Stokeling v. United States: Force Sufficient to Overcome Resistance is "Physical Force" Under ACCA


Introduction: Stokeling v. United States, 139 S.Ct. 544 (2019)

On January 15, 2019, a divided Supreme Court published an important decision in Stokeling v. United States, 139 S.Ct. 544 (2019) [PDF version]. The question before the Court was whether a conviction in Florida for robbery in violation of Fla. Stat. 812.13(1) (1995) was a “violent felony” as defined in the Armed Career Criminals Act (ACCA), which is a Federal sentence enhancement statute found at 18 U.S.C. 924(e)(2)(B)(i). The majority held that the Florida conviction was a qualifying predicate offense because it included as an element that the perpetrator must use force sufficient to overcome a victim's resistance. In so doing, the Court affirmed the decision of the United States Court of Appeals for the Eleventh Circuit in United States v. Stokeling, 684 Fed.Appx. 870 (Mem) (11th Cir. 2017). Although the case itself was not an immigration matter, the decision will likely affect how courts adjudicate cases where an alien is charged with having been convicted of a crime of violence.

In this article, we will examine the opinion of the Court, the dissenting opinion, and what the new precedent may mean for immigration law going forward.

Opinion of the Court

The opinion of the Court was authored by Justice Clarence Thomas, who wrote for a five-Justice majority. He was joined by Justice Stephen Breyer, Justice Samuel Alito, Justice Neil Gorsuch, and Justice Brett Kavanaugh.

Factual and Procedural History

The respondent, Denard Stokeling, pled guilty in federal court to possessing a firearm and ammunition after being convicted of a felony, in violation of 18 U.S.C. 922(g)(1). The probation office recommended that Stokeling's sentence be enhanced under 18 U.S.C. 924(e), an ACCA provision. 18 U.S.C. 924(e) provides that an individual who violates 18 U.S.C. 922(g) and who has three previous “violent felony” convictions shall be sentenced to a term of imprisonment not less than 15 years.

18 U.S.C. 924(e) defines the term “violent felony” as “any crime punishable by imprisonment for a term exceeding one year” that:

(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 use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

Quoting 18 U.S.C. 924(e)(2)(B)

(Although not at issue in the instant case, it is worth noting that the Supreme Court ruled that the “residual clause” in 18 U.S.C. 924(2)(B)(ii), “or otherwise involves conduct that presents a serious potential risk of physical injury to another,” was unconstitutionally void for vagueness. Johnson v. United States, 135 S.Ct. 2551 (2015) [PDF version] [see section]).

Stokeling argued that 18 U.S.C. 924(e)(2)(B) did not apply in his case because one of his purported predicate offenses, a 1997 Florida robbery conviction, did not fall under 18 U.S.C. 924(e)(2)(B)(i). Specifically, he argued that the Florida robbery conviction did not have “as an element the use, attempted use, or threatened use of physical force.”

Justice Thomas explained that Florida law defines robbery as “the taking of money or other property … from the person or custody of another … when in the course of the taking there is the use of force, violence, assault, or putting in fear.” Fla. Stat. 812.13(1) (1995). In Robison v. State, 692 So.2d 883, 886 (1997), the Florida Supreme Court held that the “use of force” required to commit “robbery” under Florida law requires “resistance by the victim that is overcome by the physical force of the offender.”

The case was tried in the United States District Court for the Southern District of Florida. There, the District Court looked beyond the language of the statute of conviction to the facts of Stokeling's robbery conviction. At the sentencing hearing, the District Court concluded that although Stokeling “grabbed [the victim] by the neck and tried to remove her necklaces” as she “held onto” them, this did not meet the “violent felony” threshold in 18 U.S.C. 924(e). (Internal citations omitted.) Accordingly, the District Court concluded that sentence enhancement was not warranted, and sentenced Stokeling to less than half of the 15-year mandatory minimum which would have been required.

The Government appealed from the District Court's sentencing determination to the Eleventh Circuit. The Eleventh Circuit reversed the District Court's decision after finding that the judge had erred in making a factual determination about the level of force involved in Stokeling's particular robbery offense. The Eleventh Circuit also rejected Stokeling's argument that the language of Florida's robbery statute does not categorically require sufficient force to be a “violent felony” under the elements clause of 18 U.S.C. 924(e). In short, the Eleventh Circuit concluded that any Florida robbery conviction under the provision is a “violent felony” under the ACCA.

Issue Before the Supreme Court

The Supreme Court agreed to hear Stokeling's appeal from the Eleventh Circuit decision. The issue before the Court was whether the “force” required to commit robbery under Florida law meets the threshold for “physical force” under the elements clause of 18 U.S.C. 924(e). For the forthcoming reasons, a five-Justice majority of the Supreme Court concluded that it did.

