United States v. Damien RileyUnited States v. Damien Riley
constituted clear error causing manifest injustice. See Oral Argument at 11:50-12:15, Carlson v. Boston Sci. Corp., No. 15-2440 (4th Cir. Mar. 24, 2017), http://coop.ca4.uscourts.gov/OAarchive/mp3/15-2440-20170324.mp3. Not so: We have consistently affirmed denials of motions to reconsider summary judgment rulings where the motion is merely a vessel for the very evidence that was initially lacking in opposition to summary judgment. See, e.g., Cray Commc‘ns, Inc. v. Novatel Comput. Sys., Inc., 33 F.3d 390, 395 (4th Cir. 1994); RGI, Inc. v. Unified Indus., Inc., 963 F.2d 658, 661-62 (4th Cir. 1992); Carteret Sav. Bank, P.A. v. Compton, Luther & Sons, Inc., 899 F.2d 340, 341-42 (4th Cir. 1990). Significantly, the entirety of Dr. Kennelly‘s deposition testimony was available well before summary judgment briefing, and the additional portions of testimony Appellant provided to the district court for “reconsideration” thus did not amount to the type of evidence constituting grounds for a valid motion for reconsideration. See Canoe Ass‘n, 326 F.3d at 515. We therefore affirm the district court‘s denial of Appellant‘s motion for reconsideration.
IV.
In light of the foregoing, the decisions of the MDL court and the district court below are AFFIRMED.
Before WILKINSON, DIAZ, and FLOYD, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Diaz and Judge Floyd joined.
WILKINSON, Circuit Judge:
Damien Riley challenges his designation as a career offender under the
I.
Riley was convicted of four counts of possession with intent to distribute a controlled substance. The presentence report (PSR) designated Riley as a career offender under
At the sentencing hearing, Riley‘s counsel stated that “there is no dispute whatsoever that he is a career offender” and instead argued that the designation was “over-representative of his criminal history.” J.A. 22. Accordingly, Riley sought a downward departure for his criminal history and a downward variance on his overall sentence. The district court adopted the PSR and sentenced Riley to 210 months imprisonment. Riley now appeals his designation as a career offender, claiming that Maryland robbery with a dangerous weapon is not a crime of violence.
II.
In general, we review de novo whether a defendant‘s prior offense qualifies as a crime of violence under the career
We conclude that the district court did not err—let alone plainly err—in classifying Riley as a career offender. Maryland robbery with a dangerous weapon fits comfortably within the residual clause of the career offender guideline‘s definition of a “crime of violence.”
A.
The Sentencing Guidelines provide for enhanced sentences for career offenders. Section 4B1.1(a) sets forth three criteria for the designation, the last of which is at issue here:
A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
The definition of the term “crime of violence” in effect when Riley was sentenced contained a force clause, an enumerated clause, and a residual clause (which was later rescinded). Under that definition, a federal or state offense punishable by more than one year of imprisonment qualifies as a crime of violence if the offense “has as an element the use, attempted use, or threatened use of physical force against the person of another” (force clause); “is burglary of a dwelling, arson, or extortion, [or] involves use of explosives” (enumerated clause); “or otherwise involves conduct that presents a serious potential risk of physical injury to another” (residual clause).
Shortly after Riley noted his appeal, the Supreme Court decided Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Johnson invalidated the residual clause of the Armed Career Criminal Act (ACCA) as unconstitutionally vague under the Due Process Clause of the Fifth Amendment. Id. at 2563. Because the residual clause in Johnson was identical to that of the career offender guideline, the Sentencing Commission removed the residual clause from the guideline‘s definition of “crime of violence.” See
B.
The only question on appeal is whether Maryland robbery with a dangerous weapon qualifies as a “crime of violence.” We conclude that it does.
Because we conclude that Maryland simple robbery is a crime of violence under the residual clause, we need not reach the question of whether Maryland simple robbery and Maryland robbery with a dangerous weapon are separate offenses under federal law. If they are, robbery with a dangerous weapon is a fortiori a crime of violence; if not, our analysis of simple robbery suffices. Either way, Riley‘s prior robbery offense serves as a predicate for purposes of applying the career offender guideline.
Under Maryland law, robbery entails the carrying away of another‘s property “from his person or in his presence ... by violence or putting in fear.” Conyers, 693 A.2d at 796. This classic articulation of robbery involves conduct that undoubtedly “presents a serious potential risk of physical injury to another.”
In addition, the commentary on
Because we rest our judgment on the residual clause, we need not address Riley‘s arguments concerning the force clause. The district court did not err by designating Riley a career offender.
AFFIRMED.