                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 15-4764


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

KAREEM ANTWAN DOCTOR,

                Defendant – Appellant,



Appeal from the United States District Court for the District of
South Carolina, at Charleston.    Patrick Michael Duffy, Senior
District Judge. (2:13-cr-00811-PMD-1)


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


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


Affirmed by published opinion.    Chief Judge Gregory wrote the
opinion, in which Judge Wilkinson and Judge Diaz joined. Judge
Wilkinson wrote a separate concurring opinion.


ARGUED:    Emily Deck Harrill, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Columbia, South Carolina, for Appellant. Robert Frank
Daley, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Columbia,
South Carolina, for Appellee.    ON BRIEF:   William N. Nettles,
United States Attorney, Columbia, South Carolina, Sean Kittrell,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charleston, South Carolina, for Appellee.
GREGORY, Chief Judge:

        Kareem Antwan Doctor appeals his fifteen-year sentence for

unlawful possession of a firearm.                    The district court imposed an

enhanced    sentence         pursuant    to    the       Armed    Career    Criminal    Act

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

predicate       drug    offenses    and        one       predicate      violent     felony.

Doctor challenges the district court’s determination that his

prior conviction for South Carolina strong arm robbery qualifies

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

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



                                              I.

        In April 2012, North Charleston police officers received a

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

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

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

Doctor his Miranda rights, questioned him about the firearm.

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

Doctor eventually pleaded guilty to being a felon in possession

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

       The probation officer recommended that Doctor be sentenced

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

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

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

                                              2
drug offense, or both.”                  18 U.S.C. § 924(e)(1).                 Doctor had two

prior        convictions       for   possession          with       intent          to   distribute

cocaine,       which     he    did   not    contest          qualified         as    serious     drug

offenses,       as   well      as    a    prior       conviction         for    South     Carolina

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

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

robbery conviction was an ACCA violent felony.                                       The district

court designated Doctor an armed career criminal based on his

three        predicate    offenses         and    imposed          the    mandatory        minimum

sentence of fifteen years.



                                                 II.

        We review de novo whether a prior conviction qualifies as

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

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

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

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

attempted use, or threatened use of physical force against the

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


        1
       South Carolina strong arm robbery and common law robbery
are “synonymous terms for a common law offense whose penalty is
provided for by statute.”    State v. Rosemond, 560 S.E.2d 636,
640 (S.C. Ct. App. 2002) (footnote omitted).        For ease of
reference, we refer to the offense as South Carolina robbery.
        2
       The ACCA separately defines “violent felony” as “any crime
punishable by imprisonment for a term exceeding one year” that
(Continued)
                                                  3
appeal is whether South Carolina robbery meets the definition of

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

clause.”

    To determine whether South Carolina robbery matches this

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

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

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

directs courts to examine only the elements of the state offense

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

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

required to sustain a conviction for the state crime, United

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

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

there   must   be   a    “realistic   probability,   not    a   theoretical

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


“is burglary, arson, or extortion, involves use of explosives,
or otherwise involves conduct that presents a serious potential
risk   of    physical  injury   to    another.”      18   U.S.C.
§ 924(e)(2)(B)(ii). That subsection has no application here, as
robbery is not an enumerated crime and the Supreme Court deemed
the clause concerning risk of physical injury unconstitutionally
vague in Johnson v. United States (“Johnson II”), 135 S. Ct.
2551, 2557 (2015).
    3  Courts apply the “modified categorical approach” where the
prior state offense is divisible, meaning it sets out multiple
elements in the alternative and at least one set of elements
matches the federal definition. Descamps v. United States, 133
S. Ct. 2276, 2284 (2013).    Because South Carolina robbery is a
nondivisible offense, the modified categorical approach “has no
role to play in this case.” Id. at 2285.


                                      4
id. (quoting        Moncrieffe      v.     Holder,      133    S.     Ct.     1678,    1684-85

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

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

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

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

definition of violent felony in the force clause.