Understanding “Force,” “Violence,” and “Physical Force”

The original version of the ACCA provision in question prescribed a 15-year mandatory minimum sentence for individuals with certain firearms convictions after three prior convictions “for robbery or burglary.” 18 U.S.C. App. 1202(a) (1982 ed., Supp. II). Under that statutory scheme, amended in 1984, “robbery” was defined as “any felony consisting of taking of the property of another from the person or presence of another by force or violence.

In Samantar v. Yousuf, 560 U.S. 305, 320, n.13, 130 S.Ct. 2278 (2010) [PDF version], the Court held that “Congress 'is understood to legislate against a backdrop of common-law principles.'” Accordingly, Justice Thomas found that the original ACCA, referenced above, defined “robbery” as requiring the use of “force or violence” with “clear reference to the common law of robbery.”

Citing to numerous examples in the decision, Justice Thomas found that common law robbery required the unlawful taking of property using violence. (Internal citation omitted.) Justice Thomas noted that the common-law tended to use the terms “force” and “violence” interchangeably. He added, with reference to contemporary legal and colloquial dictionaries, that this overlap “is reflected in modern legal and colloquial usage of these terms.” In the common-law, “larceny” was distinguishable from “robbery” in that it was the unlawful taking of property without force or violence.

The common-law did not, according to Justice Thomas, “distinguish between gradations of violence.” William Blackistone took the position that in any case where an unlawful taking is achieved by overcoming a victim's resistance, “however slight” the resistance, it necessarily involved violence. (Internal citation omitted.) In another example noted in the decision, “'Under the common law, it was robbery 'to seize another's watch or purse, and use sufficient force to break a chain or guard by which it is attached to his person, or to run against another, or rudely push him about, for the purpose of diverting his attention and robbing him.' W. Clark & W. Marshall, Law of Crimes 554 (H. Lazell ed., 2d ed. 1905).” Justice Thomas cited to numerous other common-law authorities which supported the idea that any unlawful taking which involved overcoming the resistance of the victim necessarily involved force or violence, and was therefore a common law robbery.

The relevant provisions of the ACCA were amended to their current versions in 1986. The current version of 18 U.S.C. 924(e) does not specifically include “robbery” and “burglary.” Instead, the 1982 statute was replaced with the current “elements clause,” where, instead of listing specific common law offenses, the amended statute covered any offense which has as an element “the use, attempted use, or threatened use of physical force.

In Hall v. Hall, 138 S.Ct. 1118, 1128 (2018) [PDF version], the Supreme Court held that “[I]f a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it.” (Internal citation omitted.) Writing for the majority, Justice Thomas applied the principle articulated in Hall to the statute in the instant case. He stated that by maintaining the term “force” from the 1982 version of the statute in the 1986 and current version, “Congress made clear that the 'force' required for common-law robbery would be sufficient to justify an enhanced sentence under the new elements clause.” He further noted the “striking similarity” between the “force or violence” required for “robbery” in the 1984 statute and the “physical force” required in the 1986 elements clause.

Justice Thomas found that the majority's reading of “physical force” was supported by state definitions of “robbery” extant in 1986. In 1986, 43 states defined nonaggravated robbery as requiring force that overcomes a victim's resistance. Because of this, most state robbery statutes would be excluded from the ACCA's elements clause under Stokeling's suggested reading of the statute. Justice Thomas added that Stokeling's preferred reading would in fact disqualify more than most basic robbery statutes from the ambient of 18 U.S.C. 924(e). His reading would exclude any crime that includes as an element the force required to commit basic robbery. Justice Thomas noted that Stokeling's counsel conceded in oral arguments that armed robbery under Florida law would not fall under 18 U.S.C. 924(e) under Stokeling's interpretation since it required the same element of “force” as basic robbery under Florida law.

Justice Thomas explained that the Supreme Court has “repeatedly declined to construe [statutes] in a way that would render [them] inapplicable in many states.” The Court declined to construe “physical force” in a way that would render 18 U.S.C. 924(e) inapplicable to a large number of state convictions.

Defining “Physical Force”

In Johnson v. United States, 559 U.S. 133, 138, 140 (2010) [PDF version], the Supreme Court held that the “actua[l] and intentiona[l] touching” required to commit common-law misdemeanor battery did not constitute the “degree of force” necessary to qualify as a “violent felony” under the ACCA's elements clause at issue in the instant case. The Johnson Court concluded that “physical force” in the ACCA's elements clause encompassed only “violent force-that is, force capable of causing physical injury or pain to another person,” and therefore excluded the “slightest offensive touching” which would have been sufficient to trigger a conviction under common-law misdemeanor battery. Id. at 140.

