                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-4260


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

DAVID JACKSON, JR.,

                    Defendant - Appellant.



Appeal from the United States District Court for the District of South Carolina, at Aiken.
J. Michelle Childs, District Judge. (1:16-cr-00401-JMC-1)


Submitted: October 12, 2017                                 Decided: November 17, 2017


Before DUNCAN, AGEE, and HARRIS, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Kimberly H. Albro, Assistant Federal Public Defender, Columbia, South Carolina, for
Appellant. Beth Drake, United States Attorney, John C. Potterfield, Assistant United
States Attorney, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       David Jackson, Jr., appeals the 140-month sentence imposed upon him after he

pled guilty to one count of bank robbery, in violation of 18 U.S.C. § 2113(a) (2012).

Jackson asserts that neither his prior Georgia robbery conviction, nor his prior Georgia

attempted robbery conviction, qualify as a “crime of violence” to support the career

offender enhancement under U.S. Sentencing Guidelines Manual (USSG) § 4B1.1

(2016). We agree and vacate and remand to the district court for resentencing.

       Where, as here, “a party repeats on appeal a claim of procedural sentencing error

. . . which it has made before the district court, we review for abuse of discretion” and

will “reverse unless we conclude that the error was harmless.” United States v. Lynn, 592

F.3d 572, 576 (4th Cir. 2010). “In assessing whether a district court properly calculated

the [Sentencing] Guidelines range, including its application of any sentencing

enhancements, this Court reviews the district court’s legal conclusions de novo and its

factual findings for clear error.” United States v. Horton, 693 F.3d 463, 474 (4th Cir.

2012) (internal quotation marks, brackets, and italics omitted).

       Under USSG § 4B1.1(a), a defendant is a career offender if he was older than

eighteen years of age when he committed the instant offense, the instant offense is a

felony that is a “crime of violence” or a “controlled substance offense” as defined by the

Guidelines, and the defendant has two prior felony convictions for a “crime of violence”

or a “controlled substance offense[.]” A “crime of violence” for purposes of the career

offender Guideline is any offense under federal or state law that is punishable by

imprisonment for a term exceeding one year that:

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      (1) has as an element the use, attempted use, or threatened use of physical
      force against the person of another [the force clause], or

      (2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a
      forcible sex offense, robbery, arson, extortion, or the use or unlawful
      possession of a firearm described in 26 U.S.C. § 5845(a) or explosive
      material as defined in 18 U.S.C. § 841(c) [the enumerated offense clause].

USSG § 4B1.2(a). The application notes indicate that a “‘crime of violence’ include[s]

. . . the offenses of aiding and abetting, conspiring, and attempting to commit such

offenses.” USSG § 4B1.2 cmt. n.1.

      In determining whether an offense qualifies as a “crime of violence” under either

the force or enumerated offense clauses, this court may employ either the “categorical

approach” or the “modified categorical approach.” The categorical approach applies

when a defendant was convicted of an offense under “an ‘indivisible’ statute—i.e., one

not containing alternative elements[.]” Descamps v. United States, ___ U.S. ___, ___,

133 S. Ct. 2276, 2281 (2013). Under the categorical approach, courts are directed to

examine only the elements of the state offense and the fact of conviction, not the

defendant’s particular conduct in committing the offense. Id. Moreover, this court must

“focus on the minimum conduct” required to sustain a conviction for the state crime, and

there must be a “realistic probability, not a theoretical possibility,” that a state would

actually punish particular conduct under the statute. United States v. Gardner, 823 F.3d

793, 803 (4th Cir. 2016) (internal quotation marks omitted). This court looks to state

court decisions to determine the minimum conduct needed to commit a particular offense,

see id., and to identify the elements required by the state offense, see United States v.

Hemingway, 734 F.3d 323, 332 (4th Cir. 2013).

                                            3
       In contrast, “the modified approach . . . helps effectuate the categorical analysis

when a divisible statute, listing potential offense elements in the alternative, renders

opaque which element played a part in the defendant’s conviction.” Descamps, 133 S.

