Petition for Writ of Certiorari — Michael Ray Davis, Petitioner v. United States

NO. _________

IN THE SUPREME COURT OF THE UNITED STATES

____________

MICHAEL RAY DAVIS,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

____________

On Petition For a Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit

Submitted in Behalf of

Petitioner, Michael Ray Davis

___________

PETITION FOR WRIT OF CERTIORARI

____________

Stephen R. Welby

Federal Public Defender

650 Missouri Avenue, Rm. G10-A

East St. Louis, Illinois 62201

(618) 482-9050

(618) 482-9057 (fax)

Steve_Welby@fd.org

Counsel for Petitioner

QUESTIONS PRESENTED

Does Illinois robbery qualify as a crime of violence under U.S.S.G. § 4B1.2(a), in that it has

as an element the use or threat of physical force against a person, or qualifies as a generic robbery,

where Illinois robbery may be committed by the use of merely slight force, such as would be

required to snatch a pin off of a piece of clothing, and this Court holds that the force required to

qualify as a “violent felony” under the Armed Career Criminal Act, which is defined by a similar

elements clause, requires “force capable of causing physical pain or injury to another person,” and

where there is a Circuit split regarding whether generic robbery requires the use of more than

minimal force to take property from an individual?

i

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .......................................................................................................................... i

TABLE OF CONTENTS ............................................................................................................................... ii

TABLE OF AUTHORITIES ........................................................................................................................ iii

PETITION FOR WRIT OF CERTIORARI ............................................................................................... 1

OPINIONS BELOW ....................................................................................................................................... 1

JURISDICTION ............................................................................................................................................... 2

STATUTORY PROVISIONS INVOLVED ............................................................................................... 2

STATEMENT OF THE CASE ..................................................................................................................... 4

REASONS FOR GRANTING THE WRIT

1) This Court has already accepted certiorari on an identical issue regarding the elements clause

in the context of the ACCA, on which the circuits are in conflict, and the Seventh Circuit’s

opinion adds to that conflict............................................................................................................... 7

2)

The Circuits need this Court’s guidance to eliminate the arbitrary and inconsistent

approaches used for determining the scope of the generic version of an offense listed as a

predicate offense in a violent felony or crime of violence provision. ........................................ 10

3)

This Court’s guidance is needed to resolve a circuit split on the generic definition of

robbery for purposes of a violent felony or crime of violence provisions. ............................... 13

CONCLUSION ............................................................................................................................................... 16

APPENDIX

United States v. Davis, 712 Fed.Appx. 578 (7th Cir. 2018)............................................................ Appendix 1

United States v. Davis, 15-cr-30013 (S.D. of IL.May 16, 2017) ................................................... Appendix 3

ii

TABLE OF AUTHORITIES

Cases

Page

Descamps v. United States, 133 S.Ct. 2276 (2013)............................................................................................ 10

Johnson v. United States, 559 U.S. 133 (2010) ........................................................................................ 6,8,9,10

Mathis v. United States, -- U.S. --, 36 S.Ct. 2243, 2247-49 (2016) .................................................................. 6

People v. Addison, 603 N.E.2d 19 (1992)........................................................................................................... 5

People v. Campbell, 84 N.E. 1035 (Ill. 1908)................................................................................................. 6,10

People v. Patton, 389 N.E.2d 1174, 1175-76 (1979) ......................................................................................... 7

People v. Taylor, 541 N.E.2d 677 (Ill. 1989) ................................................................................................... 6,9

Smith v. United States, 508 U.S. 223 (1993)..................................................................................................... 10

Taylor v. United States, 495 U.S. 575 (1990) ...................................................................................... 5,10,11,12

United States v. Bedell, 981 F.2d 915 (7th Cir. 1992)........................................................................................ 9

United States v. Chagoya-Morales, 859 F.3d 411 (7th Cir. 2017) ...................................................................... 9

United States v. Davis, 15-cr-30013 (S.D. of IL.May 16, 2017) ...................................................................... 1

United States v. Davis, 712 Fed.Appx. 578 (7th Cir. 2018)................................................................... 2,7,9,11

United States v. Garcia-Santana, 774 F.3d 528 (9th Cir. 2014)........................................................................ 11

United States v. Gardner, 823 F.3d 793 (4th Cir. 2016) .................................................................................. 7,8

United States v. Gattis, 877 F.3d 150 (4th Cir. 2017)..................................................................................15,16

United States v. Graves, 877 F.3d 494 (3d Cir. 2017) ................................................................................12,14

