                        RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                    File Name: 18a0027p.06

                  UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT



 UNITED STATES OF AMERICA,                              ┐
                                  Plaintiff-Appellee,   │
                                                        │
                                                        >     No. 16-6720
       v.                                               │
                                                        │
                                                        │
 ARTHUR CHARLES SMITH, aka Marvon Andersen,             │
                             Defendant-Appellant.       │
                                                        ┘

                        Appeal from the United States District Court
                     for the Eastern District of Tennessee at Knoxville.
                  No. 3:13-cr-00005-3—Thomas A. Varlan, District Judge.

                                Argued: November 30, 2017

                             Decided and Filed: February 7, 2018

                  Before: NORRIS, ROGERS, and BUSH, Circuit Judges.

                                    _________________

                                        COUNSEL

ARGUED: Bradley L. Henry, BREEDING & HENRY, LLC, Knoxville, Tennessee, for
Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY’S OFFICE, Knoxville,
Tennessee, for Appellee. ON BRIEF: Bradley L. Henry, BREEDING & HENRY, LLC,
Knoxville, Tennessee, for Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY’S
OFFICE, Knoxville, Tennessee, for Appellee.
                                    _________________

                                         OPINION
                                    _________________

      ROGERS, Circuit Judge. Arthur Smith was sentenced as a career offender based in part
on his prior North Carolina state conviction for common-law robbery.        In this appeal, he
 No. 16-6720                          United States v. Smith                                Page 2


contends that North Carolina common-law robbery does not qualify as a “crime of violence”
within the meaning of § 4B1.1(a) of the United States Sentencing Guidelines. This is the second
time Smith has asked us to resolve this question. In 2014, another panel of this court heard
Smith’s case and concluded that North Carolina common-law robbery indeed qualifies as a crime
of violence under the Guidelines’ so-called residual clause. The Supreme Court vacated that
decision, however, after its decision in Johnson v. United States, 135 S. Ct. 2551 (2015), which
cast the constitutionality of the Guidelines’ residual clause into doubt. Since then, another
Supreme Court decision, Beckles v. United States, 137 S. Ct. 886 (2017), has clarified that the
Guidelines’ residual clause remains valid even after Johnson. We therefore reaffirm our prior
conclusion that North Carolina common-law robbery is a crime of violence within the meaning
of the Guidelines’ residual clause. Accordingly, Smith was properly classified as a career
offender.

       The United States Sentencing Guidelines (“USSG” or “Guidelines”) provide longer
sentences for defendants who qualify as “career offenders.” A defendant qualifies as a career
offender if “(1) the defendant was at least eighteen years old at the time the defendant committed
the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a
crime of violence or a controlled substance offense; and (3) the defendant has at least two prior
felony convictions of either a crime of violence or a controlled substance offense.” USSG
§ 4B1.1(a). At issue here is the final requirement that Smith have at least two qualifying prior
convictions.

       On April 23, 2013, Smith pleaded guilty to three federal counts stemming from his armed
robbery of a CVS pharmacy in Sevierville, Tennessee. The government contended that Smith
qualified as a career offender based on two prior state-court convictions: one for drug trafficking
under South Carolina law and the other for common-law robbery under North Carolina law.
Smith admitted that the South Carolina drug-trafficking conviction was a predicate offense, but
maintained that the North Carolina common-law robbery conviction was not.
 No. 16-6720                                United States v. Smith                                          Page 3


         When Smith was originally sentenced on September 30, 2013, the applicable version of
the Guidelines (the 2012 edition) defined “crime of violence” as follows:

         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.

USSG § 4B1.2(a) (2012).             Subsection (1) is commonly known as the “elements” clause.
Subsection (2) is generally divided into the “enumerated-offense” clause (“is burglary of a
dwelling, arson, or extortion, involves use of explosives”) and the “residual” clause (“or
otherwise involves conduct that presents a serious potential risk of physical injury to another”).1

         At Smith’s original sentencing hearing, the district court concluded that North Carolina
common-law robbery qualifies as a crime of violence under the residual clause. The court thus
applied the career-offender enhancement, which increased Smith’s Guidelines range from 194–
221 months up to 262–327 months. The district court opted for the bottom of the range, and
Smith was sentenced to 262 months’ imprisonment.

