                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA


 UNITED STATES OF AMERICA

                 v.                                      Criminal Action No. 13-330 (JDB)
 PAUL MOORE, JR.,
         Defendant.


                                  MEMORANDUM OPINION

       On July 16, 2015, defendant Paul Moore, Jr., pleaded guilty to unlawful possession with

intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). A first draft

of the Presentence Investigation Report concluded that Moore qualified as a “career offender”

under § 4B1.1 of the United States Sentencing Guidelines. Moore disagreed with that assessment

and requested the opportunity to brief the issue before sentencing. The Court granted his request

and has now received and reviewed the parties’ filings. See Def.’s Sentencing Mem. Addressing

“Career Offender” Issue [ECF No. 60] (“Def.’s Mem.”); Gov’t’s Mem. in Aid of Sentencing [ECF

No. 62] (“Gov’t’s Resp.”); Def.’s Sentencing Mem. in Reply [ECF No. 64] (“Def.’s Reply”). This

opinion explains why the Court concludes that Moore is indeed a career offender under the

Guidelines.

                                  *              *               *

       Section 4B1.1 provides for an increased offense level if a defendant is found to be a “career

offender.” To be a career offender, a defendant must (among other things) have “at least two prior

felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G.

§ 4B1.1(a). Moore does not dispute that one of his prior convictions qualifies as a controlled

substance offense. But he says that another prior conviction—for armed robbery under Maryland



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law—does not qualify as a crime of violence, and hence he does not qualify as a career offender

under the Guidelines.

       Section 4B1.2 of the Guidelines contains the critical definition:

           The term “crime of violence” means any offense under federal or state law,
           punishable by imprisonment for a term exceeding one year, that—
             (1) has as an element the use, attempted use, or threatened use of physical
             force against the person of another, or
             (2) is burglary of a dwelling, arson, or extortion, involves use of
             explosives, or otherwise involves conduct that presents a serious potential
             risk of physical injury to another.

U.S.S.G. § 4B1.2(a). In deciding whether Moore’s crime of conviction fits within this definition,

the Court must employ what is known as the “categorical approach.” “Under the categorical

approach, a court assesses whether a crime qualifies as a [crime of violence] in terms of how the

law defines the offense and not in terms of how an individual offender might have committed it

on a particular occasion.” Johnson v. United States, 135 S. Ct. 2551, 2557 (2015) (internal

quotation marks omitted).

       But before turning to how Maryland law defines the offense Moore committed, the Court

must address the impact of the Supreme Court’s recent Johnson decision. That case addressed the

Armed Career Criminal Act (ACCA), which contains a definition of the term “violent felony” that

is nearly identical to the Guidelines’ definition of “crime of violence.”          See 18 U.S.C.

§ 924(e)(2)(B). Johnson held that the final, so-called “residual clause” of the definition—“or

otherwise involves conduct that presents a serious potential risk of physical injury to another”—is

void for vagueness under the Due Process Clause. 135 S. Ct. at 2557–63. The United States has

conceded here (and in every case, it seems) that Johnson’s void-for-vagueness holding applies with

equal force to the residual clause in the Guidelines’ definition of “crime of violence.” Gov’t’s

Resp. at 4 n.2. The question thus becomes whether Moore’s offense qualifies as a crime of



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violence even after the residual clause has been struck from the definition in § 4B1.2(a)(2). See

United States v. Soto-Rivera, 811 F.3d 53, 59 (1st Cir. 2016) (accepting the Government’s

concession that “the residual clause [is] out of the picture”).