United States v. Harris, 844 F.3d 1260 (10th Cir. 2017).................................................................................... 8

United States v. Lockley, 632 F.3d 1238 (11th Cir. 2011) ................................................................................ 14

United States v. Peterson, 629 F.3d 432 (4th Cir. 2011) .................................................................................. 12

iii

United States v. Santiesteban-Hernandez, 469 F.3d 376 (5th Cir. 2006), overruled on other grounds by United

States v. Rodriguez, 711 F.3d 541 (5th Cir. 2013) (en banc).......................................................................... 13

United States v. Seabrooks, 839 F.3d 326 (11th Cir. 2016) ............................................................................... 8

United States v. Smith, 877 F.3d 720 (7th Cir. 2017), petition for cert. filed no. 17-7517, Jan 17, 2018 and no.

17-8160, Mar. 13, 2018 .................................................................................................................................... 11

United States v. Soto-Sanchez, 623 F.3d 317 (6th Cir. 2010) ............................................................................ 11

United States v. Steward, 880 F.3d 983 (8th Cir. 2018)................................................................................... 13

United States v. Winston, 850 F.3d 677 (4th Cir. 2017) .................................................................................. 7,8

United States v. Yates, 866 F.3d 723 (6th Cir. 2017)............................................................................. 14,15,16

Statutes

8 U.S.C. § 1101 ........................................................................................................................................... 11-12

18 U.S.C. § 922(g) .............................................................................................................................................. 4

28 U.S.C. § 1254 ................................................................................................................................................. 2

720 ILCS 5/18-1 (1999) .................................................................................................................................... 2

720 ILCS 5/18-2 (2000) .................................................................................................................................... 2

720 ILCS 5/8-4 (2000) ...................................................................................................................................... 2

Guidelines

U.S.S.G. § 2K2.1 ................................................................................................................................................ 4

U.S.S.G. § 2L1.2 .................................................................................................................................... 9,11,13

U.S.S.G. § 4B1.1 ................................................................................................................................................. 3

U.S.S.G. § 4B1.2 .......................................................................................................... 3,4,5,7,9,11,12,13,14,15

iv

Other authorities

Am. Law Inst. Model Penal Code (1962) ..................................................................................... 11,12,13,14

LaFave, Wayne R. (3d ed) 3 Subst. Crim. L. § 20.3 .................................................................................... 15

Petition for Certiorari in Stokeling v. United States, No. 17-5554 (granted April 2, 2018) ..... 4,7,8,9,13,16

v

NO. ________

IN THE SUPREME COURT OF THE UNITED STATES

____________

MICHAEL RAY DAVIS

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

____________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit

____________

PETITION FOR WRIT OF CERTIORARI

Petitioner Michael Ray Davis, by his court-appointed counsel Stephen R. Welby, Federal

Public Defender for the Southern District of Illinois, petitions this Court for a writ of certiorari to

review the final judgment of the United States Court of Appeals for the Seventh Circuit, issued on

February 26, 2018.

ORDERS BELOW

The February 26, 2018 opinion of the United States Court of Appeals for the Seventh Circuit

denying Petitioner relief on his appeal from his criminal sentence and conviction is reported at

United States v. Davis, 712 Fed.Appx. 578 (7th Cir. 2018), reproduced at Appendix 1. The District

Court issued its final Judgment and Conviction in Petitioner Davis’s underlying criminal case on

May 16, 2017. (Doc. 37, 44), United States v. Davis, 15-cr-30013 (S.D. of IL.May 16, 2017),

reproduced at Appendix 3.

1

JURISDICTION

On February 26, 2018, the United States Court of Appeals for the Seventh Circuit issued a

written opinion affirming the District Court’s Judgment and Conviction. United States v. Davis, 712

Fed.Appx. 578 (7th Cir. 2018). No Petition for Rehearing was filed. This Petition is timely filed

within 90 days of February 26, 2018. Review by certiorari is sought pursuant to Title 28, United

States Code, Section 1254(1).

STATUTORY AND GUIDELINE PROVISIONS INVOLVED

720 ILCS 5/8-4 (2000) Attempt.

(a) Elements of the Offense. A person commits an attempt when, with intent to

commit a specific offense, he does any act which constitutes a substantial step

toward the commission of that offense.(b) Impossibility. It shall not be a defense

to a charge of attempt that because of a misapprehension of the circumstances it

would have been impossible for the accused to commit the offense attempted. (c)

Sentence. A person convicted of an attempt may be fined or imprisoned or both

not to exceed the maximum provided for the offense attempted . . .

