Dickson v. United States

478 Md. 255

274 A.3d 366

Joel Adam DICKSON

v.UNITED STATES of America

Misc. No. 7, Sept. Term, 2021

Court of Appeals of Maryland.

April 25, 2022

Argued by Paresh S. Patel, Asst. Federal Public Defender (James Wyda, Federal Public Defender, Greenbelt, MD), on brief, for Appellant

Argued by Jason D. Medinger, U.S. Asst. Atty. (Erek L. Barron, U.S. Atty. for the District of Maryland, Baltimore, MD), on brief, for Appellee

Argued before:^* Getty, C.J., Watts, Hotten, Booth, Biran, Gould, Lynne A. Battaglia (Senior Judge, Specially Assigned), JJ.

Biran, J.

By statute, this Court is authorized to "answer a question of law certified to it by a court of the United States or by an appellate court of another state or of a tribe, if the answer may be determinative of an issue in pending litigation in the certifying court and there is no controlling appellate decision, constitutional provision, or statute of this State." Md. Code Ann., Cts. & Jud. Proc. ("CJP") § 12-603 (2020 Repl. Vol.). The United States Court of Appeals for the Fourth Circuit has certified the following question to this Court:

Under Maryland law, can an individual be convicted of robbery by means of threatening force against property or threatening to accuse the victim of having committed sodomy?

As we explain below, the answer to that question is "No."

IBackground

Under CJP § 12-605(a), "[t]he court certifying a question of law" to this Court "shall issue a certification order." The certification order must contain "[t]he facts relevant to the question, showing fully the nature of the controversy out of which the question arose[.]" Id. § 12-606(a)(2). This Court accepts the facts provided by the certifying court. See, e.g. , Price v. Murdy , 462 Md. 145, 147, 198 A.3d 798 (2018). Thus, we adopt the following facts set forth in the certification order of the Fourth Circuit:

Joel Adam Dickson pled guilty, without a plea agreement, to possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g). In the presentence report ("PSR"), the probation officer assigned Dickson a base offense level of 20, pursuant to U.S. Sentencing Guidelines Manual § 2K2.1(a)(4)(A) (2018), determining that Dickson possessed the firearm after sustaining a felony conviction for a crime of violence, namely his 2007 Maryland robbery conviction. The PSR applied a three-level reduction for acceptance of responsibility, USSG § 3E1.1, for a total offense level of 17. With a total offense level of 17 and placement in criminal history category V, Dickson's advisory Sentencing Guidelines range was 46 to 57 months’ imprisonment. See USSG ch. 5, pt. A (sentencing table). Dickson objected to the application of USSG § 2K2.1(a)(4)(A), disputing that his robbery conviction qualified as a crime of violence, and contending instead that his base offense level should be 14 pursuant to USSG § 2K2.1(a)(6).

The district court overruled Dickson's objection and held that Maryland robbery qualified as a crime of violence for purposes of USSG § 2K2.1. There were no other objections to the PSR, and the district court adopted the Guidelines calculations therein. The district court sentenced Dickson to 57 months’ imprisonment, a term at the top of his Guidelines range. Dickson timely appealed.

The Fourth Circuit then explained why it was certifying its question concerning Maryland robbery to this Court:

Section 2K2.1(a)(4)(A) establishes a base offense level of 20 for an offense involving unlawful possession of firearms or ammunition if the defendant committed the offense after sustaining a felony conviction for a "crime of violence." The Guidelines define a "crime of violence," in relevant part, as any crime punishable by more than a year in prison that:

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another ["the force clause"], or

(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, [or] extortion ["the enumerated offenses clause"].

USSG § 4B1.2(a) ; see USSG § 2K2.1 cmt. n.1 (referencing definition of "crime of violence" in USSG § 4B1.2 ).

Citing decades-old case law from the Court of Special Appeals of Maryland, Dickson argues on appeal that Maryland robbery does not qualify as a crime of violence for purposes of USSG § 2K2.1(a)(4)(A) under either the force clause or the enumerated offenses clause. In Giles v. State , the Court of Special Appeals of Maryland stated in dicta that achieving a taking through instilling a fear of injury to property, such as "a threat to burn down a house," is sufficient to qualify the taking as robbery. , 261 A.2d 806, 807-08 (Md. Ct. Spec. App. 1970). The Court of Special Appeals of Maryland further stated that instilling a fear of injury to character or reputation generally is not sufficient to qualify a taking as robbery, but that:

If a man threatens to accuse another of an unnatural crime, sodomy, and thereby obtains property from him, the law regards it as robbery because this offense is so loathsome that the fear of loss of character from such a charge, however unfounded it may be, is sufficient to reasonably induce a man to give up his property.