       As mentioned, Moore was convicted of robbery. More specifically, he pleaded guilty to

robbery with a dangerous weapon in violation of Maryland Criminal Law § 3-403. That provision

forbids a person “to commit or attempt to commit robbery under § 3-402 of this subtitle: (1) with

a dangerous weapon; or (2) by displaying a written instrument claiming that the person has

possession of a dangerous weapon.” Md. Crim. Law § 3-403(a). Because this is a so-called

“divisible statute,” in that it “sets out one or more elements of the offense in the alternative,” the

Court is permitted under the “modified categorical approach” to look at Moore’s indictment and

plea colloquy to determine under which alternative his conviction falls. Descamps v. United

States, 133 S. Ct. 2276, 2281–82 (2013). Here it is clear that Moore’s conviction came under the

first alternative: robbery with an actual dangerous weapon, not merely a “written instrument.” See,

e.g., Ex. B to Gov’t’s Resp. [ECF No. 62-2] at 12 (Moore admitting during plea colloquy to the

“use of a handgun in the commission of a felony”).

       Moore tries to downplay the “with a dangerous weapon” aspect of his conviction,

contending that it “is merely a sentencing factor, not an element” of his offense, and that the

Court’s focus under the categorical approach should be on simple robbery. Def.’s Reply at 1–2.

Moore is wrong, however. True enough, the Maryland Court of Appeals has said that §§ 3-402

and 3-403 “do not create separate statutory offenses but merely fix the penalties for one crime of

robbery, aggravated if committed with a deadly weapon.” Bowman v. State, 552 A.2d 1303, 1305

(Md. 1989) (citing predecessor code provisions). But as a matter of federal law, the use of a deadly

weapon is clearly an element of a distinct offense. That is so because the use of a deadly weapon




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increases the maximum penalty from 15 years to 20, compare Md. Crim. Law § 3-402(b) with id.

§ 3-403(b), and “any facts that increase the prescribed range of penalties to which a criminal

defendant is exposed are elements of the crime,” Alleyne v. United States, 133 S. Ct. 2151, 2160

(2013). As a matter of federal constitutional law, then, Moore could not have been exposed to that

heightened penalty unless a jury concluded beyond a reasonable doubt—or, as actually happened,

Moore admitted in his plea—that he had used a deadly weapon. See United States v. Booker, 543

U.S. 220, 244 (2005). Robbery with a dangerous weapon is the crime Moore pleaded guilty to,

and so the question is whether that crime—not simple robbery—is a crime of violence under the

Guidelines.

       As noted, § 3-403 defines Moore’s crime as the commission of “robbery under § 3-402 of

this subtitle . . . with a dangerous weapon.” The meaning of “robbery” in § 3-402 is in turn

governed by the definition in § 3-401, which says that “ ‘[r]obbery’ retains its judicially determined

meaning” (with certain exceptions not relevant here). Md. Crim. Law § 3-401(e). That “judicially

determined meaning,” the Maryland Court of Appeals has explained, is as follows: “the felonious

taking and carrying away of the personal property of another, from his person or in his presence,

by violence, or by putting him in fear.” Coles v. State, 821 A.2d 389, 394 (Md. 2003) (internal

quotation marks omitted). Importantly for present purposes, the Maryland Court of Appeals has

further explained that “[t]he hallmark of robbery . . . is the presence of force or threat of force, the

latter of which also is referred to as intimidation.” Id. at 395 (emphasis added); see also Spencer

v. State, 30 A.3d 891, 898 (Md. 2011) (“Common law robbery has a long history of requiring the

State to prove either the use of force or the threat of force . . . .”). Hence, it certainly appears at

first blush as though, in the words of the Guidelines, Maryland robbery (even without a dangerous




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weapon) “has as an element the use, attempted use, or threatened use of physical force against the

person of another,” and is therefore a crime of violence. U.S.S.G. § 4B1.2(a)(1).

         Moore’s first major counterargument is that Maryland robbery does not categorically

involve force directed “against the person of another” because it can be accomplished by putting

someone in fear of injury to his property, rather than to his person. Def.’s Mem. at 6. But the

Court does not think this is correct. Moore’s only support for the proposition that threats to

property are sufficient under Maryland law is two intermediate appellate court opinions from 1970.

