                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 16-4619


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

JOSEPH A. PARKER, JR.,

                    Defendant - Appellant.



Appeal from the United States District Court for the Eastern District of Virginia, at
Newport News. Raymond A. Jackson, District Judge. (4:16-cr-00007-RAJ-RJK-1)


Submitted: January 18, 2018                                       Decided: February 5, 2018


Before NIEMEYER, KEENAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Geremy C. Kamens, Federal Public Defender, Caroline S. Platt, Appellate Attorney,
Kirsten R. Kmet, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Dana J. Boente, United
States Attorney, Richard D. Cooke, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Joseph A. Parker, Jr., pled guilty to possession of a firearm by a felon, in violation

of 18 U.S.C. § 922(g)(1) (2012).      The district court sentenced him to 66 months’

imprisonment. On appeal, Parker argues that the district court erred in calculating his

Sentencing Guidelines range because the district court incorrectly concluded that his

prior conviction for Virginia common law robbery qualified as a crime of violence

conviction for purposes of U.S. Sentencing Guidelines Manual §§ 2K2.1(a)(4)(A),

4B1.2(a) (2015). 1 We affirm.

      If a defendant has been previously convicted of a “crime of violence,” as defined

in USSG § 4B1.2(a), then the Guidelines require an increase in the base offense level for

the crime of possessing a firearm as a felon. USSG § 2K2.1(a)(4)(A). In August 2016,

the Sentencing Commission amended USSG § 4B1.2(a)’s “crime of violence” definition,

and that amendment was in effect at the time of Parker’s sentencing hearing. Under the

amended definition, a “crime of violence” is an offense punishable by imprisonment for a

term exceeding one year that “(1) has an element the use, attempted use, or threatened

use of physical force against the person of another, or (2) is murder, voluntary

manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson,

extortion, or the use or unlawful possession of [certain types of firearms or explosive



      1
        Although the Code of Virginia provides the penalty for robbery, Va. Code Ann.
§ 18.2-58 (2014), it does not define robbery. “Robbery is a common law crime in
Virginia.” Ali v. Commonwealth, 701 S.E.2d 64, 66 (Va. 2010).


                                            2
material].” 2 USSG § 4B1.2(a). The first clause is known as the “force clause,” and the

second clause is known as the “enumerated offenses clause.”

      Parker argues that Virginia robbery cannot qualify as a crime of violence under

USSG § 4B1.2(a)’s force clause because we held in United States v. Winston, 850 F.3d

677, 679 (4th Cir. 2017), that Virginia robbery is not a violent felony under the Armed

Career Criminal Act’s (“ACCA”) force clause, 18 U.S.C. § 924(e)(2)(B)(i) (2012).

Because “[w]e rely on precedents evaluating whether an offense constitutes a crime of

violence under the Guidelines interchangeably with precedents evaluating whether an

offense constitutes a violent felony under the [ACCA],” United States v. Montes-Flores,

736 F.3d 357, 363 (4th Cir. 2013) (internal quotation marks omitted), we agree with

Parker that Virginia robbery does not qualify as a crime of violence under USSG

§ 4B1.2(a)’s force clause.

      Thus, we are left with USSG § 4B1.2(a)’s enumerated offenses clause. “When

comparing a potential predicate offense to an enumerated crime, we must first ascertain

the generally accepted contemporary meaning of the enumerated crime.” United States v.

Gattis, 877 F.3d 150, 156 (4th Cir. 2017) (internal quotation marks omitted). In Gattis,

we determined the “generic, contemporary meaning of robbery,” id. at 155 (internal

quotation marks omitted), and held “that generic robbery is defined as the

‘misappropriation of property under circumstances involving [immediate] danger to the


      2
        Before the amendment, “robbery” was listed as a crime of violence in USSG
§ 4B1.2’s commentary. USSG § 4B1.2 cmt. n.1 (2015).


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person,’” id. at 156 (quoting 3 Wayne R. LaFave, Substantive Criminal Law § 20.3, at

173 (2d ed. 2003) (alteration in original)). We further explained “that the immediate

danger element in that definition is categorically satisfied by the taking of property from

a person or a person’s presence by means of force or putting in fear.” Id. at 157 (internal

quotation marks omitted).

       After determining the meaning of generic robbery, the next step in the inquiry is to

compare the generic robbery definition with the particular state’s definition of robbery.

