USCA4 Appeal: 23-6604 Doc: 35 Filed: 01/14/2025 Pg: 1 of 13

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-6604

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DAVID WILBERT SHANTON, SR.,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Catherine C. Blake, Senior District Judge. (1:08-cr-00142-CCB-1; 1:14-cv-03194-CCB)

Argued: September 25, 2024 Decided: January 14, 2025

Before DIAZ, Chief Judge, and NIEMEYER and QUATTLEBAUM, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Chief Judge Diaz and Judge Quattlebaum joined.

ARGUED: Paresh S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant. Jason Daniel Medinger, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant. Erek L. Barron, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. USCA4 Appeal: 23-6604 Doc: 35 Filed: 01/14/2025 Pg: 2 of 13

NIEMEYER, Circuit Judge:

The oft-repeated question of whether a state crime is a “violent felony” as used in

the Armed Career Criminal Act,

(e)(1), is presented here with respect to

whether the Maryland crime of robbery,

, is such a

crime. If it is, then the defendant, David Shanton, Sr., was properly subject to an enhanced

15-year minimum sentence for his convictions under

(g)(1) (prohibiting

gun possession by a felon), because he had three previous convictions for a violent felony.

If not, he was subject to only a 10-year maximum sentence for such an offense. See

§ 924(a)(2) (2006) (amended 2022). We conclude that Maryland robbery does qualify as

a violent felony and therefore affirm the judgment of the district court.

I

In October 2007, about one month after Shanton finished serving a 20-year sentence

for bank robbery, he and his grandson committed an armed bank robbery in Hagerstown,

Maryland. During the robbery, Shanton, armed with a shotgun, threatened to kill anyone

who called the police. He also pointed the shotgun at a deputy sheriff while fleeing the

scene and escaped with close to $34,000. One month later, Shanton and another

accomplice attempted to rob a different bank in Hagerstown, but this time Shanton was

apprehended. He was indicted for both bank robberies and related conduct and convicted

by a jury on two counts of armed bank robbery, in violation of

; one count

of discharging a firearm during and in relation to a crime of violence, in violation of

§ 924(c)(1)(A)(iii); one count of brandishing a firearm during and in relation to a crime of

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violence, in violation of § 924(c)(1)(A)(ii); and two counts of possessing a firearm after

having been convicted of a felony, in violation of § 922(g)(1).

The presentence report, prepared in advance of sentencing, indicated that Shanton

qualified for a sentence enhancement on his two § 922(g)(1) convictions under the Armed

Career Criminal Act (“ACCA”), which provides for a 15-year minimum sentence for a

person found guilty of illegally possessing a gun, in violation of § 922(g), if the person has

at least three prior convictions for a “violent felony” committed on different occasions. See

(e)(1). The probation officer identified four prior convictions to support

the enhancement: (1) Shanton’s 1974 Maryland convictions for assault and robbery; (2) his

1975 Maryland convictions for “yoking,” assault, and robbery; (3) his 1982 West Virginia

conviction for armed robbery; and (4) his 1991 federal conviction for bank robbery.

Shanton did not object to the proposed enhancement and therefore was subject at

sentencing to a 15-year mandatory minimum sentence for each of his § 922(g)(1)

convictions. The district court sentenced Shanton to 188 months’ imprisonment for each

of his two armed bank robbery convictions and to 188 months’ imprisonment for each of

his two § 922(g)(1) convictions, all to be served concurrently. The court also imposed

consecutive terms of 120 months’ imprisonment for his first § 924(c) conviction and 300

months’ imprisonment for his second § 924(c) conviction. In total, the district court

imposed a term of imprisonment of 608 months (over 50 years). We affirmed Shanton’s

convictions and sentence on direct appeal. See United States v. Shanton,

(4th Cir. 2013) (per curiam).

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Shanton thereafter filed a motion under

, arguing that his

convictions should be vacated due to defects in his indictment. While that motion was

pending, however, the Supreme Court handed down its decision in Samuel Johnson v.

United States,

(2015), holding that the “residual clause” in ACCA’s

definition of “violent felony” was unconstitutionally vague. Accordingly, the district court

permitted Shanton, with the assistance of appointed counsel, to supplement his § 2255

motion to challenge the constitutionality of his ACCA-enhanced sentences on his two

§ 922(g)(1) convictions. In his supplement, Shanton argued that his 1974 Maryland

convictions for assault and robbery and his 1975 Maryland convictions for yoking, assault,

and robbery no longer qualified as predicate convictions under the remaining portion of

ACCA’s definition of “violent felony.” The relevant remaining portion — the “elements

clause” — provides that “any crime punishable by imprisonment for a term exceeding one

year” that “has as an element the use, attempted use, or threatened use of physical force

against the person of another” qualifies as a “violent felony.”

