                                    PUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                     No. 16-7252


UNITED STATES OF AMERICA,

                   Plaintiff - Appellee,

             v.

ROBERT MCKINLEY WINSTON,

                   Defendant - Appellant.


Appeal from the United States District Court for the Western District of Virginia, at
Charlottesville. Norman K. Moon, Senior District Judge. (3:01-cr-00079-NKM-RSB-1;
3:16-cv-81187-NKM)


Argued: October 27, 2016                                    Decided: March 13, 2017


Before SHEDD and KEENAN, Circuit Judges, and DAVIS, Senior Circuit Judge.


Vacated and remanded by published opinion. Judge Keenan wrote the opinion, in which
Judge Shedd and Senior Judge Davis joined.


ARGUED: Lisa M. Lorish, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Charlottesville, Virginia, for Appellant. Jean Barrett Hudson, OFFICE OF THE
UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee. ON BRIEF:
Larry W. Shelton, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Roanoke, Virginia, for Appellant. John P. Fishwick, Jr., United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for
Appellee.
BARBARA MILANO KEENAN, Circuit Judge:

      Robert Winston was convicted in 2002 on a federal firearm charge and was

sentenced to serve a term of 275 months’ imprisonment. His sentence included an

enhancement under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1),

based in part on his prior conviction for the Virginia crime of common law robbery

(Virginia common law robbery) as a qualifying predicate “violent felony.” Winston filed

a motion under 28 U.S.C. § 2255 for post-conviction relief, contending that his robbery

conviction no longer qualified as a predicate offense under the ACCA after the Supreme

Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015) (Johnson II), which

invalidated a portion of the ACCA’s definition of “violent felony.”

      The district court denied Winston’s motion, concluding that Virginia common law

robbery continues to qualify as a violent felony because the crime 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). The court also rejected the government’s argument that

Winston was barred from obtaining post-conviction relief on procedural grounds.

      Upon our review, we agree with the district court’s rejection of the government’s

procedural arguments, because Winston sufficiently has shown that he relied on a new

rule of constitutional law. However, we disagree with the district court’s substantive

conclusion and hold that Winston’s conviction for Virginia common law robbery does

not constitute a violent felony under the ACCA, because the full range of conduct

covered by the Virginia crime does not necessarily include the use of “force capable of

causing physical pain or injury to another person.” See Johnson v. United States, 559

                                            2
U.S. 133, 140 (2010) (Johnson I). We therefore vacate the judgment of the district court,

and remand the case for further proceedings.



                                           I.

      In 2002, Winston was convicted of being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1). In determining Winston’s sentence, the district court

concluded that Winston qualified as an armed career criminal under the ACCA, 18

U.S.C. § 924(e), which mandates a fifteen-year minimum sentence for defendants

convicted of a firearm offense who have three or more prior convictions for violent

felonies or serious drug offenses. Without these predicate convictions, Winston would

not have qualified as an armed career criminal and would have been subject to a ten-year

maximum sentence. See 18 U.S.C. 924(a)(2).

      The ACCA defines the term “violent felony” as any crime punishable by a term of

imprisonment exceeding one year that:

      (i) has as an element the use, attempted use, or threatened use of physical
      force against the person of another (the force clause); or

      (ii) is burglary, arson, or extortion, involves use of explosives (enumerated
      crimes clause), or otherwise involves conduct that presents a serious
      potential risk of physical injury to another (residual clause).

Id. § 924(e)(2)(B) (naming conventions added). Winston’s relevant prior convictions, as

set forth by the probation officer in Winston’s presentence report, included (1) rape in

violation of the Uniform Code of Military Justice (UCMJ), (2) robbery in violation of




                                           3
Virginia law, 1 (3) possession of cocaine with the intent to distribute in violation of

Virginia law, and (4) distribution of cocaine base in violation of federal law. Based on

these convictions, the probation officer recommended that the court sentence Winston as

an armed career criminal, with a guideline range of between 210 and 262 months in

prison.

