Kentucky’s second-degree robbery is a force clause offense.

 

In United States v. Williams, the Sixth Circuit held Kentucky’s second-degree robbery (Ky. Rev. Stat. Ann. § 515.030) is a violent felony under the force clause. The statute requires a sufficient level of physical force and requires the individual to use force with the specific intent to accomplish the theft, which satisfied the mens rea requirement.

Relying on Stokeling v. United States, 139 S. Ct. 544 (2019), the Court held the level of force required under the force clause of the Armed Career Criminal Act (ACCA) is force sufficient to overcome the victim’s will. The Court then turned to Kentucky caselaw to determine what degree of force is required under the second-degree robbery statute. The Court, noting limited caselaw, concluded robbery in Kentucky requires the defendant to overcome the victim’s will and therefore matches the level of force the Supreme Court held to be sufficient in Stokeling. The Court acknowledged there were robbery cases from Kentucky that did not involve “physical resistance or aversion on the part of the victim” but dismissed those cases as being too old. Williams, No. 21-5856, Slip op. p. 7 (“Although these early Kentucky cases give us pause, Williams cites no recent Kentucky cases holding or implying that second-degree robbery can be committed with a level of force less than that identified in Stokeling.”).

Williams also argued the Kentucky statute could not be a force clause offense post-Borden because it did not contain the requisite mens rea as to the element of force. The Sixth Circuit disagreed, holding the statute required the individual to use force with the specific intent to accomplish the theft and that this specific intent satisfied the mens rea requirement set out in Borden v. United States, 141 S. Ct. 1817 (2021).

The Sixth Circuit also rejected Williams’ argument that his three prior robbery convictions were not committed on separate occasions because they were charged in a single indictment. The Court, applying the factors recently set out by the Supreme Court in Wooden v. United States, 142 S. Ct. 1063 (2022), found “[g]iven the substantial gap in time between Williams’s robbery offenses and some variety in locations, the offenses were committed on separate occasions under the ACCA.” Williams, No. 21-5856, Slip op. p. 12.