(e)(2)(B)(i)

(emphasis added). Because Shanton’s prior Maryland assault convictions did not qualify

as violent felony convictions, see United States v. Royal,

(4th Cir. 2013),

the parties focused their arguments exclusively on whether Shanton’s two previous

Maryland robbery convictions qualified as violent felony predicates under ACCA’s

elements clause.

Contending that Maryland robbery did not qualify, Shanton ultimately grounded his

argument on Borden v. United States,

(2021), which held that crimes that can

be committed by harming someone recklessly or negligently do not have as an element “the

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use . . . of physical force against the person of another,” as that phrase is used in ACCA.

Shanton argued that Maryland robbery “can be committed with the reckless use of force”

and therefore no longer qualifies as a violent felony under Borden.

The district court rejected Shanton’s argument, concluding that “controlling Fourth

Circuit precedent” established “that ‘Maryland robbery constitutes a violent felony under

the ACCA’” (quoting United States v. Martin Johnson,

(4th Cir. 2019)),

and that that precedent remained binding even after the Supreme Court’s subsequent

decision in Borden. Accordingly, the district court denied Shanton’s § 2255 motion. It

did, however, issue a certificate of appealability “on the question of whether Maryland

robbery may serve as a predicate offense under [ACCA].” Shanton has appealed that issue.

II

To enhance Shanton’s sentences under ACCA for his violations of

(g)(1), the court relied on, among other convictions, his two prior Maryland robbery

convictions, one from 1974 and the other from 1975. If Maryland robbery no longer

qualifies as a “violent felony,” Shanton would not have the requisite number of predicate

convictions to trigger the ACCA enhancement.

ACCA provides for an enhanced sentence for § 922(g)(1) violations if the defendant

had at least three prior convictions for a “violent felony” committed on different occasions.

(e)(1). And, as relevant here, it defines “violent felony” as a crime that

“has as an element the use, attempted use, or threatened use of physical force against the

person of another.”

§ 924(e)(2)(B)(i).

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We have held that Maryland robbery does satisfy the elements clause and thus

constitutes a violent felony under ACCA. See United States v. Martin Johnson,

(4th Cir. 2019). Ordinarily, that decision would be dispositive of this appeal. But

after we published it, the Supreme Court handed down Borden, which held that a “violent

felony” requires a mens rea more culpable than mere recklessness or negligence.

. Shanton argues that Borden renders our prior case law on Maryland robbery, which

did not address mens rea, inapplicable to the issue before us.

In Borden, five Justices agreed to the judgment, but they were split on its rationale.

Writing for the plurality, Justice Kagan focused on the clause in ACCA’s definition of

“violent felony” that requires the “use of physical force against the person of another,”

reasoning that the “use of force” component “denotes volitional conduct” and that “the

pairing of volitional action with the word ‘against’ supports that word’s oppositional, or

targeted, definition.” Borden, 593 U.S. at 430–31 (plurality opinion) (emphasis added).

Justice Kagan explained, “The phrase ‘against another,’ when modifying the ‘use of force,’

demands that the perpetrator direct his action at, or target, another individual,”

(emphasis added) — in other words, “the statutory language Congress enacted requires that

force be directed at, rather than just happen to hit, an object,”

(emphasis added).

Based on this, the plurality concluded that such conduct requires an application of force

with a mens rea more culpable than recklessness or negligence.

.

Writing separately in support of the Court’s judgment, Justice Thomas rested his

analysis on the phrase “use of physical force,” reasoning that “that phrase has a well-

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understood meaning applying only to intentional acts designed to cause harm.” Borden,

(Thomas, J., concurring in the judgment) (emphasis added) (cleaned up).

Thus, regardless of the reasoning, to qualify as a “violent felony” under ACCA’s

elements clause, a crime must, under Borden, be committed with a mens rea more culpable

than mere recklessness or negligence. Therefore, the question presented here is whether

Maryland robbery in 1974 and 1975 could be committed recklessly or negligently so as to

disqualify Shanton’s Maryland robbery convictions from being violent felony predicates

under ACCA.

Maryland’s robbery statute provides simply that “[a] person may not commit or

attempt to commit robbery” and that a person convicted of robbery is subject to up to 15

years’ imprisonment.