          Winston challenged his armed career criminal designation, but the district court

overruled Winston’s objection.        The court adopted the recommendations in the

presentence report, and departed upward from the guideline range to impose a sentence of

275 months’ imprisonment. In 2003, this Court affirmed Winston’s conviction and

sentence. United States v. Winston, 68 F. App’x 412 (4th Cir. 2003) (unpublished).

          On June 26, 2015, the Supreme Court in Johnson II held that the ACCA’s residual

clause is unconstitutionally vague, in violation of the Due Process Clause of the Fifth

Amendment. 135 S. Ct. at 2555-57. The Court held that the residual clause did not

articulate clearly how to evaluate the risks of injury posed by a crime, depriving

defendants of fair notice regarding their potential sentence and inviting “arbitrary

enforcement by judges.” Id. at 2557. The Court further clarified that even though the

residual clause is void, the force clause and the enumerated crimes clause remained valid

as defining the scope of a predicate violent felony. Id. at 2563. The Supreme Court later

held that its decision in Johnson II had announced a new substantive rule of constitutional

law that applies retroactively to cases on collateral review. Welch v. United States, 136

          1
        Under Virginia Code § 18.2-58, the Virginia common law robbery is punishable
by imprisonment for a term greater than one year.

                                              4
S. Ct. 1257, 1264–65 (2016) (applying the framework in Teague v. Lane, 489 U.S. 288

(1989), for determining whether a new rule applies on collateral review).

       Relying on Johnson II, Winston filed a motion under 28 U.S.C. § 2255 asking the

district court to vacate his ACCA-enhanced sentence and to order his immediate release

from incarceration, because he already had served more than the 10-year maximum

sentence otherwise applicable to his conviction. 2       Winston asserted that his prior

convictions of rape under the UCMJ and Virginia common law robbery, which both

qualified as violent felonies under the now-void residual clause, do not otherwise qualify

as predicate offenses under the ACCA’s force clause. 3

       The government disagreed with Winston’s substantive argument, but also

requested that the district court dismiss Winston’s § 2255 motion on procedural grounds.

The government asserted that because Winston failed to show that the sentencing court

relied exclusively on the now-void residual clause in sentencing him under the ACCA, he

was not entitled to post-conviction relief.

       The district court first rejected the government’s procedural argument, concluding

that the merits of Winston’s claim “should be decided.” With respect to the substantive

claim, the court determined that Virginia common law robbery qualifies as a violent

felony under the ACCA force clause, because the offense “has as an element the use,

       2
         We observe that Winston filed his motion within one year of the Supreme
Court’s decision in Johnson II, in accordance with the statute of limitations set forth in 28
U.S.C. § 2255(f)(3).
       3
      Because neither robbery nor rape is listed as an enumerated violent felony in the
ACCA, we do not address that clause in this decision. See 18 U.S.C. § 924(e)(2)(B)(ii).

                                              5
attempted use, or threatened use of physical force against the person of another.” The

court therefore held that Winston properly was sentenced as an armed career criminal

because he had at least three predicate offenses, namely, the violent felony of Virginia

common law robbery and two undisputed serious drug offenses. Accordingly, the district

court did not address whether Winston’s rape conviction continued to qualify as a violent

felony.

      One week after the district court entered its judgment, we issued our decision in

United States v. Gardner, 823 F.3d 793 (4th Cir. 2016), and held that the North Carolina

crime of common law robbery (North Carolina common law robbery) does not qualify as

a violent felony. In light of our decision in Gardner, the district court reconsidered its

decision but did not alter its conclusion that Virginia common law robbery qualifies as a

violent felony for purposes of the ACCA enhancement. The district court nevertheless

issued Winston a certificate of appealability to this Court in accordance with 28 U.S.C.

§ 2253(c), because “reasonable jurists could debate” the “constitutionality of [Winston’s]

ACCA-enhanced sentence.” See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

      After Winston filed his appellate brief in this Court, the parties discovered that

Winston previously had filed a motion for relief under 28 U.S.C. § 2255 and that,

therefore, the district court had lacked jurisdiction to consider Winston’s successive

§ 2255 motion without authorization from this Court under 28 U.S.C. § 2255(h). Upon

Winston’s motion, we dismissed his appeal, construed his notice of appeal as a request to

file a successive § 2255 motion, and granted that request. See In re Hubbard, 825 F.3d

225, 229 (4th Cir. 2016) (citing 28 U.S.C. §§ 2255(h) and 2244(b)(3)(C), and explaining

                                            6
that a petitioner may gain permission to file a successive § 2255 motion by making a

prima facie showing that he presents a claim relying on a new rule of constitutional law).

