United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 7, 2016            Decided November 8, 2016

                         No. 14-3053

                UNITED STATES OF AMERICA,
                        APPELLEE

                               v.

                       ROGER REDRICK,
                         APPELLANT


         Appeal from the United States District Court
                 for the District of Columbia
                    (No. 1:13-cr-00155-1)


     Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A.J. Kramer,
Federal Public Defender. Tony Axam Jr., Assistant Federal
Public Defender, entered an appearance.

     Sharon A. Sprague, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief was Elizabeth
Trosman, Assistant U.S. Attorney.

    Before: SRINIVASAN and WILKINS, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.

    Opinion for the Court filed by Senior Circuit Judge
SILBERMAN.
                                 2

     SILBERMAN, Senior Circuit Judge: Appellant pleaded
guilty to being a felon in unlawful possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). Under the Armed Career
Criminal Act (the “Act”), a felon so convicted is subject to a
mandatory minimum of fifteen years imprisonment if he was
previously convicted of three charges of either “violent felonies”
or “serious drug offenses.”1 The plea agreement recognized that
appellant would be sentenced pursuant to this sentence
enhancement, which raised his sentence from a maximum of ten
years to a minimum of fifteen years imprisonment. (The court
imposed a sentence of 188 months in accordance with the
sentencing guidelines range.) Appellant now contests the
applicability of the enhancement in light of an intervening
Supreme Court opinion, Johnson v. United States, 135 S. Ct.
2551 (2015), which held that one of the Act’s definitions of a
violent felony – which appellant asserts the district court may
have relied on – is unconstitutionally vague. We affirm the
conviction because, whether or not the district judge relied on
the unconstitutional provision, as a matter of law, another of the
Act’s definitions of “violent felony” applies and therefore the
appellant’s sentence remains valid.

                                I.

     Appellant was indicted on three counts: possession with
intent to distribute at least twenty-eight grams of cocaine base,
unlawful possession of a firearm (and ammunition) by a
convicted felon, and such possession during a drug trafficking




    1
        18 U.S.C. § 924(e)(1) (2012) (mandatory minimum).
                                  3

offense.2 In return for pleading guilty to simple possession of
the firearm, the government dropped the other two counts. Four
of Redrick’s prior eleven convictions triggered the Act’s
mandatory minimum, raising his sentence from a maximum of
ten years to a minimum of fifteen years imprisonment. They
were: (1) a 1983 District of Columbia Armed Robbery
conviction (“D.C. armed robbery”); (2) a 1985 Maryland
Robbery with a Deadly Weapon conviction (“Maryland armed
robbery”); (3) a 1989 Maryland Robbery with a Deadly
Weapon conviction; and (4) a 1990 District of Columbia
Possession with Intent To Distribute PCP and Possession with
Intent To Distribute Marijuana conviction.

     The Act defines a “violent felony” as an offense punishable
by more than one year in prison that “has as an element the use,
attempted use, or threatened use of physical force against the
person of another,” or is the crime of burglary, arson, or
extortion, involves use of explosives, or is an offense that
“otherwise involves conduct that presents a serious potential risk
of physical injury to another.” These three clauses3 are referred
to as the force clause, the enumerated offense clause, and the
residual clause. The residual clause, as is apparent, sweeps very
broadly and, as we noted, in Johnson the Supreme Court – after
having twice affirmed its constitutionality – reversed itself and

     2
       These counts were charged pursuant to 21 U.S.C. § 841(a)(1),
(b)(1)(B)(iii) (2012), 18 U.S.C. § 922(g)(1) (2012), and 18 U.S.C.
924(c)(1) (2012), respectively.
     3
        18 U.S.C. § 924(e)(2)(B)(i)–(ii) (2012) (emphasis added)
(definition of “violent felony”). The force clause is sometimes
referred to as the “elements clause.” E.g., Welch v. United States, 136
S. Ct. 1257, 1261 (2016); cf. United States v. Sheffield, 832 F.3d 296,
312 (D.C. Cir. 2016).
                                 4

declared the clause unconstitutionally vague. 135 S. Ct. at 2557.
After Johnson, a crime is a “violent felony” only if it meets the
requirements of the force clause or the enumerated offense
clause.

