                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4533


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

EZEKIEL DONJA GARDNER,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. James C. Fox, Senior
District Judge. (4:11-cr-00065-F-1)


Argued:   March 24, 2016                   Decided:   May 18, 2016


Before MOTZ, GREGORY, and KEENAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by published
opinion.   Judge Keenan wrote the opinion, in which Judge Motz
and Judge Gregory joined.


ARGUED: William Michael Dowling, BROOKS, PIERCE, MCLENDON,
HUMPHREY & LEONARD, L.L.P., Raleigh, North Carolina, for
Appellant.   Phillip Anthony Rubin, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.        ON BRIEF:
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
BARBARA MILANO KEENAN, Circuit Judge:

      Ezekiel Gardner was tried by a jury and found guilty of

possession of a firearm by a felon, in violation of 18 U.S.C.

§§ 922(g)(1), 924.        The conviction was based on police officers’

recovery of a handgun from Gardner’s vehicle during a traffic

stop, after receiving a tip from a confidential informant that

Gardner,    a   felon,    possessed     a    firearm.      At   sentencing,       the

district    court      determined    that    Gardner     was    an    armed    career

criminal based on his three prior convictions for felony common

law   robbery     in    North     Carolina    (North     Carolina      common     law

robbery),   and     sentenced     him   to   serve   a   term    of    262    months’

imprisonment.

      On   appeal,     Gardner    challenges:    (1)     the    district      court’s

denial of his motion to suppress the search of his vehicle and

certain statements he made to the police; (2) the court’s denial

of his motion for a new trial; and (3) the court’s determination

at sentencing that he is an armed career criminal.                           Upon our

review,    we   affirm     the    district    court’s    denial       of   Gardner’s

motion to suppress and his motion for a new trial.                           However,

because we conclude that North Carolina common law robbery is

not categorically a violent felony, we hold that the district

court erred in sentencing Gardner as an armed career criminal.

Accordingly,      we     vacate     Gardner’s    sentence       and    remand     for

resentencing.

                                         2
                                           I.

                                           A.

      The government’s evidence regarding the traffic stop showed

that on January 13, 2011, Detective Kenneth Adams of the police

department in Farmville, North Carolina, received a telephone

call from a reliable, confidential informant.                     The woman stated

that Gardner was a convicted felon who possessed a firearm, that

he was driving a white Lincoln Town Car, and that he presently

was located at a particular house on Thorne Street in Farmville.

Detective Adams already had a working relationship with this

informant,    who   had     completed      at     least    five    controlled      drug

purchases    for    a    regional    drug        enforcement      task    force,    and

consistently had provided accurate information.

      Based on the informant’s telephone call, Detective Adams,

Lieutenant Paul McLawhorn, and Chief Donnie Greene proceeded in

a squad car to the identified house on Thorne Street and saw a

white Lincoln Town Car parked near the house.                            The officers

drove around the block, taking time to confirm that Gardner was

the   registered        owner   of   the        vehicle.     When    the     officers

approached the house again, they saw that Gardner had entered

the Lincoln and was driving toward a nearby intersection.                           The

officers     observed      Gardner   make        a   three-point     turn     in   the

intersection and begin driving in the opposite direction.                           The



                                           3
officers   turned      to    follow   Gardner’s   vehicle      and   initiated   a

traffic stop.

       Detective Adams observed that “as soon as the blue lights

come on, I saw [Gardner] dip down in the car, and I saw his

right shoulder disappear as if he was – he was either reaching

for    something      or   putting    something   under   the   seat.”      After

Gardner stopped his car, Adams and McLawhorn approached the car.

Adams held his gun at his side as he walked toward the driver-

side door.       Chief Greene remained in the squad car to request

assistance.

       Adams    confirmed      Gardner’s      identity    by    examining    his

driver’s license, and asked Gardner to step out of the vehicle.

Adams observed that Gardner appeared nervous and kept looking in

the direction of the vehicle’s floor.               When Adams asked Gardner

if he had any weapons on his person, Gardner replied that he did

not.    Upon conducting a patdown search of Gardner, Adams did not

find a weapon.        Adams ordered Gardner to walk to the rear of the

vehicle, but did not place handcuffs on him at this time.