       In   State    v.     Rosemond,      the    South       Carolina        Supreme     Court

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

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

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

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

can thus commit robbery in South Carolina by alternative means

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

evaluating      intimidation,            courts     ask       whether         an     “ordinary,

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

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

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

       If   either     robbery      by    means    of     violence       or    by     means    of

intimidation fails to match the force clause definition, the

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

Doctor offers several reasons why South Carolina robbery is not

a     categorical         match,     largely         focusing            on        robbery     by

intimidation.        He first contends that a robber may intimidate a



                                             5
victim without “the use, attempted use, or threatened use of

physical force.”

      A   review       of    South        Carolina      law    reveals,         however,       that

intimidation       necessarily            involves      threatened         use    of    physical

force.     The South Carolina Supreme Court has indicated that a

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

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

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

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

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

Carolina     law   requires          the    force       threatened         to    be    “physical

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

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

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

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

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

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

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

these two standards align.                      There is no meaningful difference

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

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

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

constitute intimidation in South Carolina, a robbery victim must

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

                                                  6
In other words, a defendant intimidates a victim by threatening

physical force.

     Notably,       the    South     Carolina       Supreme     Court     modeled       its

definition of intimidation in robbery cases after the one this

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

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

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

indeed    cites     the      definition          from   our     Wagstaff      decision.

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

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

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

position reasonably could infer a threat of bodily harm from the

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

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

confirmed    in     McNeal        that     intimidation        in   the     context       of

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

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

effectively the same definition of intimidation that we use in

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

support to our conclusion here that intimidation in the context

of   South   Carolina        robbery       requires      the    threatened        use    of

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

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



                                             7
victim    feared    bodily     harm”--that         is,      was      intimidated--by

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

      Doctor instead highlights how a defendant can effectuate a

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

discussion of constructive force 4 in the South Carolina Court of

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

slight    the   cause     creating     the      fear   is     or    by       what    other

circumstances the taking is accomplished, if the transaction is

accompanied by circumstances of terror, such as threatening by

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

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

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

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

the   threat    creates   a   fear   of       bodily   injury      in    a    reasonable

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

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

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

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

render it nonviolent.




      4 Though the South Carolina Court of Appeals did not
explicitly define the term, “constructive force” generally means
“[t]hreats   and  intimidation  to   gain  control   or  prevent
resistance; esp., threatening words or gestures directed against
a robbery victim.”   Constructive Force, Black’s Law Dictionary
(10th ed. 2014).


                                          8
      Doctor next argues that South Carolina robbery is not an

ACCA violent felony because it does not match the force clause

requirement        that    force    be    directed    “against         the   person   of

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

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

threatening behavior is not specifically aimed at the victim.

Doctor suggests that the facts of Rosemond illustrate that a

defendant can be convicted for applying force against property

rather than people.

      The     defendant      in    Rosemond       entered      a   convenience      store

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

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

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

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

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

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

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

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

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

South Carolina Supreme Court upheld the defendant’s conviction,

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

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

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

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

                                             9
register.         It   sustained      the      conviction        after     specifically

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

violent force against the clerk.                  Rosemond thus confirms that a

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

“against    the    person     of    another.”        This       interpretation      makes

sense    given    that      intimidation       means      the    threatened       use   of

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

people.     Indeed, the very purpose of threatening physical force

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

560 S.E.2d at 641.

     Doctor also argues that South Carolina robbery is not a

violent     felony       because     it     can     be     committed       without      an

intentional use or threat of physical force.                        This position is

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

considered       whether     Florida’s      offense       of     driving    under       the

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

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

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

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

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

Because a Florida conviction for driving under the influence

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

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

We later held that an assault conviction premised on reckless

                                          10
force was not a crime of violence for the same reason.                             See

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

       South        Carolina     robbery   incorporates           the   elements       of

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

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

explicit mens rea requirement as to the force or intimidation

element.         Doctor takes this to mean that South Carolina robbery

lacks      the   intent      requirement   needed    for    it    to    qualify   as    a

