United States v. Nicholas
686 F. App'x 570
| 10th Cir. | 2017Background
- Nicholas was arrested in Henry’s truck; officers found a .22 revolver under the driver’s seat, a Remington rifle on the back-seat floorboard, and additional ammunition in the truck.
- Indicted on two counts of being a felon in possession of a firearm and one count for possession of ammunition (18 U.S.C. §§ 922(g)(1), 924(a)(2)).
- At trial the jury convicted Nicholas on all three counts; parties stipulated the guns were functional.
- PSR classified Nicholas as an Armed Career Criminal under ACCA based on three prior felonies (Montana assault, Kansas robbery, Kansas aggravated robbery), triggering a 15-year statutory minimum.
- District court adopted the PSR and imposed concurrent 180-month sentences; Nicholas appealed both the sufficiency of the evidence and the ACCA enhancement.
Issues
| Issue | Nicholas' Argument | Government's Argument | Held |
|---|---|---|---|
| Sufficiency: constructive possession of firearms/ammunition | Nicholas lacked knowledge/control; guns belonged to Henry | Evidence showed guns accessible from driver’s seat, Henry’s equivocal testimony, and prison statements by Nicholas; jury could infer constructive possession | Conviction affirmed — evidence sufficient for constructive possession |
| ACCA enhancement: whether Kansas robbery is a "violent felony" under ACCA elements clause | Kansas robbery can be satisfied by de minimis force (e.g., purse-snatching) and thus does not meet ACCA’s "violent force" requirement | Kansas robbery involves "force" and has been described with terms like "violence," so it can qualify | Held that Kansas robbery does NOT categorically require violent force; cannot serve as ACCA predicate |
| Effect of ACCA holding on sentence | Nicholas argued enhancement invalid; requested resentencing without ACCA | Government contended prior convictions supported ACCA or alternative grounds | ACCA enhancement vacated; sentence vacated and case remanded for resentencing without ACCA enhancement |
| Need to assess other prior convictions as ACCA predicates | Nicholas argued he lacks three qualifying priors | Government relied on all three priors to meet ACCA threshold | Court concluded one invalidates the three-prior count, so did not decide the other two priors |
Key Cases Cited
- Johnson v. United States, 559 U.S. 133 (2010) (defines "physical force" as violent force capable of causing pain or injury)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (indivisible statutes and the categorical approach)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (focus on statutory elements, not underlying facts)
- State v. McKinney, 961 P.2d 1 (Kan. 1998) (Kansas Supreme Court held purse-snatching can constitute robbery under Kansas law)
- United States v. Parnell, 818 F.3d 974 (9th Cir. 2016) (state robbery statutes permitting minimal force may not meet ACCA force requirement)
- United States v. Bell, 840 F.3d 963 (8th Cir. 2016) (similar conclusion regarding state robbery statutes and force)
- United States v. Little, 829 F.3d 1177 (10th Cir. 2016) (constructive possession standards and later rule changes considered)