author: WYNN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. William Andrew CLARKE, Defendant-Appellant.
    No. 15-4299
    United States Court of Appeals, Fourth Circuit.
    Argued: September 23, 2016
    Decided: November 18, 2016

      ARGUED: Joseph Douglas King, KING, CAMPBELL, PORETZ & THOMAS PLLC, Alexandria, Virginia, for Appellant. Christopher John Catizone, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF; Dana J. Boente, United States Attorney, Scott Andrew Claffee, Special Assistant United States Attorney, William Carlson, Special Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
    Before NIEMEYER, MOTZ, and WYNN, Circuit Judges.
   Affirmed by published opinion. Judge WYNN wrote the opinion, in which Judge NIEMEYER and Judge MOTZ joined.

WYNN, Circuit Judge:

A federal jury convicted Defendant William Andrew Clarke of one count of attempting to persuade minors to engage in unlawful sexual activity, in violation of 18 U.S.C. § 2422(b), and the district court sentenced • Defendant to 120 months ' imprisonment and lifetime supervised release.

On appeal, Defendant argues that the district court erred in denying his motion to suppress evidence obtained in an inventory and warrant search of his vehicle. Defendant also argues that the district court reversibly violated Federal Rule of Criminal Procedure 30(b) by refusing to provide counsel with key jury instructions before closing argument and failing to properly instruct the jury regarding the charged offense. Finally, Defendant maintains that the government did not produce evidence sufficient to support his conviction. Finding no reversible error, we affirm.

I.

While engaged in undercover child exploitation investigative work in early October 2013, Department of Homeland Security Special Agent Kevin J. Laws encountered Defendant on Family Intimacy, a social networking website centered on incest. Defendant’s Family Intimacy profile listed his experience with incest, individuals he wanted to engage in. incest with, and—most pertinent to Agent Laws’ investigation—his desire to engage in incest with minors. Going by the alias “Jaye,” Agent Laws sent Defendant a friend request, which Defendant accepted. Defendant • then messaged Agent Laws, stating that he was glad Agent Laws had reached out and noting that they lived near each other. Agent Laws messaged Defendant back, providing him. with. Agent Laws’ undercover email address so that they could communicate outside of the website.

On October 10, 2013, Defendant emailed Agent Laws and asked whether Agent Laws had experience with incest. Agent Laws, posing as the single father of two fictitious children, nine-year-old Amy and eight-year-old Mark, replied that he had molested his daughter since she was four years old.

As their conversation progressed, Defendant said that he had been looking for “likeminded” men close by. J.A. 253. Agent Laws then mentioned that although he “[did not] really play with” Mark, Mark had helped him masturbate a few times. J.A. 98, 254. Defendant responded: “OMG you have a son! We need to meet.” J.A. 98, 254.

Soon thereafter, Agent Laws invited Defendant over to his house for the weekend, asking whether Defendant would be comfortable with Agent Laws watching Amy and Mark perform sex acts on Defendant. Defendant replied that “a get together would be awesome,” and agreed to come over that weekend. J.A. 255.

Agent Laws and Defendant then moved their discussions to an online messaging service. There, Defendant further inquired into the children’s sexual experience. In particular, Defendant asked Agent Laws how he introduced the children to incest, if Agent Laws had ever “shared” the children before, and if Mark and Amy had ever engaged in any sex acts with each other. Defendant questioned Agent Laws about Mark specifically, asking how it came about that Mark helped Agent Laws masturbate, whether Mark masturbated, and whether Mark could get an erection and orgasm. Agent Laws said that he was more interested in Amy than Mark, to which Defendant replied, “[W]ell [Mark] needs me around LOL.” J.A. 265. Agent Laws asked Defendant if he would “also play with Amy.” J.A. 266. Defendant responded, “[0]f course.” J.A. 266.

Agent Laws eventually suggested that he and Defendant meet at a restaurant near Agent Laws’ house. Agent Laws and Defendant then spoke over the phone to discuss their plans for meéting and having sex with the children. Defendant asked Agent Laws what he had told the children about Defendant’s upcoming visit. Agent Laws suggested he tell the children that “Uncle Bob’s coming over.” J.A. 110. Defendant said that it would be “easier” if Agent Laws referred to him by his real name—“Andy”—when talking with the children because that would make his interactions with the children “more natural.” J.A. 110. Per Defendant’s instruction, Agent Laws reported that he told Mark and Amy that his “good friend Andy” would be coming to their house to engage in sex acts. J.A. 117, 272. During their call, Defendant also asked Agent Laws if he thought the children would talk to him over the phone and if the children were excited about meeting someone else. Agent Laws and Defendant agreed- that they would meet the next day, October 11, 2013.

On the morning of their planned meeting, Agent Laws and Defendant discussed Defendant’s upcoming visit once more over a video call. During their call, Defendant asked Agent Laws “if it was okay if [Defendant] performed oral sex on Mark and Mark performed oral sex on [Defendant], and also if [Defendant] performed oral sex on Amy.” J.A. 116. Defendant also said Agent Laws should “t[ake] the lead and t[ell] [Defendant] when to join in.” J.A. 116.

After Agent Laws and Defendant ended their video call, Agent Laws and a cover team set up surveillance at the restaurant at which he and Defendant had agreed to meet. Defendant arrived at the restaurant at approximately 1:50 P.M. Upon approaching Agent Laws’ vehicle, Defendant was arrested and interviewed.

While this interview was being conducted, Virginia State Police inventoried Defendant’s vehicle. The vehicle was subsequently towed to a Virginia State Police impound lot. The ■ government later obtained and executed a search warrant for Defendant’s vehicle. During their search of the vehicle, the government discovered lubrication, condoms,' a bag of candy, an overnight bag, and a piece of paper listing Agent Laws’ phone number and the ages of Agent Laws, Amy, and Mark.

On May 22, 2015, a jury found Defendant guilty of one count of attempted coercion and enticement of a minor in violation of 18 U.S.C. § 2422(b). The district court sentenced Defendant to 120 months imprisonment and lifetime supervised release. Defendant timely filed a notice of appeal.

On appeal, Defendant contends that the district court made four reversible errors by: (1) improperly refusing to suppress evidence obtained as a result of the purportedly unlawful searches of Defendant’s vehicle; (2) violating Rule 30(b) of the Federal Rules of Criminal Procedure by failing to inform Defendant’s counsel of its jury instructions prior to closing arguments; (3) improperly instructing the jury as to the meaning of “induce” in 18 U.S.C. § 2422(b); and (4) improperly holding that the government produced sufficient evidence to sustain Defendant’s conviction. We disagree with all of Defendant’s contentions.

II.

A.

Defendant first asserts that the district court erred in denying Defendant’s motion to suppress evidence obtained through the inventory search and subsequent warrant search of his vehicle. In particular, Defendant argues that the inventory search violated the Fourth Amendment and that the evidence obtained through the warrant search—including lubrication, condoms, and a bag of candy—should be suppressed because law enforcement officers secured the warrant based on information obtained during the allegedly unconstitutional inventory search.

In reviewing a district court’s ruling on a motion to suppress, this Court “review[s] conclusions of law de novo and underlying factual findings for clear error.” United States v. Banks, 482 F.3d 733, 738 (4th Cir. 2007) (internal quotation marks omitted). Because the district court denied Defendant’s motion to suppress, “we construe the evidence in the light most favorable to the government.” United States v. Kelly, 592 F.3d 586, 589 (4th Cir. 2010).

“The Fourth.Amendment generally requires police to secure a warrant before conducting a search.” United States v. Matthews, 591 F.3d 230, 234 (4th Cir. 2009) (quoting Maryland v. Dyson, 527 U.S. 465, 466, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999)). However, a warrantless search may be valid if the search “ ‘falls within one of the narrow and well-delineated exceptions’ to the Fourth Amendment’s warrant requirement.” United States v. Currence, 446 F.3d 554, 556 (4th Cir. 2006) (quoting Flippo v. West Virginia, 528 U.S. 11, 13, 120 S.Ct. 7, 145 L.Ed.2d 16 (1999)). It is well settled that an' inventory search is one such exception. Matthews, 591 F.3d at 234. “For the inventory search exception to apply, the search must have ‘be[en] [1] conducted according to standardized criteria,’ such as a uniform police department policy, and [2] performed in good faith.” Id. at 235 (first alteration in original) (citations omitted) (quoting Colorado v. Bertine, 479 U.S. 367, 374 n.6, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987)).

Defendant argues that the government failed to produce evidence sufficient to allow the district court to find that the inventory search was conducted pursuant to standardized criteria. The government may prove the existence 'of standardized criteria “by reference to either written rules and regulations or testimony regarding standard practices.” Id, (emphasis added) (internal quotation marks omitted). “To justify a warrantless search, standardized criteria must sufficiently limit a . searching officer’s discretion to prevent his search from becoming ⅛ ruse for a general rummaging in order to discover incriminating evidence.’ ” Id. (quoting Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990)).

Here, in ruling on Defendant’s motion to suppress, the district court considered the Virginia Department of State Police’s inventory search policy, General Order OPR 6.01 “Vehicle Impoundment and Inventory,” pursuant to which law enforcement officers conducted the search, and the standard inventory search form signed by the law enforcement officer who conducted the inventory search" of Defendant’s vehicle, which was completed in accordance with the inventory search policy. The district court did not clearly err in finding that this evidence was sufficient to establish that the inventory search was conducted pursuant to.standardized criteria, particularly since Defendant does not argue that the Virginia policy did not comply with the Fourth Amendment. Accordingly, the district court properly denied Defendant’s motion to suppress.