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

Carolina where a defendant negligently or recklessly used force

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

or   recklessly        intimidated     a   victim.         This    is    unsurprising

because the intentional taking of property, by means of violence

or intimidation sufficient to overcome a person’s resistance,

must       entail     more     than   accidental,    negligent,          or   reckless

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

Court held that the crime requires general intent, meaning a


       5
       Doctor does point us to United States v. Dixon, in which
the Ninth Circuit concluded that robbery under California Penal
Code § 211 could be committed with accidental force.   805 F.3d
1193, 1197 (9th Cir. 2015). That holding, however, hinged on a
stranger-than-fiction California Supreme Court case where a
defendant broke into an unoccupied car in a parking garage,
stole the car, and then accidentally ran over the car’s owner
after exiting the garage.   Id. (discussing People v. Anderson,
252 P.3d 968 (Cal. 2011)).   We have found no indication that a
defendant can similarly commit South Carolina robbery with
accidental force.


                                           11
defendant must possess “knowledge with respect to the actus reus

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

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

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

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

robbery should be viewed any differently.                          While hypothetical

scenarios can surely be concocted to support robbery convictions

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

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

that South Carolina would punish such conduct.

       Finally, Doctor argued for the first time at oral argument

that South Carolina robbery can be committed with de minimis

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

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

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

meet    the    physical     force     requirement          outlined      in        Johnson    I

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

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

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

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

the    physical     force    threshold).              We   reached      that       result    in

Gardner      with   respect    to     North      Carolina       common    law       robbery.

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

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

                                            12
force implies personal violence, the degree of force used is

immaterial, so long as it is sufficient to compel the victim to

part with his property.”               Id. at 803 (emphasis added) (quoting

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

     Here,       by    contrast,       there      is     no   indication     that    South

Carolina    robbery       by    violence       can       be   committed    with     minimal

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

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

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

the definition of South Carolina robbery does not suggest that

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

general    statement       from     the     South        Carolina   Supreme      Court     or

intermediate          appellate     court      to      that    effect.       And    Doctor

provides    no    examples        of   South        Carolina     cases    that     find   de

minimis    actual       force     sufficient        to    sustain   a     conviction      for

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

conclusion that South Carolina robbery can be accomplished with

force below the physical force threshold.                       Recognizing that each

     6 At oral argument, defendant’s counsel cited two cases for
the first time--State v. Gagum, 492 S.E.2d 822 (S.C. Ct. App.
1997) and Humbert v. State, 548 S.E.2d 862 (S.C. 2001)--in
support of the argument that South Carolina robbery can be
committed with slight actual force.       Neither case, however,
addresses the minimum amount of actual force needed to sustain a
robbery conviction in South Carolina. In fact, it is not clear
from the face of either appellate decision whether the juries
(or, more precisely, at least some of the jurors) convicted the
defendants of robbery by violence or robbery by intimidation.


                                             13
“State is entitled to define its crimes as it sees fit,” McNeal,

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

Carolina robbery in this critical respect.

      In sum, South Carolina has defined its common law robbery

offense, whether committed by means of violence or intimidation,

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

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

Accordingly,      we   conclude   that   Doctor’s   prior   conviction   for

South Carolina robbery qualifies as a predicate violent felony

within the meaning of the ACCA.



                                     III.

      For the foregoing reasons, the judgment of the district

court is

                                                                  AFFIRMED.




                                      14
WILKINSON, Circuit Judge, concurring:

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

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

force   clause     covers    acts       of   intimidation        and     a   strong      arm

robbery is the quintessential act of intimidation – whether or

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

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

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

realistic application of the categorical approach, because all

too often that approach has pushed criminal sentencing to the

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

untenable remove from facts on the ground.

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

express     a   general    concern      that      the    categorical         approach     to

predicate crimes of violence is moving beyond what the Supreme

Court      originally     anticipated.        Its   overactive          application       is

undermining the efforts of Congress, the role of district courts

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

protection against the most violent forms of criminal behavior.