720 ILCS 5/18-1 (1999) Robbery.

(a) A person commits robbery when he or she takes property, except a motor

vehicle covered by Section 18-3 or 18-4, from the person or presence of another

by the use of force or by threatening the imminent use of force . . ..

720 ILCS 5/18-2 (2000) Armed Robbery.

(a) A person commits armed robbery when he or she violates Section 18-1; and

(1) he or she carries on or about his or her person or is otherwise armed with a

dangerous weapon other than a firearm; or

(2) he or she carries on or about his or her person or is otherwise armed with a

firearm; or

(3) he or she, during the commission of the offense, personally discharges a

firearm; or

(4) he or she, during the commission of the offense, personally discharges a

firearm that proximately causes great bodily harm, permanent disability,

permanent disfigurement, or death to another person.

(b) Sentence.

Armed robbery in violation of subsection (a)(1) is a Class X felony. A violation of

subsection (a)(2) is a Class X felony for which 15 years shall be added to the term

of imprisonment imposed by the court. A violation of subsection (a)(3) is a Class

X felony for which 20 years shall be added to the term of imprisonment imposed

by the court. A violation of subsection (a)(4) is a Class X felony for which 25

2

years or up to a term of natural life shall be added to the term of imprisonment

imposed by the court.

U.S.S.G. § 4B1.1 Career Offender

(a) A defendant is 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.

U.S.S.G. § 4B1.2 Definitions of Terms Used in Section 4B1.1

(a) 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 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)

3

STATEMENT OF THE CASE

On April 2, 2018, this Court accepted certiorari in Stokeling v. United States, No. 17-5554, on

the question: “Is a state robbery offense that includes ‘as an element’ the common law requirement

of overcoming ‘victim resistance’ categorically a ‘violent felony’ under the only remaining definition

of that term in the Armed Career Criminal Act [ACCA], 18 U.S.C. § 924(e)(2)(B)(i)(an offense that

‘has as an element the use, attempted use, or threatened use of physical force against the person of

another’), if the offense has been specifically interpreted by state appellate courts to require only

slight force to overcome resistance?”

Petitioner’s case presents a similar question: whether an Illinois robbery statute that requires

only slight force to separate property from a victim or his clothing meets the definition of a “crime

of violence” under the United States Sentencing Guidelines. The Guidelines definition, U.S.S.G. §

4B1.2, includes an “elements clause” identical to the ACCA elements clause at issue in Stokeling.

Petitioner’s case presents the additional issue of whether Illinois robbery meets the definition of

generic “robbery,” which is also part of the Guideline definition of a “crime of violence,” although

not part of the ACCA definition of a “violent felony.”

Petitioner was convicted of possessing a firearm after a felony conviction, Illinois attempted

armed robbery. 18 U.S.C. § 922(g). The United States Sentencing Guidelines (U.S.S.G. § 2K2.1(a)(i))

prescribe a higher base offense level for Petitioner because the District Court determined Petitioner

had two prior convictions for crimes of violence, with that phrase defined as, in pertinent part,

having “as an element the use, attempted use, or threatened use of physical force against the person

of another, or . . . robbery.” U.S.S.G. § 4B1.2(a). Application Note 1 to § 4B1.2(a) says attempts also

count.

One of the two convictions the District Court found to be a crime of violence was Petitioner’s

4

Illinois attempted armed robbery conviction. Illinois armed robbery requires no more force than

Illinois robbery, in that it requires a robbery, with the additional element that the defendant carried a

weapon, even if the weapon was concealed and unknown to the victim. 720 ILCS 5/18-2 (2000);

People v. Addison, 603 N.E.2d 19, 22 (1992). Thus, the core issue is whether Illinois robbery meets the

U.S.S.G. § 4B1.2(a) definition, either under the elements clause, or because it qualifies as generic

robbery.

In the District Court, Defense Counsel objected to the Presentence Investigation Report’s

conclusion that Petitioner’s Illinois attempted armed robbery conviction qualified as a crime of

violence triggering an enhanced guideline level. At the sentencing hearing, the District Court

acknowledged the parties' briefings on the issue, and concluded, "I think it's clear under

Illinois law and I think the statute actually states that robbery is a crime of violence as it would be

defined. Certainly the attempt to do so would be a crime of violence under the guidelines, and

specifically under the guidelines and Application Note 1, I think clearly the attempted robbery

conviction qualifies as a crime of violence under the statute, and so the Court adopts the

Probation Officer and the Government's position . . ..” May 16, 2017 Sent. Tr. at 5-6. The District

Court then sentenced Petitioner to 96 months imprisonment, a within-guideline sentence.

