Scribd Logo
Upload

Welcome to Scribd!

  • 42 views

    United States v. Ennis Billups, 4th Cir. (2016)

    Uploaded by

    Scribd Government Docs
    This document summarizes a United States Court of Appeals case regarding whether a defendant's prior convictions for North Carolina common law robbery qualified him for sentencing under the Armed Career Criminal Act (ACCA). The court determined that a recent 4th Circuit decision established that North Carolina common law robbery does not constitute a violent felony under the ACCA. As such, the district court had committed plain error in classifying the defendant as an armed career criminal based on those prior convictions. The court therefore vacated the defendant's sentence and remanded the case for re-sentencing.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd

    United States v. Ennis Billups, 4th Cir. (2016)

    Uploaded by

    Scribd Government Docs
    42 views8 pages
    This document summarizes a United States Court of Appeals case regarding whether a defendant's prior convictions for North Carolina common law robbery qualified him for sentencing under the Armed Career Criminal Act (ACCA). The court determined that a recent 4th Circuit decision established that North Carolina common law robbery does not constitute a violent felony under the ACCA. As such, the district court had committed plain error in classifying the defendant as an armed career criminal based on those prior convictions. The court therefore vacated the defendant's sentence and remanded the case for re-sentencing.

    Original Description:

    Filed: 2016-06-14 Precedential Status: Non-Precedential Docket: 14-4959

    Copyright

    © Public Domain

    Available Formats

    PDF or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    This document summarizes a United States Court of Appeals case regarding whether a defendant's prior convictions for North Carolina common law robbery qualified him for sentencing under the Armed Career Criminal Act (ACCA). The court determined that a recent 4th Circuit decision established that North Carolina common law robbery does not constitute a violent felony under the ACCA. As such, the district court had committed plain error in classifying the defendant as an armed career criminal based on those prior convictions. The court therefore vacated the defendant's sentence and remanded the case for re-sentencing.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    42 views8 pages

    United States v. Ennis Billups, 4th Cir. (2016)

    Uploaded by

    Scribd Government Docs
    This document summarizes a United States Court of Appeals case regarding whether a defendant's prior convictions for North Carolina common law robbery qualified him for sentencing under the Armed Career Criminal Act (ACCA). The court determined that a recent 4th Circuit decision established that North Carolina common law robbery does not constitute a violent felony under the ACCA. As such, the district court had committed plain error in classifying the defendant as an armed career criminal based on those prior convictions. The court therefore vacated the defendant's sentence and remanded the case for re-sentencing.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    of 8

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 14-4959

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    v.
    ENNIS TREVOR BILLUPS,
    Defendant - Appellant.

    Appeal from the United States District Court for the Middle
    District of North Carolina, at Greensboro.
    William L. Osteen,
    Jr., Chief District Judge. (1:14-cr-00142-WO-1)

    Argued:

    March 24, 2016

    Decided:

    June 14, 2016

    Before MOTZ, GREGORY, and KEENAN, Circuit Judges.

    Affirmed in part, vacated in part, and remanded by unpublished


    opinion.
    Judge Keenan wrote the opinion, in which Judge Motz
    and Judge Gregory joined.

    ARGUED: Robert Lynn McClellan, IVEY, MCCLELLAN, GATTON &


    SIEGMUND, LLP, Greensboro, North Carolina, for Appellant.
    Ripley Eagles Rand, OFFICE OF THE UNITED STATES ATTORNEY,
    Greensboro, North Carolina, for Appellee. ON BRIEF: Michael F.
    Joseph, Assistant United States Attorney, OFFICE OF THE UNITED
    STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

    Unpublished opinions are not binding precedent in this circuit.

    BARBARA MILANO KEENAN, Circuit Judge:


    In

    this

    appeal,

    we

    consider

    whether

    the

    district

    court

    properly determined that Ennis Billups qualified as an armed


    career criminal based on his prior convictions for felony common
    law

    robbery

    robbery).

    in
    Upon

    convictions

    our

    for

    categorically
    qualify

    North

    review,

    North

    as

    we

    Carolina

    violent

    otherwise

    Carolina

    felonies,
    an

    armed

    (North

    Carolina

    conclude
    common
    and

    that
    law

    that

    career

    common

    Billups

    robbery
    Billups

    criminal.

    law
    prior

    are

    not

    does

    not

    Because

    we

    issued our precedential holding that North Carolina common law


    robbery is not categorically a violent felony in United States
    v. Gardner, No. 14-4533, slip op. at 18, 20 (4th Cir. May 18,
    2016),

    while

    Billups

    Court,

    Billups

    is

    direct

    entitled

    appeal
    to

    the

    was

    pending

    benefit

    of

    before
    that

    this

    holding

    despite his failure to raise the issue in the district court.