Stokeling argued that Johnson necessitated the conclusion that his Florida robbery conviction — which required, at a minimum, sufficient force to overcome the victim's resistance — was not a “violent felony” under the ACCA's elements clause. However, Justice Thomas and the majority disagreed, finding that the statute at issue in Johnson was distinguishable in pertinent respects.

Justice Thomas explained that the degree of force required for misdemeanor battery “does not require resistance or even physical aversion on the part of the victim; the 'unwanted' nature of the physical contact itself suffices to render it unlawful.” (Internal citations omitted.) Conversely, Justice Thomas reasoned that the level of force necessary to overcome a victim's resistance “is inherently 'violent in the sense contemplated by Johnson,” adding, with citation to Johnson, that it “suggest[s] a degree of power that would not be satisfied by the merest touching.” Id. at 139. Justice Thomas reasoned that “robbery that must overpower a victim's will-even a feeble or weak-willed victim-necessarily involves a physical confrontation and struggle.” Furthermore, the majority added that “Johnson itself relied on a definition of 'physical force' that specifically encompassed robbery: '[f]orce consisting in a physical act, esp. a violent act directed against a robbery victim.'” Id. at 139. (Internal citations omitted.)

Stokeling argued that the Court should adopt a standard that “physical force” requires force that is “reasonably expected to cause pain or injury.” Justice Thomas and the majority rejected this invitation for several reasons. First, the majority took the position, for reasons addressed earlier in the decision, that this heightened standard “is inconsistent with the degree of force necessary to commit robbery at common law.” Second, the Johnson Court explicitly declined to adopt this standard, instead adopting the lower standard of force that is “capable” of causing pain or injury. Third, Stokeling's standard would be difficult, if not impossible, for Courts to apply. Justice Thomas explained that “[e]valuating the statistical probability that harm will befall a victim is not an administrable standard under our categorical approach.”

Stokeling ventured one additional argument appealing to the Supreme Court's decision in United States v. Castleman, 134 S.Ct. 1405 (2014) [PDF version]. Stokeling suggested that Castleman should be read as excluding offenses which may involve the minor use of force from the ambient of “violent felonies.” However, Justice Thomas and the majority stated that the Castleman Court took no position on “whether, under Johnson, conduct that leads to relatively minor forms of injury-such as 'a cut, abrasion, [or] bruise' — 'necessitate[s]' the use of 'violent force.'” Id. at 182. However, writing separately in Castleman, Justice Antonin Scalia took the position that minimal force such as “hitting, slapping, shoving, grabbing, pinching, biting, and hair pulling” fell under the definition set forth in Johnson. Id. at 182. Justice Scalia wrote that these types of force were distinguishable from “mere offensive touching” because they were “capable of causing physical pain or injury.” Id. Justice Thomas and the majority stated that the understanding of “physical force” articulated by Justice Scalia in Castleman was “consistent with our holding today that force is 'capable of causing physical injury' within the meaning of Johnson when it is sufficient to overcome a victim's resistance.”

Applying Standard to Stokeling's Statute of Conviction

The majority moved to assess whether the Florida robbery statute of conviction “has as an element the use, attempted use, or threatened use of physical force against the person of another.” For the forthcoming reasons, the majority concluded that it did.

Fla. Stat. 812.13(1) defined robbery as “the taking of money or other property … from the person or custody of another, … when in the course of the taking there is the use of force, violence, assault, or putting in fear.” As we discussed earlier, the Florida Supreme Court held that the statute requires “resistance by the victim that is overcome by the physical force of the offender.” Robinson v. State, 692 So.2d 883, 886 (1997). It held that mere “snatching” of property from another would not meet the standard. Id.

The parties to the instant proceedings cited several Florida cases applying the standard articulated in Robinson. In Sanders v. State, 769 So.2d 506, 507-509 (Fla.App.2000), it was held that peeling a victim's fingers back to steal money is robbery under Florida law. However, snatching money from a victim's hand is not robbery under Florida law. Goldsmith v. State, 573 So.2d 445 (Fla.App.1991). In Walker v. State, 546 So.2d 1165, 1166-67 (Fla.App.1989), it was held that snatching a gold chain is not robbery simply because a victim “fe[els] his fingers on the back of his neck.” However, Justice Thomas noted that in 1989, “Florida enacted a separate 'sudden snatching' statute that proscribes this latter category of conduct…”

Justice Thomas and the majority applied the categorical approach to the Florida robbery statute, assessing whether the minimum conduct proscribed by the statute would constitute a “violent felony” under the ACCA's elements clause. The majority held that, “[b]ecause the term 'physical' force in the ACCA encompasses the degree of force necessary to commit common-law robbery, and because Florida robbery requires that same degree of 'force,' Florida robbery qualifies as an ACCA-predicate offense under the elements clause.”


