United States v. Terry White, 24 F.4th 378

Terry Antonio White pleaded guilty to being a felon in possession of a firearm; the presentence report recommended ACCA enhancement based on three prior convictions, including Virginia common law robbery.
The ACCA enhances sentences for defendants with three prior "violent felony" convictions; the relevant "force clause" requires a prior offense to have as an element the use, attempted use, or threatened use of physical force.
White argued Virginia common law robbery can be committed by threatening to accuse the victim of sodomy, a threat that does not involve physical force and therefore fails the ACCA force-clause element.
The district court applied an ACCA enhancement, concluding Virginia robbery requires physical force; the Fourth Circuit initially found uncertainty in Virginia precedent and certified a determinative question to the Supreme Court of Virginia.
The Virginia Supreme Court answered that Virginia common law robbery can be committed by threatening to accuse a victim of "sodomy" only when that accusation involves a crime-against-nature under extant Virginia law.
Deferential federalism principles led the Fourth Circuit to accept the Virginia court’s interpretation, hold that Virginia common law robbery need not include threatened physical force, vacate White’s ACCA-based sentence, and remand for resentencing.

Issue	White's Argument	Government's Argument	Held
Whether Virginia common law robbery can be committed by threatening to accuse a victim of sodomy, and thus whether a Virginia common-law robbery conviction has as an element the use, attempted use, or threatened use of physical force for ACCA purposes	Threat to accuse of sodomy suffices; no physical force element	Virginia robbery requires physical force or threats of imminent physical force; prior Fourth Circuit authority (Winston) applied; Stokeling supports limiting Winston	Virginia Supreme Court: yes, robbery by accusing of "sodomy" is a recognized common-law theory when the accusation implicates a crime-against-nature under current law; Fourth Circuit: therefore Virginia common-law robbery does not necessarily have the ACCA "force" element and is not categorically a violent felony under § 924(e)(2)(B)(i); sentence vacated and remanded for resentencing

White v. United States, 987 F.3d 340 (4th Cir. 2021) (prior Fourth Circuit opinion in the same case addressing ACCA application)
White v. United States, 863 S.E.2d 483 (Va. 2021) (Virginia Supreme Court answered certified question: accusing of "sodomy" can constitute robbery when it involves a crime-against-nature under extant law)
Winston v. United States, 850 F.3d 677 (4th Cir. 2017) (earlier Fourth Circuit decision holding Virginia common-law robbery could be committed by de minimis force)
Stokeling v. United States, 139 S. Ct. 544 (2019) (Supreme Court holding slight force overcoming resistance may satisfy ACCA force clause)
Lawrence v. Texas, 539 U.S. 558 (2003) (holding laws criminalizing consensual same-sex sexual conduct unconstitutional)
United States v. Aparicio-Soria, 740 F.3d 152 (4th Cir. 2014) (discussing need for state-court precedent to define state-law elements)
United States v. Doctor, 842 F.3d 306 (4th Cir. 2016) (explaining federal courts defer to state courts to identify elements of state common-law offenses)
United States v. Dinkins, 928 F.3d 349 (4th Cir. 2019) (clarifying approach when state-law contours are determinative for federal sentencing)