     At the time of the plea agreement, it is fair to say that no
one – the government, the judge, or the appellant – could
reasonably have anticipated Johnson. All parties believed that
appellant was subject to the Act’s enhancement before Johnson,
although the record is unclear as to why the district court judge
thought so. In any event, appellant agreed in his plea deal to
“waive the right to appeal the sentence in this case . . . except to
the extent the Court sentences [him] above the statutory
maximum or guidelines range determined by the Court, in which
case [he] would have the right to appeal the illegal sentence or
above-guidelines sentence.” (emphasis added).

                                II.

     The only prior convictions in dispute are the two Maryland
convictions for armed robbery. Appellant concedes that his drug
conviction is a qualifying “serious drug offense,” and it is
recognized by both parties that whether or not the D.C. armed
robbery conviction meets the violent felony test it wouldn’t be
sufficient to trigger the enhancement without the Maryland
convictions. It is also common ground that if the district judge
had imposed what the government refers to as a “truly illegal
sentence,” it should be vacated. By a truly illegal sentence, the
government apparently means one that relies, and could only
rely, on the unconstitutional residual clause. Yet the
government asserts paradoxically that appellant has completely
waived his right to appeal application of the Act because the
“understanding” in the plea agreement that appellant was subject
to the enhancement was part of the bargain by which the
                                5

government dropped two counts. It should be obvious that the
government’s “truly illegal” concession is inconsistent with its
argument that appellant gave up any chance to contest the
application of the Act. Be that as it may, we have little
difficulty in concluding that a fair reading of the plea agreement
allows the appellant to challenge his sentence as illegal; i.e., in
excess of the statutory maximum. The government’s only
response is to assert the sentence is not illegal – which, of
course, is circular: the government’s waiver argument assumes
the merits.

      Although the appellant did not waive his right to appeal the
sentence, he did forfeit the argument that his sentence is illegal.
It is well established that if a defendant forfeits an argument in
a criminal case, a reviewing court should reverse only if there is
“plain error.” FED. R. CRIM. P. 52(b). Moreover, the error must
affect appellant’s “substantial rights” and “seriously affect the
fairness, integrity or public reputation of judicial proceedings.”
United States v. Olano, 507 U.S. 725, 736 (1993) (alteration
omitted). That limited scope of review discourages a defense
counsel from sandbagging a district judge by holding in his
pocket a legal argument. This case strains the doctrine because
defense counsel, as well as the prosecutor and judge, would not
reasonably have thought the residual clause had a constitutional
infirmity after the Supreme Court had twice sanctioned it.4
Indeed, since it is also well established that a reviewing court
must apply the law as it exists at the time of the appeal,
Henderson v. United States, 133 S. Ct. 1121, 1129 (2013), – in


    4
      In Sykes v. United States, 564 U.S. 1 (2011) and James v.
United States, 550 U.S. 192 (2007), the Supreme Court rejected
arguments made in dissent that the residual clause was void for
vagueness.
                                6

this case, after Johnson – it seems rather anomalous to ask
whether the district court committed error – much less plain.

     Assuming, however, that precedent calls for applying plain-
error review, see, e.g., Henderson, 133 S. Ct. at 1129; Johnson
v. United States, 520 U.S. 461 (1997), we first ask whether there
was “error” at all. The question before us is whether the two
prior Maryland convictions qualify as violent felonies under the
force clause. The key requirement is use of what the Supreme
Court calls “violent force,” which is “force capable of causing
physical pain or injury to another person.” Johnson v. United
States, 559 U.S. 133, 140 (2010) (construing “physical force”).

                             * * *

     Normally, in asking whether a prior crime qualifies as a
violent felony, we look at the state or federal statute under which
a defendant has been convicted and ask simply whether the
elements of the prior crime meet the Act’s definitions of a
violent felony. If a prior conviction is based on a statute that
sweeps more broadly than this federal definition – let us say, a
conviction could be based on a minor battery – such a
conviction cannot qualify as a violent felony under the force
clause. See, e.g., id. at 141; Descamps v. United States, 133 S.
Ct. 2276, 2281 (2013).