    See Henderson v. United States, 133 S. Ct. 1121, 1130-31 (2013).
    Thus, we conclude that the district court committed plain error
    in

    classifying

    Billups

    as

    an

    armed

    career

    criminal,

    and

    we

    vacate Billups sentence and remand the case for re-sentencing.

    I.
    Ennis Billups pleaded guilty to possession of a firearm by
    a felon, in violation of 18 U.S.C. 922(g)(1) and 924(e).
    the

    presentence

    report

    (PSR)

    prepared
    2

    in

    Billups

    case,

    In
    the

    probation officer classified Billups as an armed career criminal


    under

    the

    Armed

    Career

    Criminal

    Act

    (ACCA),

    18

    U.S.C.

    924(e)(2), based on one prior North Carolina state conviction


    for

    felony

    drug

    trafficking

    and

    seven

    prior

    convictions

    for

    North Carolina common law robbery.


    Billups objected to application of the ACCA enhancement on
    various

    grounds

    and

    also

    moved

    to

    withdraw

    his

    guilty

    plea,

    contending that his plea was not knowing and voluntary because
    he had not taken his medications on the day of his plea hearing.
    The district court rejected Billups challenges to the armed
    career criminal designation, and denied his motion to withdraw
    his guilty plea.

    The court adopted the recommendation in the

    PSR that Billups be classified as an armed career criminal, and


    sentenced

    him

    imprisonment.

    to

    the

    statutory

    minimum

    of

    180

    months

    This appeal followed. 1

    Billups counsel originally filed an appellate brief


    pursuant to Anders v. California, 386 U.S. 738 (1967), stating
    that he found no meritorious grounds for appeal but asking this
    Court to review the record for any prejudicial error.
    While
    Billups appeal was pending, the Supreme Court issued a decision
    in Johnson v. United States, 135 S. Ct. 2551 (2015), and
    invalidated the residual clause of the ACCA.
    We ordered
    supplemental briefing to address whether, in light of the
    Courts decision in Johnson, the district court committed
    reversible error by treating Billups robbery offenses as
    violent felonies under the ACCA.

    II.
    Before

    turning

    to

    the

    parties

    arguments,

    summarize the relevant statutory provision.


    violent

    felony

    is

    defined

    as

    any

    we

    briefly

    crime

    Under the ACCA, a


    punishable

    by

    imprisonment for a term exceeding one year that either has as


    an element the use, attempted use, or threatened use of physical
    force against the person of another (the force clause), or is
    burglary, arson, or extortion, [or] involves use of explosives
    (the enumerated language), or otherwise involves conduct that
    presents a serious potential risk of physical injury to another
    (the residual clause).
    Billups

    argues

    18 U.S.C. 924(e)(2)(B)(i), (ii).

    that

    his

    previous

    convictions

    for

    North

    Carolina common law robbery do not qualify as predicate offenses


    under the ACCA because North Carolina common law robbery does
    not categorically match any of the enumerated offenses, nor does
    it necessarily require the use, attempted use, or threatened
    use of physical force against the person of another.
    U.S.C. 924(e)(2)(B).
    Johnson
    ACCAs

    v.

    United

    residual

    See 18

    Also, because the Supreme Court held in

    States,

    clause

    is

    135

    S.

    Ct.

    2551

    unconstitutional,

    (2015),
    Billups

    that

    the

    observes

    that his robbery convictions cannot qualify as violent felonies


    under that portion of the ACCA.
    In response, the government argues that the district court
    correctly

    classified

    Billups

    as
    4

    an

    armed

    career

    criminal,

    because robbery necessarily requires the use, attempted use, or


    threatened use of physical force against another person. The
    government relies on decisions in which we have held that the
    crime of common law robbery in other jurisdictions qualified as
    a violent felony under the force clause.
    Presley,

    52

    F.3d

    64,

    69

    (4th

    Cir.

    See United States v.

    1995)

    (concluding

    that

    Virginia common law robbery involved the use or threatened use


    of force and therefore was a predicate offense under the ACCAs
    force clause); United States v. Wilson, 951 F.2d 586, 588 (4th
    Cir.