While it need not be discarded, the categorical approach should

be adapted to return to sentencing courts a greater measure of

their historical discretion.




                                             15
                                           I.

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

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

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

practical    difficulties         of    probing      the   underlying       conduct   of

predicate convictions. And the approach promised to strike a

balance      between       exempting          from       sentencing        enhancements

defendants       convicted    of       non-violent       conduct    and    vindicating

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

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

practice.

     For starters, the purported administrative benefits of the

categorical      approach     have      not     always     worked     as   advertised.

Judges    have    simply     swapped     factual      inquiries     for     an   endless

gauntlet of abstract legal questions. Consider the decisional

costs: Courts must first construe the predicate crime, which

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

at various documents to discern whether each statutory phrase is

a separate element or merely an alternative means of satisfying

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

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

must then assess whether “the minimum conduct criminalized” by

the statutory elements “categorically fits” within the generic

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

                                           16
Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013). But because

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

this inquiry also involves an exhaustive review of state law as

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

up some hypothetical situation to demonstrate that the predicate

state crime just might conceivably reach some presumably less

culpable behavior outside the federal generic.

     The   Supreme   Court    has     sensibly      cautioned    judges      to   use

common sense in applying the categorical approach and not to

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

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

we begin the inquiry with the presumption that the conviction

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

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

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

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

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

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

protracted ruse for paradoxically finding even the worst and

most violent offenses not to constitute crimes of violence.

     The    categorical       approach,       too     aggressively        applied,

eviscerates Congress’s attempt to enhance penalties for violent

recidivist behavior. The ACCA addresses the most culpable sector

of the criminal population, the repeat offenders Congress found

                                       17
responsible for the majority of violent crimes in America. H.R.

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

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

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

the focus of sensible sentencing reform efforts. Doctor, for

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

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

drug distribution offenses. This cohort of offenders are those

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

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

approach      has    too   often       flipped    this   objective    on     its    head,

facilitating        a   regime     that    ostensibly      seeks     every    possible

opportunity to eschew recidivist punishment. Whatever Congress

meant   when    it      tethered    the    ACCA’s      sentencing    enhancement         to

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

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

to have patently violent acts called by some other name.

       Explanations of the categorical approach repeatedly advance

its sentencing windfall as a necessary consequence. It does not

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

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

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

conduct involved such facts is quite irrelevant.” Moncrieffe,

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

                                            18
known and understandable, but I wonder if it is sustainable over

the long term to have a criminal sentencing regime so frankly

and explicitly at odds with reality.

       I     understand      that   the   ACCA        carries     a    mandatory        minimum

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

ability to craft an individualized sentence. But while one may

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

does       not    follow     that   courts        should      double     the       damage    by

depriving sentencing judges of an additional measure of their

discretion to find facts related to predicate convictions. Many

of the arguments that critics legitimately level at the overuse

of mandatory minimums can likewise be raised against the overuse

of     the       categorical    approach          –    each      removes      much      needed

discretion from the sentencing court.

       The       most   aggressive        applications           of     the        categorical

approach have operated as another exclusionary rule that limits

the ability of courts to see beyond the judicial sanctuary and

to fashion an informed sentence. Even when the record starkly

reveals      that    the    predicate     crime       was     committed       in    a   violent

manner,      violent       predators   are    thrown        in   the    hopper       with   all

other offenders because judges generally may not consider any

facts underlying the predicate offense. The alluring theoretical

terminology of the categorical approach has too often served to

isolate us in a judicial bubble, sealed conveniently off from

                                             19
the real-life dangers that confront American citizens in their

actual lives.