       Accordingly, Winston filed a successive § 2255 motion in the district court. The

court adopted its prior decision and once again issued a certificate of appealability.

Winston timely filed this appeal.


                                            II.

                                            A.

       We first address the government’s contention that the district court should have

dismissed Winston’s appeal on procedural grounds. The government contends that post-

conviction relief under 28 U.S.C. § 2255 is unavailable to Winston because he does not

rely on a new rule of constitutional law, as required by 28 U.S.C. §§ 2244(b)(4) and

2244(b)(2)(A). According to the government, because the record does not establish that

the sentencing court relied on the residual clause to conclude that the Virginia common

law robbery conviction qualified as a violent felony, Winston is barred from claiming

reliance on the Court’s holding in Johnson II that the residual clause is unconstitutional.

We disagree with the government’s position.

       Under 28 U.S.C. § 2244(b)(4), a district court “shall dismiss any claim presented

in a second or successive application that the court of appeals has authorized to be filed

unless the applicant shows that the claim satisfies the requirements” elsewhere found in §

2244. Under 28 U.S.C. § 2244(b)(2)(A), a movant must show that his claim “relies on a

new rule of constitutional law, made retroactive to cases on collateral review by the


                                            7
Supreme Court, that was previously unavailable.” See Hubbard, 825 F.3d at 229 n.1

(explaining that even though a motion is filed under 28 U.S.C. § 2255, “that provision

incorporates by reference the factors listed in [28 U.S.C.] § 2244”).

       We agree with the district court’s conclusion that Winston’s claim for post-

conviction relief “relied on,” at least in part, the new rule of constitutional law announced

in Johnson II. 4 Although the record does not establish that the residual clause served as

the basis for concluding that Winston’s prior convictions for rape and robbery qualified

as violent felonies, “[n]othing in the law requires a [court] to specify which clause . . . it

relied upon in imposing a sentence.” In re Chance, 831 F.3d 1335, 1340 (11th Cir.

2016). We will not penalize a movant for a court’s discretionary choice not to specify

under which clause of Section 924(e)(2)(B) an offense qualified as a violent felony.

Thus, imposing the burden on movants urged by the government in the present case

would result in “selective application” of the new rule of constitutional law announced in

Johnson II, violating “the principle of treating similarly situated defendants the same.”

Id. at 1341 (quoting Teague, 489 U.S. at 304).




       4
         Like the district court, we reject the government’s various related procedural
arguments. Although Winston’s claim depends on the interplay between Johnson II,
permitting post-conviction review of the ACCA-enhanced sentence, and Johnson I,
defining the scope of the force clause, Winston nonetheless relied to a sufficient degree
on Johnson II to permit our present review of his claim. Any argument that Winston’s
claim did not “rely on” Johnson II, because that claim would not be successful, does not
present a procedural bar. Instead, that issue presents the substantive argument whether,
even after receiving the benefit of Johnson II, the defendant still is not entitled to relief,
because his conviction nonetheless falls within the force clause.

                                              8
       We therefore hold that when an inmate’s sentence may have been predicated on

application of the now-void residual clause and, therefore, may be an unlawful sentence

under the holding in Johnson II, the inmate has shown that he “relies on” a new rule of

constitutional law within the meaning of 28 U.S.C. § 2244(b)(2)(A).          This is true

regardless of any non-essential conclusions a court may or may not have articulated on

the record in determining the defendant’s sentence. Chance, 831 F.3d at 1340.

                                           B.