B.

Second, Defendant contends that the district court violated Rule 30(b) of the Federal Rules of Criminal Procedure by failing to apprise Defendant’s counsel of how it would instruct the jury before closing arguments, and that the violation resulted in actual prejudice warranting reversal of Defendant’s conviction.

Rule 30(b) of the Federal Rules of Criminal Procedure requires that a trial court “inform the parties before closing arguments how it intends to rule on the requested [jury] instructions.” Fed. R. Crim. P. 30(b). Rule 30(b) serves at least two purposes. First, by “informing] trial lawyers in a fair way what the instructions are going to be,” Rule 30(b) “allow[s] counsel the opportunity to argue the case intelligently to the jury.” United States v. Horton, 921 F.2d 540, 547 (4th Cir. 1990) (internal quotation marks omitted). Second, by informing counsel of instructions prior to closing argument, Rule 30(b) allows counsel to lodge objections so as to preserve errors for appeal and “aid the court in giving a proper charge in the first instance.” United States v. Guadalupe, 979 F.2d 790, 794 (10th Cir. 1992) (stating that Rule 30(b) contemplates the trial court “delivering] a final copy of the charge to counsel and permitting] them to raise objections before instructing the jury whether the charge is to be delivered prior to or following closing arguments”).

Here, Defendant submitted to the court the following proposed instruction regarding the requisite mens rea for the indicted offense—attempted enticement of a minor: “The government must prove that the defendant intended to transform or overcome the will of an individual .... Proof that the defendant merely believed that he was communicating with someone who could arrange an opportunity for him to engage in sexual activity ... is insufficient for a conviction/’ J.A. 51. By contrast, the government asked the court to instruct the jury that the government must prove “[fjirst, that the defendant intended to commit the. crime of coercion or enticement, of a minor to engage in sexual activity; and second, that- the defendant did an act constituting a substantial step towards the commission of that crime.” ,J.A. 49.

At the close of evidence, the court told the parties that it would first instruct the jury and then give the parties an opportunity to object at the end of instructions. Defendant’s counsel ■ asked the court if it would be using any instructions proposed by either party, stating that Defendant objected to' several of the government’s proposed instructions, particularly with regard to attempt. The court responded: “Sometimes I do and sometimes I don’t.” J.A. 186.' Defendant’s counsel then requested a copy of the district court’s instructions. The court refused the request, stating, “You’ll be able to listen and you can object when I’m finished.” J.A. 186-87. The court also refused to recite Its instructions to counsel before presenting them to the jury. Ultimately, the court did not give the instruction Defendant requested; instead, it instructed the jury that “[t]he terms persuade, induce, and entice should be given their ordinary meaning. In ordinary usage, the words áre effectively synonymous, and the idea conveyed is of one person leading or moving another by persuasion or influence as to some action or state of mind,” J.A. 217.

By refusing to, provide its instructions to counsel before closing arguments, we must hold that the district court violated Rule 30(b). This violation placed Defendant’s counsel in the difficult position of having to argue to the jury without knowing how the court would ultimately instruct the jury. Additionally, the violation deprived the parties of the opportunity to lodge objections to the proposed instructions and thereby give the court the opportunity to correct any errors before instructing the jury.

Nevertheless, although the district court violated Rule 30(b), we may reverse only if Defendant demonstrates that the violation resulted in actual prejudice. United States v. Squillacote, 221 F.3d 542, 572 (4th Cir. 2000); United States v. Burgess, 691 F.2d 1146, 1156 (4th Cir. 1982). We have not yet had the occasion to consider what constitutes prejudice when a district court violates Rule 30(b) by failing to provide counsel with jury instructions before closing arguments. However, this Court’s decision in Horton—which dealt with the related question of whether a district court reversibly erred by failing to give counsel additional time for argument after the court provided a supplemental instruction—is instructive. In Horton, we found that the .defendant was not prejudiced by the trial court’s error in allowing the parties only three minutes of additional argument after providing the jury with a supplemental instruction because “defense counsel made all the arguments essential to his case ... in his initial closing.” 921 F.2d at 547-48 (finding “the factual predicates of [the original charge and new charge] so similar that the arguments to be made against guilt are essentially the same under both theories”).

Like in Horton, Defendant fails to demonstrate actual prejudice because the district court’s error did not inhibit Defendant’s counsel from making his “essential” argument to the jury—that “the government ha[d] to prove that [Defendant] intended ... to transform the will on the part of the minor.” J.A. 205. Defendant’s counsel further explained to the jury that an intent to “arrang[e] to have sex” did not satisfy this requirement. J.A 205. These two statements reflected the instructions proposed by Defendant. Importantly, and notwithstanding the district court’s failure to notify the parties of its instructions, the instruction ultimately given by the district court reflected both governing law and the argument made by Defendant’s counsel— that the government had to prove that Defendant intended to “lead[ ] or mov[e] [a minor] by persuasion or influence” to engage in sex. J.A. 217; see infra Part II.C. Additionally, the government introduced sufficient evidence from which a jury could conclude that Defendant intended to persuade Mark and Amy to engage in sex acts, not just arrange ,sex acts. See infra Part IIJ).

Because Defendant’s counsel was able to make “all arguments essential to his case,” because those arguments reflected the instructions ultimately provided by the court, and because the government introduced sufficient evidence to convict Defendant under the correct legal standard, we conclude that the district court’s violation of Rule 30(b) did not prejudice Defendant.

C.

Defendant next argues that the district court erroneously instructed the jury on the definition of “induce” under Section 2422(b). This Court “review[s] de novo the claim that a jury instruction failed to correctly state the applicable law.” United States v. Jefferson, 674 F.3d 332, 351 (4th Cir. 2012). “In conducting such a review, we do not view a single instruction in isolation; rather we consider whether taken as a whole and in the context of the entire charge, the instructions accurately and fairly state the controlling law.” Id, (internal quotation marks omitted).

A person violates Section 2422(b) if he “knowingly persuades, induces, entices, or coerces” a minor to engage in unlawful sexual activity, or attempts to do so. 18 U.S.C. § 2422(b). Although the terms “persuade,” “induce,” and “entice” are not statutorily defined, we have found that they are “words of common usage” and have “accord[ed] them their ordinary meaning.” United States v. Engle, 676 F.3d 405, 411 n.3 (4th Cir. 2012). Moreover, these terms are “effectively synonymous,” conveying the idea “of one person leading or moving another by persuasion or influence, as to some action [or] state of mind.” Id. (alteration in original) (internal quotation marks omitted). Our interpretation of these terms accords with the statute’s intent to “criminalize[ ] an intentional attempt to achieve a mental state—a minor’s assent.” Id. at 419 (emphasis omitted) (internal quotation marks omitted).

Defendant contends that the district court failed to properly instruct the jury because it did not clarify that “arranging” or “causing”—one definition of “induce”—sexual activity with a minor was insufficient to support a conviction under Section 2422(b). Thus, Defendant argues, the district court “impermissibly broadened the definition of the requisite intent and allowed for a conviction based on insufficient evidence.” Appellant’s Br. at 28. We disagree.

In instructing the jury, the district court explained that “[t]he terms persuade, induce, and entice should be given their ordinary meaning. In ordinary usage, the words are effectively synonymous, and the idea conveyed is of one person leading or moving another by persuasion or influence as to some action or state of mind.” J.A. 217. These instructions mirror Engle almost verbatim. See Engle, 676 F.3d at 411 n.3. And, by emphasizing that the jury must find that Defendant “le[d] or mov[ed] [a minor] by persuasion or influence” to engage in sex acts, the district court’s jury instructions required the jury to find that Defendant made “an effort to alter [a minor’s] mental state,” rather than “merely convey[ing] the notion of ‘causation,’ ” as Defendant suggests. Appellant’s Br. at 26. Accordingly, we hold that the district court’s instruction fairly and accurately reflected the applicable law.

D.

Finally, Defendant argues that the district court erred in denying his motion for acquittal. In particular, Defendant maintains that the government failed to produce sufficient evidence that Defendant attempted to persuade, directly or indirectly, a minor to engage in sex acts.

“We review de novo a district court’s denial of a motion for judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure.” United States v. Green, 599 F.3d 360, 367 (4th Cir. 2010). A defendant who brings a sufficiency challenge bears a heavy burden, United States v. Palomino-Coronado, 805 F.3d 127, 130 (4th Cir. 2015), as “[a]ppellate reversal on grounds of insufficient evidence ... [is] confined to cases where the prosecution’s failure is clear,” Green, 599 F.3d at 367 (quoting Burks v. United States, 437 U.S. 1, 17, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978)) (internal quotation marks omitted). “This Court must uphold a jury’s verdict ‘if there is substantial evidence in the record to support it.’ ” United States v. Bailey, 819 F.3d 92, 95 (4th Cir. 2016) (quoting United States v. Wilson, 198 F.3d 467, 470 (4th Cir. 1999)). “In determining whether the evidence in the record is substantial, we view the evidence in the light most favorable to the government and inquire whether there is evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of [the] defendant’s guilt beyond a reasonable doubt.” Id. (quoting Wilson, 198 F.3d at 470) (internal quotation marks omitted).