       This       exclusion     is    simply          contrary      to    the    sentencing

function, which relies on district judges to consider a broad

swath     of      information      bearing       on    the    individual        defendant’s

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

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

consideration of such information. Id. The Sixth Amendment need

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

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

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

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

elements, we have converted traditional questions of fact into

byzantine         questions     of   law     that        amount     almost      to    willful

blindness to what the defendant actually did. The categorical

approach       thus    increasingly        transfers         the    sentencing        function

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

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

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

were    heretofore       thought     to     be     the    heart      of   the    sentencing

function.

                                             II.

       This should not mean jettisoning the categorical approach

and its admitted advantages altogether, but rather loosening its

                                             20
present rigid grip upon criminal sentencing. The U.S. Sentencing

Commission     has      already      begun           this       process:       in     light     of

complaints     that       the     doctrine           was        “cumbersome         and     overly

legalistic,”       it   recently         eliminated         the     categorical           approach

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

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

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

manner that would serve its original and laudable purposes. The

categorical        approach      need      not        be    the     exclusive         standard.

District     courts     should      be    free       to     apply    it    as    the       default

inquiry,     but    should       retain        the     discretion         to    consider       the

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

the record.

      Four    Justices       have        now    expressed,          albeit      for        varying

reasons and to varying degrees, some uneasiness with aspects of

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

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

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

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

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

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

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

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

(North Carolina conviction for knowingly discharging a firearm

                                               21
into an occupied building was not a crime of violence); United

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

conviction for rape of a mentally disabled person was not a

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

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

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

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

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

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

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

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

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

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

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

aggravated assault creating a “substantial danger of death or

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

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

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

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

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

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

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

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



                                       22
      I do not intend to fault the aforementioned cases. Whether

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

conscientiously attempted, as they should have, to apply the

categorical    approach       correctly.         And   yet    hidden      within    their

binding holdings are heinous and indisputably violent acts which

sentencing     courts     might        have       found      if    only     given    the

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

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

illustrate     the    windfall       that     many     criminal     defendants      have

received from having their violent depredations on their fellow

citizens obscured in what two experienced counsel have termed,

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

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

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

is    particularly     glorious       goo,       because     the   confusion       almost

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

sentencing enterprise is a matter of endless disputation and

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

the endeavor has historically been the sentencing courts’ fact-

finding capability and guided legal discretion, and the rigid

categorical approach to predicate crimes of violence has blown

us far off course.




                                            23
                                            III.

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

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

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

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

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

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

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

district court sentencing generally reviewable under an abuse of

discretion standard). Yet although the categorical approach has

diminished         district      court    discretion       on    predicate       crimes    of

violence       under       the    ACCA     and     other        recidivist      sentencing

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

a    large    measure      of    discretion       outside       the    ACCA    and    similar

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

notwithstanding the doubt that has sometimes been thrown on the

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

for    district      courts      to    ensure     that   the      worst      behaviors    are

appropriately sanctioned?

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

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

the emphatic support that Supreme Court decisions have given the

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

noted,       Congress     and    the     Supreme    Court       have    accorded      a   wide

                                             24
degree of latitude to trial judges, both in their capacity to

find facts and to fashion an individualized sentence (subject of

course to statutory maximums and minimums). Congress established

a   comprehensive         set    of     objectives         for     sentencing           courts     to

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

prohibited        any     limitation         on     the     information        a    court         may

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

sentencing       decisions       following         Booker,       the    Supreme         Court     has

envisioned       a     scheme    in   which        district      courts     exercise          broad

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

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

the    individual         defendant         before        him    than    the       [Sentencing]

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

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

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

judges      are        empowered        to        make     any     number          of     factual

determinations and conduct an “individualized assessment based

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

       Do     trial       courts      then         retain       significant         sentencing

discretion? The signals are mixed. The categorical approach is

restrictive, and yet Gall is expansive. Outside the strictures

of the ACCA and other recidivist enhancements that apply the

categorical approach to predicate crimes of violence, a district

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

                                                  25
sentencing      judges    are    confined      to    a    narrow       set     of   record

documents    when    classifying     predicate       crimes          for   a   sentencing

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

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

consideration       of   [factual     descriptions             of    an      offense]   in

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

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

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

discretion to select a specific sentence within a defined range,

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

that the judge deems relevant.”).

