Does a conviction under the Florida robbery statute, which includes as an element the requirement of overcoming victim resistance, constitute a violent felony under the Armed Career Criminal Act, when the Florida statute has been interpreted to only require slight force to meet the requirement of overcoming victim resistance?
The Supreme Court will determine whether a conviction under the Florida robbery statute, which contains as an element “overcoming victim resistance,” constitutes a “violent felony” under the elements clause of the Armed Career Criminal Act (“ACCA”), thereby triggering enhanced sentencing under the ACCA. Petitioner Denard Stokeling (“Stokeling”) argues that under the ACCA, a “violent felony” involves the use of “violent force.” Stokeling maintains that Florida robbery is not a “violent felony” because only a slight amount of force suffices to meet its “overcoming victim resistance” element, which does not constitute “violent force.” Respondent United States (“Government”) contends that a “violent felony” under the ACCA is a felony “capable of causing pain or physical injury.” The Government asserts that Florida robbery is a “violent felony” because any act that violates the Florida robbery statute is by definition “capable of causing pain or physical injury.” From a policy perspective, this case is important because it will determine which criminals will be subjected to enhanced sentencing under the ACCA.
Questions as Framed for the Court by the Parties
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.
In 2016, Petitioner Denard Stokeling, a convicted felon, pled guilty to one count of possession of a firearm and ammunition by a felon, in violation of 18 U.S.C. § 922(g)(1), in the United States District Court for the Southern District of Florida. Brief for Petitioner, Denard Stokeling at 6. At the sentencing phase, the probation officer recommended in the pre-sentence investigation report (“PSI”) that Stokeling receive an enhanced sentence under the Armed Career Criminal Act (“ACCA”). Id. The ACCA provides for a 15-year mandatory minimum sentence for certain individuals prohibited from possessing firearms, including convicted felons, who have previously been convicted of three separate “violent felonies,” or “serious drug offenses.” Id. at 15. Under the ACCA elements clause, an offense is a “violent felony” if it “has as an element the use, attempted use, or threatened use of physical force against the person of another.” Id. at 16.
Stokeling had three prior convictions, including a 1997 robbery conviction in Florida in violation of Fla. Stat. § 812.13. Id. at 6. Stokeling contested the probation officer’s assertion that his robbery conviction in Florida qualified as a “violent” felony under the ACCA’s elements clause. Id. During that incident, Stokeling and an accomplice “grabbed [the victim] by the neck and tried removing her necklaces” while she “held onto” them. Brief for Respondent, United States at 5. After considering the facts underlying Stokeling’s robbery conviction, the district court concluded that it did not qualify as a “violent felony” under the ACCA and sentenced Stokeling to 73 months of imprisonment. Brief for Petitioner at 8. If the District Court had applied the ACCA sentencing enhancement, Stokeling would have faced 180 to 188 months of imprisonment. Id. at 6.
Respondent United States (“The Government”) appealed to the United States Court of Appeals for the Eleventh Circuit. United States v. Stokeling at 2. Both parties agreed that the district court incorrectly considered the facts underlying Stokeling’s 1997 robbery conviction in determining whether it constituted a violent felony. Id. at 3. After considering the issue, the Eleventh Circuit concluded that the district court should have used the “categorical approach,” under which it should have considered only the elements of the crime, not the underlying facts. Id. at 3. Accordingly, the Eleventh Circuit vacated Stokeling’s 73-month sentence and remanded the case for resentencing with the ACCA enhancement. Id. at 4.
Stokeling then filed a petition for a writ of certiorari. Brief for Petitioner at 10. While Stokeling’s petition was pending, a panel of the Ninth Circuit in United States v. Geozos unanimously held the that Florida robbery was not a “violent felony” under the ACCA. Id. The Ninth Circuit concluded that only a minimal amount of force may be necessary to overcome victim resistance, and therefore, Florida robbery was not necessarily a “violent felony” that implicated enhanced sentencing under the ACCA. Id.
Stokeling contends that the Florida robbery statute does not satisfy the ACCA’s elements clause—particularly, the use of “physical force” requirement. Brief for Petitioner, Denard Stokeling at 18. Specifically, Stokeling asserts that the Court has previously interpreted “physical force” in the ACCA statute to mean “violent force.” Id. at 19–20. Stokeling further maintains that the Court has held that “violent force” implies a substantial degree of force, not just offensive touching. Id. at 20–21. Additionally, Stokeling argues that the Government’s interpretation of violent force as “any conduct potentially ‘capable’ of causing pain or injury” conflicts with prior precedent and does not contain a limiting principle—even the most subtle contact is capable of causing pain or injury under particular circumstances. Id. at 22–23. Instead, Stokeling maintains that “violent force” should be interpreted to mean force that is “reasonably expected to cause pain or injury” because this reading is a more “contextual and sensible reading” than the Government’s interpretation. Id. at 23–25. Stokeling also asserts that the Court has previously reaffirmed that “violent force ‘connotes a substantial degree of force’” and that a “minor” use of force, “like a squeeze of the arm that causes a bruise,” is not “violent force” as contemplated by the ACCA. Id. at 25–26.