Id . at 808 n.1 (internal quotation marks omitted). The Court of Special Appeals of Maryland has since twice cited Giles in dicta for the proposition that robbery includes a taking accomplished by means of instilling in the victim fear of injury to property. See Douglas v. State , , 267 A.2d 291, 295 (Md. Ct. Spec. App. 1970) ; Coles v. State , 2002 WL 1579567, at * 8 (Md. Ct. Spec. App. Apr. 19, 2002) (unpublished).

If taking by means of instilling fear through threatening force against property or threatening to accuse the victim of sodomy qualifies as Maryland robbery, then Dickson is correct that Maryland robbery does not qualify as a crime of violence under the force clause, because such an offense does not require "the use, attempted use, or threatened use of physical force against the person of another." USSG § 4B1.2(a)(1) (emphasis added). To decide whether Maryland robbery aligns with robbery under the enumerated offenses clause, we first consider the generic definition of robbery and then determine whether Maryland robbery is a categoric match to that offense. United States v. Fluker , 891 F.3d 541, 547 (4th Cir. 2018). We define generic robbery as "the misappropriation of property under circumstances involving immediate danger to the person." United States v. Green , 996 F.3d 176, 181 (4th Cir. 2021) (internal quotation marks omitted). If a taking by means of instilling fear by threatening force against property or threatening to accuse a victim of sodomy qualifies as Maryland robbery, then this state offense does not qualify as a crime of violence under USSG § 4B1.2(a)(2).

We have found no Court of Appeals of Maryland decisions addressing whether Maryland robbery may be accomplished through threatening force against property or by threatening to accuse the victim of having committed sodomy. We therefore respectfully request that the certified question be answered.

IIStandard of Review

When answering a certified question of law, this Court determines only questions of Maryland law, not questions of fact, and we confine our legal analysis and final determinations of Maryland law to the questions certified. United Bank v. Buckingham , 472 Md. 407, 421, 247 A.3d 336 (2021) ; Fangman v. Genuine Title, LLC , 447 Md. 681, 690-91, 136 A.3d 772 (2016). Indeed, we "may go no further than the question certified." Price , 462 Md. at 147, 198 A.3d 798 (quoting AGV Sports Grp., Inc. v. Protus IP Solutions, Inc. , 417 Md. 386, 389 n.1, 10 A.3d 745 (2010) ). As we are deciding a question of law, and are not reviewing the decision of a lower court, our analysis necessarily is de novo .

IIIDiscussion

Article 5 of Maryland's Declaration of Rights provides that "the Inhabitants of Maryland are entitled to the Common Law of England ... as [it] existed on the Fourth day of July, seventeen hundred and seventy-six ... subject, nevertheless, to the revision of, and amendment or repeal by, the Legislature of this State." Md. Const. Declaration of Rights Art. 5 (a)(1); see Gladden v. State , 273 Md. 383, 389, 330 A.2d 176 (1974) ("In 1776 the framers of the Constitution of Maryland adopted the common law [of England] as part of the law of this State.").

Dickson argues that, as of July 4, 1776, it was accepted in English common law that a person could be guilty of robbery if he took a victim's property not just by using or threatening to use force against the person of the victim, but also by threatening force against the victim's property or threatening to accuse the victim of sodomy. Thus, according to Dickson, these two alternative modalities of robbery became part of Maryland's common law through the incorporation of English common law as it existed on July 4, 1776. Dickson further contends that neither the General Assembly nor this Court has ever disclaimed these two modalities of robbery, and that they therefore remain part of Maryland law today.

The Government responds that there was no consensus in English common law as of July 4, 1776, that a robbery could be committed by threatening force against property or by threatening to accuse another of sodomy. But even if those modalities were part of English common law – and therefore became part of Maryland common law in 1776 – the Government argues that this Court in many opinions prior to 2000 defined robbery without mentioning force against property or accusations of sodomy, but rather only referencing the use or threatened use of force against the person. The Government observes that in 2000, the General Assembly for the first time codified a definition of robbery, providing that robbery would retain its "judicially determined meaning, except that a robbery conviction requires proof of intent to deprive another of property" and that robbery "includes...