         Smith appealed, and we affirmed his sentence in an unpublished opinion that relied on
the residual clause. United States v. Smith (Smith I), 582 F. App’x 590 (6th Cir. 2014). After
our decision in Smith I, however, the Supreme Court invalidated the Armed Career Criminal
Act’s identically worded residual clause, finding that it was void for vagueness. Johnson, 135 S.
Ct. at 2563. In light of Johnson, the Supreme Court vacated our judgment in Smith I and
remanded for reconsideration. Smith v. United States, 135 S. Ct. 2930 (2015).

         While the remand in Smith’s case was pending, we extended the reasoning of Johnson to
hold the Guidelines’ residual clause void for vagueness as well. United States v. Pawlak,

         1
          In 2016, the U.S. Sentencing Commission removed the residual clause and replaced it with a fuller list of
enumerated offenses. The 2016 version of USSG § 4B1.2(a)(2) provides that an offense is a crime of violence if it
“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).”
 No. 16-6720                               United States v. Smith                                         Page 4


822 F.3d 902, 911 (6th Cir. 2016). Thus, when we took up Smith’s case on remand, the
Guidelines’ residual clause was not available as a basis to determine that North Carolina
common-law robbery qualifies as a crime of violence. We accordingly sent his case back to the
district court for resentencing in light of Pawlak. United States v. Smith, 667 F. App’x 536, 537
(6th Cir. 2016).

        Smith was resentenced on November 15, 2016. Because Pawlak was binding precedent
at the time, the district court did not consider the residual clause, and instead held that North
Carolina common-law robbery qualifies as a crime of violence under the elements clause and the
enumerated-offense clause. However, several months after Smith’s resentencing, the Supreme
Court decided Beckles, 137 S. Ct. at 886. Beckles held that the advisory Guidelines are not
subject to void-for-vagueness challenges, and that therefore the Guidelines’ residual clause “is
not void for vagueness.” Id. at 892. In so holding, the Supreme Court effectively abrogated our
decision in Pawlak and reinstated the Guidelines’ residual clause as a basis on which to conclude
that offenses qualify as crimes of violence.

        Smith I held that North Carolina common-law robbery categorically qualifies as a crime
of violence under the residual clause. Because the residual clause is valid post-Beckles, we may
reach the same conclusion in this case so long as Smith I’s reasoning has not been otherwise
undermined.2 A thorough examination of both Smith I and the reasons Smith offers to depart
from it shows that the logic of Smith I remains sound, and therefore North Carolina common-law
robbery is a crime of violence under the Guidelines’ residual clause.

        Under North Carolina law, 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.” State v. Bell, 603 S.E.2d 93, 117 (N.C. 2004) (quoting State v. Moss, 418 S.E.2d 213, 217
(N.C. 1992)).       Smith I correctly applied the categorical approach to determine that North
Carolina common-law robbery qualifies as a crime of violence under the residual clause.
See generally United States v. Yates, 866 F.3d 723, 728 (6th Cir. 2017) (explaining the

        2
         We apply the version of the Guidelines in effect when Smith was originally sentenced. 18 U.S.C.
§ 3742(g)(1); United States v. Taylor, 648 F.3d 417, 424 (6th Cir. 2011). When Smith was first sentenced on
September 30, 2013, the 2012 Guidelines (which contain the residual clause) were in effect, and so govern this case.
 No. 16-6720                         United States v. Smith                                Page 5


categorical approach). Its analysis turned on the final part of the offense definition—that the
taking must be accomplished “by means of violence or fear.” Smith conceded that robbery
committed by means of violence does present a “serious risk of physical injury to another” as
required by the residual clause, but contended that robbery committed by means of fear does not.
Smith I, 582 F. App’x at 596. We disagreed, observing that, under North Carolina Supreme
Court precedent, the fear element requires that the victim be induced to part with his property
“for the sake of his person,” see State v. Sawyer, 29 S.E.2d 34, 37 (N.C. 1944), which means the
victim must be placed in fear of bodily injury. Smith I, 582 F. App’x at 597. This, we reasoned,
“does generally present a serious risk of physical injury to another.” Id. Smith responded that
fear “for the sake of one’s person” could possibly include threats of things other than physical
injury, such as a threat to fire or financially ruin the victim. We rejected this argument, however,
explaining that, even if it were theoretically possible to commit common-law robbery through
threats of something other than physical injury (like a threat to terminate the victim’s
employment), the relevant inquiry is how North Carolina common-law robbery is committed in
the “ordinary case,” and “in the ordinary case, robbing someone by means of placing him in fear
for his person does present a serious risk of physical injury.” Id. (emphasis in original). Having
thus held that North Carolina common-law robbery qualifies as a crime of violence under the
residual clause, we declined to consider whether it might also qualify under the elements or
enumerated-offense clause. Id. at 598.

