Opinion
Case No. 13-6322
07-12-2016
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ARTHUR CHARLES SMITH, Defendant-Appellant.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0390n.06 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES BEFORE: BOGGS and DONALD, Circuit Judges; and HOOD, District Judge.
The Honorable Denise Page Hood, United States District Judge for the Eastern District of Michigan, sitting by designation. --------
PER CURIAM. In 2013, Arthur Smith pleaded guilty to robbing a pharmacy, brandishing a firearm during and in retaliation to a crime of violence, and being a felon in possession of a firearm. Smith's presentence report designated him a career offender based on prior convictions for possession of a controlled substance with intent to distribute and North Carolina common-law robbery. See USSG §4B1.1. At sentencing, Smith argued that North Carolina common-law robbery is a "crime of violence" under the career-offender guideline. The district court agreed with Smith that North Carolina robbery does not qualify as a crime of violence through the guideline's "physical force" clause. USSG §4B1.2(a)(1). However, it agreed with the Government that any North Carolina robbery "presents a serious potential risk of physical injury to another," id. §4B1.2(a)(2), and thus qualifies as a crime of violence through the guideline's residual clause. The district court sentenced Smith to 262 months of imprisonment, at the bottom of the range recommended by the Sentencing Guidelines.
On appeal, we affirmed the district court's sentence, holding that North Carolina common-law robbery is a crime of violence under §4B1.2(a)(2)'s residual clause. United States v. Smith (Smith I), 582 F. App'x 590, 601 (6th Cir. 2014). We did "not consider whether the offense also qualifies as a crime of violence under the physical-force clause." Id. at 598. However, we noted our then-recent holding in United States v. Mitchell, 743 F.3d 1054, 1060 (6th Cir. 2014), that Tennessee robbery is a violent felony under the physical-force clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(i), and that "North Carolina's definitions of robbery and of 'fear' are similar to Tennessee's." Smith I, 582 F. App'x at 599.
Smith filed a petition for a writ of certiorari. The Supreme Court granted Smith's petition, vacated our decision in Smith I, and remanded the case to this court for further consideration in light of Johnson v. United States, 135 S. Ct. 2551 (2015). Smith v. United States, 135 S. Ct. 2930, 2930 (2015) (mem.). In Johnson, the Supreme Court held that the ACCA's residual clause is unconstitutionally vague. 135 S. Ct. at 2563. In United States v. Pawlak, ___ F.3d ___, No. 15-3566, 2016 WL 2802723 (6th Cir. May 13, 2016), we recently held that Johnson's reasoning applies with equal force to §4B1.2(a)(2)'s residual clause. Id. at *8.
Smith must be resentenced because the district court based his §4B1.1 enhancement upon §4B1.2(a)(2)'s unconstitutional residual clause. For this reason, we VACATE the judgment of the district court and REMAND this case to the district court for further consideration in light of Mitchell and Pawlak.