Ct. at 2283. This approach applies in a “narrow range of cases” where the offense

defined by the relevant statute includes conduct such that some commissions of the

offense constitute crimes of violence, while others do not. Id. (internal quotation marks

omitted). When conducting the modified categorical approach, a court may “look beyond

the statutory elements” of the offense to the specific conduct underlying that prior

offense. Id. at 2284. In doing so, a sentencing court may consider Shepard 1-approved

sources, such as “the record of conviction, which includes the charging document, the

plea agreement, and the transcript of the plea colloquy, and any explicit factual findings

made by the trial court.” United States v. King, 673 F.3d 274, 278 (4th Cir. 2012).

       In Georgia, “robbery” occurs when, “with intent to commit theft,” an individual

“takes property of another from the person or the immediate presence of another: (1)

[b]y use of force; (2) [b]y intimidation, by the use of threat or coercion, or by placing

such person in fear of immediate serious bodily injury to himself or to another; or (3) [b]y

sudden snatching.” Ga. Code Ann. § 16-8-40(a) (2017). The Supreme Court of Georgia

has acknowledged that “[w]hen the Code speaks of force, it means actual violence” and

“implies actual personal violence, a struggle and a personal outrage.” Nelson v. State, 46

S.E.2d 488, 493-94 (Ga. 1948). Similarly, “[a] conviction for robbery by intimidation

       1
           Shepard v. United States, 544 U.S. 13 (2005).


                                              4
requires proof that the theft was attended with such circumstances of terror—such

threatening by word or gesture, as in common experience, are likely to create an

apprehension of danger, and induce a person to part with his property for the safety of his

person.” Smith v. State, 543 S.E.2d 434, 435 (Ga. Ct. App. 2000) (internal brackets and

ellipses omitted). In contrast, “[r]obbery by sudden snatching is where no other force is

used than is necessary to obtain possession of the property from the owner, who is off his

guard, and where there is no resistance by the owner or injury to his person.” King v.

State, 447 S.E.2d 645, 647 (Ga. Ct. App. 1994).

       Thus, while convictions for robbery “[b]y use of force” under subsection (a)(1)

and “[b]y intimidation” under subsection (a)(2) likely qualify as proper career offender

predicates under the Guidelines’ force clause, see, e.g., United States v. Thomas, 280

F.3d 1149, 1158-59 (7th Cir. 2002) (holding that Georgia conviction for robbery by

intimidation is a violent felony under the force clause of the Armed Career Criminal Act

(ACCA)), “robbery by sudden snatching” would not. Therefore, if the district court

should have applied the categorical approach to determine the predicate status of

Jackson’s prior Georgia convictions, Jackson’s prior Georgia convictions could not be

classified as proper career offender predicates. See Gardner, 823 F.3d at 803; see also

United States v. Fuertes, 805 F.3d 485, 498 (4th Cir. 2015) (“[W]hen a statute defines an

offense using a single, indivisible set of elements that allows for both violent and

nonviolent means of commission, the offense is not a categorical crime of violence.”).

Cf. United States v. Royal, 731 F.3d 333, 341–42 (4th Cir. 2013) (reasoning that, because

the Maryland offense of second-degree assault has an indivisible set of elements that may

                                            5
be committed by either violent or nonviolent means, it does not qualify categorically as

an ACCA “violent felony”). Accordingly, we must determine whether the Georgia

robbery statute under which Jackson was previously convicted is divisible (i.e., contains

alternative elements), thereby justifying the district court’s application of the modified

categorical approach.

       To determine whether the Georgia statute is divisible, thereby allowing for use of

the modified categorical approach, we must determine whether the various circumstances

listed in § 16-8-40(a) are “elements or means” under which Georgia robbery may be

committed. See Mathis v. United States, ___ U.S. ___, ___, 136 S. Ct. 2243, 2256

(2016). The Supreme Court has explained that “‘[e]lements’ are the ‘constituent parts’ of

a crime’s legal definition—the things the ‘prosecution must prove to sustain a

conviction.’” Id. at 2248 (citing Black’s Law Dictionary 634 (10th ed. 2014)). “At a

trial, [elements] are what the jury must find beyond a reasonable doubt to convict the

defendant, and at a plea hearing, they are what the defendant necessarily admits when he

pleads guilty[.]” Id. (internal citations omitted).