The majority concluded that “physical force,” defined in Johnson as “force capable of causing physical pain or injury,” “includes the amount of force necessary to overcome a victim's resistance.” Because this was the minimum force necessary to commit “robbery” under Florida law, the Court concluded that Stokeling's conviction was a “violent felony” under the ACCA's element's clause. Accordingly, the Supreme Court affirmed the judgment of the Eleventh Circuit.

Dissenting Opinion

The dissenting opinion was authored by Justice Sonia Sotomayor. She was joined in dissent by Chief Justice John Roberts, Justice Ruth Bader Ginsburg, and Justice Elena Kagan. The dissenters argued that the minimum level of force required for robbery in Florida did not meet the minimum threshold for “violent force” established in Johnson. Accordingly, they would have reversed the judgment of the Eleventh Circuit and ruled that Stokeling's conviction was not a predicate offense under the ACCA's elements clause. We will examine the dissent in brief in the following sub-sections.

Majority Misapplied Johnson

Justice Sotomayor suggested that the majority did not correctly assess how Johnson defined “physical force.” She noted that the Johnson opinion stated that “physical force” connotes force that is “violent,” “substantial,” and “strong.” Johnson, at 140.

The dissent argued that the majority's parsing of the phrase “capable of causing physical pain or injury” in Johnson was erroneous. Justice Sotomayor reasoned that the majority's reading of the phrase would have encompassed minimal contact such as a “ta[p] … on the shoulder without consent.” Id. at 138. In theory, the dissent noted that a tap on the shoulder could cause physical pain or injury. However, she took the position that this was not the type of potentiality required under Johnson. Rather, the dissent stated that Johnson qualified “capable of causing physical pain or injury” in the sense of an injury that could be caused by a “strong” or “substantial” degree of force. Id. at 140.

Based on the dissent's reading, the Florida robbery statute encompassed force outside of the scope of Johnson. It took the position that “force sufficient to overcome a victim's resistance … can mean essentially no force at all.” To this effect, the dissenters found that a conviction based on peeling a victim's finger's back to take money would not meet the standard in and of itself, running contrary to the majority's conclusion. Robinson, 692 So.2d, at 887 n.10 suggested that a case where a pickpocket who attempts to pull free of a victim and in so doing catches the victim's arm would constitute robbery under Florida law. The dissenters found that this was another example of a specific scenario where the level of force required for Florida robbery was below the Johnson threshold. The dissenters wrote: “By providing that '[a]ny degree of force suffices to convert larceny into a robbery,' …-and thus making robbers out of thieves who use minimal force-Florida expands the law beyond the line that Johnson drew.” (Internal citations omitted.)

Relevant Case Dealing With ACCA's Defunct Residual Clause

The dissent found the past Supreme Court decision in Begay v. United States, 533 U.S. 137 (2008) [PDF version] to be relevant. The question in Begay was whether a conviction for driving under the influence was a predicate offense under the ACCA's residual clause, which the Supreme Court struck down as unconstitutionally vague in 2015. The Court held that it was not because the DUI “reveal[ed] a degree of callousness toward risk,” but because it did not “show an increased likelihood that the offender is the kind of person who might deliberately point [a] gun and pull the trigger.” Id. at 146. Although the issue in the instant case was the ACCA's elements clause rather than the defunct residual clause, both cover predicate offenses for sentencing enhancement. Justice Sotomayor wrote that the same principles in Begay applied to the instant case: “The lower grade offenders whom Florida still chooses to call 'robbers' do not bear the hallmarks of being the kind of people who are likely to point a gun and pull the trigger…”

Rejecting Majority's Reliance on the Common Law

Justice Sotomayor disagreed with the majority's assertion that the current version of the ACCA “encompasses the degree of force necessary to commit common-law robbery.” (Citing to majority opinion.)

The dissent argued that Johnson “expressly rejected the common law's definition of force.” Rather, Justice Sotomayor wrote that Johnson ruled that the term “force” should be “give[n] … its ordinary meaning…” Johnson at 138. The Johnson Court wrote that “[a]lthough a common-law term of art should be given its established common-law meaning, we do not assume that a statutory word is used as a term of art where the meaning does not fit.” Id. at 139. The dissent argued that “slightly offensive touching,” which Johnson considered to be outside the scope of “force” in the ACCA, would fall under “force” in the common-law sense.