       Adams informed Gardner that Adams had received information

that Gardner had a firearm in his possession.                  When Adams asked

Gardner    if    he    had   “anything    illegal    in   his    car,”   Gardner

responded by hanging his head.               Continuing, Adams asked, “What

is it that is illegal in your car[?].”              Gardner replied, “I have

a gun.”        When asked if he was allowed to possess a firearm,

                                         4
Gardner stated that he was not and that he was a convicted

felon.

      McLawhorn searched the passenger compartment of the car,

and   found      a    handgun      underneath      the     driver’s       seat.        At   that

point, Gardner was placed in handcuffs and was taken to the

police station.

      After arriving at the station, Adams and Detective Rose

Edmonds advised Gardner of his Miranda rights, which Gardner

waived     by    signing      a    written    waiver       form.      Gardner        told   the

officers that he had purchased the gun from “Cobe,” that Gardner

later loaned the gun to “Pudgy,” and that Gardner had received

the firearm back from “Pudgy” that day.

                                              B.

      Before trial, Gardner moved to suppress both the evidence

recovered from his car during the stop and the statements he

made at the police station following his arrest.                               The district

court      denied      the     motion,       concluding       that       the    search      was

justified        by     the       “automobile       exception”           to    the     warrant

requirement of the Fourth Amendment, and that, therefore, any

post-arrest statements were lawfully obtained.

      At    trial,         Gardner    renewed      his     suppression         motion.       In

addition        to   restating       his    earlier      arguments,       he    also    sought

suppression of the statements he made to the police during the

traffic     stop      on    the    ground    that     he   was     not    advised      of    his

                                               5
Miranda       rights.    The     district          court      again       denied      Gardner’s

motion, as well as his motion for judgment of acquittal.                                      The

jury    found    Gardner     guilty       of       the   offense         charged,      and    the

district court later denied Gardner’s motion for a new trial.

       At sentencing, Gardner challenged his classification as an

armed career criminal.           He argued that his predicate convictions

for    North      Carolina       common        law       robbery         did    not     qualify

categorically       as     violent        felonies.                The      district       court

disagreed, concluding that the convictions qualified as violent

felonies under the residual clause of the Armed Career Criminal

Act    (the    ACCA).      See    18   U.S.C.        §    924(e)(2)(B).              The   court

sentenced Gardner to serve a term of 262 months’ imprisonment,

which sentence fell at the bottom of the Sentencing Guidelines

range.    This appeal followed.



                                           II.

       Gardner    raises     several       issues        on       appeal,      but    primarily

challenges the legality of the search of his vehicle and his

classification as an armed career criminal.                               We first address

the legality of the search.

                                           A.

       Gardner argues that the police officers lacked reasonable

suspicion to initiate a stop of his vehicle.                              He contends that

the    confidential      informant         was       not      a     reliable         source   of

                                               6
information,          and    that       she   did       not     provide    sufficient      detail

about       Gardner     such       as    predictive            information       regarding      his

criminal behavior.             Alternatively, Gardner asserts that even if

the initial stop was lawful, the stop evolved into an unlawful

arrest, and he should have been given Miranda warnings before

any     questioning          occurred.                  Thus,     Gardner       challenges       as

inadmissible          the    statements       he        made    after     the   stop     and   also

seeks    to      suppress      the      gun   uncovered           from    his    vehicle.        We

disagree with Gardner’s arguments.

       We review a district court’s factual findings in deciding a

motion      to    suppress      for       clear         error,    and     the    court’s       legal

conclusions de novo.                United States v. Black, 707 F.3d 531, 537

(4th Cir. 2013).              We construe the evidence in the light most

favorable        to    the     government,              the     prevailing       party    in    the

district court.              United States v. Farrior, 535 F.3d 210, 217

(4th Cir. 2008), abrogated on other grounds by United States v.

Williams, 808 F.3d 238 (4th Cir. 2015).

       An     officer       must     have     reasonable           suspicion       of    criminal

activity to perform an investigative stop authorized by Terry v.

Ohio, 392 U.S. 1 (1968).                  United States v. Branch, 537 F.3d 328,

336 (4th Cir. 2008).               Under this standard, the officer must have

a     “particularized          and       objective            basis     for     suspecting      the

particular person stopped of criminal activity.”                                  Navarette v.

California, 134 S. Ct. 1683, 1687 (2014) (citation omitted).