       “Facts, by contrast, are mere real-world things—extraneous to the crime’s legal

requirements.” Id. “They are ‘circumstances’ or ‘events’ having no ‘legal effect or

consequence’: In particular, they need neither be found by a jury nor admitted by a

defendant.” Id. (citing Black’s Law Dictionary 709) (internal brackets omitted). In other

words, “[a] statute is indivisible when the jury need not agree on anything past the fact

that the statute was violated.”     Fuertes, 805 F.3d at 498 (internal quotation marks

omitted).   “Any statutory phrase that—explicitly or implicitly—refers to multiple,

                                               6
alternative means of commission must still be regarded as indivisible if the jurors need

not agree on which method of committing the offense the defendant used.” Id. (internal

quotation marks omitted). Thus, “mere use of the disjunctive ‘or’ in the definition of a

crime does not automatically render it divisible.” Omargharib v. Holder, 775 F.3d 192,

194 (4th Cir. 2014). Rather, “[o]nly when the law requires that in order to convict the

defendant the jury must unanimously agree that he committed a particular substantive

offense contained within the disjunctively worded statute are we able to conclude that the

statute contains alternative elements and not alternative means.” Fuertes, 805 F.3d at 798

(internal quotation marks and brackets omitted).

      To decide whether a statute’s alternative items are elements or means, a court must

consult “authoritative sources of state law[.]” Mathis, 136 S. Ct. at 2256. For example,

the Supreme Court in Mathis relied on a “state court decision [that] definitively

answer[ed] the question” that a burglary statute listed alternative means of satisfying a

single locational element, such that a jury need not agree on which location was involved

in the offense. Id. Mathis also held that “[i]f statutory alternatives carry different

punishments, then . . . they must be elements.” Id. In addition, the Supreme Court

suggested that courts may look to “the record of a prior conviction itself” to see how the

crime is charged, since “an indictment and jury instructions could indicate, by referencing

one alternative term to the exclusion of all others, that the statute contains a list of

elements, each one of which goes toward a separate crime.” Id. at 2257. Based on the

relevant caselaw and Georgia’s jury instructions, we conclude that the methods listed in

§ 16-8-40 are “means” rather than “elements[.]” See Hogan v. State, 343 S.E.2d 770,

                                            7
771-72 (Ga. Ct. App. 1986) (recognizing that “the crime of robbery requires proof that

one, with the intent to commit theft, took property from the person or immediate presence

of another by employment of one of the various alternative means enumerated in . . .

§ 16–8–40(a)” (emphasis in original)); see also Kilpatrick v. State, 618 S.E.2d 719, 720

(Ga. Ct. App. 2005) (recognizing that Georgia’s robbery statute “outlines . . . . alternative

ways in which a person can commit the offense of robbery” (emphasis added)).

       Moreover, in Gardner, this court found that common law robbery in North

Carolina was an indivisible crime because North Carolina’s Pattern Jury Instructions

define the final element of the offense as “‘the taking . . . by violence or by putting the

person in fear.’” Gardner, 823 F.3d at 802 (citing N.C. Pattern Instructions—Crim.

217.10). Thus, we concluded that a “jury need not agree unanimously that the felonious

taking was committed by the use of violence or by instilling fear, only that one of the two

means was employed.” Id. at 802-03.          “Accordingly, North Carolina common law

robbery may be committed by the alternate means of violence or fear that do not

constitute different elements of distinct crimes [and t]he crime, therefore, is an indivisible

offense, in which the modified categorical approach has no role to play.” Id. at 803

(internal quotation marks omitted).