A person violates Section 2422(b) if he “knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in ,. any sexual activity for which any person can be charged with a criminal offense, or attempts to do so.” 18 U.S.C. § 2422(b). To obtain a conviction under this provision, “the government must prove that the defendant: (1) used a facility of interstate commerce; (2) to knowingly entice or attempt to entice any person under the age of 18; (3) to engage in illegal sexual activity.” Engle, 676 F.3d at 411-12. If the defendant is charged with attempt, “the government must prove beyond a reasonable doubt, that (1) he had culpable intent to commit the crime and (2) he took a substantial step towards completion of the crime that strongly corroborates that intent.” Id. at 419-420. Mere preparation is insufficient to establish intent. See id. at 423.

Defendant’s sufficiency challenge requires us to determine in- what circumstances, if any, a defendant can violate Section 2422(b) without communicating directly with a minor- but instead communicating indirectly through an adult intermediary—a question that this Court has not yet had occasion to address. In enacting Section 2422(b), Congress intended “to criminalize persuasion and the attempt to persuade, not [just] the performance of the sexual acts themselves.” Id. at 419; see also United States v. McMillan, 744 F.3d 1033, 1036 (7th Cir. 2014) (“[T]he essence of [the act Section 2422(b) contemplates] is attempting to obtain the minor’s assent.”).

“One particularly effective way to persuade or entice a person to do something is to enlist the help of a trusted relative, friend, or associate.” McMillan, 744 F.3d at 1036. To that end, sexual predators can and do use adults—particularly parents, guardians, or others in positions of influence or power—to attempt to persuade minors to engage in sexual activity. See id; United States v. Nestor, 574 F.3d 159,161-62 (3d Cir. 2009). For this reason, our Sister Circuits have uniformly concluded that Section 2422(b) “extend[s] to adult-to-adult communications that are designed to persuade the minor to commit the forbidden acts.” McMillan, 744 F.3d at 1035 (collecting cases). We agree and therefore hold that “communications with an intermediary aimed at persuading, inducing, enticing, or coercing a minor to engage in sexual activity fit within [the] common understanding of a criminal attempt that is prohibited by [Section] 2422(b).” United States v. Roman, 795 F.3d 511, 517 (6th Cir. 2015) (first alteration in original) (internal quotation marks omitted).

Defendant argues that even if communications with adult intermediaries can violate Section 2422(b), ■ the government’s evidence is insufficient to establish that he attempted to persuade Mark and Amy to engage in sex acts, directly or indirectly through Agent Laws. We disagree,

The government introduced multiple pieces of evidence that, taken together, would allow a reasonable juror to conclude that Defendant intended to persuade, induce, entice, or coerce minors to engage in sex acts and took substantial steps toward doing so.

First, Defendant directed Agent Laws to use Defendant’s name when talking to the children about his upcoming visit so that Defendant’s interaction with the children would be “more natural.” J.A. 110. Accordingly, a reasonable factfinder could conclude that Defendant “attempted] to use [Agent Laws] as an intermediary to convey [a] message to the children]”—a message aimed at persuading the children to engage in sex acts. McMillan, 744 F.3d at 1036. Second, Defendant asked to speak directly to the children over the phone. Third, Defendant asked Agent Laws—an individual Defendant reasonably believed was in a position to influence and control Mark and Amy—if he could engage in sex acts with both of the children. Indeed, by telling Agent Laws he should “t[ake] the lead and t[ell] [Defendant] when to join in,” Defendant expressly relied on Agent Laws’ position of influence with Mark and Amy to convince the children to engage in sex acts. J.A. 116,

The government not only produced evidence that Defendant attempted to entice Mark and Amy indirectly through Agent Laws, but also produced evidence that would allow a reasonable factfinder to conclude that Defendant took a substantial step towards directly enticing the minors to engage in sex acts. In particular, Defendant brought candy to what he believed was a weekend visit with Mark and Amy, during which. Defendant hoped the children would engage in sex acts. A reasonable jury could have concluded that Defendant intended to use the candy to entice Mark and Amy to engage in sex acts. Because the government produced sufficient evidence that Defendant intended to persuade minors to engage in sex acts and took substantial steps towards doing so, we hold that the district court did not err in denying Defendant’s motion for a judgment of acquittal.

III.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.


source: Caselaw Access Project

author: DIANA GRIBBON MOTZ, Circuit Judge:

license: Public Domain

text:
    Richard A. PRESSL; Theresa Pressl, Plaintiffs-Appellants, v. APPALACHIAN POWER COMPANY, Defendant-Appellee.
    No. 15-2348
    United States Court of Appeals, Fourth Circuit.
    Argued: October 26, 2016
    Decided: November 21, 2016

      ARGUED: James Frederick Watson, Caskie & Frost, P.C., Lynchburg, Virginia, for Appellants. Frank Kenneth Friedman, Matthew Patrick Warren Pritts, Woods Rogers, PLC, Roanoke, Virginia, for Ap-pellee. ON BRIEF: Pavlina B. Dirom, Ca-skie & Frost, P.C., Lynchburg, Virginia, for Appellants. C. Carter Lee, Woods Rogers, PLC, Roanoke, Virginia, for Appellee.
    Before MOTZ, TRAXLER, and FLOYD, Circuit Judges.
   Vacated and remanded by published opinion. Judge MOTZ wrote the opinion, in which Judge TRAXLER and Judge FLOYD joined.

DIANA GRIBBON MOTZ, Circuit Judge:

Landowners brought this action in state court seeking a declaration of their rights to build a dock on property subject to a flowage easement. After the power company, which owns the easement, removed the case to federal court, the landowners sought to remand the case to state court. The district court denied the motion to rerñand and then dismissed the landowners’ complaint. Because the district court lacked subject matter jurisdiction, we must vacate and remand.

I.

Richard A. Pressl and Theresa Pressl own property adjacent to Smith Mountain Lake in Franklin County, Virginia. They own about two and a half acres of land sitting more than 800 feet above median sea level. The Pressls also own half an acre of adjoining land below the 800-foot elevation contour. They acquired the property subject to a flowage easement that the Pressls’ predecessors in interest granted in 1960 to Appalachian Power Company (“APCO”).

The flowage easement recites APCO’s intention to construct a dam and operate a hydroelectric power station at Smith Mountain. It provides that the elevation of the impounded waters the dam creates generally would not exceed 800 feet. The easement grants APCO the right to:

overflow and/or affect so much of said premises as may be overflowed and/or affected, continuously or from time to time in any manner whatsoever, as the result of the construction, existence, operation and/or maintenance of the aforesaid dam and/or power station, the impounding of the waters of [Roanoke] river and tributaries and/or the varying of the level of the so impounded waters by reason of the operation of said power station, including any pumping as part of such operation.

The easement also gives APCO the right to:

enter upon said premises at any time and from time to time and, at Appalachian’s discretion, to cut, burn and/or remove therefrom any and all buildings, structures, improvements, trees, bushes, driftwood and other objects and debris of any and every kind or description which are or may hereafter be located on the portion of said premises below the contour the elevation of which is 800 feet.

The easement provides that the landowners retain the right to “possess and use said premises in any manner not inconsistent with” APCO’s flowage easement, including crossing the land for recreational purposes.

After acquiring the property, the Pressls sought to construct a dock below the 800-foot elevation contour. APCO advised the Pressls that, as a condition for building the dock, they had to execute an Occupancy and Use Permit and agree to abide by its restrictions.

Balking at this requirement, the Pressls filed suit in Virginia state court, seeking a declaratory judgment that APCO’s demands violated the flowage easement. The complaint asks the court to declare “that APCO has no regulatory authority over the plaintiffs’ property which lies below the 800 foot contour beyond those rights defined by the flowage easement, the contemporaneous expressions of the parties, and vested rights to build and own structures to access Smith Mountain Lake for recreational purposes.” It further requests the court to hold that the Pressls “be allowed to use their property in any manner not inconsistent with the maintenance of a dam and hydroelectric power generation plant operated by APCO at Smith Mountain.”

APCO removed the case to the United States District Court for the Western District of Virginia. APCO asserted that the federal district court had subject matter jurisdiction because the Pressls’ property lies within the project boundary for APCO’s Smith Mountain hydroelectric project, which APCO operates under a license issued by the Federal Energy Regulatory Commission (“FERC”).

The district court agreed. It concluded that it had jurisdiction under both 28 U.S.C. § 1331 and 16 U.S.C. § 825p. The court then granted APCO’s motion to dismiss, analyzing the easement under Virginia law. The court held that the plain language of the flowage easement gave APCO the right to remove any dock built below the 800-foot elevation contour and that APCO’s exercise of that right would be in furtherance of the original purpose of the easement—to allow APCO to operate its hydroelectric project. The district court also held that the Pressls needed- to raise any complaints about APCO’s actions with FERC prior to filing suit. The Pressls timely noted this appeal.

Before us, the Pressls renew their argument that the federal district court lacked subject matter jurisdiction. We review questions as to subject matter jurisdiction de novo. Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 815-16 (4th Cir. 2004) (en banc). The party seeking to remove a case to federal court has the burden of demonstrating federal jurisdiction. Id. at 816. “If federal jurisdiction is doubtful, a remand is necessary.” Mulcahey v. Columbia Organic Chems. Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994). APCO argues that jurisdiction lies under 18 U.S.C. § 1331 and 16 U.S.C. § 825p. We consider each statute in turn.

II.

To determine whether a case “arises under” federal law for the purposes of establishing federal question jurisdiction under 28 U.S.C. § 1331, we follow the well-pleaded complaint rule. Jurisdiction exists “only when a federal question is presented on the face of the plaintiffs properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). It is not enough that there may be a defense grounded in federal law or that the complaint anticipates and rebuts such a defense. Id. at 392-93, 107 S.Ct. 2425.

