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United States v. Dinkins

United States Court of Appeals, Fourth Circuit

July 1, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
BOBBY ARION DINKINS, Defendant-Appellant.

          Argued: May 9, 2019

          Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Martin K. Reidinger, District Judge. (3:08-cr-00254-MR-1; 3:16-cv-00535-MR)

         ARGUED:

          Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant.

          Elizabeth Margaret Greenough, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

         ON BRIEF:

          R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

          Before NIEMEYER, KEENAN, and QUATTLEBAUM, Circuit Judges.

          BARBARA MILANO KEENAN, Circuit Judge:

         Bobby Arion Dinkins pleaded guilty in 2009 to a federal firearm charge, for which he was sentenced to serve a term of 252 months' imprisonment. His sentence included an enhancement under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), based in part on his prior convictions in North Carolina for common law robbery and for being an accessory before the fact of armed robbery (the challenged convictions). In 2016, Dinkins filed a motion under 28 U.S.C. § 2255, in which he argued that the challenged convictions no longer qualified as predicate offenses under the ACCA after the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015) (Johnson II). After the district court dismissed Dinkins' motion, we granted a certificate of appealability.

         Upon our review, we hold that the challenged convictions categorically qualify as violent felonies under the "force clause" of the ACCA. In reaching this holding, we conclude that North Carolina common law robbery qualifies as an ACCA predicate under the Supreme Court's recent decision in Stokelingv. United States, 139 S.Ct. 544 (2019), which abrogated our prior holding in United States v. Gardner, 823 F.3d 793 (4th Cir. 2016) (holding that North Carolina robbery does not qualify as an ACCA predicate under the force clause). We further hold that a conviction under North Carolina law for being an accessory before the fact of armed robbery qualifies as a violent felony because that offense incorporates the elements of armed robbery, which itself is a violent felony. We therefore affirm the district court's judgment.

         I.

         In 2009, Dinkins pleaded guilty to Hobbs Act robbery, in violation of 18 U.S.C. § 1951, and to being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). In the presentence report, the probation officer listed Dinkins' criminal history, which included prior convictions under North Carolina law for (1) being an accessory before the fact of armed robbery; (2) second-degree burglary; and (3) common law robbery.[1]

         Based in part on these convictions, the probation officer recommended that Dinkins be sentenced as an armed career criminal under the ACCA, 18 U.S.C. § 924(e), which mandates a fifteen-year minimum sentence for defendants convicted of a firearm offense who have three or more prior convictions for violent felonies or serious drug offenses. Absent this armed career criminal designation, Dinkins would have been subject to a ten-year maximum sentence for his firearm conviction. See 18 U.S.C. § 924(a)(2).

         The district court adopted this portion of the presentence report and calculated Dinkins' sentencing guideline range as being between 235 and 293 months' imprisonment. After considering the sentencing factors in 18 U.S.C. § 3553(a) and rejecting Dinkins' motion for a downward departure, the court imposed a sentence of 252 months' imprisonment with respect to the firearm charge.

         In February 2015, Dinkins filed his first motion for post-conviction relief under § 2255, challenging both his conviction and his sentence.[2] The district court dismissed the motion as untimely, because it was filed almost five years after his conviction had become final. See 28 U.S.C. § 2255(f) (establishing a one-year limitations period for § 2255 motions, generally beginning from the date the challenged judgment becomes final).

         In 2016, Dinkins sought and received authorization to file the present § 2255 motion, arguing that he improperly was designated as an armed career criminal. Dinkins contended that his North Carolina common law convictions for robbery and for being an accessory before the fact of armed robbery did not qualify as violent felonies following the United States Supreme Court's decision in Johnson II, which held that a portion of the ACCA's definition of violent felony known as the "residual clause" is unconstitutionally vague. 135 S.Ct. at 2555-57. Therefore, Dinkins argued that his sentence for the firearm charge exceeds the maximum allowed by law.

         The district court dismissed Dinkins' second motion on procedural grounds.[3]Dinkins timely filed a notice of appeal and, after informal briefing, a panel of this Court granted him a certificate of appealability to address "[w]hether Dinkins has prior convictions of three violent felonies and is an armed career criminal in light of ...


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