On appeal, Defense Counsel argued, inter alia, that Petitioner’s Illinois attempted armed

robbery conviction did not meet the definition of a crime of violence under either U.S.S.G.’s 4B1.2’s

elements clause or under the generic robbery definition. He noted this Court’s precedent that terms

in a statute or guideline should not be assigned a meaning that is inconsistent with the purpose of

the legislation. Taylor v. United States, 495 U.S. 575, 594 (1990). He further noted this Court’s

precedent supporting that, in determining whether a particular offense qualifies as a "crime of

violence" under the Sentencing Guidelines, or a “violent felony” the Armed Career Criminal Act,

5

courts apply a categorical approach, which focuses solely on whether the elements of the crime

sufficiently match the elements of the generic offense, without regard to the actual offense conduct.

But if the offense of conviction covers more conduct than the generic offense, then it does not

qualify, even if the defendant's actual conduct would satisfy the generic definition. Mathis v. United

States, -- U.S. --, 36 S.Ct. 2243, 2247-49 (2016).

Defense Counsel argued Illinois robbery may be committed by using less force than

categorically required by the elements clause in the guidelines crime of violence definition. Defense

Counsel cited this Court’s precedent that, to satisfy the ACCA’s identical elements clause, the level

of force required must be: “violent force–that is, force capable of causing physical pain or injury to

another person.” Johnson v. United States, 559 U.S. 133, 140 (2010). Defense Counsel pointed out that

Illinois courts construe the robbery statute as requiring less than violent force. In People v. Taylor, 541

N.E.2d 677 (Ill. 1989), the Illinois Supreme Court sustained the defendant’s Illinois robbery

conviction for snatching a necklace off of the neck of the victim, without causing any pain or

making any threats of force; as the court explained: "[s]ufficient force to constitute robbery may be

found when the article taken is so attached to the person or clothes as to create resistance, however

slight." Id. at 679, citing People v. Campbell, 84 N.E. 1035 (Ill. 1908) (Facts supported robbery, not

larceny from a person, where victim felt a jerk as a diamond pin, attached to his shirt, was pulled off

of the shirt). Thus, the level of force required for Illinois robbery falls short of that categorically

required to satisfy Johnson’s “violent force” requirement.

Defense Counsel further argued that, although robbery is an enumerated offense under

U.S.S.G. § 4B.2(a)(2), Illinois takes an unusually broad view of the scope of “robbery,” requiring

only the slightest force, which need not be directed at an individual, but may be directed at the

victim’s clothing. He argued such definition is too close to the fine line between the traditional

6

definitions of robbery and larceny from a person to fall within a “generic” version of robbery. He

cited People v. Patton, 389 N.E.2d 1174, 1175-76 (1979), which reviewed the common law history of

this subtle distinction.

The Seventh Circuit summarily disposed of Petitioner’s arguments. In rejecting Petitioner’s

argument that Illinois robbery was broader than generic robbery, the court merely noted that the

enumerated offense portion of the guideline definition includes the term, “robbery.” In rejecting

Petitioner’s contention regarding the elements clause, the court referenced its previous decisions. As

stated by the Seventh Circuit, addressing both points, “As we’ve noted, § 4B1.2(a)(2) expressly lists

robbery as a qualifying predicate crime of violence. If more were needed, we have repeatedly held

that Illinois robbery is a crime of violence under the ‘force’ clause of § 4B1.2(a)(1).” United States v.

Davis, 712 Fed.Appx. 578, 580 (7th Cir. 2018).

REASONS FOR GRANTING THE WRIT

1) This Court has already accepted certiorari on an identical issue regarding the elements clause in

the context of the ACCA, on which the circuits are in conflict, and the Seventh Circuit’s opinion

adds to that conflict.

On April 2, 2018, this Court accepted certiorari in Stokeling v. United States, No. 17-5554, on

the question of whether Florida robbery, which may be committed by using merely slight force, such

as is sufficient to overcome a victim’s resistance, satisfies the ACCA’s elements clause (identical to

U.S.S.G. § 4B1.2’s elements clause) in its definition of “violent felony.” As noted in that petition,

there is an “intractable, untenable, and potentially far-reaching” circuit split on this issue. The

Petition pointed to the Fourth Circuit’s decisions in Gardner and Winston, which stand in contrast to

decisions in the Tenth and Eleventh Circuits.