See Douglas v. State, 267 A.2d 291, 295 (Md. Ct. Spec. App. 1970); Giles v. State, 261 A.2d 806,

807 (Md. Ct. Spec. App. 1970). Neither case actually involved threats against property, and Moore

has cited no Maryland case that did. More importantly, Moore overlooks Spencer v. State, in

which Maryland’s highest court said that “when considering whether there has been a threat of

force or intimidation,” the test is “whether an ordinary, reasonable person under the circumstances

would have been in fear of bodily harm.” 30 A.3d at 898 (emphasis added). This formulation of

the relevant inquiry, combined with the fact that the statements in Douglas and Giles appear never

to have been followed, leads the Court to conclude that Maryland robbery requires the use or threat

of force against a person. *

         But even if threats to property are sufficient, Maryland robbery with a dangerous weapon

is still a crime of violence. That is so because any instances in which it is committed through a

threat to property would qualify as “extortion” within the meaning of the definition of “crime of

violence.” U.S.S.G. § 4B1.2(a)(2) (“burglary of a dwelling, arson, or extortion” are crimes of

violence). The Supreme Court has indicated that the generic definition of extortion is “obtaining


         *
           Casting further doubt on the continued reliability of Giles (and in turn of Douglas, which relied exclusively
on Giles for this point) is Giles’s suggestion that robbery could be committed by means of an accusation of “sodomy.”
261 A.2d at 808 n.1. Moore does not suggest that is a correct statement of Maryland law or a reason that Maryland
robbery is not a crime of violence.



                                                           5
something of value from another with his consent induced by the wrongful use of force, fear, or

threats.” Scheidler v. Nat’l Org. for Women, Inc., 537 U.S. 393, 409–10 (2003); see also James

v. United States, 550 U.S. 192, 223–24 (2007) (Scalia, J., dissenting) (“I therefore assume that

extortion under ACCA is: the obtaining of something of value from another, with his consent,

induced by the wrongful use or threatened use of force against the person or property of another.”).

Moore’s fanciful hypotheticals of threats to property—e.g., “threatening to shoot bullets into one’s

yacht,” Def.’s Reply at 19—would qualify as extortion under this definition. (And so would,

incidentally, his hypotheticals of robbery by threats of poison, withholding insulin, locking in a

freezer, etc. Id. at 14.) If the only methods of committing the crime that do not fit within the force

clause of § 4B1.2(a)(1) do fit within “extortion” in § 4B1.2(a)(2), then the crime remains a crime

of violence. See, e.g., United States v. Harris, 572 F.3d 1065, 1066 (9th Cir. 2009) (per curiam)

(“[A]ny conduct under Nev. Rev. Stat. § 200.380 that did not satisfy the generic definition of

robbery, such as threats to property, would satisfy the generic definition of extortion.”).

       Moore’s responses to this extortion point miss the mark. He says Maryland robbery cannot

equal generic extortion because Maryland robbery does not have the element of consent. But the

Court’s point is not that Maryland robbery categorically equals generic extortion. The Court

readily concedes it does not. For example, a mugger who clubs an unsuspecting victim into

unconsciousness and then steals his wallet has committed robbery but not extortion. The point is

that any methods of committing robbery through threats that do not fit within the force clause of

§ 4B1.2(a)(1) do qualify as extortion. Nor is Moore aided by United States v. Dixon, 805 F.3d

1193 (9th Cir. 2015), in which the Ninth Circuit recently concluded that California robbery is not

a violent felony under ACCA, even under the combination of the force clause and extortion. The

Ninth Circuit’s conclusion rested on a quirk of California robbery law—namely, that it can be




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committed through an accidental use of force. Because of that possibility, Dixon concluded that

there was “one narrow class of [California robbery] violations that do not satisfy the ACCA’s

definition of ‘violent felony’: those in which (1) the taking is not consensual (thereby failing the

definition of generic extortion); and (2) the defendant uses force against a person, but only

accidentally or negligently, rather than intentionally (thereby failing the element test of [ACCA’s

force clause] as interpreted by [precedent requiring the intentional use of force]).” 805 F.3d at

1197. But Moore has identified no precedent (nor is the Court aware of any) suggesting that

Maryland robbery shares this characteristic.