       We now turn to consider the merits of Winston’s appeal. He contends that the

district court erred in concluding that Virginia common law robbery qualifies as a violent

felony under the ACCA’s force clause. Winston argues that because the crime can be

committed by taking property from a person by a degree of force that includes only

“slight force,” or by means of intimidation that does not require a threat to use physical

force, Virginia common law robbery does not have as an element “the use, attempted use,

or threatened use of physical force against the person of another.” See 18 U.S.C. §

924(e)(2)(B)(i). In support of his argument, Winston cites as persuasive authority our

recent decision in United States v. Gardner, 823 F.3d 793, 803-04 (4th Cir. 2016), in

which we held that North Carolina common law robbery, which can be committed either

by violence or by instilling fear in the victim, was not a violent felony under the ACCA’s

force clause.

       In response, the government asserts that we are bound by our prior decision in

United States v. Presley, 52 F.3d 64, 69 (4th Cir. 1995), in which we held over twenty

years ago that Virginia common law robbery qualifies as a violent felony under the

                                            9
ACCA’s force clause. Alternatively, the government maintains that even if Presley no

longer is binding precedent, the crime of Virginia common law robbery requires that a

defendant use enough force to overcome the resistance of the victim. According to the

government, such level of force necessarily satisfies the force clause, thereby qualifying

Virginia robbery as a violent felony for purposes of the ACCA. We disagree with the

government’s arguments.

       We review de novo the question whether a defendant’s prior conviction qualifies

as a predicate felony under the ACCA. See Gardner, 823 F.3d at 801. This inquiry

typically requires application of the categorical approach described by the Supreme Court

in Descamps v. United States, 133 S. Ct. 2276 (2013). 5 See Gardner, 823 F.3d at 802.

Under this approach, we determine whether a particular state crime has as an element the

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

Id. at 803 (citing 18 U.S.C. § 924(e)(2)(B)(i)).

       Virginia common law robbery is defined under the common law 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.” Pierce v. Commonwealth, 138

S.E.2d 28, 31 (Va. 1964).       In our decision in Presley, employing the categorical

approach, we concluded that Virginia common law robbery qualified as a violent felony

       5
         The categorical approach applies only to “indivisible statutes.” Descamps, 133
S. Ct. at 2285, 2290. Under Descamps, a statute is divisible only if it “comprises
multiple, alternative versions of the crime” by “list[ing] multiple, alternative elements.”
Id. at 2284-85. We agree with the parties’ position that Virginia common law robbery is
an indivisible offense with alternative means of commission, namely, by violence or by
intimidation.

                                             10
predicate under the force clause of the ACCA. Presley, 52 F.3d at 69; see United States

v. McQueen, 445 F.3d 757, 762 (4th Cir. 2006) (citing Presley). That holding, however,

is no longer binding because it has been undermined by later Supreme Court precedent.

See United States v. Williams, 155 F.3d 418, 421 (4th Cir. 1998) (explaining that a panel

decision is not binding when the holding is “clearly undermined by [] more recent

Supreme Court decisions”).

       The Supreme Court issued its opinion in Johnson I, fifteen years after we decided

Presley. The Court held that a Florida statute prohibiting battery, which was satisfied “by

any intentional physical contact, no matter how slight,” did not qualify under the force

clause as having “as an element the use . . . of physical force against the person of

another.” 559 U.S. at 136-38 (emphasis, internal quotation marks, and citation omitted).

In reaching this conclusion, the Court defined “physical force” as “violent force . . .

capable of causing physical pain or injury to another person.” Id. at 140 (emphasis

omitted).

       The Supreme Court’s holding in Johnson I settled competing views of federal

courts regarding the amount of force required to qualify as the use or threatened use of

“physical force” under the ACCA’s force clause. See generally United States v. White,

606 F.3d 144, 149-51 (4th Cir. 2010) (collecting cases). Indeed, after Johnson I, certain

crimes that courts previously had determined were violent felonies no longer met the

newly defined requirements of the force clause as felonies necessarily entailing the use of

“violent force” capable of causing pain or injury. Compare Gardner, 823 F.3d at 797

(North Carolina robbery is not a violent felony), with United States v. Hutchinson, No.