In United States v. Gardner, 823 F.3d 793 (4th Cir. 2016), the Fourth Circuit found the

defendant’s North Carolina conviction for robbery did not qualify as a “violent felony” under the

7

ACCA’s elements clause, where that state’s courts hold “the degree of force used is immaterial, so

long as it is sufficient to compel the victim to part with his property.” Gardner, 823 F.3d at 804

(quotation marks and citation omitted). Later North Carolina decisions hold that “even minimal

conduct may be sufficient to sustain a robbery conviction if the victim forfeits his or her property in

response,” including pushing the victim’s hand off of a carton of cigarettes, and pushing the

shoulder of a store clerk then stealing a television. Id at 803-804. The Fourth Circuit found the

North Carolina offense could be committed by using less force than “violent force–that is, force

capable of causing physical pain or injury to another person,” as required by this Court’s decision in

Johnson v. United States, 559 U.S. 133, 140 (2010). Gardner, 824 F.3d. at 804.

Similarly, the Fourth Circuit found a Virginia robbery conviction did not qualify as a violent

felony under the ACCA, where Virginia decisions demonstrate the offense “can be committed when

a defendant uses only a ‘slight’ degree of force that need not harm a victim [and] appears to

encompass a range of de minimis contact by a defendant.” United States v. Winston, 850 F.3d 677, 685

(4th Cir. 2017). Thus, the Winston court concluded Virginia robbery did not meet the standard for

violent force required by Johnson. Id. at 685.

As noted in the Stokeling petition, the Tenth and Eleventh Circuit circuits hold contrary views.

In United States v. Seabrooks, 839 F.3d 326 (11th Cir. 2016), the Eleventh Circuit found Florida

robbery, which requires overcoming “victim resistance,” which could be merely slight, categorically

qualified as an ACCA violent felony. Id. at 1340-41, 1446, 1354 (separate decisions by Hull, Baldock,

and Martin, J.J.). In a Tenth Circuit case, United States v. Harris, the Tenth Circuit found Colorado

statutory robbery was an ACCA violent felony, based only on the Colorado Supreme Court’s

statement that “there can be no robbery without violence,” rather than any minimal level of force

required under Colorado case law. 844 F.3d 1260, 1266-68 (10th Cir. 2017).

8

Because U.S.S.G. § 4B1.2’s elements clause is identical to that in the ACCA, the Seventh

Circuit’s determination in Petitioner Davis’s case adds to the circuit split referenced in Stokeling. In

rejecting Petitioner’s contention that Illinois robbery encompasses offenses that fall short of meeting

Johnson’s “violent force,” the Seventh Circuit cited to its prior precedent: “we have repeatedly held

that Illinois robbery is a crime of violence under the ‘force’ clause of § 4B1.2(a)(1). See United States v.

Chagoya-Morales, 859 F.3d 411, 422 (7th Cir. 2017); United States v. Bedell, 981 F.2d 915, 915–16 (7th

Cir. 1992).” United States v. Davis, 859 F.3d 578, 579-80 (7th Cir. 2018). However, in Chaboya-Morales,

the Seventh Circuit merely recited the language in the Illinois robbery statute, which used the word

“force” in defining Illinois robbery, to find the offense qualified as a crime of violence under the

illegal reentry guideline, U.S.S.G. § 2L1.2—that guideline contains an elements clause identical to

U.S.S.G. § 4B1.2. U.S.S.G. § 2L1.2, n. 2.

The second case cited by the Seventh Circuit, Bedell, was a pre-Johnson case, where the

Seventh Circuit did not consider the level of force required to constitute Illinois robbery. Rather, it

rejected the defendant’s argument that Illinois robbery was broader than the U.S.S.G. § 4B1.2

definition of a crime of violence because the force could be directed at property, rather than a

person; the Seventh Circuit determined Illinois robbery required the force involved to be directed at

a person. Bedell, 981 F.2d 915, at 915-16 (7th Cir. 1992). Thus, this precedent did not address

Petitioner’s argument that the level of force required falls short of that required by this Court’s 2010

decision in Johnson.