       Similar to North Carolina’s Pattern Jury Instructions upon which we relied in

Gardner, Georgia’s Suggested Pattern Jury Instructions defining § 16-8-40 provide that:

       A person commits robbery when, with intent to commit theft, that person
       takes property of another from the person or the immediate presence of
       another (by use of force) (by intimidation) (by use of threat or coercion) (by
       placing such person in fear of immediate serious bodily injury to that
       person or to another) (by suddenly snatching). The essential elements of

                                              8
         the offense that the State must prove beyond a reasonable doubt are that the
         taking was done

               1) with the purpose to commit theft,

               2) against the will of the person robbed, and

               3) by force, by intimidation, by the use of threat or coercion, by
               placing such person or another in fear of immediate serious bodily
               injury to himself/herself or another, or by sudden snatching.

See Georgia Pattern Jury Instructions - Criminal, Vol II, 2.60.10 (4th ed. 2017). Under

this instruction, a jury need not agree unanimously that the felonious taking was

committed by the use of force, by intimidation, or by sudden snatching, but only that one

of those means was employed. Accordingly, Georgia’s own Pattern Jury Instructions

supports the conclusion that Georgia’s robbery statute is indivisible, thereby requiring

application of the categorical approach. See Gardner, 823 F.3d at 802-03.

         Based on the foregoing, we conclude that Georgia’s robbery statute is indivisible.

Since only two forms of robbery listed in the statute likely satisfy the career offender

force clause, see supra, a prior Georgia robbery conviction may not categorically be

classified as a career offender predicate under the Guidelines’ force clause. Accordingly,

it was error for the district court to employ the modified categorical approach to

determine if the career offender enhancement should be applied to Jackson’s base offense

level.

         In reaching this conclusion, we recognize that the career offender enumerated

offense clause specifically references robbery as a proper career offender predicate. See

USSG § 4B1.1(a)(2). Because Georgia’s robbery statute is indivisible, however, robbery


                                              9
in Georgia can only be a “crime of violence” under the Guideline’s enumerated offense

clause if the conduct criminalized by the Georgia statute is no broader than that

criminalized by the generic offense of robbery. See Taylor v. United States, 495 U.S.

575, 598 (1990). To determine the career offender predicate status under the enumerated

offense clause, we must first distill a generic definition of the predicate offense based on

how the offense is defined by a majority of the States, learned treatises, and the Model

Penal Code (MPC), and after finding the generic form of the predicate offense, determine

whether the defendant’s prior conviction constituted a conviction of the generic offense.

See United States v. Peterson, 629 F.3d 432, 436 (4th Cir. 2011).

       Robbery statutes vary widely from state to state and, thus, we look to the manner

in which the MPC defines robbery. Id. According to the MPC, robbery occurs when a

person, in the course of committing a theft: “(a) inflicts serious bodily injury upon

another; (b) threatens another with or purposely puts him in fear of immediate serious

bodily injury; or (c) commits or threatens immediately to commit any felony of the first

or second degree.” Model Penal Code § 222.1 Robbery (Am. Law Inst. 2016). The MPC

explanatory note further explains that “[r]obbery is distinguished from ordinary larceny

by . . . the use or threat of violence.” Id. Under the MPC’s definition of robbery,

violence must be used or threatened in order for a robbery to occur. Because robbery in

Georgia can be committed both violently and non-violently, see supra, we conclude that

Georgia’s robbery statute is categorically broader than the generic definition and, thus,




                                            10
Jackson’s prior Georgia robbery convictions are not “crime[s] of violence” under the

career offender enumerated offense clause. 2

       Based on the foregoing, we find that it was error for the district court to classify

Jackson as a career offender based on his prior Georgia robbery and attempted robbery

convictions. Accordingly, we vacate Jackson’s sentence and remand to the district court

for resentencing consistent with this opinion. 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.



                                                        VACATED AND REMANDED




       2
         Because Jackson’s Georgia robbery conviction is not a proper career offender
predicate, his Georgia attempted robbery conviction is also not a proper career offender
predicate. See United States v. Dozier, 848 F.3d 180, 185 (4th Cir. 2017) (holding that to
determine career offender predicate status of attempt conviction, the Court must
“determine whether the state’s definition of attempt categorically comports with the
generic definition of attempt as that term is used in the career-offender enhancement[,]”
and also “whether the underlying state offense is a categorical match for the Guideline
predicate offense” (internal quotation marks omitted)).


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