich.

Comp. Laws § 750.530—a felony committed without a weapon “by force and violence, or by

assault or putting in fear”—“fits comfortably within the residual clause of ‘crime of violence.’”

510 F. App’x 348, 353 (6th Cir. 2013). Similarly, we have held that larceny and attempted

larceny under Mich. Comp. Laws § 750.530— a felony committed “by stealing from the person



7
    See Sykes, 131 S. Ct. 2267, 2284 (2011) (Scalia, J., dissenting).
                                                   14
of another”—falls within the residual clause and, therefore, is a “crime of violence” under the

Guidelines Manual. United States v. Payne, 163 F.3d 371, 375 (6th Cir. 1998) (larceny); United

States v. Taylor, 696 F.3d 628, 631 (6th Cir. 2012) (attempted larceny). Our decision rested on

the observation that Michigan interprets its larceny statute “narrowly to require that the property

be taken from the possession of the victim or be taken from within the immediate presence or

area of control of the victim.” Payne, 163 F.3d at 375. The Michigan decisions are squarely on

point, given that § 750.530 contains the same violence-or-fear language as the North Carolina

statute.

           Our analysis of Tennessee’s robbery laws, however, has produced contradictory results in

recent years. In a series of cases, we have interpreted two Tennessee robbery statutes—both of

which list violence or fear as alternative elements—to determine whether convictions under them

may serve as predicate offenses under the Manual and under the ACCA: Tenn. Code. Ann. § 39-

13-401(a)—prohibiting “the intentional or knowing theft of property from the person of another

by violence or putting the person in fear” and the now-repealed Tenn. Code. Ann. § 39-2-

501(a)—prohibiting “the felonious and forcible taking from the person of another, goods or

money of any value, by violence or putting the person in fear.”

           First, in United States v. Gloss, a published opinion, we held that facilitation of

aggravated robbery under Tennessee law—which requires that the crime be accomplished “with

a deadly weapon or by display of an article used or fashioned to lead the victim to reasonably

believe it to be a deadly weapon” or where “the victim suffers serious bodily injury”—is a

“violent felony” under the ACCA. 661 F.3d 317, 318–19 (6th Cir. 2011). That decision rested

squarely on the physical-force clause—not the residual clause.         See id. at 318, 320 (“not

decid[ing] whether the [offense] also qualifies under the residual clause”). Second, in United



                                                  15
States v. Fraker, an unpublished opinion, we held that robbery under § 39-13-401(a), the current

Tennessee law, is not a violent felony. 458 F. App’x 461, 463 (6th Cir. 2012). In Fraker, we

said that an offense qualifies as a predicate offense if it is a felony “that has an element the use,

attempted use, or threatened use of physical force against the person of another.” Ibid. We

concluded that Tennessee’s “robbery statute includes criminal activity outside the scope of the

ACCA because a defendant can violate the statute by employing only fear, rather than physical

violence or force.” Ibid. (emphasis added). Fraker did not address or refer to the enumerated-

offense clause or the residual clause in any way, but our holding that Tennessee robbery is not a

violent felony necessarily determined that the offense does not qualify under any of the three

possible avenues.8

       The following year, in United States v. Johnson, another unpublished opinion, we

considered convictions under the substantively identical but now-repealed § 39-2-501(a). 530 F.

App’x 528, 531–32 (6th Cir. 2013). Johnson “follow[ed] the reasoning of Fraker,” rather than

Gloss, and declined to hold that a robbery conviction under § 39-2-501(a) “is categorically a

violent felony” because “the robbery . . . within [the] statute of conviction can be violated by

employing only fear and not violence.” Id. at 532.9 Earlier this year, in a published opinion, we

held, “[c]ontrary to Fraker and Johnson,” that robbery under both Tennessee’s repealed statute

and its current statute qualify as violent felonies. United States v. Mitchell, 743 F.3d 1054,

1058–63 (6th Cir. 2014); accord United States v. Huntley, -- F. App’x --, No. 14-5097, 2014 WL

3015020 (6th Cir. July 7, 2014) (robbery under Tenn. Code. Ann. § 39-13-401 also a “crime of

8
  In Fraker, the court proceeded to affirm the defendant’s sentence under the ACCA because the
Shepard analysis revealed that the defendant admitted to robbery by means of violence. Fraker,
458 F. App’x at 464.
9
  In Johnson, as in Fraker, the court ultimately affirmed the defendant’s sentence under the
ACCA because “application of the modified categorical approach resolve[d] the matter in the
government’s favor.” Johnson, 530 F. App’x at 532.
                                                 16
violence” under the Guidelines Manual). We concluded that robbery under Tennessee law

categorically is a violent felony under both the physical-force clause and the residual clause.