It is beyond dispute that Illinois courts construe Illinois robbery as encompassing offenses

involving only a slight degree of force, the minimum amount necessary to dispossess a victim of his

or her property, or to detach the property from the victim’s clothing, regardless of whether the

degree of force falls short of a degree capable of causing physical pain or injury. People v. Taylor, 541

9

N.E.2d 677 (Ill. 1989) (Snatching a neckless of the neck of the victim with no pain or threats was

Illinois robbery); People v. Campbell, 84 N.E. 1035 (Ill. 1908) (Removing a diamond pin from victim

by snatching it from his shirt, causing victim to feel a “jerk” on his clothing, constituted Illinois

robbery). Thus, the Seventh Circuit’s opinion rejecting Petitioner’s argument based on Johnson, and

holding that Illinois robbery is a crime of violence, adds to the circuit split regarding whether

robberies involving slight force to remove property from the victim or his clothing satisfy the

elements clause in both the ACCA and U.S.S.G. § 4B1.2. This Court’s attention is needed to settle

the issue and reduce the ongoing litigation on the subject.

2) The Circuits need this Court’s guidance to eliminate the arbitrary and inconsistent approaches

used for determining the scope of the generic version of an offense listed as a predicate offense

in a violent felony or crime of violence provision.

In determining whether a prior conviction is a match for a predicate offense listed generally in

a federal statute, a court must “compare the elements of the statute forming the basis of the

defendant's conviction with the elements of the ‘generic’ crime - i.e., the offense as commonly

understood.” Descamps v. United States, 133 S.Ct. 2276, 2281 (2013). The definition of such an offense

is determined by the “generally accepted contemporary meaning,” and is not constrained by the

common law definition. Smith v. United States, 508 U.S. 223, 240 (1993) (Holding that “use” of a

firearm includes trading a gun for drugs: “the rule of lenity ‘cannot dictate an implausible

interpretation of a statute, nor one at odds with the generally accepted contemporary meaning of a

term.’”), citing Taylor v. United States, 495 U.S. 575, 598 (1990) (Holding “burglary” is not limited to its

common law definition or a subset of particularly dangerous crimes.).

The United States Sentencing Commission intended the enumerated offenses in U.S.S.G. §

4B1.2 to be similarly construed: “In applying [the enumerated offenses] clause, courts compare the

elements of the predicate offense of conviction with the elements of the enumerated offenses in its

10

‘generic, contemporary definition.’” U.S.S.G. § 4B1.2, Appendix C, Amendment 798.

These guiding principles in this Court’s precedent have not produced a uniform approach in

the Circuits for determining the generic definition of predicate offenses. In Petitioner Davis’s case,

the Seventh Circuit merely relied on the label of the offense, “robbery,” in the list of enumerated

offenses in U.S.S.G. § 4B1.2, to determine that an Illinois offense also labelled “robbery,” was a

match. Davis, 712 Fed.Appx. at 579-80. In another recent decision, the Seventh Circuit used a

different method in construing whether burglary of a trailer, part of Illinois residential burglary, was

within the scope of generic burglary under the ACCA. In United States v. Smith, the court first looked

to this Court’s definition in Taylor v. United States, 495 U.S. 575 (1990) (having “the basic elements of

unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a

crime”), but called that definition “provisional.” United States v. Smith, 877 F.3d 720, 724 (7th Cir.

2017), petition for cert. filed no. 17-7517, Jan 17, 2018 and no. 17-8160, Mar. 13, 2018. The Smith opinion

then concluded that burglary of trailers was part of the generic definition because it was currently

part of most states’ burglary statutes; as explained by the court, “We think it better to conclude that

Taylor’s definition of generic burglary is a compact version of standards found in many states’

criminal codes, including that of Illinois.” Smith, 877 F.3d at 724-25.

The Sixth and Ninth Circuits also rely primarily on the definition of an offense in the majority

of states to determine the generic definition. E.g. United States v. Soto-Sanchez, 623 F.3d 317, 323 (6th

Cir. 2010) (rejecting the Model Penal Code definition of kidnapping in favor of a definition based on

a survey of various state’s laws in determining whether it qualified as a crime of violence under

U.S.S.G. § 2L1.2); United States v. Garcia-Santana, 774 F.3d 528 (9th Cir. 2014) (Examining case law

developments in the majority of states subsequent to the early definition in the Model Penal Code to

determine whether generic conspiracy qualifies as an aggravated felony under 8 U.S.C. §

11

1101(a)(43)).