     This “categorical approach” to career criminal cases is
normally rather mechanical, but it can become complicated
when the prior conviction statute lists alternative elements and
so “effectively” creates several different crimes. Descamps, 133
S. Ct. at 2285. When we are dealing with a so-called “divisible”
statute, we are to employ the “modified categorical approach”
to determine which alternative crime the defendant committed.
To do so, we look beyond the statute “to a limited class of
                                  7

documents (for example, the indictment, jury instructions, or
plea agreement and colloquy) to determine what crime, with
what elements, [the] defendant was convicted of.” Mathis v.
United States, 136 S. Ct. 2243, 2249 (2016). The modified
categorical approach is, according to the Court, simply a “tool”
to implement the categorical approach, not an exception to the
elements-based approach. Descamps, 133 S. Ct. at 2285.

      The Maryland convictions, however, present a rather
unusual situation that does not fit squarely within either the
categorical or modified categorical approaches. Robbery in
Maryland is not a statutory crime; it retains its common law
character.5 Under Maryland case law, simple robbery is “the
felonious taking and carrying away of the personal property of
another, from his person or in his presence, by violence or
putting in fear.” Bowman v. State, 552 A.2d 1303, 1305 (Md.
1989) (emphasis added); see also West v. State, 539 A.2d 231,
234-35 (Md. 1988) (observing that Maryland simple robbery
includes larceny so long as the “victim resisted the taking and
. . . her resistance had been overcome,” even absent physical
injury or force directed at the victim’s person). The government
has conceded that Maryland common law robbery is not a
violent felony. To be sure, the government made that

     5
       In Descamps, the Supreme Court reserved the question
“whether, in determining a crime’s elements, a sentencing court
should take account not only of the relevant statute’s text, but of
judicial rulings interpreting it.” 133 S. Ct. at 2291. But in our case,
the very definition of the crime is partly based on the common law.
Other circuits have stated that “the categorical/modified categorical
typologies apply equally to [both] statutory and common law crimes.”
United States v. Aparicio-Soria, 740 F.3d 152, 155 n.2 (4th Cir. 2014)
(en banc); United States v. Walker, 595 F.3d 441, 444 (2d Cir. 2010);
United States v. Melton, 344 F.3d 1021, 1026 (9th Cir. 2003).
                               8

concession in the Fourth Circuit; whereas in a footnote in our
case, it declines to make the same concession. We would find
such a divergence in Justice Department policy quite troubling
if it were truly pressed, but the government really makes no
positive argument that Maryland common law robbery is a
violent felony, so we will rest on its Fourth Circuit concession.

     Even though robbery remains a common law crime in
Maryland, the legislature did act prior to defendant’s
convictions; it passed a law providing that a person who
committed robbery is subject to imprisonment for not more than
fifteen years, but it also provided that a person who commits or
attempts to commit robbery with a dangerous or deadly weapon
is subject to imprisonment not exceeding twenty years. Md.
Code, Art. 27 §§ 486, 488 (repealed). These provisions appear
to create two separate crimes: robbery and armed robbery.

     The problem for us is that the Court of Appeals of Maryland
has described the dangerous weapon portion of the penalty
statute as a “sentence enhancement” to the single offense of
common law robbery, not an element of the separate offense of
armed robbery. See, e.g., Bowman v. State, 552 A.2d 1303,
1305 (Md. 1989); Whack v. State, 416 A.2d 265, 266 (Md.
1980). Accordingly, appellant argues with some force that his
conviction was for simple rather than armed robbery; a sentence
enhancement, which is traditionally imposed by a judge after
conviction, is not an element of a distinct crime. If that were
true – if the dangerous weapon question was reserved for the
sentencing judge – appellant would be correct that it could not
be, as a matter of constitutional law, an “element” of a crime.
See In re Winship, 397 U.S. 358, 365 (1970).