Stokeling also contends that Congress’s purpose in passing the ACCA was to target offenders likely to commit gun violence, with a particular emphasis on violent felons or drug traffickers and impose enhanced sentencing for those individuals. Id. at 41–42. Moreover, Stokeling notes that the Court has previously interpreted Congress’ intent in passing the ACCA as supporting the application of enhanced sentencing only where the increased likelihood of committing a violent crime with a gun exists. Id. at 42. In this case, Stokeling asserts, there is no increased likelihood that the offender might commit an act of gun violence because the elements of the Florida robbery statute may be fulfilled without the perpetrator engaging in any conduct that is designed to cause harm. Id. Stokeling maintains that interpreting the ACCA to cover Florida robbery would result in numerous “garden-variety, petty criminal [offenses]” receiving mandatory enhanced sentences. Id. at 43.
The Government counters that the ACCA’s elements clause provides that a “violent felony,” for purposes of the ACCA, is any crime punishable by a term of imprisonment exceeding one year and “has as an element the use . . . of physical force against the person of another[.]” Brief for Respondents, United States at 9. The Government argues that the Court has previously defined “physical force” to mean “force capable of causing physical pain or injury.” Id. Additionally, the Government contends that Court precedent focuses on the capability to cause pain or injury—“physical force” focuses on the criminal acts themselves, not the result of those acts. Id. at 20. Further, the Government asserts that this distinction would not cause the ACCA’s elements clause to have a limitless reach because precedent still demands that an element of the crime in question be the capability to cause pain or injury. Id. at 21. In addition, the Government asserts that the language Stokeling cites as defining “physical force” is inapplicable because the Court has never used or endorsed that language in precedent. Id. at 23–25.
Furthermore, the Government argues that the evolution of the ACCA indicates that robbery offenses, like the one at issue in this case, necessarily include the “use of physical force” as defined under the ACCA. Id. at 14–15. Specifically, the Government notes that common-law robbery was used as a model for the type of offense that was meant to be covered by the elements clause of the ACCA. Id. The Government asserts that the original version of the ACCA explicitly stated that the statute applied to “robbery or burglary” and called those offenses “violent street crimes.” Id. at 15. Additionally, the Government argues that in enacting the ACCA, Congress sought to draw the line between sufficient and insufficient force at the point where crimes like pickpocketing or removing property from an unconscious person would be excluded from enhanced sentencing under the statute but crimes like burglary would be included. Id. at 15–16. Even after enacting the elements clause component of the ACCA, the Government claims that Congress still intended to retain this original dividing line. Id. at 16. The Government maintains that if the ACCA were to be interpreted to require more violence than was necessary to commit common-law robbery, the ACCA would no longer relate to its preexisting legal framework. Id. at 18.
WHETHER FLORIDA ROBBERY TRIGGERS THE ACCA
Stokeling argues that the Florida robbery statute does not satisfy the ACCA’s elements clause—particularly the use of “physical force” requirement. Brief for Petitioner at 28. Specifically, Stokeling contends that “violent force” and “physical force” are not elements of the Florida robbery statute because only a slight degree of force is required to meet the statute’s requirements. Id. Stokeling asserts that robbery under Florida law can be committed with any degree of force as long as the perpetrator overcomes some resistance. Id. at 28–30. Furthermore, Stokeling notes that any degree of force may be sufficient to overcome victim resistance if the victim resistance itself is very slight—that is, there is no threshold extent of resistance that a victim must exert in order for that resistance to be overcome by the offender. Id. at 31.Therefore, Stokeling maintains that this is not the violent struggle contemplated by the ACCA’s “violent force” requirement, as demonstrated by several cases in Florida. Id. at 32–36. Finally, Stokeling notes that the Government admits that three other states have robbery statutes that would not trigger the elements clause of the ACCA and the conduct considered in those statutes is materially indistinguishable from—or, in some cases, more forceful than—the conduct criminalized as robbery in Florida. Id. at 37.
