                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4959


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ENNIS TREVOR BILLUPS,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   William L. Osteen,
Jr., Chief District Judge. (1:14-cr-00142-WO-1)


Argued:   March 24, 2016                  Decided:   June 14, 2016


Before MOTZ, GREGORY, and KEENAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


ARGUED: Robert Lynn McClellan, IVEY, MCCLELLAN, GATTON &
SIEGMUND, LLP, Greensboro, North Carolina, for Appellant.
Ripley Eagles Rand, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee. ON BRIEF: Michael F.
Joseph, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
BARBARA MILANO KEENAN, Circuit Judge:

       In    this    appeal,        we    consider        whether       the      district      court

properly determined that Ennis Billups qualified as an armed

career criminal based on his prior convictions for felony common

law    robbery       in    North         Carolina        (North      Carolina        common     law

robbery).        Upon      our      review,        we    conclude       that     Billups’      prior

convictions         for    North      Carolina           common      law    robbery      are    not

categorically         violent        felonies,           and     that      Billups     does      not

qualify      otherwise         as   an    armed         career    criminal.          Because      we

issued our precedential holding that North Carolina common law

robbery is not categorically a violent felony in United States

v. Gardner, No. 14-4533, slip op. at 18, 20 (4th Cir. May 18,

2016),      while    Billups’        direct        appeal      was     pending      before      this

Court,      Billups       is    entitled       to       the    benefit      of    that    holding

despite his failure to raise the issue in the district court.

See Henderson v. United States, 133 S. Ct. 1121, 1130-31 (2013).

Thus, we conclude that the district court committed plain error

in    classifying         Billups        as   an    armed      career      criminal,      and    we

vacate Billups’ sentence and remand the case for re-sentencing.



                                                   I.

       Ennis Billups pleaded guilty to possession of a firearm by

a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e).                                      In

the   presentence         report      (PSR)        prepared       in    Billups’      case,     the

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probation officer classified Billups as an armed career criminal

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

924(e)(2), based on one prior North Carolina state conviction

for   felony     drug    trafficking      and    seven     prior    convictions         for

North Carolina common law robbery.

      Billups objected to application of the ACCA enhancement on

various    grounds      and    also   moved     to   withdraw      his   guilty    plea,

contending that his plea was not knowing and voluntary because

he had not taken his medications on the day of his plea hearing.

The district court rejected Billups’ challenges to the armed

career criminal designation, and denied his motion to withdraw

his guilty plea.             The court adopted the recommendation in the

PSR that Billups be classified as an armed career criminal, and

sentenced       him     to     the    statutory      minimum       of    180     months’

imprisonment.         This appeal followed. 1




      1 Billups’ counsel originally filed an appellate brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating
that he found no meritorious grounds for appeal but asking this
Court to review the record for any prejudicial error.      While
Billups’ appeal was pending, the Supreme Court issued a decision
in Johnson v. United States, 135 S. Ct. 2551 (2015), and
invalidated the residual clause of the ACCA.         We ordered
supplemental briefing to address whether, in light of the
Court’s decision in Johnson, the district court committed
reversible error by treating Billups’ robbery offenses as
violent felonies under the ACCA.



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                                            II.

     Before     turning     to     the      parties’        arguments,        we     briefly

summarize the relevant statutory provision.                         Under the ACCA, a

violent     felony   is     defined          as       any    crime    “punishable         by

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

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

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

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

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

presents a serious potential risk of physical injury to another”

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

     Billups     argues     that      his    previous        convictions       for    North

Carolina common law robbery do not qualify as predicate offenses

under the ACCA because North Carolina common law robbery does

not categorically match any of the enumerated offenses, nor does

it necessarily require the “use, attempted use, or threatened

use of physical force against the person of another.”                                See 18

U.S.C. § 924(e)(2)(B).           Also, because the Supreme Court held in

Johnson   v.    United    States,      135       S.   Ct.    2551    (2015),       that   the

ACCA’s    residual   clause      is    unconstitutional,             Billups       observes

that his robbery convictions cannot qualify as violent felonies

under that portion of the ACCA.

     In response, the government argues that the district court

correctly      classified    Billups         as       an    armed    career        criminal,

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because robbery necessarily requires the “use, attempted use, or

threatened use” of physical force against another person. The

government relies on decisions in which we have held that the

crime of common law robbery in other jurisdictions qualified as

a violent felony under the force clause.                          See United States v.