                                                    7
This     standard        is    less       demanding            than    the        probable      cause

standard, and can be based on “information that is less reliable

than that required to show probable cause.”                                 Alabama v. White,

496 U.S. 325, 330 (1990).

       We have stated that when an investigative stop is based on

unverified information provided by a known informant, a tip of

this     nature      “may      alone       justify         a     reasonable         suspicion         of

criminal activity.”                United States v. Singh, 363 F.3d 347, 355

(4th     Cir.        2004).             And     when       police      obtain         information

corroborating         such     a    tip,       this     circumstance         adds     significant

support        for      a     finding          of       reasonable       suspicion.               See

generally id.; United States v. Harris, 39 F.3d 1262 (4th Cir.

1994).

       In     Singh,    a     confidential            informant       had    reported          that    a

tractor-trailer,            bearing        Canadian        license       plates          and    being

driven by two men of Indian descent, contained a large amount of

marijuana and had become disabled on a highway in Greensboro,

North Carolina.             363 F.3d at 350.              After police initially could

not    find    the     truck       at   the     described        location,         the    informant

provided more precise information.                             Id.    When officers arrived

at    the    specified        location,        they       observed     the        tractor-trailer

being       towed.      Id.    at       351.        The    officers      halted       the      towing

operation,        and       ultimately         found       marijuana         in     the    disabled

tractor-trailer.            Id. at 351-52.              The district court granted the

                                                    8
defendants’ motion to suppress, holding that the seizure of the

defendants          was    not    supported      by        a    reasonable         suspicion       of

criminal activity.              Id. at 353.

       In    reviewing          this    decision      on       appeal,        we   observed     that

before stopping the tractor-trailer, the officers had verified

its    location,          the    source     of       its       license        plates,     and     the

description of the vehicle’s occupants.                              Id. at 355.          Based on

this       record,    we    concluded      that       the       district       court      erred    in

holding that the officers lacked reasonable suspicion to execute

the vehicle stop.            Id. at 355-56.

       The present case is governed by our decision in Singh.                                      As

in    Singh,        the    officers      here    received            a   tip       from   a     known

informant that a certain convicted felon driving a white Lincoln

Town Car could be found at a particular location with a gun in

his possession.            This tip alone may have supported a finding of

reasonable suspicion. 1                See id. at 355.           But the officers in the

present       case    also       had    corroborated           some      of    the    information

provided       by    the    informant,      namely,            the    presence       of    a    white

Lincoln Town Car at the described location and verification that

Gardner was the owner of that vehicle.                               While the officers did

not confirm that Gardner was a convicted felon before initiating

       1
       We find no merit in Gardner’s argument that the informant,
his former girlfriend, was unreliable given their prior
relationship and the fact that police had paid her for providing
the tip in question.


                                                 9
the    stop,       every     detail       provided      by       a     tipster    need    not    be

independently            verified      to    support         a       finding     of   reasonable

suspicion.            See White, 496 U.S. at 331-32.                    Accordingly, we hold

that       the    district     court      did    not    err       in    concluding       that   the

traffic stop was supported by reasonable suspicion. 2

       We also disagree with Gardner’s alternative argument that

the encounter matured into a de facto arrest, requiring that

rights be given pursuant to Miranda v. Arizona, 384 U.S. 436

(1966), when the officers detained Gardner at the rear of his

vehicle.          The Supreme Court has held that an individual is not

“in custody” for purposes of Miranda when an officer detains him

to ask “a moderate number of questions . . . to try to obtain

information confirming or dispelling the officer’s suspicions.”

Berkemer         v.    McCarty,     468     U.S.      420,       439-40    (1984).        In    the

present          case,   the   officers         asked    Gardner          questions      directly

related to their reasonable suspicion that he had a firearm in

       2
       We are not persuaded by Gardner’s reliance on the Fifth
Circuit’s decision in United States v. Roch, 5 F.3d 894 (5th
Cir. 1993). In the present case, the informant provided many of
the details that were lacking in Roch, such as the make and
model of the car, as well as the suspect’s full name. Moreover,
the Fifth Circuit relied heavily in its analysis on cases
regarding the need to corroborate information obtained from
anonymous informants. See id. at 898-99 (citing White, 496 U.S.
325).   In contrast, the officers here relied on information
supplied by a known, reliable informant, which both this Court
and the Supreme Court have acknowledged may be sufficient, even
absent any corroboration, to support a finding of reasonable
suspicion.   See Singh, 363 F.3d at 355; Adams v. Williams, 407
U.S. 143, 146-47 (1972).