    But it is not so. As the Maryland Court of Special Appeals
has applied the dangerous weapon provision, “the State must
                                9

prove beyond a reasonable doubt, number one, that there was a
robbery, and number two, that it was committed with the use of
a deadly or dangerous weapon.” Battle v. State, 499 A.2d 200,
203 (Md. Ct. Spec. App. 1985) (emphasis added); see also
Wadlow v. State, 642 A.2d 213, 216 (Md. 1994) (explaining that
under Maryland law, sentence enhancements having to do with
the “circumstances of the offense” must be charged in the
indictment, presented to the jury, and subjected to the reasonable
doubt standard). To say that the state must prove the use of a
dangerous or deadly weapon “beyond a reasonable doubt” is
simply another way of stating that it is a jury question or an
element of a crime: “‘Elements’ are the ‘constituent parts’ of a
crime’s legal definition – the things the ‘prosecution must prove
to sustain a conviction.’” Mathis, 136 S. Ct. at 2248 (quoting
Black’s Law Dictionary 634 (10th ed. 2014)). Indeed, pattern
jury instructions used at the time of appellant’s Maryland
conviction instructed jurors that they were required to find that
the defendant had “the apparent ability to use the weapon.”

     Essentially, then, Maryland, combining the common law
and a statute, created – at least for federal law purposes – two
separate crimes: simple robbery and robbery with a dangerous
or deadly weapon. That Maryland labels the “armed” aspect of
appellant’s conviction a “sentence enhancement” under
Maryland law does not dictate the result in this case because the
meaning of the term “element” in the Act is a question of federal
law. Cf. Johnson v. United States, 559 U.S. 133, 138 (2010)
(recognizing that the “meaning of ‘physical force’ in [the Act]
is a question of federal law, not state law”). Because Maryland
treats this issue exactly as if it were an element under federal
law, we consider it an element that creates an effectively distinct
crime for the purposes of the Act.
                                10

     To look beyond the state law “sentence enhancement” label
is consistent with the aim of the Act, which avoids treating
similarly situated offenders differently under the Act’s
enhancement provisions. The Supreme Court, in Taylor v.
United States, 495 U.S. 575 (1990), recognized that “in terms of
fundamental fairness, the Act should ensure, to the extent that it
is consistent with the prerogatives of the States in defining their
own offenses, that the same type of conduct is punishable on the
Federal level in all states,” id. at 582.

     And in any event, even some Maryland cases refer to the
“separate offenses” of armed robbery and simple robbery:
“[R]obbery is usually characterized as one offense, with the
division between armed robbery and basic robbery being for
purposes of punishment. But, for some purposes, they are
regarded as separate offenses with robbery being the lesser
included offense of armed robbery.” Hagans v. State, 559 A.2d
792, 799 (Md. 1989) (citations omitted). Although the offenses
are the same for double jeopardy purposes, the Court of Appeals
of Maryland said, “only the offense of robbery with a deadly
weapon requires proof of an additional element.” Bynum v.
State, 357 A.2d 339, 341 (Md. 1976).

    We have little difficulty, then, in concluding that Maryland
armed robbery – a crime that differs from simple robbery in its
requirement that the defendant commit the crime with the use of
a dangerous or deadly weapon6 – contains “as an element the


    6
       The Court of Appeals of Maryland has adopted an objective
definition of “dangerous or deadly weapon” and held that for an
instrument to so qualify under § 488, “the instrument must be (1)
designed as ‘anything used or designed to be used in destroying,
                                  11

use, attempted use, or threatened use of physical force against
the person of another.” Common law robbery itself is, after all
– and has always been – a crime against a person. Certainly the
additional element of “use” of a dangerous or deadly weapon
supplies at minimum a “threat” of physical force against the
person of another. And because the means employed is a
“dangerous or deadly weapon,” the required degree of force –
that is, “violent force” – is present. In that respect our case is
different than a recent Ninth Circuit decision, United States v.
Parnell, 818 F.3d 974 (9th Cir. 2016), holding that a prior
Massachusetts armed robbery conviction was not a violent
felony under the force clause. Massachusetts armed robbery
does not require “use” of the dangerous or deadly weapon: the
victim does not even need to be aware of the presence of the
weapon.