       On this appeal, Smith reprises his argument that the fear element can be satisfied by
threats of harm other than physical violence—such as threats to the safety of family members,
threats of being fired, or threats of financial ruin—and that, committed this way, common-law
robbery does not pose a “serious potential risk of physical injury to another” as required by the
residual clause. This argument fails for the same reason it failed in Smith I. “[T]he inquiry is not
whether it is possible for a defendant to commit a crime in a way that would not be a violent
felony.” Id. Rather, the question is “whether the conduct encompassed by the elements of the
offense, in the ordinary case, presents a serious potential risk of injury to another.” Id. at 597
(quoting James v. United States, 550 U.S. 192, 208 (2007) (emphasis added in Smith I)). Smith’s
hypotheticals, “though perhaps the stuff of law-school exams,” id., do not represent the ordinary
case of North Carolina common-law robbery. Tellingly, Smith does not cite any case in which
 No. 16-6720                           United States v. Smith                                  Page 6


North Carolina common-law robbery has been applied based on a threat to injure the victim’s
family, terminate the victim’s employment, financially ruin the victim, or the like. This is
presumably because no such cases exist. As the Supreme Court has cautioned, the categorical
approach “is not an invitation to apply ‘legal imagination’ to the state offense; there must be a
‘realistic probability, not a theoretical possibility, that the State would apply its statute to conduct
that falls outside the generic definition of a crime.’” Moncrieffe v. Holder, 133 S. Ct. 1678,
1684–85 (2013) (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)).

       Smith contends that we should depart from our holding in Smith I because, after Johnson
and Beckles, even though the advisory Guidelines are not subject to void-for-vagueness
challenges, the Guidelines’ residual clause is still so difficult to interpret that district courts
commit procedural error if they rely on it to calculate a Guidelines range. In other words, he
argues that, because a sentence is procedurally unreasonable if the district court improperly
calculates the Guidelines range, Gall v. United States, 552 U.S. 38, 51 (2007), and because the
residual clause is so vague that it is impossible to interpret correctly, district courts interpreting
the residual clause will always reach an improper calculation and thus commit procedural error.
This wholesale attack on the residual clause must be rejected. Beckles recently affirmed the
residual clause’s validity, and we have since approved of several post-Beckles Guidelines
calculations that relied on the residual clause. See United States v. Patterson, 853 F.3d 298,
305–06 (6th Cir. 2017); United States v. Goodrich, No. 16-1795, 2017 WL 4350896, at *2 (6th
Cir. Oct. 2, 2017); United States v. Jackson, 704 F. App’x 484, 488 (6th Cir. 2017). Indeed, as
we recently noted, “post-Beckles, every decision issued by the Sixth Circuit involving this
question has concluded that the residual clause can provide an alternative basis for affirmance.”
United States v. Johnson, No. 16-2033, 2017 WL 5625720, at *2 n.2 (6th Cir. Nov. 22, 2017).
Smith’s argument amounts to an attempt to revisit Beckles’ holding that the advisory Guidelines
are not subject to vagueness challenges. We decline to do so.

       Smith also argues that the Supreme Court’s pre-Johnson residual-clause caselaw, such as
James v. United States, 550 U.S. 192 (2007), cannot be used to interpret the Guidelines’ residual
clause, because this caselaw was developed in the context of the residual clause of the Armed
Career Criminal Act (“ACCA”), and thus was overruled by Johnson. However, we have already
 No. 16-6720                         United States v. Smith                                Page 7


rejected this contention, explaining that James, “while no longer valid for analyzing the residual
clause of the ACCA, [remains] good law for purposes of the Guidelines.” United States v.
Goodson, 700 F. App’x 417, 423 (6th Cir. 2017). The fact that Smith I relied in part on James,
see Smith I, 582 F. App’x at 597–98, does not undermine the reasoning of that decision.