       That brings us to Moore’s second major counterargument—his contention that the “force”

that must be used or threatened in Maryland robbery need not rise to the level of the “physical

force” required by the Guidelines. See Def.’s Mem. at 8–11. As Moore correctly notes, the

Supreme Court has held that “physical force” in the analogous ACCA provision demands more

than the “force” sufficient for common-law battery, which requires only “the slightest offensive

touching.” Johnson v. United States, 559 U.S. 133, 139 (2010). “Physical force,” the Court held,

“means violent force—that is, force capable of causing physical pain or injury to another person.”

Id. at 140. Moore contends that Maryland robbery can be committed through the type of force

sufficient for common-law battery and therefore does not categorically involve “physical force”

of the sort necessary to make it a crime of violence.

       That may or may not be true for simple robbery, but Moore was convicted of robbery with

a dangerous weapon. That means he committed robbery with an instrument that was either: (1)

“designed to be used in destroying, 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)




                                                  7
“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) (internal quotation marks and citations omitted).

This Court does not see how robbery by means of any such instrument could not involve the use,

attempted use, or threatened use of “force capable of causing physical pain or injury to another

person.” Johnson, 559 U.S. at 140.

       Moore’s argument to the contrary is that the dangerous weapon could be something like

“poison, hazardous chemicals, [or] even pepper spray,” the use of which “does not require strong

physical force.” Def.’s Reply at 23. The Court disagrees. To start, the employment of even such

indirect weapons entails the “use of force,” as the Supreme Court recently made clear. In the case

of poisoning, for instance,

           [t]he “use of force” . . . is not the act of sprinkling the poison; it is the act of
           employing poison knowingly as a device to cause physical harm. That the
           harm occurs indirectly, rather than directly (as with a kick or punch), does
           not matter. [Otherwise], after all, one could say that pulling the trigger on
           a gun is not a “use of force” because it is the bullet, not the trigger, that
           actually strikes the victim.

United States v. Castleman, 134 S. Ct. 1405, 1415 (2014) (internal quotation marks and brackets

omitted). To be sure, Castleman did not say that all such uses of force were necessarily uses of

“physical force” within the meaning of Johnson, see Castleman, 134 S. Ct. at 1414, but the

important initial point is that indirect weapons (poisons, chemicals, biological agents) are not

categorically non-forceful. See United States v. Rice, 2016 WL 537589, at *2 (8th Cir. Feb. 11,

2016) (interpreting Castleman similarly); United States v. McDaniels, 2015 WL 7455539, at *5

(E.D. Va. Nov. 23, 2015) (same). Whether the use of any such instrumentality rises to the level

of “physical force” under Johnson is just a question of how harmful it is. And the bar is not as

high as Moore seems to think, since the weapon must simply be “capable of causing physical pain

or injury.” Johnson, 559 U.S. at 140. Not agony—just pain. Not mutilation—just injury. The



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use of pepper spray, for instance, easily satisfies this standard. (Pepper spray would hardly serve

its purpose if it did not cause the sprayee pain.) Given Maryland’s definition of “dangerous

weapon,” the Court cannot see how it is possible to commit robbery with a dangerous weapon

without the use, attempted use, or threatened use of the level of force specified by Johnson.

       To summarize: Maryland robbery with a dangerous weapon necessarily entails the threat

or use of force. To the extent it can be committed through a threatened use of force against

property—which the Court doubts—it qualifies as generic extortion under the Guidelines. When

the threat or use of force is directed against a person, the fact that the defendant employed a

dangerous weapon means that force threatened or used was “physical force,” i.e., force capable of

causing physical pain or injury. That is true even for poisons, gases, and the like. Maryland

robbery with a dangerous weapon is therefore a crime of violence under § 4B1.2 of the Guidelines.

And for that reason, Moore qualifies as a career offender.



                                                                         /s/
                                                                  JOHN D. BATES
                                                             United States District Judge
Dated: March 4, 2016




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