In an action for declaratory judgment, however, “the federal right litigated may belong to the declaratory judgment defendant rather than the declaratory judgment plaintiff.” Columbia Gas Transmission Corp. v. Drain, 237 F.3d 366, 370 (4th Cir. 2001). Under this “coercive action doctrine,” although the declaratory judgment plaintiff does not assert a claim arising under federal law, federal question jurisdiction exists if “the complaint alleges a claim arising under federal law that the declaratory judgment defendant could affirmatively bring against the declaratory judgment plaintiff.” Id. See generally 13D Charles Alan Wright, et al., Federal Practice and Procedure § 3566 (3d ed.), West-law (database updated April 2016).

In this case, the Pressls seek a declaratory judgment that APCO does not possess rights under the flowage easement to prevent or regulate construction of a dock on their property. APCO maintains that federal question jurisdiction lies because its hypothetical coercive suit, seeking a declaration as to its rights to prevent or regulate construction or an injunction to enforce those rights, would arise under federal law.

“[T]he vast majority”'of cases arising under federal law “are those in which federal law creates the causé of action.” Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986). Cases may also arise under federal law, however, when “the vindication of a right under state law necessarily turn[s] on some construction of federal law.” Id. (quoting Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463 U.S. 1, 9, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)).

APCO admits that neither the Pressls’ complaint nor APCO’s hypothetical coercive suit alleges a federal cause of action. APCO contends that federal jurisdiction nonetheless exists because its rights under state law necessarily turn on the construction of its federal license. For a federal court to have jurisdiction in these circumstances, the federal issue must be “(1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress.” Gunn v. Minton, — U.S. —, 133 S.Ct. 1059, 1065, 185 L.Ed.2d 72 (2013); see also Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 312-14, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005). Federal jurisdiction will lie only if a case meets all four requirements. Gunn, 133 S.Ct. at 1065.

A.

i.

We first address whether this case necessarily raises a federal question. APCO emphasizes that the property subject to the flowage easement lies within the project boundary for the Smith Mountain Hydroelectric Project that APCO operates. FERC imposes certain duties on APCO for managing development and construction within the project boundary—including managing the construction of docks. APCO argues that the.Pressls’ complaint necessarily raises federal issues because it seeks a declaration that APCO does not have authority to regulate construction of a dock. According to APCO, a court must examine APCO’s authority under its federal license to adjudicate the issue. Appellee Br. at 13-15, 20-21, 25-26.

In proffering this argument, APCO misreads the Pressls’ complaint. The Pressls do not challenge APCO’s substantial duties to FERC. Nor do they dispute the extent of APCO’s authority over the property in the event the flowage easement provides APCO with sufficient property rights. '

The Pressls maintain only that APCO has not acquired the property right to constrain the Pressls’ construction of a dock. Because neither the Federal Power Act nor APCO’s FERC license provides APCO with the property rights necessary to operate the hydroelectric project, see, e.g., Appalachian Power Co., 153 FERC ¶ 61299, at ¶ 29 (Dec. 17, 2015), APCO must acquire these rights either through condemnation or contract. APCO has not (yet) condemned any of the Pressls’ land, and the Pressls maintain that the contract provision at issue here—the flowage easement—does not provide APCO with sufficient property rights. In accord with this theory, the Pressls’ complaint asserts that the “controversy between the parties regard[s] the rights granted ... pursuant to the ... flowage easement” and “averts] that the flowage easement does not give APCO the light to regulate any use which [the Pressls] may make of their property.” This controversy does not necessarily raise a federal question.

ii.

Alternatively, APCO maintains that a federal question necessarily arises in interpreting the scope of the flowage easement. It argues that its right to prevent the Pressls from building a dock derives from two easement provisions: the provision allowing APCO to “overflow and/or affect” the property “by reason of the operation of [the Smith Mountain] power station” and the provision allowing APCO to remove “any and all ... structures.” APCO asserts that, under Virginia law, a reasonableness inquiry based on the original purpose of the easement limits these broad powers. Because the purpose of the easement was to allow it to construct and operate a dam and power station, APCO contends that a court must interpret its FERC license to determine the reasonable limit of its rights under the easement. Appellee Br. at 21-22.

But a claim “necessarily depends on a question of federal law only when every legal theory supporting the claim requires the resolution of a federal issue.” Flying Pigs, LLC v. RRAJ Franchising, LLC, 757 F.3d 177, 182 (4th Cir. 2014) (quoting Dixon, 369 F.3d at 816). Accordingly, if even one theory for interpreting the flowage easement does not involve interpretation of federal law, the claim does not “arise under” federal law. Dixon, 369 F.3d at 817.

Because of this requirement, we have rejected a similar contention that interpretation of an easement necessarily depends on a question of federal law. See Columbia Gas Transmission Corp. v. Drain, 191 F.3d 552, 559 (4th Cir. 1999). There, a company regulated by FERC under the Natural Gas Act brought an action in federal court to enforce an easement for operation of a gas line. Id. at 554. Because the easement did not explicitly specify the width of the right of way, the court needed to determine what width was “reasonably necessary” under state law. Id. at 557. We explained that the determination of that question is often reached without reference to federal law or regulations. Id. at 558. Accordingly, we held that the state law easement claim did not necessarily raise issues of federal law. Id. at 559; see also Columbia Gas Transmission, LLC v. Singh, 707 F.3d 583, 589-90 (6th Cir. 2013) (holding that interpretation of an easement owned by an entity subject to FERC regulation did not necessarily raise a federal question because the obligation created by the federal regulation was just one of many factors considered in the state law inquiry).

The same analysis applies in this case. Under Virginia law, the most important factor in interpreting an easement is the language of the easement itself. Pyramid Dev., L.L.C. v. D&J Assocs., 262 Va. 750, 553 S.E.2d 725, 728 (2001) (“[W]hen the language of a deed is clear, unambiguous, and explicit,’ a court interpreting it ‘should look no further than the four corners of the instrument under review.’” (quoting Langman v. Alumni Ass’n of Univ. of Virginia, 247 Va. 491, 442 S.E.2d 669, 674 (1994))). Indeed, in holding that the easement at issue here gave APCO the right to remove any structure below the 800-foot elevation contour, the district court relied primarily on the. easement’s text. It did not need .to analyze the meaning of APCO’s license to determine the reasonable limits of the easement. The court simply noted that the original purpose of the easement was to allow APCO to operate a hydroelectric project regulated by FERC. Such tangential reference to federal law does not suffice to create “arising under” jurisdiction.

In sum, this case does not necessarily raise any federal issue.

B.

Moreover, no federal question in this case is actually disputed. There is no dispute over the validity of APCO’s federal license. Nor is there any dispute as to APCO’s obligations to FERC. The Pressls challenge only whether the flowage easement by its terms allows APCO to prevent them from building a dock. This seems a simple enough dispute,- which the district court may well have properly resolved— had it arisen under federal law. But, of course, it did not. Rather, this case presents solely a dispute as to state property law.

C.

Finally, we believe that any federal interest in interpreting the flowage easement is not substantial and that asserting federal jurisdiction over cases like this would disrupt the congressionally approved federal-state balance. State courts are just as able (perhaps more able) to interpret and enforce the property rights conveyed through instruments governed by state law.

Undoubtedly, there is a federal interest in ensuring the effective operation of hydroelectric projects. But resolving property disputes in state court does not undermine -that interest. After all, if a state court ultimately holds that APCO did not acquire all of the property rights it needs to operate the project in compliance with its license, APCO can obtain those rights through contract or through eminent domain. 16 U.S.C. § 814. Thus, a ruling against APCO in this case could not substantially affect federal interests. The interpretation of a state conveyance is a quintessential question of state property law, and Congress has limited our jurisdiction over such cases. Accordingly, we conclude that 28 U.S.C. § 1331 provides no basis for federal jurisdiction over this case.

Finally, we turn to the question of whether the exclusive jurisdiction provision in the Federal Power Act, 16 U.S.C. § 825p, provides a basis for jurisdiction. Section 825p grants federal district courts exclusive jurisdiction over “all suits in equity and actions at law brought to enforce any liability or duty created by, or to enjoin any violation of, [the Federal Power Act] or any rule, regulation, or order thereunder.” 16 U.S.C. § 825p.

Neither the Pressls’ suit seeking to define the scope of the flowage easement nor APCO’s hypothetical coercive action would be brought to “enjoin any violation of’ the Federal Power Act. As discussed above, the Pressls seek only to determine APCO’s property rights. They do not allege that APCO violated its license or its duties to FERC. And, since FERC regulates only APCO, the Pressls themselves could not violate the Federal Power Act by constructing a dock.

APCO nevertheless maintains that § 825p provides a basis for federal jurisdiction here. APCO notes that it has a duty under the Federal Power Act to manage property within the project boundary in compliance with its license. The company contends that its hypothetical suit seeking a declaratory judgment that APCO has sufficient property rights to meet its federal obligations—or a suit to enjoin the Pressls from constructing a dock—would thus be “brought to enforce [a] liability or duty created by” the Federal Power Act. The- Supreme Court’s recent decision in Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning, — U.S. —, 136 S.Ct. 1562, 194 L.Ed.2d 671 (2016), dooms this argument.