See id. at 156. For instance, in Gattis, we observed that “North Carolina defines robbery

as the felonious, non-consensual taking of money or personal property from the person or

presence of another by means of violence or fear.” Id. at 158 (internal quotation marks

omitted). Comparing generic robbery to North Carolina robbery, we found “a clean

match.” Id. In doing so, we rejected the argument that North Carolina robbery swept

more broadly than generic robbery because “robbery may be committed in North

Carolina using less force than is necessary to commit generic robbery by force.” Id. We

acknowledged our prior holding that North Carolina robbery does not constitute a violent

felony under the ACCA’s force clause, United States v. Gardner, 823 F.3d 793, 804 (4th

Cir. 2016), but we explained that the ACCA’s force clause encompasses crimes that have

as an element “the use, attempted use, or threatened use of force capable of causing

physical pain or injury to another person,” while, “to commit generic robbery by taking

property through the use of force, the defendant need not use a level of force capable of

causing physical pain or injury to another person.” Gattis, 877 F.3d at 158 (internal

quotation marks omitted). We further explained that the force necessary to commit

                                            4
generic robbery exists “if the defendant jostles the owner or uses only that force which is

sufficient to overcome the victim’s resistance.” Id. (internal quotation marks omitted).

       In this case, we must compare the generic robbery definition adopted in Gattis

with Virginia’s definition of common law robbery.         Virginia defines common law

robbery “as the taking, with intent to steal, of the personal property of another, from his

person or in his presence, against his will, by violence or intimidation.” Williams v.

Commonwealth, 685 S.E.2d 178, 180 (Va. 2009) (internal quotation marks omitted). The

Virginia Court of Appeals has adopted the view that “the offense of robbery is not related

to the force used on the object taken but to the force or intimidation directed at the

person of the victim.” Winn v. Commonwealth, 462 S.E.2d 911, 912 (Va. Ct. App. 1995)

(ellipsis and internal quotation marks omitted).     Furthermore, the Virginia Court of

Appeals has explained that “[i]ntimidation results when words or conduct of the accused

exercise such domination and control over the victim as to overcome the victim’s mind

and overbear the victim’s will, placing the victim in fear of bodily harm.” Jones v.

Commonwealth, 496 S.E.2d 668, 670 (Va. Ct. App. 1998) (internal quotation marks

omitted).

       Comparing Virginia’s definition of robbery with the generic meaning, we

conclude that Virginia robbery is a crime of violence under USSG § 4B1.2(a)’s

enumerated offenses clause. 3 Like generic robbery, Virginia robbery requires the taking


       3
         Our conclusion is supported by Gattis because we have previously recognized
that Virginia and North Carolina similarly define robbery. See Winston, 850 F.3d at 685.


                                             5
of property from a person or a person’s presence by means of force or putting in fear.

Compare Gattis, 877 F.3d at 157, with Williams, 685 S.E.2d at 180. While Virginia’s

common law definition uses the term “intimidation,” the Virginia Court of Appeals has

explained that the term is synonymous with striking fear in the victim. See Jones, 496

S.E.2d at 670.

       Parker seeks to avoid this result by arguing that Virginia robbery is broader than

generic robbery because Virginia robbery can be committed through de minimis contact.

But, we rejected a nearly identical argument in Gattis, 877 F.3d at 158. Parker fails to

acknowledge that the amount of force necessary for a robbery offense to meet USSG

§ 4B1.2(a)’s force clause differs from the amount of force necessary for a robbery

offense to meet generic robbery as contemplated by USSG § 4B1.2(a)’s enumerated

offenses clause. Indeed, the amount of force required to sustain a Virginia robbery

conviction matches the amount of force required to meet the definition of generic robbery

that we have adopted. Compare Maxwell v. Commonwealth, 183 S.E. 452, 454 (Va.

1936) (stating that violence “need only be slight, for anything which calls out resistance

is sufficient”) (internal quotation marks omitted), with Gattis, 877 F.3d at 158 (stating

that generic robbery requires “only that force which is sufficient to overcome the victim’s

resistance”). We thus conclude that Parker’s force argument fails to show that Virginia

defines robbery in a manner that is broader than generic robbery.

       Because the district court did not err in concluding that Virginia robbery is a crime

of violence under USSG § 4B1.2(a) and correctly applied an enhanced base offense level

under USSG § 2K2.1(a)(4)(A), we affirm the district court’s judgment. See United

                                             6
States ex rel. Drakeford v. Tuomey, 792 F.3d 364, 375 (4th Cir. 2015) (“We may affirm a

district court’s ruling on any ground apparent in the record.”). We dispense with oral

argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the decisional process.



                                                                             AFFIRMED




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