. Until 2000, robbery was a

common law crime, but when the Maryland General Assembly codified it as a statutory

offense, it specified that robbery would “retain[] its judicially determined meaning,”

subject to two codified exceptions that are not applicable here.

(e); see also Dickson v. United States,

(Md. 2022). Because

Shanton’s Maryland robbery convictions occurred before this codification, the elements of

his crimes were solely those that had been judicially determined.

The Supreme Court of Maryland has long provided a consistent definition of

robbery that tracks the traditional elements of robbery at common law. Specifically,

Maryland robbery is “the felonious taking and carrying away of the personal property of

another, from his person or in his presence, by violence, or by putting him in fear.” Coles

v. State,

(Md. 2003) (citation omitted); see also Foster v. State, 464

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, 997–98 (Md. 1983); William L. Clark & William L. Marshall, Law of Crimes

§ 12.09, at 781 (6th ed. 1952) (defining common-law robbery as “the felonious taking and

carrying away of the personal property of another, from his person or in his presence, by

violence, or by putting him in fear”). Thus, as the Maryland Supreme Court has recently

explained, “the essence of Maryland robbery is the use of ‘violence’ or ‘putting in fear’ to

take property from another’s ‘person.’” Dickson,

(emphasis added). This

formulation, which is also the common-law formulation, parrots in material respect

ACCA’s definition of “violent felony,” which requires proof that the defendant used,

attempted to use, or threatened to use “physical force against the person of another.”

(e)(2)(B)(i) (emphasis added). Consistent with ACCA, Maryland’s robbery

formulation couples the “use” of force, which requires volitional conduct, with a taking

from another’s person, which is conduct consciously directed at the person. And volitional

conduct directed at another is plainly indicative of a mens rea more culpable than

recklessness or negligence, as the Supreme Court held in Borden. See 593 U.S. at 431–32

(plurality opinion);

(Thomas, J., concurring in the judgment). Borden thus does

not undermine our prior decisions holding that Maryland robbery is a violent felony.

Moreover, because Maryland robbery has been judicially defined to be the same as

the traditional common-law definition of robbery, the Supreme Court’s decision in

Stokeling v. United States,

(2019), addressing common-law robbery is

pointedly informative. The Supreme Court there recognized that common-law robbery

was “the quintessential ACCA-predicate crime.”

. The Stokeling Court explained

that “at common law, an unlawful taking was merely larceny unless the crime involved

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violence.”

(emphasis added) (cleaned up). Thus, what traditionally separated

larceny from common-law robbery was that the latter required the government to prove

that the defendant used, or threatened to use, force against the person of another. See

(explaining that “common-law authorities” recognized that for the crime to constitute

robbery, “[s]ufficient force must be used to overcome resistance” and that “[i]f there is any

injury to the person of the owner, or if he resists the attempt to rob him, and his resistance

is overcome, there is sufficient violence to make the taking robbery, however slight the

resistance” (quoting W. Clark & W. Marshall, Law of Crimes 553 (H. Lazell ed., 2d ed.

1905))). In explaining the force required for common-law robbery, the Court indicated

that it involves “a violent act directed against a robbery victim.”

(cleaned up);

see also

at 77–79. And this is identical to Borden’s recognition that a crime only

qualifies as a violent felony under ACCA’s elements clause if the defendant must “direct

his action at, or target, another individual,” thus requiring a mens rea more culpable than

mere recklessness or negligence.

(plurality opinion).

The Stokeling Court also observed that when Congress enacted the current version

of ACCA’s definition of “violent felony,” it did so against this background understanding

of common-law robbery. 586 U.S. at 79–80. Thus, as Stokeling emphasized, “robbery has

always been within the category of violent, active crimes that Congress included in

ACCA.” Id. at 83 (cleaned up).

At bottom, we can safely conclude that the mens rea of common-law robbery,

including Maryland robbery, well matches the mens rea of a violent felony under ACCA.

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Shanton argues nonetheless that the mens rea contained in common-law robbery,

and thus Maryland robbery, is restricted to the larceny element of the crime, not the

violence element. He relies on Maryland cases that have held that the “intent to steal” must

exist “at the time of the taking,” but that “[i]f the force precedes the taking, the intent to

steal need not coincide with the force.” Stebbing v. State,

(Md. 1984).

Thus, as Stebbing recognized, “[i]t is sufficient if there be force followed by a taking with

intent to steal as part of the same general occurrence or episode.” Id.; see also Metheny v.