In Merrill Lynch, the Court interpreted the nearly identical “brought to enforce” language in the exclusive jurisdiction provision of § 27 of the Securities Exchange Act of 1934. The Court held that the jurisdictional test established by § 27 of the Exchange Act is the “same as the one used to decide if a case ‘arises under’ a federal law” under 28 U.S.C. § 1331. Id. at 1566. In doing so, the Court rejected.the argument that the “brought to enforce” language provides broad jurisdiction over complaints that simply mention a duty established by the federal law. Id. at 1568-69. Rather, claims are “brought to enforce” such a duty only if their “very success depends on giving effect to a federal requirement.” Id. at 1570. The Court further explained that this interpretation of the “brought to enforce” language best comports with its precedents, preserves the balancé between federal and state courts, and provides. a judicially administrate rule. Id. at 1567-68; see also Pan Am. Petroleum Corp. v. Superior Court of Del. In & For New Castle Cty., 366 U.S. 656, 664, 81 S.Ct. 1303, 6 L.Ed.2d 584 (1961).

Of particular import here, the Merrill Lynch Court expressly noted that the “brought to enforce” language in the statute before it—§ 27 of the Exchange Act— was materially indistinguishable from § 825p in the Federal Power Act, the statute on which APCO relies. The Supreme Court specifically identified § 825p as a provision with “[mjuch the same wording” as § 27 of the Exchange Act and suggested that the two provisions should be interpreted in the same way. See Merrill Lynch, 136 S.Ct. at 1568 & n.3, 1572, 1575.

Because we have held that this case does not “arise under” federal law for purposes of federal question jurisdiction under 28 U.S.C. § 1331, we must also hold that there is no basis for exclusive jurisdiction under 16 U.S.C. § 825p.

IV.

For the foregoing reasons, we vacate the judgment of the district court and remand the case.

VACATED AND REMANDED

      . The Pressls also challenge the district court's dismissal of their complaint on the merits. Because we hold that the court did not have subject matter jurisdiction, we do not reach that contention.

      . VA Timberline, L.L.C. v. Appalachian Power Co., 343 Fed.Appx. 915 (4th Cir. 2009) (per curiam), an unpublished opinion on which APCO relies, offers the company little assistance, There we upheld the grant of summary judgment to APCO on a claim involving an easement owner’s right to build a dock. But the conveyances at issue in Timberline were explicitly made subject to APCO’s FERC license "and any amendments thereof or supplements thereto.” Id. at 916. Because the plaintiffs easement only gave it the right to construct docks that complied with APCO's license, interpreting the license was necessary to resolve the case.


author: GREGORY, Chief Judge: WILKINSON, Circuit Judge,

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Kareem Antwan DOCTOR, Defendant-Appellant,
    No. 15-4764
    United States Court of Appeals, Fourth Circuit.
    Argued: September 23, 2016
    Decided: November 21, 2016

      ARGUED: Emily Deck Harrill, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Robert Frank Daley, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: William N. Nettles, United States Attorney, Columbia, South Carolina, Sean Kittrell, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee.
    Before GREGORY, Chief Judge, and WILKINSON and DIAZ, Circuit Judges.
   Affirmed by published opinion. Chief Judge GREGORY wrote the opinion, in which Judge WILKINSON and Judge DIAZ joined. Judge WILKINSON wrote a separate concurring opinion.,

GREGORY, Chief Judge:

Kareem Antwan Doctor appeals his fifteen-year sentence for unlawful possession of a firearm. The district court imposed an enhanced sentence pursuant to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), after finding that Doctor had two predicate drug offenses and one predicate violent felony. Doctor challenges the district court’s determination that his prior conviction for South Carolina strong arm robbery qualifies as a violent felony under the ACCA. Finding no error with the district court’s application of the ACCA enhancement, we affirm.

I.

In April 2012, North Charleston police officers received a call from a woman who alleged that Doctor had stolen a cell phone and was inside the residence at 5309 Alvie Street with a gun. The officers arrived on the scene and, after reading Doctor his Miranda rights, questioned him about the firearm. Doctor led the officers to a .380 caliber pistol on the couch. Doctor eventually pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

The probation officer recommended that Doctor be sentenced under the ACCA, which mandates a minimum of fifteen years’ imprisonment for a defendant who violates § 922(g) and “has three previous convictions” for a “violent felony or a serious drug offense, or both.” 18 U.S.C. § 924(e)(1). Doctor had two prior convictions for possession with intent to distribute cocaine, which he did not contest qualified as serious drug offenses, as well as a prior conviction for South Carolina strong arm robbery (“South Carolina robbery”). At sentencing, the district court held, over Doctor’s objection, that the robbery conviction was an ACCA violent felony. The district court designated Doctor an armed career criminal based on his three predicate offenses and imposed the mandatory minimum sentence of fifteen years.

II.

We review de novo whether a prior conviction qualifies as an ACCA violent felony. United States v. Hemingway, 734 F.3d 323, 331 (4th Cir. 2013). The ACCA defines “violent felony,” in pertinent part, as “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.” 18 U.S.C. § 924(e)(2)(B)(i). The issue on appeal is whether South Carolina robbery meets the definition of violent felony in § 924(e)(2)(B)(i), known as the “force clause.”

To determine whether South Carolina robbery matches this definition and can thus be used to enhance a criminal sentence, we apply the “categorical approach.” United States v. Baxter, 642 F.3d 475, 476 (4th Cir. 2011). The categorical approach directs courts to examine only the elements of the state offense and the fact of conviction, not the defendant’s conduct. Id. In conducting this analysis, “we focus ‘on the minimum conduct’” required to sustain a conviction for the state crime, United States v. Gardner, 823 F.3d 793, 803 (4th Cir. 2016) (quoting Castillo v. Holder, 776 F.3d 262, 267 (4th Cir. 2015)), although there must be a “realistic probability, not a theoretical possibility,” that a state would actually punish that conduct, id. (quoting Moncrieffe v. Holder, — U.S. —, 133 S.Ct. 1678, 1684-85, 185 L.Ed.2d 727 (2013)). We look to state court decisions to determine the minimum conduct needed to commit an offense, id, and to identify the elements of a state common law offense, Hemingway, 734 F.3d at 332. We then compare those elements to the definition of violent felony in the force clause.

In State v. Rosemond, the South Carolina Supreme Court defined robbery as the “felonious or unlawful taking of money, goods, or other personal property of any value from the person of another or in his presence by violence or by putting such person in fear.” 356 S.C. 426, 589 S.E.2d 757, 758 (2003). A defendant can thus commit robbery in South Carolina by alternative means of “violence” or “intimidation.” Id. at 758-59. When evaluating intimidation, courts ask whether an “ordinary, reasonable person in the victim’s position would feel a threat of bodily harm from the perpetrator’s acts.” Id at 759 (citing United States v. Wagstaff, 865 F.2d 626 (4th Cir. 1989)).

If either robbery by means of violence or by means of intimidation fails to match the force clause definition, the crime is not a violent felony. See Gardner, 823 F.3d at 803. Doctor offers several reasons why South Carolina robbery is not a categorical match, largely focusing on robbery by intimidation. He first contends that a robber may intimidate a victim without “the use, attempted use, or threatened use of physical force.”

A review of South Carolina law reveals, however, that intimidation necessarily involves threatened use of physical force. The South Carolina Supreme Court has indicated that a robber intimidates a victim by threatening force. See State v. Mitchell, 382 S.C. 1, 675 S.E.2d 435, 437 (2009) (stating that robbery involves either “employment of force or threat of force”) (quoting State v. Moore, 374 S.C. 468, 649 S.E.2d 84, 88 (Ct. App. 2007)). The issue, then, is whether intimidation under South Carolina law requires the force threatened to be “physical force” within the meaning of the ACCA. The Supreme Court has defined “physical force” as “violent force— that is, force capable of causing physical pain or injury to another person.” Johnson v. United States (“Johnson I”), 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). To constitute intimidation in South Carolina, a robbery victim must “feel a threat of bodily harm” based on the defendant’s acts. Rosemond, 589 S.E.2d at 759. We find that these two standards align. There is no meaningful difference between a victim feeling a threat of bodily harm and feeling a threat of physical pain or injury. See United States v. McNeal, 818 F.3d 141, 154 (4th Cir. 2016).. It follows that to constitute intimidation in South Carolina, a robbery victim must feel a threat of physical force based on the defendant’s acts. In other words, a defendant intimidates a victim by threatening physical force.

Notably, the South Carolina Supreme Court modeled its definition of intimidation in robbery cases after the one this Circuit uses in federal bank robbery cases under 18 U.S.C. § 2113(a). The Rosemond definition—whether an ordinary victim feels a threat of bodily harm from the robber’s acts—adopts and indeed cites the definition from our Wagstaff decision. Rosemond, 589 S.E.2d at 759 (citing Wagstaff, 865 F.2d at 626); see Wagstaff, 865 F.2d at 627 (“[T]aking ‘by intimidation’ under section 2113(a) occurs when an ordinary person in the teller’s position reasonably could infer a threat of bodily harm from the defendant’s acts.” (emphasis omitted) (quoting United States v. Higdon, 832 F.2d 312, 315 (5th Cir. 1987)). This Court recently confirmed in McNeal that intimidation in the context of § 2113(a) bank robbery necessarily entails a threat of violent force. 818 F.3d at 153. Because South Carolina uses effectively the same definition of intimidation that we use in § 2113(a) bank robbery cases, this holding lends persuasive support to our conclusion here .that intimidation in the context of South Carolina robbery requires the threatened use of physical force. Indeed, like the defendants in McNeal, Doctor has not “identified a single [ ] robbery prosecution where the victim feared bodily harm”—that is, was intimidated—by “something other than violent physical force.” Id at 156.