     Appellant’s fall-back argument is that even if the crime
includes the dangerous or deadly weapon component as an
element, it still sweeps too broadly, because a weapon such as
poison, an “open flame,” or “lethal bacteria” could be used and
those dangerous weapons would not supply the requisite
“physical force against the person of another.” We doubt that


defeating, or injuring an enemy, or as an instrument of offensive or
defensive combat’; (2) under the circumstances of the case,
immediately useable to inflict serious or deadly harm (e.g., unloaded
gun or starter’s pistol useable as a bludgeon); or (3) actually used in
a way likely to inflict that sort of harm (e.g., microphone cord used as
a garrote).” Brooks v. State, 552 A.2d 872, 880 (Md. 1989) (citation
omitted) (quoting Bennett v. State, 205 A.2d 393, 394 (Md. 1964)).
A victim’s subjective belief that the item was a “dangerous or deadly
weapon,” without more, is insufficient to sustain an armed robbery
conviction in Maryland.
                               12

these weapons could be administered without at least some level
of physical force. Cf. United States v. Castleman, 134 S. Ct.
1405, 1415 (2014) (reasoning that poison and other “indirect”
causes of physical harm require common-law “force”). But in
any event, we think the hypotheticals are too farfetched to give
us pause. The Supreme Court in other cases applying the
categorical approach has cautioned against excessive “legal
imagination.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193
(2007); Moncrieffe v. Holder, 133 S. Ct. 1678, 1684-85 (2013).
In determining whether a state statute qualifies as a violent
felony, we focus on “realistic probabilit[ies],” not “theoretical
possibilit[ies]” that Maryland “would apply its [law] to conduct
that falls outside” the force clause. Duenas-Alvarez, 549 U.S.
at 193; see also Moncrieffe, 133 S. Ct. at 1684-86 (“[O]ur focus
[under the categorical approach] on the minimum conduct
criminalized by the state statute is not an invitation to apply
‘legal imagination’ to the state offense.”). Appellant points us
to no Maryland case in which such a conviction has been
obtained and we eschew the kind of creative speculation the
Supreme Court has proscribed.

     By the same token, we reject appellant’s claim that armed
robbery could be committed by threats against or damage to
property and, therefore, according to appellant, it could include
conduct that is not a threat against a person. (“If you don’t give
me your money, I’ll shoot up your Mercedes.”) To be sure, two
old intermediate Maryland courts hypothesize such a scenario,
Giles v. State, 261 A.2d 806 (Md. Ct. Spec. App. 1970),
Douglas v. State, 267 A.2d 291 (Md. Ct. Spec. App. 1970), but
in these cases the hypotheticals were dicta. And, the definition
of Maryland common law robbery, on which armed robbery
                                13

depends, as we noted, refers to larceny against a person:
“Robbery is a compound larceny. It is a larceny from the person
accomplished by either an assault (putting in fear) or a battery
(violence).” Snowden v. State, 583 A.2d 1056, 1059 (Md.
1991). Assault and battery each require force or threatened
force against a person: “Under Maryland law, a common-law
assault consists of ‘(1) an attempt to commit a battery or (2) an
unlawful intentional act which places another in reasonable
apprehension of receiving an immediate battery.’ . . . A
‘battery,’ in turn, ‘is any unlawful application of force, direct or
indirect, to the body of the victim.’” United States v. Coleman,
158 F.3d 199, 201 (4th Cir. 1998) (en banc) (emphasis added)
(quoting Lamb v. State, 613 A.2d 402, 446 (Md. Ct. Spec.
App.1992)). Even assuming the amount of force required by
simple robbery is insufficient to qualify as “violent force,” the
target of that force (the relevant question at this point) is a
person, not property. And armed robbery, accomplished by the
use of a “dangerous or deadly weapon,” explicitly contemplates
bodily harm. Weapons are “deadly” to humans, not property.

                             * * *

     Because we have concluded that Maryland Robbery with a
Deadly Weapon is a violent felony under the Act’s still-valid
force clause, appellant’s 188-month sentence remains legal and
he is therefore not entitled to a new sentence.

                                                       So ordered.
