United States v. Richard Orr
685 F. App'x 263
| 4th Cir. | 2017Background
- Richard Arthur Orr pleaded guilty to possession of a firearm by a convicted felon and received a 180-month sentence under the Armed Career Criminal Act (ACCA).
- At sentencing, the district court treated Orr as an armed career criminal based on multiple prior Florida robbery convictions.
- Orr challenged whether his Florida robbery convictions qualified as ACCA predicate "violent felonies" under the ACCA force clause (use, attempted use, or threatened use of physical force).
- He argued Florida robbery can be committed with only de minimis or non-physical force (including pre-1997 convictions and the statute’s “putting in fear” language), and that the statute does not require intentional use of force.
- The Fourth Circuit reviewed Florida law, Eleventh Circuit precedent, and related federal authority, and concluded Florida robbery requires more than de minimis, violent physical force and thus qualifies as an ACCA predicate.
Issues
| Issue | Plaintiff's Argument (Orr) | Defendant's Argument (Gov't) | Held |
|---|---|---|---|
| Whether Florida robbery (Fla. Stat. § 812.13(1)) is a "violent felony" under the ACCA force clause | Florida robbery can be satisfied by minimal or non-violent contact and thus fails Johnson’s "violent force" requirement | Florida robbery requires force or putting victim in fear of death/great bodily harm, which necessarily involves violent physical force | Held: Florida robbery categorically qualifies as a crime of violence under the ACCA force clause |
| Whether pre-1997 Florida robbery convictions could have encompassed non-violent conduct | Robinson (1997) altered the statute; prior to Robinson the statute could have covered mere snatching or non-violent conduct | Florida courts and Eleventh Circuit treat Robinson as stating what the statute always meant; no realistic probability of broader pre-1997 coverage | Held: No realistic probability pre-1997 convictions covered non-violent conduct; pre-1997 convictions qualify as predicates |
| Whether the "putting in fear" clause can cover non-physical threats (e.g., poison) that lack physical force | "Putting in fear" can encompass threats that cause fear without physical force (poisoning), thus falling outside ACCA’s force clause | Threats that put victims in fear of death/great bodily harm will involve actual or threatened physical force; poisoning can itself be the use of force (Castleman) | Held: "Putting in fear" implicates threats involving physical force; hypothetical non-physical examples do not show a realistic probability statute covers non-violent conduct |
| Whether the statute requires intentional use of force (vs. negligent/accidental force) | Florida robbery does not require specific intent to use force; accidental/reckless force might suffice, excluding it from ACCA | State case law shows prosecutions require intentional overcoming of resistance; no realistic probability of convictions for accidental force | Held: No realistic probability Florida robbery prosecutions encompass accidental/negligent force; intentional force is required |
Key Cases Cited
- Johnson v. United States, 559 U.S. 133 (2010) ("physical force" means violent force capable of causing physical pain or injury)
- McNeill v. United States, 563 U.S. 816 (2011) (ACCAs analysis looks to law at time of prior conviction)
- United States v. Gardner, 823 F.3d 793 (4th Cir. 2016) (North Carolina common-law robbery is not an ACCA predicate)
- United States v. Doctor, 842 F.3d 306 (4th Cir. 2016) (use of "realistic probability" test and review of state prosecutions interpreting statute)
- United States v. Torres-Miguel, 701 F.3d 165 (4th Cir. 2012) (threats that could cause death need not involve physical force; analyzed in related context)
- Castleman v. United States, 134 S. Ct. 1405 (2014) (administration of poison can constitute the use of force)
- United States v. Lockley, 632 F.3d 1238 (11th Cir. 2011) (Florida robbery under § 812.13(1) categorically qualifies as a crime of violence under an identical force clause)
- United States v. Fritts, 841 F.3d 937 (11th Cir. 2016) (reaffirming Lockley; Florida robbery has always required more than mere snatching)
- United States v. McNeal, 818 F.3d 141 (4th Cir. 2016) (finding no bank-robbery prosecutions based on victim fear from non-physical force)