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

delve into the facts underlying a conviction rendered in another

forum has never been boundless. Federal sentencing proceedings

are not the presumptive forum – unlike habeas corpus actions -

for overturning prior convictions or entertaining constitutional

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

497   (1994).      Yet   because    no    comparable           presumption       attaches

itself to the factual circumstances of prior criminal behavior –

sentencing hearings are, after all, the designated vehicle for

such inquiries - district courts have the option to assess the

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

be the odd sentencing regime that requires a holistic view of

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

                                          26
prevents district courts from finding that a present or prior

crime was committed in a particularly violent manner.

                                                IV.

       Accordingly,          as     the        district          court    sets        about         this

discretionary         exercise,          it     has       various     tools         to     impose     a

stricter sentence if it believes that the categorical approach

is ignoring a violent criminal history or disserving the general

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

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

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

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

sentencing judges have two options for fashioning a sentence

outside     the      advisory        range.         In     describing         the        options,     I

apologize       for     accenting             the        already     familiar,           but     these

discretionary         tools    have       a    renewed       salience         in    light      of    the

restrictions elsewhere placed upon sentencing our most violent

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

alternate    pathways         will      not     repair       the     entire        damage      that   I

respectfully suggest a rigid categorical approach has done to

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

appropriate       sentence          by        considering           the       very       facts       the

categorical approach proscribes.

       First,     the       Guidelines         expressly           provide      for       an   upward

departure       if      “reliable             information            indicates            that       the

                                                    27
defendant’s          criminal           history         category            significantly

underrepresents       the        seriousness”     of    the     defendant’s      criminal

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

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

court may consider are the factual circumstances and “nature of

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

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

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

finding       that         [defendant’s]            criminal-history             category

substantially underrepresented the seriousness of his criminal

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

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

defendant’s       previous        crimes    “were      sufficiently         analogous   to

qualifying [violent felonies] that they could be considered for

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

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

its    inquiry,      the    sentencing       judge      may     consult       presentence

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

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

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

       Second, the district court has the discretion to impose a

sentence    outside        the    Guidelines      range    if    it    finds    that    the

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

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

                                            28
circumstances of the offense and the history and characteristics

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

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

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

sentencing court may tailor its sentence to the nature of the

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

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

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

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

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

findings and probe into the circumstances underlying previous

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

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

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

not implicate the modified categorical approach, the fact that a

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

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

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

dispute      concerning      a     factor          important     to     the      sentencing

determination,         the   court      may        consider     relevant        information

without regard to its admissibility under the rules of evidence

applicable        at   trial,      provided          that      the    information        has

sufficient     indicia       of    reliability         to      support     its     probable

accuracy.”).

                                              29
      Consistent         with   Gall’s      appreciation             that    district        courts

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

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

outside, or significantly outside the Guidelines range” - are

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

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

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

court need not find “extraordinary circumstances” to justify a

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

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

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

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

calculates        the    Guidelines       range    incorrectly,             appellate        courts

may find that the error is harmless if the evidence suggests

that the sentencing judge would have varied from the Guidelines

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

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

      In stressing the foregoing, I have once again stated only

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

be    said.       The    categorical        approach          might     have       increasingly

committed the application of specified sentencing enhancements

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

that district courts are without recourse to ensure that basic

sentencing        objectives        are    respected          and     achieved.         In    other

                                              30
words,     the      district        court    may    decide     in     the    face     of     an

inconclusive          record     to     apply      the    categorical        approach       to

predicate offenses, but it also should enjoy the discretion and

the    tools     to   craft     a    more    individualized         sentence    when       such

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

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

that     the     Supreme       Court,       through      its   categorical       approach,

intended       to     incapacitate       district        courts     and     require    those

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

society prematurely. Their future victims may be nameless and

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

intensely personal ways.




                                              31