                                                 10
his possession.        The fact that Gardner did not feel free to

leave did not convert this brief period of questioning into the

functional      equivalent    of   a   “stationhouse        interrogation”       that

would require Miranda warnings.               Id. at 438-39.          We therefore

conclude   that     because    Gardner’s       interaction     with    the   police

during the traffic stop did not evolve into a de facto arrest,

his statement concerning the gun was not obtained in violation

of his Fifth Amendment rights.

     Gardner’s      acknowledgement      of    the   gun,    together     with    the

informant’s     tip   and    Gardner’s    furtive    behavior,        provided    the

officers probable cause to search Gardner’s car.                      We therefore

conclude     that     the     officers        lawfully      searched     Gardner’s

automobile. 3     See United States v. Kelly, 592 F.3d 586, 589-90

(4th Cir. 2010).       Accordingly, we hold that the district court




     3 The officers also could have searched Gardner’s automobile
lawfully based solely on their reasonable belief that Gardner
was dangerous and might “gain immediate control” of a firearm in
the passenger compartment of his car. See Michigan v. Long, 463
U.S. 1032, 1049 (1983). The informant’s tip, along with Adams’s
observation that Gardner reached down below his seat and
nervously   looked   in  the   direction   of   the  car   floor,
independently justified the search of the car.        Under this
analysis, the validity of the search is not affected by
Gardner’s detention at the rear of the vehicle during the
traffic stop. See id. at 1051-52.



                                         11
did   not    err   in   denying     Gardner’s          motion    to    suppress     his

statements and the weapon found in his car. 4

                                         B.

      Gardner also challenges his designation as an armed career

criminal under the ACCA.            He argues that his three predicate

convictions for North Carolina common law robbery do not qualify

as “violent felonies” because: (1) the definition of a violent

felony under the ACCA’s “residual clause” is unconstitutional;

and   (2)   his    robbery   convictions         do    not    qualify     as   violent

felonies under the “force clause” of the ACCA.                        The government

counters    that   Gardner’s      convictions         categorically     are    violent

felonies under the force clause because North Carolina common

law robbery, which requires the taking of property by means of

“violence” or “fear,” necessarily involves the “use, attempted

use, or threatened use of physical force against the person of

another.”     18 U.S.C. § 924(e)(2)(B)(i).                   We disagree with the

government’s argument.

                                      1.

      Gardner preserved this issue in the district court and,

therefore,    we   review    de   novo     the   question       whether    his    prior

state convictions qualified as “predicate felony conviction[s]

      4 We likewise affirm the district court’s denial of
Gardner’s motion for a new trial, which was based on the same
argument that the district court improperly admitted illegally
obtained evidence.


                                         12
for purposes of a federal sentence enhancement.”            United States

v. Valdovinos, 760 F.3d 322, 325 (4th Cir. 2014).              A “violent

felony” is defined under the ACCA as any crime “punishable by

imprisonment for a term exceeding one year” that either “has as

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

force against the person of another” (the force clause), or “is

burglary, arson, or extortion, [or] involves use of explosives”

(the enumerated language), or “otherwise involves conduct that

presents a serious potential risk of physical injury to another”

(the       residual   clause).   18   U.S.C.   §   924(e)(2)(B)(i),   (ii).

Because the Supreme Court recently held in Johnson v. United

States, 135 S. Ct. 2551, 2557 (2015), that the language of the

residual clause is unconstitutional, North Carolina common law

robbery can qualify as a “violent felony” only if it matches the

definition of a violent felony under the force clause. 5




       5
       Contrary to the government’s suggestion, North Carolina
common law robbery does not categorically match the crime of
extortion listed in the enumerated language of 18 U.S.C. §
924(e)(2)(B)(ii).   North Carolina common law robbery involves
the non-consensual taking of money or property from another,
while the generic crime of extortion is defined as “obtaining
something of value from another with his consent induced by the
wrongful use of force, fear, or threats.”    Scheidler v. Nat’l
Org. for Women, Inc., 537 U.S. 393, 409 (2003) (citation
omitted); see also 18 U.S.C. § 1951(b)(2) (defining Hobbs Act
extortion).   The element of consent “is the razor’s edge that
distinguishes extortion from robbery.”   United States v. Zhou,
428 F.3d 361, 371 (2d Cir. 2005). Notably, both North Carolina
and the federal government have codified extortion as a crime
(Continued)
                                      13
     North Carolina common law robbery is the “felonious, non-

consensual taking of money or personal property from the person

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

Carolina v. Smith, 292 S.E.2d 264, 270 (N.C. 1982).                               Typically,

when determining whether a previous conviction qualifies as a

violent      felony       under   the       ACCA,       we    apply    the    “categorical

approach,”      considering          only    the        conviction      itself      and      the

elements of the offense, not the particular facts of the crime.