                                            11
04-5093, 149 F. App’x. 214, 216 (4th Cir. 2005) (North Carolina robbery is a violent

felony); see also United States v. Eason, 829 F.3d 633, 641-42 (8th Cir. 2016)

(explaining that after Johnson I Arkansas robbery does not qualify as a violent felony

under the force clause, contrary to the court’s prior conclusion).

       Additionally, in Johnson I, the Supreme Court made clear that a federal court

applying the categorical approach to a state offense is bound by the interpretation of such

offense articulated by that state’s courts. 559 U.S. at 138; United States v. Aparicio-

Soria, 740 F.3d 152, 154-55 (4th Cir. 2014) (en banc) (citing Johnson I); United States v.

Holloway, 630 F.3d 252, 259-60 (1st Cir. 2011) (explaining that the court’s prior decision

failed to defer to the state courts’ interpretation of Massachusetts battery in accordance

with Johnson I). Supreme Court decisions issued after Presley also have instructed that

we must focus on the “minimum conduct criminalized” by state law, including any

conduct giving rise to a “realistic probability, not a theoretical possibility” that a state

would apply the law and uphold a conviction based on such conduct. Moncrieffe v.

Holder, 133 S. Ct. 1678, 1684-85 (2013) (citing Gonzales v. Duenas-Alvarez, 549 U.S.

183, 194 (2007)); see United States v. Doctor, 842 F.3d 306, 308 (4th Cir. 2016). Thus,

in the present case, our consideration of minimum culpable conduct is informed by

decisions of the Supreme Court of Virginia, with decisions of Virginia’s intermediate

appellate court constituting “the next best indicia of what state law is.” See Gardner, 823

F.3d at 803 (quoting Castillo v. Holder, 776 F.3d 262, 268 & n.3 (4th Cir. 2015)).

       Our decision in Presley did not address the Virginia state courts’ interpretation of

the meaning of the term robbery “by violence or intimidation.” 52 F.3d at 69. Nor did

                                             12
our Presley decision apply the Johnson I definition of “physical force.” Accordingly, we

now must consider under the current legal landscape whether Virginia common law

robbery qualifies as a violent felony under the ACCA’s force clause.

      As noted above, Virginia common law robbery can be committed by violence or

by intimidation. Thus, if either means of committing this crime does not require the “use,

attempted use, or threatened use” of “physical force,” then Virginia robbery does not

categorically match the force clause of the ACCA. See Gardner, 823 F.3d at 803.

      In addressing Virginia common law robbery by means of violence, the Supreme

Court of Virginia has explained that commission of common law robbery by violence

requires only a “slight” degree of violence, “for anything which calls out resistance is

sufficient.” Maxwell v. Commonwealth, 183 S.E. 452, 454 (Va. 1936). Further, under

Virginia law, the “violence used [to commit robbery by violence] does not need to be

great or cause any actual harm to the victim.” Henderson v. Commonwealth, No. 3017-

99-1, 2000 WL 1808487, at *3 (Va. Ct. App. Dec. 12, 2000) (unpublished) (citing Jones

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

      This interpretive guidance from the Virginia appellate courts bears a strong

similarity to the North Carolina courts’ description of North Carolina common law

robbery, which we concluded in Gardner did not qualify as a violent felony under the

ACCA’s force clause. 6 Gardner, 823 F.3d at 803 (citing State v. Sawyer, 29 S.E.2d 34,


      6
         Although we recognize that Gardner provides persuasive authority, our
conclusion that North Carolina common law robbery does not qualify as a violent felony
does not compel a similar holding in the present case. We defer to the state courts’
(Continued)
                                           13
37 (N.C. 1944) for the proposition that “the degree of force” required for North Carolina

robbery “is immaterial, so long as it is sufficient to compel the victim to part with his

property”). But see Doctor, 842 F.3d at 311 (explaining that “there is no indication that

South Carolina robbery by violence can be committed with minimal actual force”).

Because Virginia common law robbery can be committed when a defendant uses only a

“slight” degree of force that need not harm a victim, Virginia common law robbery

appears to encompass a range of de minimis contact by a defendant.

       This conclusion further is supported by a case decided by Virginia’s intermediate

appellate court, which illustrates that the minimum culpable conduct required for a

conviction of Virginia common law robbery need not amount to violent physical force.