    1991)

    crime

    (holding

    of

    that

    violence

    under

    Maryland
    the

    common

    force

    law

    clause

    robbery

    was

    of

    career

    the

    offender provision in the sentencing guidelines).


    Because Billups did not preserve in the district court the
    issue whether North Carolina common law robbery categorically
    matched the definition of a violent felony under the ACCA, 2 we
    review

    the

    See United

    district

    States

    v.

    courts
    Carthorne,

    decision
    726

    F.3d

    for
    503,

    plain
    509

    error.

    (4th

    Cir.

    Billups argued to the district court that, in light of


    this Courts decision in United States v. Simmons, 649 F.3d 237
    (4th Cir. 2011) (en banc), his robbery convictions did not
    qualify as predicate felonies because they were not punishable
    by a term of imprisonment exceeding one year.
    He also argued
    that his seven robbery convictions should only count as a single
    predicate offense because they were consolidated into one
    judgment. Billups reasserts his Simmons argument in his pro se
    brief.
    Because we vacate his sentence on other grounds, we do
    not address this alternative argument.

    2013).

    To establish plain error, Billups must show (1) that an

    error was made; (2) that the error was plain; and (3) that the
    error affected his substantial rights.
    is

    plain

    if

    the

    settled

    law

    of

    the

    Id. at 510.
    Supreme

    Court

    circuit establishes that an error has occurred.


    (internal

    quotation

    and

    citation

    omitted).

    An error
    or

    this

    Id. at 516

    And,

    notably,

    regardless whether the question was settled when the district


    court made its decision, it is enough that an error be plain
    at

    the

    error.

    time

    of

    appellate

    consideration

    to

    constitute

    plain

    Henderson, 133 S. Ct. at 1130-31 (internal quotation and

    citation omitted).
    North Carolina common law robbery is the felonious, nonconsensual taking of money or personal property from the person
    or presence of another by means of violence or fear.

    North

    Carolina v. Smith, 292 S.E.2d 264, 270 (N.C. 1982).

    As we

    recently have explained, a conviction for North Carolina common


    law robbery may be based on the use of only de minimis contact
    in accomplishing the taking of another persons property.
    Gardner, No. 14-4533, slip op. at 17.
    clause

    requires

    force

    capable

    of

    See

    Because the ACCAs force


    causing

    physical

    pain

    or

    injury to another person, and does not include the slightest


    offensive

    touching,

    we

    held

    that

    North

    Carolina

    common

    law

    robbery does not categorically constitute a violent felony under

    the ACCA force clause. 3

    See id., slip op. at 16, 18 (quoting

    Johnson v. United States, 559 U.S. 133, 139 (2010)).


    When Billups was sentenced in the district court, we had
    not

    yet

    common

    issued
    law

    our

    robbery

    decision
    does

    not

    in

    Gardner

    qualify

    as

    that
    a

    North

    Carolina

    violent

    felony. 4

    Nevertheless, to constitute plain error, it is enough that the


    district courts error is plain at the time of our appellate
    consideration

    here.

    See

    Henderson,

    133

    S.

    Ct.

    at

    1130-31.

    Given our conclusion in Gardner, we hold that the district court


    plainly erred in determining that Billups North Carolina common
    law robbery convictions qualified as violent felonies under the
    ACCA.

    This error affected Billups substantial rights, because

    it triggered the ACCAs mandatory 15-year minimum sentence, when


    he otherwise would have been subject to a maximum sentence of
    ten

    years

    Accordingly,

    imprisonment.
    we

    vacate

    See

    Billups

    18

    sentence

    U.S.C.

    924(a)(2).

    applying

    the

    ACCA

    We also concluded that North Carolina common law robbery


    does not match any of the ACCAs enumerated offenses, and cannot
    qualify as a violent felony pursuant to the ACCAs invalidated
    residual clause. See Gardner, slip op. at 13 n.5.
    4

    Our decision in United States v. Bowden, 975 F.2d 1080,


    1082 (4th Cir. 1992), on which the government relies, merely
    acknowledged the parties agreement in that case, which is not
    binding on us here, that North Carolina common law robbery
    qualified as a violent felony under the force clause of the
    ACCA.

    enhancement, and remand the case to the district court for resentencing.

    III.
    In

    accordance

    with

    Anders,

    record and find no other error.

    we

    have

    reviewed

    the

    entire

    Therefore, we affirm Billups

    conviction, but vacate his sentence and remand the case to the
    district court for re-sentencing.
    AFFIRMED IN PART,
    VACATED IN PART,
    AND REMANDED

    You might also like