United States v. Baxter, 642 F.3d 475, 476 (4th Cir. 2011).

     Only      in     a    “narrow    range        of    cases,”       when   a     crime    is

divisible, do we employ the “modified categorical approach,” in

which    a    court       may   consider      a    limited       set    of    documents      to

determine the basis of a defendant’s conviction.                              See Descamps

v. United States, 133 S. Ct. 2276, 2283-85 (2013).                                A crime is

divisible when it includes multiple “alternative elements” that

create different versions of the crime, at least one of which

would qualify under the federal definition and at least one of

which would not.            See id.; Omargharib v. Holder, 775 F.3d 192,

197-98 (4th Cir. 2014).

     A       crime    is    not    divisible            simply    because      it    may     be

accomplished          through      alternative               means,     but       only      when




distinct from robbery.   See N.C. Gen. Stat. § 14-118.4 (2015);
18 U.S.C. § 1951(b)(1), (2).


                                              14
alternative elements create distinct crimes.                              Omargharib, 775

F.3d at 198.                 Alternative elements of a crime, as opposed to

alternative             means       of     committing      a     crime,      are      “factual

circumstances of the offense that the jury must find unanimously

and    beyond       a    reasonable        doubt.”       Id.    (citation     and     internal

quotations          omitted).                Therefore,         when     determining        the

divisibility of a crime, we may consider how “courts generally

instruct       juries         with    respect     to   that     offense.”         See     United

States v. Royal, 731 F.3d 333, 341 (4th Cir. 2013).

       Under North Carolina’s pattern jury instructions, the final

element of common law robbery requires “that the taking was by

violence       or       by    putting      the   person    in    fear.”      N.C.        Pattern

Instructions—Crim.                 217.10.       Thus,    the     jury    need     not     agree

unanimously that the felonious taking was committed by the use

of violence or by instilling fear, only that one of the two

means    was    employed.                Accordingly,     North    Carolina       common    law

robbery may be committed by the alternate means of violence or

fear    that    do           not   constitute     different       elements       of   distinct

crimes.        The crime, therefore, is an indivisible offense, in

which the modified categorical approach “has no role to play.”

Descamps, 133 S. Ct. at 2285.

                                                 2.

       We turn now to apply the categorical approach.                              To qualify

as a categorical match with the force clause, North Carolina

                                                 15
common law robbery necessarily must have 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).                “Physical

force” for purposes of the force clause does not include the

“slightest offensive touching” that might sustain a misdemeanor

battery conviction under some state laws.            See Johnson v. United

States, 559 U.S. 133, 139 (2010).              Instead, “physical force”

within the context of the ACCA means “violent force—that is,

force   capable    of   causing   physical    pain   or   injury   to    another

person.”     Id. at 140 (emphasis in original).

     In determining whether North Carolina common law robbery

necessarily requires the use, attempted use, or threatened use

of “physical force,” within the meaning of the ACCA, we focus on

“the minimum conduct necessary for a violation” under state law.

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

minimum culpable conduct includes any conduct to which there is

a “realistic probability, not a theoretical possibility,” that a

state would apply the law.           Moncrieffe v. Holder, 133 S. Ct.

1678, 1684-85 (2013) (citation omitted).                  When considering a

North   Carolina    common    law    crime,    our   analysis      of    minimum

culpable conduct is informed by decisions of the Supreme Court

of   North     Carolina,     while   decisions       of    North    Carolina’s

intermediate appellate court “constitute the next best indicia



                                      16
of what state law is.”                  See Castillo, 776 F.3d at 268 & n.3

(citation omitted).

       As we noted above, North Carolina common law robbery may be

committed       by   the     alternative           means    of       violence      or     fear.

Accordingly, if either means of committing this crime does not

require the “use, attempted use, or threatened use” of “physical

force,”       then   North      Carolina        common      law       robbery      does     not

categorically        match      the     force      clause       of    the     ACCA.         See

Omargharib, 775 F.3d at 197.                  We first address North Carolina

common law robbery by means of “violence.”