Doctor instead highlights how a defendant can effectuate a robbery with only a slight threat. He seizes on the following discussion of constructive force in the South Carolina Court of Appeals opinion in State v. Rosemond: “[r]egardless of how slight the cause creating the fear is or by what other circumstances' the taking is accomplished, if the transaction is accompanied by circumstances of terror, such as threatening by word or gesture, ... the victim is placed in fear.” 348 S.C. 621, 560 S.E.2d 636, 641 (Ct. App. 2002) (emphasis added). But whether a robber’s threat is slight does not resolve the force clause inquiry; what matters is whether, as Rose-mond explains, the threat creates a fear of bodily injury in a reasonable person. Under the right circumstances, a slight threat—“you better hand over the money, or else,” or even just a menacing stare— can communicate an intent to cause great bodily injury. Put simply, the slight or implicit nature of a threat does not render it nonviolent.

Doctor next argues that South Carolina robbery is not an ACCA violent felony because it does not match the force clause requirement that force be directed “against the person of another.” Again focusing on robbery by intimidation, he asserts that a defendant can commit the crime even where his or her threatening behavior is not specifically aimed at the victim. Doctor suggests that the facts of Rosemond illustrate that a defendant can be convicted for applying force against property rather than people.

■ The defendant in Rosemond entered a convenience store around 9:00 p.m. and, after spending a few minutes in the bathroom, immediately “went behind the counter to the register” and “glare[d]” at the store clerk who stood “just a few feet” away. 589 S.E.2d at 758, When the defendant tried and failed to open the cash register, he grabbed the “heavy” register, flipped it into the air, picked it up again, and slammed it down once more, finally popping it open. Id. at 759. The store clerk testified that she was scared by both the defendant’s glare and his slamming of the cash register. Id. at 758. The South Carolina Supreme Court upheld the defendant’s conviction, finding' that a reasonable person in the clerk’s position “would have felt a threat of bodily harm from petitioner’s acts.” Id. at 759. The court, then, did not affirm just because the clerk was generally fearful during the defendant’s assault on the cash register. It sustained the conviction after specifically finding that the defendant’s actions threatened a similar use of violent force against the clerk. Rose-mond thus confirms that a defendant’s use or threatened use of force must be directed “against the person of another.” This interpretation makes sense given that intimidation means the threatened use of physical force—a concept that, .common sense tells us, involves people. Indeed,-the very purpose of threatening physical force is to prevent a person, from resisting the taking. See Rosemond, 560 S.E.2d at 641.

Doctor also argues that South Carolina robbery is not a violent felony because it can be committed without an intentional use or threat of physical force. This position is rooted in Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), which considered whether Florida’s offense of driving .under the influence of alcohol constituted a “crime of violence” under the force clause in 18 U.S.C. § 16(a). There, the Supreme Court held that the ordinary meaning of “use .., of physical force against” a person “most naturally suggests a higher degree of intent than negligent or merely accidental conduct.” Id. at 9, 125 S.Ct. 377. Because a Florida conviction for driving under the influence could be based on negligent or accidental conduct, it lacked the level of intent needed to be a crime of violence. Id. at 9-10, 125 S.Ct. 377. We later held that, an assault conviction premised on reckless force was not a crime of violence for the same reason. See Garcia v. Gonzales, 455 F.3d 465, 468-69 (4th Cir. 2006).

South Carolina robbery incorporates the elements of larceny, which includes an intent to steal, see Broom v. State, 351 S.C. 219, 569 S.E.2d 336, 337 (2002), but it does not contain an explicit mens rea requirement as to the force or intimidation element. Doctor takes this to mean that South Carolina robbery lacks the intent requirement needed for it- to qualify as a violent felony. But he fails to cite a single case in South Carolina where a defendant negligently or recklessly used force in the commission of a robbery, or where a defendant negligently or recklessly intimidated a victim. This is unsurprising because the intentional taking of property, by means of violence or intimidation sufficient to overcome a person’s resistance, must entail more than accidental, negligent, or reckless conduct. In considering § 2113(a) bank, robbery, the Supreme -Court held that the crime requires general intent, meaning a defendant must possess “knowledge with respect to the actus reus of the crime (here, the taking of property of another by force and violence or intimidation).” Carter v. United States, 530 U.S. 255, 268, 120 S.Ct. 2159, 147 L.Ed.2d 203 (2000); see also McNeal, 818 F.3d at 155 (recognizing Carter). We see no reason why South .Carolina robbery should be viewed any differently. While hypothetical scenarios can surely, be concocted to support robbery convictions based on accidental, negligent, or reckless conduct, given the total absence of case law, there is not a realistic probability that South Carolina would punish such conduct.

Finally, Doctor- argued for the first time at oral argument that South Carolina robbery can be committed with de minimis actual force. Several courts have found that if robbery can be accomplished with minimal • actual force—grazing a victim’s shoulder while lifting a purse, for instance—the crime does not meet the phys-ieal force requirement outlined in Johnson I (“force capable of causing physical pain or injury to another person”). See, e.g., United States v. Parnell, 818 F.3d 974, 979 (9th Cir. 2016) (holding that Massachusetts armed robbery, which requires only “minimal, nonviolent force,” does not meet the physical force threshold). We reached that result in Gardner with respect to North Carolina common law robbery. Gardner, 823 F.3d at 804. In doing so, we cited the Supreme Court of North Carolina’s statement that “[although actual force implies personal violence, the degree of force used is immaterial, so long as it is sufficient to compel the victim to part with his property.” Id. at 803 (emphasis added) (quoting State v. Sawyer, 224 N.C. 61, 29 S.E.2d 34, 37 (1944)).

Here, by contrast, there is no indication that South Carolina robbery by violence can be committed with minimal actual force. As noted, South' Carolina robbery can be committed “by violence or putting [a] person in fear.” Rosemond, 589 S.E.2d at 758. Unlike the definition of North Carolina robbery, the definition of South Carolina robbery does not suggest that the degree of actual force used is “immaterial.” There is no general statement from the South Carolina Supreme Court or intermediate appellate court to that effect. And Doctor provides no examples of South Carolina cases that find de minimis actual force sufficient to sustain a conviction for robbery by violence. Therefore, there is no basis for the conclusion that South Carolina robbery can be accomplished with force below the physical force threshold. Recognizing that each “State is entitled to define its crimes as it sees fit,” McNeal, 818 F.3d at 153, South Carolina robbery differs from North Carolina robbery in this critical respect.

In sum, South Carolina has defined its common law robbery offense, whether committed by means of violence or intimidation, to necessarily include as an element the “use, attempted use, or threatened use of physical force against the person of another.” Accordingly, we conclude that Doctor’s prior conviction for South Carolina robbery qualifies as a predicate violent felony within the meaning of the ACCA.

III.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

WILKINSON, Circuit Judge,

concurring:

I am pleased to join Chief Judge Gregory’s fine opinion. It reaches the right result, and for the right reasons. The ACCA’s force clause covers acts of intimidation and a strong arm robbery is the quintessential act of intimidation—whether or not actual physical force is used. This was a point we made in United States v. McNeal, 818 F.3d 141 (4th Cir. 2016). I hope that the panel opinion will mark a turning point toward a more realistic application of the categorical approach, because all too often that approach has pushed criminal sentencing to the very last place that sentencing ought to be, that is at an untenable remove ■ from facts on ■ the ground.

As refreshing as the panel’s analysis is, I write to express a general concern that the categorical approach to predicate crimes of violence is moving beyond what the Supreme Court originally anticipated. Its overactive application is undermining the efforts of Congress, the role of district courts in sentencing, and the public’s need for a sense of basic protection against the most violent forms of criminal behavior. While it need not be discarded, the categorical approach should be adapted to return to sentencing courts a greater measure of their historical discretion.

I.

It surprises me that we have arrived at this point, because in theory, the categorical approach makes a good deal of sense. I had high hopes for it. District courts would be spared the practical difficulties of probing the underlying conduct of predicate convictions. And the approach promised to strike a balance between exempting from sentencing enhancements defendants convicted of non-violent conduct and vindicating Congress’s desire to punish the most violent recidivists. But what was fine in theory has sometimes proven to be less so in practice.

For starters, the purported administrative benefits of the categorical approach have not always worked as advertised. Judges have simply swapped factual inquiries for an endless gauntlet of abstract legal questions. Consider the decisional costs: Courts must first construe the predicate crime, which requires combing through state court decisions and “peeking]” at various documents to discern whether each statutory phrase is a separate element or merely an alternative means of satisfying the element. See Mathis v. United States, — U.S. —, 136 S.Ct. 2243, 2256-57, 195 L.Ed.2d 604 (2016). After decoding the definition of the offense, courts must then assess whether “the minimum conduct criminalized” by the statutory elements “categorically fits” within the generic “federal offense that serves as a point of comparison.” Moncrieffe v. Holder, — U.S. —, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013). But because there is no agreed-upon metric for what constitutes a match, this inquiry also involves an exhaustive review of state law as courts search for a non-violent needle in a haystack or conjure up some hypothetical situation to demonstrate that the predicate state crime just might conceivably reach some presumably less culpable behavior outside the federal generic.

The Supreme Court has sensibly cautioned judges to use common sense in applying the categorical approach and not to indulge in imaginative flights. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007). And yet the insistent injunction that we begin the inquiry with the presumption that the conviction “rested upon [nothing] more than the least of th[e] acts” criminalized, see Johnson v. United States, 559 U.S. 133, 137, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), virtually ensures that our legal imagination will be utilized to posit an outlier set of facts or scenarios. The upshot of this “counterintuitive” exercise, see Mathis, 136 S.Ct. at 2251, is that the categorical approach can serve as a protracted ruse for paradoxically finding even the worst and most violent offenses not to constitute crimes of violence.