The Third Circuit also relies primarily on the then-current definition of an offense in the

majority of states, while also recognizing that reliance on the Model Penal Code would yield a

different definition:

This is our first confrontation with a situation where the MPC's definition of a

crime differs in an important respect from the approach taken by the significant

majority of states. Thus, we must determine which of these sources is entitled to

greater weight in our definition of a generic crime. A review of the Supreme Court's

jurisprudence demonstrates the primacy of state statutes in defining the generic

version of an offense. In Taylor v. United States, for example, the Court appeared to

place a greater weight on the approach of a majority of states. The Court recognized,

and rejected, the federal common law definition of burglary, finding the definition

employed by the vast majority of states more persuasive. We . . . hold today that the

most important factor in defining the generic version of an offense is the approach

of the majority of state statutes defining the crime. Affording predominant weight to

the majority of states best recognizes that “Congress' basic goal in passing the

Sentencing Act was to move the sentencing system in the direction of increased

uniformity.” While the MPC is a useful starting point, its definition of “robbery”

does not supersede the way in which the majority of states have defined that offense.

United States v. Graves, 877 F.3d 494, 503–04 (3d Cir. 2017).

Not all Circuits choose to rely on the scope of the offense in the majority of states, rather than

the Model Penal Code, in determining the generic offense. The Fourth Circuit interpreted Taylor as

directing courts to look to the Model Penal Code when construing the generic elements of

“manslaughter,” which was then an enumerated offense in the commentary to U.S.S.G. § 4B1.2. As

stated in United States v. Peterson, “Because a review of ‘manslaughter’ offenses under various state

criminal laws appears to yield material variations, especially when looking at relevant state laws, such

as those in North Carolina (applicable here) and South Carolina (applicable in Payton ), we

conclude, as did the Supreme Court in Taylor, that the Model Penal Code provides the best generic,

contemporary, and modern definition, particularly because it has been widely adopted.” United States

v. Peterson, 629 F.3d 432, 436 (4th Cir. 2011).

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The Eighth Circuit also follows the Model Penal Code in determining the generic version of

an enumerated offense (voluntary manslaughter) under U.S.S.G. § 4B1.2. That court noted “the

Model Penal Code provides the best generic, contemporary, and modern definition, [and] has been

widely adopted.” United States v. Steward, 880 F.3d 983, 987 (8th Cir. 2018) (citation omitted) (Finding

Oklahoma robbery a crime of violence under the guidelines, and noting, unlike the majority of

states, the Model Penal Code contained the modernized definition). Similarly, the Fifth Circuit relied

primarily on the Model Penal Code in determining whether generic robbery is a crime of violence.

United States v. Santiesteban-Hernandez, 469 F.3d 376, 380-81 (5th Cir. 2006), overruled on other grounds by

United States v. Rodriguez, 711 F.3d 541, 547-63 (5th Cir. 2013) (en banc) (Finding the differences

between the Texas robbery statute and the Model Penal Code were “not enough to remove the

Texas statute from the family of offenses commonly known as ‘robbery.’”).

Hence, the Circuits follow different approaches to determining a generic offense, producing

different results, and this Court’s attention is needed to ensure uniform decisions regarding which

offenses qualify as crimes of violence and violent felonies.

3) This Court’s guidance is needed to resolve a circuit split on the generic definition of

robbery for purposes of violent felony and crime of violence provisions.

Even if this Court grants the relief sought in Stokeling, and finds robbery statutes

encompassing offenses committed using only slight force, such as is necessary to snatch a pin off of

an individual’s clothing, do not satisfy the ACCA’s “elements clause” (identical to 4B1.2’s “elements

clause”), courts will continue to face frequent challenges regarding whether various state robbery

statutes qualify as generic robberies under the enumerated offense clause of U.S.S.G. § 4B1.2, as well

as U.S.S.G. § 2L1.2, which also lists “robbery” in its crime of violence definition. The matter is

unlikely to be resolved anytime soon, because there is a definite Circuit split on the definition of

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generic robbery for purposes of guideline enhancements.

As stated above, the Seventh Circuit, in Petitioner’s case, found Illinois robbery qualifies as

“generic robbery,” for purposes of U.S.S.G. § 4B1.2, despite that Illinois robbery may be committed

by using a de minimis amount of force in order to separate an individual’s property from his control,

such as the slight force necessary to snatch a pin off of someone’s clothing. Although the issue has

not been decided in every circuit, at least two other circuits construe generic robbery consistently

with the Seventh Circuit. In United States v. Lockley, 632 F.3d 1238, 1242-44 (11th Cir. 2011), the

Eleventh Circuit held that the generic definition of robbery was the taking of property from a

person or presence of a person by force or intimidation. It found this definition was satisfied by a

Florida statute requiring “the use of force or violence or by assault so as to overcome the resistance

of the victim, or by putting the victim in fear so that the victim does not resist,” which it found

could be accomplished with even minimal force. In United States v. Graves, 877 F.3d 494, 501-02 (3rd

Cir. 2017), the Third Circuit found the generic definition of robbery for purposes of U.S.S.G. §

4B1.2 was by a North Carolina robbery statute requiring a theft by the use of no more than de

minimis force.