Mitchell, 743 F.3d at 1060. We declined to follow Fraker and Johnson because we said that

those decisions “turned to the colloquial understanding of fear” and “failed to apply the

definition of ‘fear’ enunciated by the Tennessee Supreme Court.” Id. at 1059–60. Relevant to

the Mitchell court was that the Tennessee Supreme Court interpreted “fear” in its robbery statutes

to refer to “fear of bodily injury and of present personal peril from violence offered or

impending.” Id. at 1059 (quoting State v. Taylor, 771 S.W.2d 387, 398 (Tenn. 1989)).

       These prior decisions do not control whether common-law robbery under North Carolina

law is a crime of violence. But the decision we reach is generally consistent with our own prior

published decisions. We note that North Carolina’s definitions of robbery and of “fear” are

similar to Tennessee’s. Our holding is limited to construing the offense of common-law robbery

under North Carolina law. Every state statute, for better or worse, presents a different case when

determining whether it qualifies as a crime of violence under the residual clause.         ACCA

decisions do not control beyond the specific statute under consideration in the jurisdiction

issuing the ruling.

                                                3

       The decision we reach is also consistent with opinions from other circuits, including the

circuit encompassing North Carolina. Two circuits have held that common-law robbery under

North Carolina law is a crime of violence under the Guidelines Manual. See United States v.

Carmichael, 408 F. App’x 769, 771 (4th Cir. 2011); United States v. Moore, 223 F. App’x 422,

424 (5th Cir. 2007) (per curiam) (with minimal analysis); see also United States v. Ellis,

564 F.3d 370, 377–79 (5th Cir. 2009) (not plain error to count attempted common-law robbery



                                               17
under North Carolina law as a predicate offense). Additionally, the Seventh Circuit has reached

the same result when analyzing Indiana’s robbery statute, which has elements nearly identical to

the North Carolina offense. See United States v. Lewis, 405 F.3d 511, 514 (7th Cir. 2005)

(robbery under Ind. Code 35-42-5-1 is a crime of violence under the residual clause because

“fear” under Indiana law “is fear of physical injury rather than of defamation”).

        The district court may have incorrectly suggested that that we are bound by the Fourth

Circuit’s determination about whether a conviction under the law of a state within its jurisdiction

qualifies as a crime of violence. At sentencing, the district court asked Smith’s counsel: “And

you agree that the Fourth Circuit [opinion in Carmichael] is controlling unless the Supreme

Court says otherwise?”; and “Why isn’t [the Fourth Circuit] binding at the very least[?]” We

clarify that whether an offense qualifies as a crime of violence under the Manual or as a violent

felony under the ACCA “is a question of federal law, not state law.” Johnson, 559 U.S. at 138;

accord Mitchell, 743 F.3d at 1058; United States v. Rede-Mendez, 680 F.3d 552, 225 (6th Cir.

2012) (“[W]hether a crime is a crime of violence is a question of federal law.”). Just as we are

not bound by a state high court’s interpretation of federal law, so too are we not bound by

another circuit’s decision. A circuit opinion concerning a state law from within its jurisdiction

may be especially instructive, though reason might also suggest taking a different course. To be

sure, “[w]e are, however, bound by the [North Carolina] Supreme Court’s interpretation of state

law, including its determination of the elements” of common-law robbery. Johnson, 559 U.S. at

138; accord Johnson v. Fankell, 520 U.S. 911, 916 (1997) (No “federal tribunal has any

authority to place a construction on a state statute different from the one rendered by the highest

court of the State.”).




                                                18
                                               IV

       Smith also argues, as he did below, that the Sixth Amendment prohibits judicial fact-

finding of a defendant’s prior convictions for the purpose of increasing a sentence. Smith

correctly acknowledges that Supreme Court law forecloses his argument. “[T]he Constitution

does not impose th[e] requirement . . . . that [a defendant’s] recidivism must be treated as an

element of his offense.” Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998). The

fact of prior conviction, even if it increases the maximum penalty for a crime, does not need to

be “charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.”

Apprendi v. United States, 530 U.S. 466, 476 (2000). Smith argues that Almendarez-Torres

should be overruled. “[W]e must follow [Almendarez-Torres] until the Supreme Court expressly

overrules it.” United States v. Mack, 729 F.3d 594, 609 (6th Cir. 2013).

       Smith states that he raises the Almendarez-Torres claim solely to preserve the issue. It is

so preserved.

                                               V

       The North Carolina Supreme Court interprets “fear” in its robbery statute to refer to fear

of bodily injury. Apart from this, the conduct encompassed by robbery by means of fear, in the

ordinary case, involves fear of bodily harm. In light of this, we conclude that common-law

robbery under North Carolina presents a serious risk of physical injury to another and, thus,

categorically is a crime of violence under § 4B1.2 of the Guidelines Manual. Smith’s Sixth

Amendment claim fails under Almendarez-Torres. We, therefore, AFFIRM the district court’s

sentence.




                                               19
