United States District Court, W.D. Kentucky, Louisville Division
J. Hale, Judge
Hassan Henry pleaded guilty to being a felon in possession of
a firearm. (Docket No. 31; see D.N. 1) In preparing the
presentence investigation report, the U.S. Probation Office
concluded that Henry qualified as an armed career criminal
based on four of his prior convictions. Two of those
convictions were disputed: Henry argued that his convictions
for Florida robbery and Kentucky second-degree robbery were
not “violent felon[ies]” within the meaning of
the Armed Career Criminal Act (ACCA). (D.N. 33, 44) The Court
heard argument during the sentencing hearing on December 10,
2018. Consistent with its ruling on the record of that
hearing, the Court issues this Memorandum Opinion to further
explain its conclusion that the ACCA does not apply here.
[t]he term “violent felony” means any crime
punishable by imprisonment for a term exceeding one year, or
any act of juvenile delinquency involving the use or carrying
of a firearm, knife, or destructive device that would be
punishable by imprisonment for such term if committed by an
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves the use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another[.]
18 U.S.C. § 924(e)(2)(B). Because robbery is not an
enumerated offense and the statute's residual clause
(“or otherwise involves conduct that presents a serious
potential risk of physical injury to another”) has been
held unconstitutional by the United States Supreme Court,
Johnson v. United States, 135 S.Ct. 2551 (2015), only
the use-of-force prong is at issue here.
determine whether an offense “has as an element the
use, attempted use, or threatened use of physical force
against the person of another, ” the Court applies the
categorial approach, looking not to the facts underlying the
conviction but instead to the “statutory definition of
the state offense, ” as well as state courts'
interpretation of that offense. Perez v. United
States, 885 F.3d 984, 987 (6th Cir. 2018); see
Id. at 989 (examining state courts'
interpretation of New York robbery); Johnson v. United
States, 559 U.S. 133, 138 (2010) (“We are . . .
bound by the Florida Supreme Court's interpretation of
state law, including its determination of the elements of
[the Florida statute at issue].”). The Supreme Court
has explained that in the ACCA context, “the phrase
‘physical force' means violent force-that is, force
capable of causing physical pain or injury to another person.
Johnson, 559 U.S. at 140 (citation omitted); see Id.
(“Even by itself, the word ‘violent' in
§ 924(e)(2)(B) connotes a substantial degree of force.
When the adjective ‘violent' is attached to the
noun ‘felony,' its connotation of strong physical
force is even clearer.” (internal citations omitted)).
A prior conviction qualifies as a violent felony only if
“the least forceful conduct generally criminalized
under the statute . . . . involves violent physical
force.” Perez, 885 F.3d at 987. Here, neither
parties appeared to agree that Henry was convicted under Fla.
Stat. § 812.13. (See D.N. 33, PageID # 95-96; D.N. 43,
PageID # 158) At the time of Henry's conviction in 1992,
that statute defined robbery as
the taking of money or other property which may be the
subject of larceny from the person or custody of another,
with intent to either permanently or temporarily deprive the
person or the owner of the money or other property, when in
the course of the taking ...