Justice Sotomayor faulted the majority for giving the term “physical force” “two different meanings … depending on the crime to which it is being applied.” She noted that the term may have different meanings in different statutes. Johnson itself left open the possibility that the term “physical force” may have a different meaning in a different statute. Id. at 143-44. In Castleman, the Court concluded that “physical force” had a different meaning in a statute defining a “misdemeanor crime of violence” than it had in the ACCA. However, Justice Sotomayor wrote that Johnson “did not … suggest that 'physical force' in a single clause-the elements clause-…might mean two different things for two different crimes.” Id. at 143. The dissent cited to Clark v. Martinez, 543 U.S. 371, 378 (2005) [PDF version], wherein the Court held that a single statutory word or phrase “cannot … be interpreted to do” two different things “at the same time.” The dissent concluded this section by writing that “[t]o the extent that a phrase so divided cannot stand, meanwhile, one could be forgiven for thinking that the majority, though it claims to praise Johnson, comes instead to bury it.”

Rejecting Majority's Reliance on Statutory History of the ACCA

The majority read the 1986 revision to the ACCA — which dropped the specific reference to robbery while expanding the provision with the elements clause — as incorporating the degree of force required for common-law robbery into the new elements clause. The dissenters rejected this reading.

Justice Sotomayor noted that while the phrase “robbery” was dropped from the ACCA, “burglary” was enumerated in the now-defunct residual clause of the provision. The dissent took the position that it can be inferred from the deletion of robbery from the new elements clause and its inclusion in the residual clause that Congress did not mean to maintain the standard of force required for common-law robbery in the elements clause.

The dissent acknowledged that the elements clause expanded the number of offenses covered from the 1982 version of the ACCA. However, she rejected the view that this meant that robbery was necessarily still covered by the 1986 version. As an example, Justice Sotomayor wrote: “I may wish to expand the contents of my refrigerator, but that does not mean that I will buy more of every single item that is currently in it the next time that I go shopping.”

Finally, she noted that even if Congress wanted robbery covered by the ACCA, it was generally covered by the residual clause before the Court struck that clause down in 2015.

Majority's Survey of State Statutes Was Incomplete

Justice Sotomayor took the position that the majority's survey of state robbery statutes was lacking. For example, she noted that Stokeling and the Government “c[a]me close to agreeing that at least 31 States' robbery statutes do have an overcoming-resistance requirement…” However, she noted that it was unclear “how many of those States allow minimal force to satisfy that requirement, as Florida does.” She again noted that even if Johnson is read to exclude robbery statutes such as Florida's, many of these statutes did qualify under the ACCA's defunct residual clause. Finally, while the dissent acknowledged that Florida's aggravated robbery statute would not fall under the ACCA's elements clause, it stated that this one example is not evidence that other states' aggravated robbery statutes would be similarly affected. Justice Sotomayor faulted the majority for “mistak[ing] one anomalous result for a reason not to apply Johnson as it was written.”


While Stokeling itself is not an immigration case, it may nevertheless affect how adjudicators and courts view several immigration offenses. Specifically, the language of the elements clause of the ACCA uses language that is also used in 18 U.S.C. 16(a), which provides the definition for aggravated felony crime of violence in section 101(a)(43)(F) of the Immigration and Nationality Act (INA) (INA 101(a)(43)(F) actually sweeps slightly more broadly than the ACCA's elements clause).

The 2010 Johnson decision narrowed the scope of “physical force” in the ACCA's elements clause. The differences between the majority and dissenting opinions show that there is disagreement as to whether Stokeling comports with Johnson or clashes with it. However, Stokeling's rule that the elements clause encompasses minimal force sufficient to overcome a victim's resistance provides a broad reading of “physical force.” It is possible, if not likely, that Stokeling will lead to statutes that may not have been considered categorical crimes of violence under Johnson being so considered under the new precedent. However, time will tell how Stokeling affects immigration law. While noting the similarities between the ACCA's elements clause and 18 U.S.C. 16(a), it is also important to note that they are separate statutory provisions, and there are further differences between both and section 101(a)(43)(F) of the INA, which merely relies on 18 U.S.C. 16(a) for its definition of a crime of violence.

An alien facing removal or other adverse immigration consequences based on a criminal conviction should consult with an experienced immigration attorney immediately. An experienced attorney will be able to assess the case and advise his or her client on how to proceed.

To learn more about similar issues to those discussed in this article, please see our growing sections on criminal aliens [see category] and immigration appeals [see category].