State,

, 1104–05 (Md. 2000). Relying on the Maryland Supreme Court’s

recognition that the force in a robbery offense can occur before the defendant has

formulated the intent to steal, Shanton theorizes that a person could commit Maryland

robbery by injuring someone negligently or recklessly and then, instead of offering to help,

exploiting the situation to steal property from the person he has just injured.

Shanton, however, reads too much into Stebbing and Metheny. In both cases, the

defendant intentionally strangled a victim and then, once the victim had been killed,

intentionally took personal property from the victim’s body. The Maryland Supreme Court

recognized that this conduct supported a robbery conviction, explaining in Stebbing that

even if “the intent to steal was not formed until after the force had resulted in [the victim’s]

death, the taking and asportation of [the victim’s] belongings would still be robbery.”

. The court supported its ruling with a survey of cases from a variety of

jurisdictions, from which it concluded that its holding represented the majority rule. And

in all the decisions the court cited for support, the defendant had intentionally applied force

against the victim and then, once the victim was injured, decided to steal property from

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him or her. See

at 914–15. The Stebbing court also quoted with approval a passage

from LaFave’s criminal law treatise that explored whether “robbery require[s] that the

defendant’s violence-or-intimidation acts be done for the very purpose of taking the

victim’s property, or [whether it was] enough that he takes advantage of a situation which

he created for some other purpose,” before indicating that “[t]he great weight of authority

favors the latter view.”

(emphasis added) (quoting Wayne R. LaFave & Austin W.

Scott, Jr., Criminal Law § 94, at 701–02 (1972)). Read as a whole, then, Stebbing indicates

that while the defendant can injure the victim before forming the intent to steal, the crime

of robbery is committed only if the injury was also intentionally inflicted, as distinct from

being recklessly or negligently caused.

This reading also finds support in Metheny, where the Maryland Supreme Court

explained and applied the Stebbing holding. In that case, the court stated that the rule

announced in “Stebbing [was] an exception to the general requirement that the intent to

commit a crime [e.g., the intent to steal] accompany a forbidden act” but that the “exception

[was] justified, in part, because a felon who applies force to neutralize a victim should be

held responsible for that action if the felon later decides to take advantage of the situation

by robbing the victim.” Metheny,

(emphasis added). As the Metheny

court emphasized, the exception applies only when the defendant “takes advantage of a

situation which he created for some other purpose.”

(emphasis added) (cleaned up).

Thus, like Stebbing, Metheny also indicates that the force must have been intentionally

employed, as well as the property intentionally taken, for the crime to constitute robbery.

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Were there any doubt, the Maryland Supreme Court’s recent decision in Dickson

laid it to rest. Summarizing decades of its robbery jurisprudence, the Maryland Supreme

Court agreed with the government “that the use or threatened use of force against the

person is an essential element of every robbery under Maryland law.” Dickson,

(emphasis added). And, of course, as explained in Borden, force is not used against

a person if it is applied with mere negligence or recklessness. 593 U.S. at 430–32 (plurality

opinion).

To circumvent this conclusion, Shanton attempts to construct his own definition of

robbery using isolated clips from Maryland opinions. But his definition would contradict

the Maryland Supreme Court’s own clear definition of robbery. He begins with a quotation

from Snowden v. State that described robbery as “a larceny from the person accomplished

by either an assault (putting in fear) or a battery (violence).”

(Md.

1991). And building on it, he argues that because a battery can be committed with a

negligent or reckless mens rea, see Duckworth v. State,

(Md. 1991), it

follows that robbery can also be so committed. Yet, as we explained in Martin Johnson,

rejecting a very similar argument, this contention “overlooks the parenthetical ‘(violence)’

in Snowden, which confirms that Maryland would punish larceny accomplished by violent

physical contact as robbery, but not . . . larceny accomplished by offensive, [but] less than

violent, physical contact.”

. While the Snowden court did indeed refer to

robbery as being larceny plus assault or battery, it further defined the battery component

more narrowly than Maryland’s common-law battery by adding the limiting word

“violence.” And the Maryland Supreme Court further made clear that such violence refers

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to the “use of force against the person.” Dickson,

(emphasis added). This

formulation mirrors exactly ACCA’s definition of “violent felony” and precludes

Shanton’s premise that Maryland robbery can be committed by injuring someone

negligently or recklessly and thereafter stealing their property.

At bottom, consistent with our prior decision in Martin Johnson, Maryland robbery

remains a quintessential violent felony under ACCA, see Stokeling,

, and

Borden only confirms this conclusion.

The district court’s judgment denying Shanton’s § 2255 motion is accordingly

affirmed.

AFFIRMED

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