The holdings of the Seventh, Eleventh, and Third Circuits, that generic robbery requires no

more than minimal force, are in conflict with the Sixth and Fourth Circuits, which hold that generic

robbery requires more than a minimal level of force.

In United States v. Yates, 866 F.3d 723 (6th Cir. 2017), the Sixth Circuit found an Ohio robbery

statute did not meet the generic definition of robbery for purposes of U.S.S.G. § 4B1.2, where that

offense was sufficiently broad to cover a purse snatching with no resistance from the victim. Id. at

733-34. The Yates court considered the Model Penal Code, treatises, and the scope of robbery in

various states. It found other circuits deem generic robbery to be, at least “misappropriation of

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property under circumstances involving immediate danger to the person.” It also noted “Professor

LaFave summarized this body of law by noting that ‘[t]he great weight of authority ... supports the

view that there is not sufficient force to constitute robbery when the thief snatches property from

the owner's grasp so suddenly that the owner cannot offer any resistance to the taking.’” Id. at 73334, quoting LaFave, 3 Subst. Crim. L. § 20.3 (3d ed.). The Yates court ultimately found generic

robbery to be “the ‘misappropriation of property under circumstances involving immediate danger

to the person.’” Id. It concluded the Ohio robbery statute at issue, which could be committed with

minimal force, reached conduct outside the scope of the generic definition, and did not qualify as a

crime of violence under the guidelines enumerated offense clause. Id. at 734.

Similarly, the Fourth Circuit, in United States v. Gattis, 877 F.3d 150, 156 (4th Cir. 2017), views

generic robbery as requiring more than de minimis force. The Gattis court found a North Carolina

robbery offense satisfied the generic definition of “robbery” under U.S.S.G. § 4B1.2, where the

court viewed generic robbery as “the misappropriation of property under circumstances involving

[immediate] danger to the person.” Gattis explained that while generic robbery may be committed

with less force than required to cause physical pain or injury, “it is sufficient if the defendant ‘jostles

the owner’ or uses only that force which is sufficient to overcome the victim’s resistance.” Id. at 158.

The opinion went on to clarify the fine line between its view of generic robbery and larceny under

North Carolina law, and that more than de minimis force to take an item was required for robbery:

Gattis is simply incorrect when he asserts that “a robbery conviction [in North

Carolina] is possible even where the offender uses only the de minimis force necessary

to take an item from the victim’s possession.” (Emphasis added). Instead, just like

generic robbery committed through the use of force, to commit robbery by force in

North Carolina, the defendant must do more than stealthily pickpocket or suddenly

snatch; he must direct a degree of force towards the victim beyond the minimum

necessary to remove the item from the victim’s grasp.

Id. at 159.

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Thus, the Seventh Circuit’s decision in Petitioner’s case adds to an intractable Circuit split

regarding whether generic robbery includes offenses that may be committed using only de minimum

force. In addition, the Sixth and Fourth Circuits’ opinions in Yates and Gattis highlight the

complexity involved in attempting to construe the scope of generic robbery, because of the difficulty

in determining when using slight force to remove property from a victim’s grasp or clothing

amounts to “overcoming the victim’s resistance,” as opposed to mere larceny by sudden snatching.

Because the issue involves a definite Circuit split and complicated issues, and because challenges to

crimes of violence and violent felonies have become commonplace, and challenges to the guidelines

enumerated offenses will become even more frequent if this Court grants the relief sought in

Stokeling, this Court’s attention is warranted.

CONCLUSION

For the foregoing reasons, Petitioner suggests that his case warrants this Court’s grant of

certiorari.

Respectfully Submitted,

/s/ Stephen R. Welby

Stephen R. Welby,

Federal Public Defender, S.D. of Illinois

650 Missouri Avenue

East St. Louis, Illinois 62201

(618) 482-9050

(618) 482-9057 (fax)

Stephen_Welby@fd.org

ATTORNEY FOR PETITIONER

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APPENDIX

United States v. Davis, 712 Fed.Appx. 578 (7th Cir. 2018)............................................................ Appendix 1

United States v. Davis, 15-cr-30013 (S.D. of IL.May 16, 2017) ................................................... Appendix 3

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