Summary
This Fourth Circuit Court of Appeals decision addresses whether a defendant's prior Virginia robbery conviction qualifies as a "crime of violence" under the U.S. Sentencing Guidelines. Relying on precedent establishing that Virginia robbery can be committed through non-violent intimidation, such as threatening to accuse a victim of sodomy, the court holds that the state offense is broader than generic robbery and thus does not meet the criteria for a crime of violence. Consequently, the district court's enhanced base offense level was erroneous, prompting reversal and remand for resentencing and further consideration of a separate firearm-related conviction.
Topics
Practice areas
Questions Presented
- Whether Parham's 2003 conviction for Virginia common-law robbery under Va. Code § 18.2-58 (1978) qualifies as a crime of violence under the enumerated-offenses clause of U.S.S.G. § 4B1.2(a)(2), thereby supporting an enhanced base offense level under § 2K2.1(a)(4)(A).
- Whether the district court actually determined that Parham's conviction under Va. Code § 18.2-53.1 for use of a firearm during a robbery qualifies as a crime of violence under the Sentencing Guidelines.
Holdings
- Virginia common-law robbery under the version of Va. Code § 18.2-58 applicable to Parham's 2003 conviction is categorically broader than generic robbery because it may be committed by threatening to accuse the victim of having engaged in sodomy, without immediate danger of physical harm. The conviction therefore is not a crime of violence under the enumerated-offenses clause of § 4B1.2(a)(2), and the district court erred by relying on it to apply the enhanced base offense level under § 2K2.1(a)(4)(A).
- The district court did not clearly determine whether Parham's conviction under Va. Code § 18.2-53.1 for use of a firearm during a robbery qualifies as a crime of violence. The Fourth Circuit declined to decide that question in the first instance and remanded for the district court to address it.
Key quotations
“Therefore, because Virginia robbery can be committed by conduct broader than the generic form of robbery, it is not a crime of violence under the enumerated offenses clause of the Guidelines.” (15)
“But because we are “mindful that we are a court of review, not of first view,” we decline the invitation to address this question” (17)
Factual background
In early 2021, Newport News police stopped Parham after observing that the vehicle he was driving had an expired registration sticker. Officers saw him reach toward the center console and then observed a .25-caliber semiautomatic pistol under the plastic between the floorboard and center console. Parham was arrested and later pleaded guilty to possessing a firearm as a convicted felon, admitting that he knew his prior felony conviction had not been expunged or otherwise removed as a firearm prohibition.
Procedural history
A federal grand jury indicted Parham under 18 U.S.C. § 922(g)(1), and he pleaded guilty without a plea agreement. The district court treated his 2003 Virginia robbery conviction as a crime of violence, applied an enhanced base offense level under U.S.S.G. § 2K2.1(a)(4)(A), calculated a Guidelines range of 77 to 96 months, and imposed 84 months of imprisonment. The Fourth Circuit reversed the judgment, vacated the sentence, and remanded for resentencing, directing the district court to consider in the first instance whether Parham's Virginia conviction for use of a firearm during a robbery qualifies as a crime of violence.
Remand instructions
The district court must resentence Parham without treating the 2003 Virginia robbery conviction as a crime of violence. It must also consider in the first instance whether Parham's Virginia conviction under Va. Code § 18.2-53.1 for use of a firearm during a robbery qualifies as a crime of violence under the Sentencing Guidelines.