The categorical approach, too aggressively applied, eviscerates Congress’s attempt to enhance penalties for violent recidivist behavior. The ACCA addresses the most culpable sector of the criminal population, the repeat offenders Congress found responsible for the majority of violent crimes in America. H.R. Rep. No, 98-1073, at 1-3 (1984); S. Rep. No, 98-190, at 5-6 (1983). This is no rookie class of criminals. They are the exact opposite of those first-offense or non-violent offenders who are the focus of sensible sentencing reform efforts. Doctor, for instance, has been convicted of assault and battery of a police officer, domestic violence, strong arm robbery, and a series of drug distribution offenses. This cohort of offenders are those Congress unequivocally sought to “incapacitate.” H.R. Rep. No, 98-1073, at 2; S. Rep. No. 98-190, at 9. Yet the categorical approach has too often flipped this objective on its head, facilitating a regime that ostensibly seeks every possible opportunity to eschew recidivist punishment. Whatever Congress meant when it tethered the ACCA’s sentencing enhancement to prior “convictions,” see Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), it did not pass a statute aimed at violent acts only to have patently violent acts called by some other name.

Explanations of the categorical approach repeatedly advance its sentencing windfall as a necessary consequence. It does not matter that “a sentencing judge knows (or can easily discover) that the defendant carried out [a crime of violence].” See Mathis, 136 S.Ct. at 2251. “Whether the [defendant’s] actual conduct involved such facts is quite irrelevant.” Moncrieffe, 133 S.Ct. at 1684. The reasons for this contention are well-known and understandable, but I wonder if it is sustainable over the long term to have a criminal sentencing regime so frankly and explicitly at odds with reality-

I understand that the ACCA carries a mandatory minimum term, which already strips trial courts of a portion of their ability to craft an individualized sentence. But while one may certainly object to Congress’s overuse of mandatory mínimums, it does not follow that courts should double the damage by depriving sentencing judges of an additional measure of their discretion to find facts related to predicate convictions. Many of the arguments that critics legitimately level at the overuse of mandatory mínimums can likewise be raised against the overuse of the categorical approach—each removes much needed discretion from the sentencing court.

The most aggressive applications of the categorical approach have operated as another exclusionary rule that limits the ability of courts to see beyond the judicial sanctuary and to fashion an informed sentence. Even when the record starkly reveals that the predicate crime was committed in a violent manner, violent predators are thrown in the hopper with all other offenders because judges generally may not consider any facts underlying the predicate offense. The alluring theoretical terminology of the categorical approach has too often served to isolate us in a judicial bubble, sealed conveniently off from the real-life dangers that confront American citizens in their actual lives.

' This exclusion is simply contrary to the sentencing function, which relies on district judges to consider a broad swath of information bearing on the individual defendant’s “background, character, and conduct.” See 18 U.S.C. § 3661 (2012). In fact, “[n]o limitation shall be placed” on the consideration of such information. Id. The Sixth Amendment need not bar a judge from finding what a previous crime involved or guilty plea determined. See Mathis, 136 S.Ct. at 2258 (Kennedy, J., concurring) (“Apprendi .,. does not compel the elements based approach.”). Nonetheless, with an exclusive focus on elements, we have converted traditional questions of fact into byzantine questions of law that amount almost to willful blindness to what the defendant actually did. The categorical approach thus increasingly transfers the sentencing function from the trial courts to appellate courts, a turf battle which the appellate courts may be equipped to win but at the expense of those whose ground-level view and fact-finding capacities were heretofore thought to be the heart of the sentencing function.

II.

This should not mean jettisoning. the categorical approach and its admitted advantages altogether, but rather loosening its present rigid grip upon criminal sentencing. The U.S. Sentencing Commission has already begun this process: in light of complaints that the doctrine was “cumbersome and overly legalistic,” it recently eliminated the categorical approach from many of the illegal reentry guidelines. See U.S. SENTENCING CoMM’N, AMENDMENTS TO the Sentencing Guidelines 26 (2016). As judges, there is a way to apply the categorical approach in a realistic manner that would serve its original and laudable purposes. The categorical approach need not be the exclusive standard. District courts should be free to apply it as the default inquiry, but should retain the discretion to consider the defendant’s actual conduct when it can be clearly derived from the record.

Four Justices have now expressed, albeit for varying reasons and to varying degrees, some uneasiness with aspects of the categorical approach. See Mathis, 136 S.Ct. at 2258 (Kennedy, J., concurring); id. at 2263-66 (Breyer, J., joined by Ginsburg, J., dissenting); id. at 2267-71 (Alito, J., dissenting). I recognize of course that four is not five, and we have an obligation to follow a strict elements-based inquiry so long as a majority of the Supreme Court adheres to it. The lower courts have attempted in good faith to do just that. See, e.g,, United States v. Parral-Dominguez, 794 F.3d 440 (4th Cir. 2015) (North Carolina conviction for knowingly discharging a firearm into an occupied building was not a crime of violence); United States v. Shell, 789 F.3d 335 (4th Cir. 2015) (North Carolina conviction for rape of a mentally disabled person was not a crime of violence); United States v. Torres-Miguel, 701 F.3d 165 (4th Cir. 2012) (California conviction for threatening to commit a crime “which will result in death or great bodily injury to another” was not a crime of violence); United States v. Hernandez-Montes, 831 F.3d 284 (5th Cir. 2016) (Florida attempted second-degree murder was not a crime of violence); United States v. Najera-Mendoza, 683 F.3d 627 (5th Cir. 2012) (Oklahoma kidnapping was not a crime of violence); United States v. McMurray, 653 F.3d 367 (6th Cir. 2011) (Tennessee aggravated assault was not a crime of violence); United States v. Jordan, 812 F.3d 1183 (8th Cir. 2016) (Arkansas conviction for aggravated assault creating a “substantial danger of death or serious physical injury” was not a crime of violence); United States v. Parnell, 818 F.3d 974 (9th Cir. 2016) (Massachusetts armed robbery was not a crime of violence); United States v. Cisneros, 826 F.3d 1190 (9th Cir. 2016) (Oregon first-degree burglary did not “categorically] match” generic burglary and was not a crime of violence); United States v. Madrid, 805 F.3d 1204 (10th Cir. 2015) (Texas conviction for aggravated sexual'assault of a child was not a crime of vio-lénce).

I do - not intend to fault the aforementioned eases. Whether one agrees with them or not (and I often have not), they conscientiously attempted, as they should have, to apply the categorical approach correctly. And yet hidden within their binding holdings are heinous and indisputably violent acts which sentencing courts might have found if only given the opportunity. The foregoing is no more than a smattering of cases that makes no attempt to be exhaustive, but it should serve to illustrate the windfall that many criminal defendants have ■ received from having their violent depredations on their fellow citizens obscured in what two experienced counsel have termed, perhaps too excitedly, “a morass of jurisprudential goo.” See Steven Kalar & Jodi Linker, Fed. Defenders Servs. Office, Glorious Goo: The Taylor/Shepard Categorical and Modified Categorioal Analyses 2 (2012) (“It is particularly glorious goo, because the confusion almost inevitably helps our clients.”). I acknowledge that the sentencing enterprise is a matter of endless disputation and perpetual difficulty. It is hard to get right. But the heart of the endeavor has historically been the sentencing courts’ fact-finding capability and guided legal discretion, and the rigid categorical approach to predicate crimes of violence has blown us far off course.

III.

There is a tension in the way that the Supreme Court is looking at the role of sentencing judges. One set of cases seeks to limit the fact-finding prerogative of trial courts, see Descamps 133 S.Ct. at 2283; Moncrieffe, 133 S.Ct. at 1684, while another seeks to expand it, see United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (holding the Sentencing Guidelines advisory); Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) (holding district court sentencing generally reviewable under an abuse of discretion standard). Yet although the categorical approach has diminished district court discretion on predicate crimes of violence under the ACCA and other recidivist sentencing enhancements, it is much to be hoped that district judges retain a large measure of discretion outside the ACCA and similar “crimes of violence” sentencing frameworks. In other words, notwithstanding the doubt that has sometimes been thrown .on the very notion of a crime of violence, does there remain a pathway for district courts to ensure that the worst behaviors are appropriately sanctioned?

I believe a pathway does exist, and it is one that fully respects, as it must, both the pronouncements of Congress and the emphatic support that Supreme Court decisions have given the superior sentencing vantage point of our trial judges. As I have noted, Congress and the Supreme Court have accorded a wide degree of latitude to trial judges, both in their capacity to find facts and to fashion an individualized sentence (subject of course to statutory máxi-mums and mínimums). Congress established a comprehensive set of objectives for sentencing courts to review in each case, see 18 U.S.C. § 3553(a) (2012), and prohibited any limitation on the information a court may consider, see 18 U.S.C. § 3661 (2012). Likewise, in major sentencing decisions following Booker, the Supreme Court has envisioned a scheme in which district courts exercise broad discretion. As the Court emphasized, “[t]he sentencing judge has access to, and greater familiarity with, the individual case and the individual defendant before him than the [Sentencing] Commission or the appeals court.” Rita v. United States, 551 U.S. 338, 357-58, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). The trial court, therefore, is not bound by the advisory Sentencing Guidelines. Id at 355, 127 S.Ct. 2456. Rather, judges are empowered to make any number of factual determinations and conduct an “individualized assessment based on the facts presented.” Gall, 552 U.S. at 50, 128 S.Ct. 586.

