Friday, April 6th, 2018

Recent Cert. Grant on the ACCA’s Definition of “Violent Felony”

It’s been a relatively slow week for the Second Circuit, but the Supreme Court recently granted cert. in Stokeling v. United States, 17-5554, a case concerning the definition of “violent felony” under the ACCA. Sentencing Resource Counsel Sissy Phleger has these details:

The issue: Whether a state robbery offense that includes “as an element” the common law requirement of overcoming “victim resistance” is categorically a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), when the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.

Florida’s robbery statute reads, in relevant part,

(1) “Robbery” means the taking of money or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear . . . .

(3)(b) An act shall be deemed “in the course of the taking” if it occurs either prior to, contemporaneous with, or subsequent to the taking of the property and if it and the act of taking constitute a continuous series of acts or events.

Fla. Stat. § 812.13.

Florida case law interpreting its robbery statute demonstrates that overcoming victim resistance satisfies its “use of force” element, and that such overcoming can involve “slight” force which does not necessarily qualify as “violent force.”  The petition demonstrates that statutes like Florida’s cannot withstand a proper post-Johnson re-evaluation, which would also require applying the Supreme Court’s clarified threshold divisibility jurisprudence (including in Mathis and Descamps), along with the Court’s insistence that “physical force” requires “violent force” (in Curtis Johnson). The Eleventh Circuit, however, has continued to apply earlier precedent categorizing Florida’s robbery statute as a violent felony, essentially holding that overcoming victim resistance always satisfies the force requirement.

The cert petition, and the several supplemental filings, reveal a circuit split on the question—with the Fourth and Ninth Circuits properly re-evaluating similar robbery statutes, while the Tenth and Eleventh Circuits persist in the error.

The SCOTUSblog page (including filings) is here:



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