Presley,          52    F.3d   64,    69    (4th   Cir.     1995)    (concluding       that

Virginia common law robbery involved the use or threatened use

of force and therefore was a predicate offense under the ACCA’s

force clause); United States v. Wilson, 951 F.2d 586, 588 (4th

Cir.       1991)       (holding     that    Maryland     common    law   robbery     was   a

“crime       of     violence”       under    the   force     clause      of    the   career

offender provision in the sentencing guidelines).

       Because Billups did not preserve in the district court the

issue whether North Carolina common law robbery categorically

matched the definition of a “violent felony” under the ACCA, 2 we

review       the        district      court’s      decision        for    plain      error.

See United         States      v.   Carthorne,     726    F.3d    503,   509    (4th   Cir.



       2
       Billups argued to the district court that, in light of
this Court’s decision in United States v. Simmons, 649 F.3d 237
(4th Cir. 2011) (en banc), his robbery convictions did not
qualify as predicate felonies because they were not punishable
by a term of imprisonment exceeding one year.     He also argued
that his seven robbery convictions should only count as a single
predicate offense because they were consolidated into one
judgment. Billups reasserts his Simmons argument in his pro se
brief.   Because we vacate his sentence on other grounds, we do
not address this alternative argument.



                                               5
2013).     To establish plain error, Billups must show “(1) that an

error was made; (2) that the error was plain; and (3) that the

error affected his substantial rights.”                      Id. at 510.      An error

is   plain   “if   the    settled    law       of    the    Supreme   Court   or    this

circuit establishes that an error has occurred.”                         Id. at 516

(internal     quotation     and     citation         omitted).        And,    notably,

regardless whether the question was settled when the district

court made its decision, “it is enough that an error be ‘plain’

at   the   time    of   appellate    consideration”           to    constitute     plain

error.     Henderson, 133 S. Ct. at 1130-31 (internal quotation and

citation omitted).

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

consensual taking of money or personal property from the person

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

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

recently have explained, a conviction for North Carolina common

law robbery may be based on the use of only de minimis contact

in accomplishing the taking of another person’s property.                            See

Gardner, No. 14-4533, slip op. at 17.                      Because the ACCA’s force

clause     requires     “force    capable       of    causing      physical   pain    or

injury to another person,” and does not include the “slightest

offensive    touching,”     we    held     that      North    Carolina     common    law

robbery does not categorically constitute a violent felony under



                                           6
the ACCA force clause. 3              See id., slip op. at 16, 18 (quoting

Johnson v. United States, 559 U.S. 133, 139 (2010)).

      When Billups was sentenced in the district court, we had

not   yet    issued      our   decision      in    Gardner       that     North     Carolina

common      law    robbery     does    not   qualify        as    a   violent       felony. 4

Nevertheless, to constitute plain error, it is enough that the

district court’s error is plain at the time of our appellate

consideration       here.       See     Henderson,     133       S.     Ct.   at    1130-31.

Given our conclusion in Gardner, we hold that the district court

plainly erred in determining that Billups’ North Carolina common

law robbery convictions qualified as violent felonies under the

ACCA.      This error affected Billups’ substantial rights, because

it triggered the ACCA’s mandatory 15-year minimum sentence, when

he otherwise would have been subject to a maximum sentence of

ten       years’    imprisonment.                See   18        U.S.C.       § 924(a)(2).

Accordingly,        we   vacate       Billups’     sentence       applying         the   ACCA




      3We also concluded that North Carolina common law robbery
does not match any of the ACCA’s enumerated offenses, and cannot
qualify as a violent felony pursuant to the ACCA’s invalidated
residual clause. See Gardner, slip op. at 13 n.5.
      4Our decision in United States v. Bowden, 975 F.2d 1080,
1082 (4th Cir. 1992), on which the government relies, merely
acknowledged the parties’ agreement in that case, which is not
binding on us here, that North Carolina common law robbery
qualified as a violent felony under the force clause of the
ACCA.



                                             7
enhancement, and remand the case to the district court for re-

sentencing.



                                  III.

     In   accordance   with   Anders,    we   have   reviewed   the   entire

record and find no other error.          Therefore, we affirm Billups’

conviction, but vacate his sentence and remand the case to the

district court for re-sentencing.

                                                        AFFIRMED IN PART,
                                                         VACATED IN PART,
                                                             AND REMANDED




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