United States v. Robert Winston
2017 U.S. App. LEXIS 4374
| 4th Cir. | 2017Background
- Robert Winston was convicted in 2002 of being a felon in possession of a firearm and sentenced to 275 months under the ACCA based in part on a prior Virginia common-law robbery conviction.
- After Johnson v. United States (2015) (Johnson II) invalidated the ACCA residual clause, Winston filed a §2255 motion arguing his robbery conviction no longer qualified as an ACCA “violent felony.”
- The district court denied relief, concluding Virginia common-law robbery satisfied the ACCA force clause (use, attempted use, or threatened use of physical force).
- The Fourth Circuit granted Winston permission to file a successive §2255 motion and considered both procedural and substantive issues on appeal.
- The panel held Winston did rely on a new constitutional rule (Johnson II) for collateral review but concluded Virginia common-law robbery does not categorically require “violent force” under Johnson I.
- The Fourth Circuit vacated and remanded for the district court to consider whether Winston’s UCMJ rape conviction nonetheless supports an ACCA enhancement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Winston may rely on Johnson II in a successive §2255 | Winston: Johnson II announced a new rule that applies retroactively and he relied on it | Gov: Sentence record doesn’t show reliance on the residual clause, so Johnson II doesn’t help Winston | Held: Winston sufficiently relied on Johnson II; procedural bar rejected |
| Whether Virginia common-law robbery qualifies under the ACCA force clause | Winston: Virginia robbery can be committed with only slight force or intimidation and thus lacks “violent force” required by Johnson I | Gov: Presley controls; Virginia robbery requires force sufficient to overcome resistance and thus satisfies the force clause | Held: Overruling Presley to the extent inconsistent with later Supreme Court precedent; Virginia robbery does not necessarily involve "violent force" and therefore is not categorically an ACCA violent felony |
| Whether prior Fourth Circuit precedent (Presley / McNeal) binds the court | Winston: Presley is undermined by later Supreme Court decisions (Johnson I) | Gov: Presley controls; McNeal shows robbery-type offenses can qualify | Held: Presley is not controlling because Johnson I changed the definition of "physical force"; McNeal is distinguishable (federal statute vs. state law) |
| Remedy and next steps | Winston: Vacate ACCA enhancement and release (if no other predicates) | Gov: Maintain ACCA designation if other predicates remain | Held: Judgment vacated and remanded for district court to consider whether UCMJ rape still qualifies as a predicate violent felony |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidated ACCA residual clause as unconstitutionally vague)
- Johnson v. United States, 559 U.S. 133 (2010) (defined "physical force" as "violent force . . . capable of causing physical pain or injury")
- Welch v. United States, 136 S. Ct. 1257 (2016) (Johnson II applies retroactively on collateral review)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (described the categorical approach for predicate-offense analysis)
- United States v. Gardner, 823 F.3d 793 (4th Cir. 2016) (North Carolina common-law robbery does not categorically qualify as an ACCA violent felony)
- United States v. Presley, 52 F.3d 64 (4th Cir. 1995) (earlier Fourth Circuit holding that Virginia common-law robbery qualified under the force clause)
- United States v. McNeal, 818 F.3d 141 (4th Cir. 2016) (distinguished — federal armed bank robbery held to involve requisite physical force)