Jones, 496 S.E.2d 668. In Jones, the victim was carrying her purse “tucked” under her

arm when the defendant approached the victim from behind, “tapped her on the shoulder,

and ‘jerked’ her around by pulling her shoulder,” took her purse, and ran. Id. at 669. The

Virginia court concluded that the defendant’s act of “physical jerking,” which was not

strong enough to cause the victim to fall, was a sufficient degree of force to support the

robbery charge. Id. at 669-70. The extent of the victim’s resistance in that case was

limited to the fact that she was “forc[ed] . . . to turn and face” the defendant. Id. at 670.

Contrary to the government’s position in the present case, such resistance by the victim

does not necessarily reflect use of “violent force” by the defendant.         See generally




interpretations of their own criminal statutes and common law offenses. See United
States v. McNeal, 818 F.3d 141, 153 (4th Cir. 2016).

                                             14
Gardner, 823 F.3d at 803-04 (explaining that a defendant’s act of pushing the victim’s

shoulder and causing her to fall was not violent force under Johnson I); Karimi v. Holder,

715 F.3d 561, 569 (4th Cir. 2013) (explaining that “[g]rabbing [an officer’s hand], on its

own, is not necessarily ‘violent force’”) (quoting Johnson I).

       Based on the above decisions from the appellate courts in Virginia, we conclude

that the minimum conduct necessary to sustain a conviction for Virginia common law

robbery does not necessarily include the use, attempted use, or threatened use of “violent

force . . . capable of causing physical pain or injury to another person,” under Johnson I.

559 U.S. at 140 (emphasis omitted). Accordingly, we hold that Winston’s conviction for

Virginia common law robbery does not qualify as a violent felony under the ACCA. 7

       Our conclusion is not altered by the government’s argument that our decision in

United States v. McNeal, 818 F.3d 141 (4th Cir. 2016), compels a different result in the

present case. In McNeal we held that federal armed bank robbery under 18 U.S.C.

§ 2113(d) qualified as a crime of violence under 18 U.S.C. § 924(c)(3)(A), in part

because the lesser included offense of bank robbery “by force and violence[] requires the

use of physical force.” Id. at 153, 157. Our conclusion that federal armed bank robbery

had as an element “the use, attempted use, or threatened use of physical force,” within the

meaning of 18 U.S.C. § 924(c)(3)(A), is distinguishable from the present case because

that decision involved this Court’s interpretation of a federal statute, rather than our


       7
        In light of our conclusion, we need not address robbery committed by means of
intimidation under Virginia law and whether that commission qualifies as the threatened
use of physical force under Johnson I.

                                            15
application of a state court’s determination of a state offense. See McNeal, 818 F.3d at

154 (citing for support Presley, 52 F.3d at 69, but acknowledging that “a State is entitled

to define its crimes as it sees fit”).

       Nor are we persuaded by the government’s suggestion that our decision in

Gardner, holding that North Carolina common law robbery does not qualify as a violent

felony, conflicts with McNeal. The state courts of Virginia and North Carolina are free to

define common law robbery in their respective jurisdictions in a manner different from

that employed by federal courts in construing a federal statute. Thus, even though our

analysis in McNeal, Gardner, and the present case have required application of the force

clause as defined by Johnson I to crimes involving robbery by force, by violence, by

intimidation, or by fear, we have been called upon in these several cases to analyze

distinct crimes under the differing precedent of the relevant jurisdictions.

       Accordingly, we hold that the district court erred in concluding that Virginia

common law robbery qualifies as a violent felony under the ACCA’s force clause.

However, Winston still may be subject to an armed career criminal designation if his rape

conviction under the UCMJ qualifies as a violent felony, a question the district court has

not addressed. We therefore vacate the district court’s judgment and remand the case for

the district court’s consideration of this question in the first instance.



                                              III.




                                               16
      For these reasons, we vacate the district court’s judgment addressing Winston’s

successive § 2255 motion, and we remand the case to the district court for further

consideration.


                                                       VACATED AND REMANDED




                                         17