       With    respect     to   the      commission        of    robbery      by    means    of

“violence,” the Supreme Court of North Carolina has explained:

“Although actual force implies personal violence, the degree of

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

the victim to part with his property.”                            State v. Sawyer, 29

S.E.2d 34, 37 (N.C. 1944).               This definition, therefore, suggests

that   even     de   minimis      contact       can    constitute        the       “violence”

necessary      for   a     common       law   robbery       conviction        under       North

Carolina law.

       Later decisions by North Carolina’s intermediate appellate

court support the conclusion that even minimal contact may be

sufficient      to    sustain       a    robbery      conviction         if     the     victim

forfeits his or her property in response.                              For example, the

North Carolina Court of Appeals has held that a defendant’s act

                                              17
of pushing the victim’s hand off of a carton of cigarettes was

sufficient        “actual       force”       to     uphold       a     common       law    robbery

conviction.        See State v. Chance, 662 S.E.2d 405, at *3-4 (N.C.

Ct.   App.    June       17,    2008)       (unpublished).             Also,    the       Court    of

Appeals upheld a conviction when a defendant pushed the shoulder

of an electronics store clerk, causing her to fall onto shelves

while the defendant took possession of a television.                                      State v.

Eldridge,         677     S.E.2d       14     (N.C.       Ct.        App.   June      2,     2009)

(unpublished).

      Based on these decisions from North Carolina’s appellate

courts,      we    conclude          that    the       minimum       conduct    necessary         to

sustain a conviction for North Carolina common law robbery does

not necessarily include the use, attempted use, or threatened

use of “force capable of causing physical pain or injury to

another person,” as required by the force clause of the ACCA.

Johnson,     559        U.S.    at    140.         Therefore,         we    hold     that    North

Carolina common law robbery does not qualify categorically as a

“violent felony” under the ACCA. 6

      Our    analysis          is    not    altered      by   decisions        of    this    Court

interpreting the crime of robbery in other jurisdictions.                                         See

      6Because we conclude that North Carolina common law robbery
committed by means of “violence” does not require the use,
attempted use, or threatened use of “physical force,” within the
meaning of the ACCA, we need not consider whether robbery
committed by means of “fear” otherwise would require the use,
attempted use, or threatened use of “physical force.”


                                                  18
United    States    v.    Presley,    52    F.3d   64,    69     (4th   Cir.        1995)

(concluding that Virginia common law robbery, which requires the

taking of property “by violence or intimidation,” is a violent

felony under the force clause); United States v. Wilson, 951

F.2d 586, 588 (4th Cir. 1991) (explaining that Maryland common

law robbery is a “crime of violence” under the force clause of

the career offender guidelines).                The decisions in Presley and

Wilson do not inform our decision today, because they pre-date

the Supreme Court’s decision in Moncrieffe, and do not evaluate

the minimum conduct to which there is a realistic probability

that a state would apply the law.

      Moreover, the definitions of common law robbery in Maryland

and   Virginia     have   little     or    no   relevance      to    North    Carolina

appellate courts’ interpretation of North Carolina law.                        As this

Court recently has explained, “a State is entitled to define its

crimes as it sees fit.” 7            United States v. McNeal, -- F.3d --,

2016 WL 1178823, at *10 (4th Cir. Mar. 28, 2016).                            And North

Carolina    has    defined    common      law   robbery     to      encompass       cases

involving the use of minimal force, which does not satisfy the

condition    of    “violent    force”       required      by     federal      law    for

application of the ACCA enhancement.               Accordingly, we hold that


      7Likewise, this Court’s decision in McNeal does not impact
our decision, because that case addressed the federal crime of
armed bank robbery.


                                          19
the district court erred in applying the ACCA enhancement based

on Gardner’s convictions for North Carolina common law robbery,

and we vacate Gardner’s sentence and remand the case for re-

sentencing. 8



                                    III.

     For    these   reasons,   we   affirm   Gardner’s   conviction.     We

vacate     Gardner’s   sentence     based    on   the    district   court’s

erroneous application of the ACCA enhancement and remand for re-

sentencing.

                                                         AFFIRMED IN PART,
                                                          VACATED IN PART,
                                                              AND REMANDED




     8 Because we vacate Gardner’s sentence, we do not address
his other arguments challenging his sentence.


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