Do trial courts then retain significant sentencing discretion? The signals are mixed. The categorical approach is restrictive, and yet Gall is expansive. Outside the strictures of the ACCA and other recidivist enhancements that- apply the categorical approach to predicate crimes of violence, a district court’s fact-finding capabilities are not so constrained. While sentencing judges are confined to a narrow set of record documents when classifying predicate crimes for a sentencing ■enhancement, Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), there is no corresponding “limitation on the district’s court’s consideration of [factual descriptions of an offense] in crafting its sentence under § 3553(a).” United States v. Savillon-Matute, 636 F.3d 119, 124 n.8 (4th Cir. 2011); see also Booker, 543 U.S. at 233, 125 S.Ct. 738 (“For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.”).

Of course, the scope of a sentencing court’s discretion to delve into the facts underlying a conviction rendered in another forum has never been boundless. Federal sentencing proceedings are not the presumptive forum—unlike habeas corpus actions—for overturning prior convictions or entertaining constitutional challenges to them. See Custis v. United States, 511 U.S. 485, 497, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994). Yet because no comparable presumption attaches itself to the factual circumstances of prior criminal behavior— sentencing hearings are, after all, the designated vehicle for such inquiries—district courts have the option to assess the seriousness of past conduct if they so choose. Indeed, it would be the odd sentencing regime that requires a holistic view of the defendant to be sentenced, see 18 U.S.C. § 3553(a), and yet prevents district courts from finding that a present or prior crime was committed in a particularly violent manner.

IV.

Accordingly, as the district court sets about this discretionary exercise, it has various tools to impose a stricter sentence if it believes that the categorical approach is ignoring a violent criminal history or disserving the general aims of sentencing. To be sure, the' Guidelines “provide a framework or starting point” for the trial judge’s sentencing determination. See Freeman v. United States, 564 U.S. 522, 131 S.Ct. 2685, 2692, 180 L.Ed.2d 519 (2011). But the Guidelines are just a starting point: sentencing judges have two options for fashioning a sentence outside the advisory range. In describing the options, I apologize for accenting the already familiar, but these discretionary tools have a renewed salience in light of the restrictions elsewhere placed upon sentencing our most violent offenders and on the sentencing judge’s role. Although these alternate pathways will not repair the entire damage that I respectfully suggest a rigid categorical approach has done to congressional intent, it may allow a trial judge to reach an appropriate sentence by considering the very facts the categorical approach proscribes.

First, the Guidelines expressly provide for an upward departure if “rehable information indicates that the defendant’s criminal history category significantly un-derrepresents the seriousness” of the defendant’s criminal history or likelihood of recidivism. U.S. Sentencing Guidelines Manual § 4A1.3(a)(1) (U.S. Sentencing Comm’n 2015). Among the factors a court may consider are the factual circumstances and “nature of the prior offenses.” See id. cmt. n.2(B); see also United States v. Yahnke, 395 F.3d 823, 825 (8th Cir. 2005) (concluding that the “violent nature” of a prior conviction “support[ed] a finding that [defendant’s] criminal-history category substantially underrepresented the seriousness of his criminal history”). Our court, for instance, allows a district court to classify a defendant as a “de facto career offender” if the defendant’s previous crimes “were sufficiently analogous to qualifying [violent felonies] that they could be considered for all intents and purposes” a violent prior offense. See United States v. Lawrence, 349 F.3d 724, 726 (4th Cir. 2003). To aid its inquiry, the sentencing judge may consult presentence reports and consider the extent to which a defendant’s criminal history was violent. See United States v. Howard, 773 F.3d 519, 530 (4th Cir. 2014); Lawrence, 349 F.3d at 727-30.

Second, the district .court has the discretion to impose a sentence outside the Guidelines range if it finds that the § 3553(a) factors justify a variance sentence. See Gall, 552 U.S. at 50-51, 128 S.Ct. 586. Three of those factors are the “nature and circumstances of the offense and the history and characteristics of the defendant,” the need to “afford adequate deterrence,” and the need to “protect the public from further crimes of the defendant.” 18 U.S.C. § 3553(a)(1), (a)(2). Here too, the sentencing court may tailor its sentence to the nature of the defendant’s conduct, both past and present. There is no formal limit on the extent of a district judge’s discretion to deviate from the Guidelines. See Rita, 551 U.S. at 355, 127 S.Ct. 2456; United States v. Rivera-Santana, 668 F.3d 95, 106 (4th Cir. 2012). Nor is there any restriction on the trial court’s ability to make factual findings and probe into the circumstances underlying previous convictions. See United States v. Hargrove, 701 F.3d 156, 164 (4th Cir. 2012); United States v. Diosdado-Star, 630 F.3d 359, 367 (4th Cir. 2011). In the course of this probe; one which does not implicate the modified categorical approach, the fact that a document is not Shepard-approved may go more to the weight of the evidence than-to its admissibility. See U.S SENTENCING Guidelines Manual § 6A1.3(a) (U.S. Sentenoing Comm’n 2015) (“In resolving any dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.”).

Consistent with Gall’s appreciation that district courts are “in a superior position to find facts and judge their import,” all sentencing decisions—“whether inside, just outside, or significantly outside the Guidelines range”—are entitled to “due deference” from appellate courts. Gall, 552 U.S. at 39, 51, 128 S.Ct. 586. While a sentencing judge’s explanation for the sentence must “support the degree of the variance,” a district court need not find “extraordinary circumstances” to justify a deviation from the Guidelines. Id. at 47, 50, 128 S.Ct. 586. Rather, irrespective of the particulars of “the individual case,” a “deferential abuse-of-discretion standard of review” applies across the board. Id. at 52, 128 S.Ct. 586. Even when the district court calculates the Guidelines range incorrectly, appellate courts may find that the error is harmless if the evidence suggests that the sentencing judge would have .varied from the Guidelines , anyway and reached the exact same result. See Hargrove, 701 F.3d at 162; Savillon-Matute, 636 F.3d at 123-24.

In stressing the foregoing, I have once again stated only the obvious, but there are times when even the obvious needs to be said. The categorical approach might have increasingly committed the application of specified sentencing enhancements to the legal-rulings of appellate courts, but that does not mean that district courts are without recourse to ensure that basic sentencing objectives are respected and achieved. In other words, the district court may decide in the face of an inconclusive record to apply the categorical approach to predicate offenses, but it also should enjoy the discretion and the tools to craft a more individualized sentence when such would serve the ends of justice. Our standard of review under Gall remains a deferential one. I do not believe, 'therefore, that the Supreme Court, through its categorical approach, intended to incapacitate district courts and . require those courts to stand idly by and let dangerous individuals reenter society prematurely. Their' future victims may be nameless and faceless to us, but they will bear the brunt of violent acts in intensely personal ways.

      . South Carolina strong arm robbery and common law robbery are "synonymous terms for a common law offense whose penalty is provided for by statute.” State v. Rosemond, 348 S.C. 621, 560 S.E.2d 636, 640 (Ct. App. 2002) (footnote omitted). For ease of reference, we refer to the offense as South Carolina robbery.

      . The ACCA separately defines "violent felony” as "any crime punishable by imprisonment for a term exceeding one year” that "is burglary, arson, or extortion, involves 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)(ii). That subsection has no application here, as robbery is not an enumerated crime and the Supreme Court deemed the clause concerning risk of physical injury unconstitutionally vague in Johnson v. United States ("Johnson II”), — U.S. —, 135 S.Ct. 2551, 2557, 192 L.Ed.2d 569 (2015).

      .Courts apply the "modified categorical approach” where the prior state offense is divisible, meaning it sets out multiple elements in the alternative and at least one set of elements matches the federal definition. Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 2284, 186 L.Ed.2d 438 (2013). Because South Carolina robbery is a nondivisible offense, the modified categorical approach "has no role to play in this case.” Id. at 2285.

      . Though the South Carolina Court of Appeals did not explicitly define the term, “constructive force” generally means "[t]hreats and intimidation to gain control or prevent resistance; esp,, threatening words or gestures directed against a robbery victim.” Constructive Force, Black's Law Dictionary (10th ed. 2014).

      . Doctor does point us to United States v, Dixon, in which the Ninth Circuit concluded that robbery under California Penal Code § 211 could be committed with accidental force. 805 F.3d 1193, 1197 (9th Cir. 2015). That holding, however, hinged on a stranger-than-fiction California Supreme Court case where a defendant broke into an unoccupied car in a parldng garage, stole the car, and then accidentally ran over the car’s owner after exiting the garage. Id. (discussing People v. Anderson, 51 Cal.4th 989, 125 Cal.Rptr.3d 408, 252 P.3d 968 (2011)). We have found no indication that a defendant can similarly commit South Carolina robbery with accidental force.

      . At oral argument, defendant's counsel cited two cases for the first time—State v. Gagum, 328 S.C. 560, 492 S.E.2d 822 (Ct. App. 1997) and Humbert v. State, 345 S.C. 332, 548 S.E.2d 862 (2001)—in support of the argument that South Carolina robbery can be committed with slight actual force. Neither case, however, addresses the minimum amount of actual force needed to sustain a robbery conviction in South Carolina, In fact, it is not clear from the face of either appellate decision whether the juries (or, more precisely, at least some of the jurors) convicted the defendants of robbery by violence or robbery by intimidation.