Argued: May 9, 2019
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;
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.
Andrew Murray, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
NIEMEYER, KEENAN, and QUATTLEBAUM, Circuit Judges.
BARBARA MILANO KEENAN, Circuit Judge:
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
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.
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
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).
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.
February 2015, Dinkins filed his first motion for
post-conviction relief under § 2255, challenging both
his conviction and his sentence. 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).
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.
district court dismissed Dinkins' second motion on
procedural grounds.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 ...