         Finally, Smith cites a decision of the Fourth Circuit, United States v. Gardner, 823 F.3d
793 (4th Cir. 2016), which holds that North Carolina common-law robbery does not qualify as a
violent felony under the ACCA. However, Gardner is not on point. Gardner was an ACCA
case decided after Johnson, and therefore it could not consider the ACCA’s residual clause;
instead, it was decided solely under the ACCA’s elements clause. See id. at 803–04. Whether
North Carolina common-law robbery “has as an element the use, attempted use, or threatened
use of physical force against the person of another,” as the ACCA’s elements clause requires, see
18 U.S.C. § 924(e)(2)(B)(i), has no bearing on the dispositive question in this case, which is
whether North Carolina common-law robbery necessarily “involves conduct that presents a
serious potential risk of physical injury to another.” Moreover, since Gardner the Fourth Circuit
has recognized that North Carolina common-law robbery does qualify as a crime of violence
under the Guidelines, albeit under the enumerated-offense clause rather than under the residual
clause. United States v. Gattis, 877 F.3d 150, 156–60 (4th Cir. 2017).

         For these reasons, the district court correctly concluded that North Carolina common-law
robbery is a crime of violence as that term is used in the Guidelines.

         Smith also argues that his sentence is substantively unreasonable.         A sentence is
substantively unreasonable if the district court “selects a sentence arbitrarily, bases the sentence
on impermissible factors, fails to consider relevant sentencing factors, or gives an unreasonable
amount of weight to any pertinent factor.” United States v. Conatser, 514 F.3d 508, 520 (6th
Cir. 2008) (citing United States v. Webb, 403 F.3d 373, 385 (6th Cir. 2005)). Smith not only
bears the burden to show substantive unreasonableness, United States v. Woodard, 638 F.3d 506,
510 (6th Cir. 2011) (citing United States v. Houston, 529 F.3d 743, 756 (6th Cir. 2008)), but
because his sentence was within the Guidelines range, he must also overcome a rebuttable
presumption that it is reasonable, United States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008) (en
banc).
 No. 16-6720                            United States v. Smith                             Page 8


       Smith does not meet this burden. He does not point to any way in which the district court
selected his bottom-of-the-Guidelines sentence arbitrarily, based it on impermissible factors, or
unreasonably applied the proper factors.         He instead argues only that the career-offender
guideline is generally unreasonable, because, in his view, it arbitrarily over-punishes those
defendants who qualify, without sufficient evidence that it deters crime or protects the public.
But the career-offender guideline is on the books, and “the mere fact that a sentencing court has
the discretion to disagree with the guidelines on policy grounds does not mean that it is required
to do so.” United States v. Ekasala, 596 F.3d 74, 76 (1st Cir. 2010) (internal citation omitted).
Thus, Smith has not identified anything to rebut the presumption that his within-Guidelines
sentence is substantively reasonable.

       Smith’s final argument is that his Sixth Amendment right to a jury trial was violated
when the district court used the fact of his prior convictions to enhance his sentence, even though
the fact of those convictions was neither charged by indictment nor proven to a jury beyond a
reasonable doubt. This argument is foreclosed by Supreme Court precedent. In Almendarez-
Torres v. United States, 523 U.S. 224, 239–247 (1998), the Court held that a sentencing court
may use the fact of a defendant’s recidivism to increase his sentence even if the defendant’s prior
convictions are neither alleged in the indictment nor found by a jury beyond a reasonable doubt.
The Supreme Court has since declined to revisit Almendarez-Torres on several occasions. See
Alleyne v. United States, 133 S. Ct. 2151, 2160 n.1 (2013); Apprendi v. New Jersey, 530 U.S.
466, 489–90 (2000).     Smith argues that Apprendi, Alleyne, and Shepard v. United States,
544 U.S. 13 (2005), have called Almendarez-Torres into question such that it is no longer viable.
However, “Almendarez-Torres is still good law and will remain so until the Supreme Court
explicitly overrules it.” United States v. Nagy, 760 F.3d 485, 488 (6th Cir. 2014) (quoting
United States v. Anderson, 695 F.3d 390, 398 (6th Cir. 2012)).

       For the foregoing reasons, we affirm Smith’s sentence.
