               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 16a0390n.06

                                       Case No. 13-6322

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                   FILED
                                                                              Jul 12, 2016
                                                                         DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA,                        )
                                                 )
       Plaintiff-Appellee,                       )
                                                 )        ON   REMAND   FROM             THE
v.                                               )        SUPREME COURT OF               THE
                                                 )        UNITED STATES
ARTHUR CHARLES SMITH,                            )
                                                 )
       Defendant-Appellant.                      )
                                                 )
                                                 )


       BEFORE: BOGGS and DONALD, Circuit Judges; and HOOD, District Judge.*

       PER CURIAM.           In 2013, Arthur Smith pleaded guilty to robbing a pharmacy,

brandishing a firearm during and in retaliation to a crime of violence, and being a felon in

possession of a firearm. Smith’s presentence report designated him a career offender based on

prior convictions for possession of a controlled substance with intent to distribute and North

Carolina common-law robbery. See USSG §4B1.1. At sentencing, Smith argued that North

Carolina common-law robbery is a “crime of violence” under the career-offender guideline. The

district court agreed with Smith that North Carolina robbery does not qualify as a crime of

violence through the guideline’s “physical force” clause. USSG §4B1.2(a)(1). However, it


*
 The Honorable Denise Page Hood, United States District Judge for the Eastern District of
Michigan, sitting by designation.
Case No. 13-6322, United States v. Smith


agreed with the Government that any North Carolina robbery “presents a serious potential risk of

physical injury to another,” id. §4B1.2(a)(2), and thus qualifies as a crime of violence through

the guideline’s residual clause.     The district court sentenced Smith to 262 months of

imprisonment, at the bottom of the range recommended by the Sentencing Guidelines.

       On appeal, we affirmed the district court’s sentence, holding that North Carolina

common-law robbery is a crime of violence under §4B1.2(a)(2)’s residual clause. United States

v. Smith (Smith I), 582 F. App’x 590, 601 (6th Cir. 2014). We did “not consider whether the

offense also qualifies as a crime of violence under the physical-force clause.” Id. at 598.

However, we noted our then-recent holding in United States v. Mitchell, 743 F.3d 1054, 1060

(6th Cir. 2014), that Tennessee robbery is a violent felony under the physical-force clause of the

Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(i), and that “North Carolina’s

definitions of robbery and of ‘fear’ are similar to Tennessee’s.” Smith I, 582 F. App’x at 599.

       Smith filed a petition for a writ of certiorari. The Supreme Court granted Smith’s

petition, vacated our decision in Smith I, and remanded the case to this court for further

consideration in light of Johnson v. United States, 135 S. Ct. 2551 (2015). Smith v. United

States, 135 S. Ct. 2930, 2930 (2015) (mem.). In Johnson, the Supreme Court held that the

ACCA’s residual clause is unconstitutionally vague. 135 S. Ct. at 2563. In United States v.

Pawlak, ___ F.3d ___, No. 15-3566, 2016 WL 2802723 (6th Cir. May 13, 2016), we recently

held that Johnson’s reasoning applies with equal force to §4B1.2(a)(2)’s residual clause. Id. at

*8.

       Smith must be resentenced because the district court based his §4B1.1 enhancement upon

§4B1.2(a)(2)’s unconstitutional residual clause. For this reason, we VACATE the judgment of




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Case No. 13-6322, United States v. Smith


the district court and REMAND this case to the district court for further consideration in light of

Mitchell and Pawlak.




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