The Government counters that the amount of force required under the Florida robbery statute, “force sufficient to overcome a victim’s resistance,” satisfies the ACCA’s elements clause. Brief for Respondents at 9–10. Specifically, the Government argues that precedent only requires that the force used be capable of causing pain or physical injury. Id. at 10. The Government contends that the force required to commit Florida robbery is by definition always capable of causing such pain of physical injury, and it often does. Id. at 12–13. Indeed, the Government claims that if a person in Florida does not employ force capable of causing pain or physical injury—for example, in pickpocketing or purse-snatching scenarios—then that person cannot be guilty of robbery under the Florida statute. Id. at 13. Additionally, the Government notes that the Florida Supreme Court has differentiated between “snatching” and robbery by stating that “snatching” only amounts to robbery if the perpetrator employed more force than is necessary to remove the property from that person. Id. at 13–14. The Government asserts that because Florida distinguishes between robbery and other, lesser theft offenses, “slight offensive touching” would not satisfy the Florida robbery statute. Id. at 13–14. Further, the Government maintains that the Florida robbery statute requires a level of force that satisfies the standard set forth in Court precedent. Id. at 14. Finally, the Government argues that in each of the Florida cases that Stokeling cites in support of his interpretation, the evidence in those cases shows that those defendants used force that was capable of causing physical pain or injury. Id. at 20, 24–28.
EFFECTS OF A BROAD OR NARROW INTERPRETATION
The National Association of Criminal Defense Lawyers (“NACDL”), in support of the Petitioner, argues that an expansive interpretation of “violent force” under the Armed Career Criminal Act’s (“ACCA”) elements clause may impose enhanced prison sentences on defendants who commit “garden variety local crimes.” Brief of Amicus Curiae National Association of Criminal Defense Lawyers (“NACDL”), in Support of Petitioner at 13. The NACDL contends that Congress enacted the ACCA to sanction hardened criminals and burglars. Id. at 10. Accordingly, the NACDL asserts that the ACCA targets a certain type of criminal—a career criminal who has committed “violent felonies,” “serious drug offenses,” or both. Id. at 8. This is because, according to Petitioner Denard Stokeling, Congress wanted to curb gun violence and presumed that criminals with a history of committing violent crimes are more likely to “deliberately point the gun and pull the trigger.” Brief for Petitioner, Denard Stokeling at 41–42. The NACDL claims that Congress did not intend to categorize as armed career criminals “the Nation’s unlucky shoplifters and clumsy pick pocketers.” Brief of NACDL at 8. However, Stokeling argues, the Eleventh Circuit’s interpretation of “violent force” covers this type of petty criminal conduct. Brief for Petitioner at 43.
Although Florida robbery requires as an element overcoming “victim resistance,” Stokeling maintains that this does not necessarily require a violent amount of force. Id. 31–33. Therefore, Stokeling contends, categorizing Florida robbery as a “violent felony” requiring “violent force” implicates a host of crimes that require a minimal amount of force. Id. at 37–41. For example, under the Eleventh Circuit’s interpretation, if a shoplifter steals a pack of gum and pushes past a security guard who is attempting to restrain the shoplifter, the shoplifter will have committed a “violent felony.” Id. at 38. The effect of such a broad interpretation, Stokeling opines, is to rebrand Oliver Twist a “violent felon.” Id. at 4.
Respondent United States (“The Government”) counters that a narrow interpretation of “violent force” will rob the ACCA of its effectiveness and contravene Congressional intent. Brief for Respondent, United States at 18. The Government argues that Congress enacted the ACCA to address violent street crime. Id. at 14–15. Additionally, the Government notes that, when Congress enacted the ACCA in 1984, Congress was worried that a large amount of violent street crime was being committed by a small number of repeat offenders. Id. at 2. As such, the Government asserts that the ACCA was intended to be broad enough to help the States corral career criminals. Id.
The Government claims that Stokeling’s interpretation of “violent force” would render the ACCA ineffectual because most States’ basic robbery-by-force offenses and other violent street crimes would be excluded from the definition. Id. at 18–19. Therefore, the Government asserts that Stokeling’s narrow interpretation of “violent force” would constrain the “effective use of this important statute,” which Congress intended to have “great sweep.” Id. at 3. Additionally, in view of Stokeling’s suggestion that a broad interpretation of “violent force” will rebrand Oliver Twist a “violent felon,” the Government contends that “violent force” means force capable of causing physical pain or injury, so a purse-snatching or pick-pocketing, which require “slight force,” is not necessarily a “violent felony” implicating enhanced sentencing under the ACCA. Id. at 13–14. The Government acknowledges that the “violent force” requirement was meant to exclude “those situations . . . [that] do not pose special dangers of violence,” which alleviates the concerns raised by Stokeling. Id. at 15.
- Jessy Morris, Stokeling v. United States, Williamette University Law (April 2, 2018).
- Conrad Kahn & Danli Song, A Touchy Subject: The Eleventh Circuit’s Tug-of-War Over What Constitutes Violent “Physical Force”, University of Miami Law Review (June 30, 2018).