Virginia Code § 18.2-53.1 (Firearm-in-Commission of Robbery) Is Not a Guidelines “Crime of Violence” Under the Elements Clause; Sentencing Error Not Harmless Without a Defensible Variance Rationale

I. Introduction

Case: United States v. Raquan Scott (4th Cir. May 22, 2026) (published).
Parties: United States (Appellee) v. Raquan Unique Scott (Appellant).
Procedural posture: Scott pleaded guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). The district court enhanced his base offense level under U.S.S.G. § 2K2.1(a)(4)(A) on the view that his 2008 Virginia conviction under Va. Code § 18.2-53.1 (“Use of Firearm in Commission of a Felony,” predicated here on robbery) was a “crime of violence” as defined by U.S.S.G. § 4B1.2(a). Scott appealed the enhancement and the resulting 33-month sentence.

Core issues:

  • Whether a conviction under Va. Code § 18.2-53.1, when the predicate felony is Virginia robbery, categorically satisfies the Guidelines’ elements clause, U.S.S.G. § 4B1.2(a)(1).
  • Whether the Fourth Circuit could affirm on the alternative ground that the conviction matches the enumerated offense clause, U.S.S.G. § 4B1.2(a)(2).
  • Whether any Guidelines error was harmless, given the district court’s statement that it would impose the same sentence regardless of the range.

Holding: The Fourth Circuit vacated and remanded for resentencing. Judge Heytens wrote the majority opinion (joined by Chief Judge Diaz). Judge Niemeyer dissented.

II. Summary of the Opinion

The Fourth Circuit held that the district court erred by treating Va. Code § 18.2-53.1 (predicated on robbery) as a “crime of violence” under U.S.S.G. § 4B1.2(a)(1)’s elements clause. Applying the categorical approach, the Court reasoned that neither Virginia robbery (as already held in binding circuit precedent) nor § 18.2-53.1’s firearm requirement necessarily demands proof, as an element, of “physical force against the person of another.”

The Court rejected the government’s attempt to salvage the enhancement via the enumerated offense clause’s “robbery” category, emphasizing that binding precedent (United States v. Parham) already found no categorical match between Virginia robbery and generic “robbery” under § 4B1.2(a)(2), and that additional interpretive complications arise from the same clause’s separate reference to “the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a).”

Finally, the Court held the government failed to show harmlessness. While the district judge stated he would impose the same sentence, the Court could not conclude the sentence would be reasonable under the correct (lower) Guidelines range—especially given the limited explanation for what would have been a substantial upward variance and the judge’s apparent factual misunderstanding of Scott’s prior conduct (believing Scott personally pointed a gun, when it was a codefendant).

III. Analysis

A. Precedents Cited and Their Role

1. The Guidelines framework and the “elements clause” label

  • United States v. Canada, 123 F.4th 159, 161 (4th Cir. 2024): Cited for the description of § 922(g)(1) as the “felon-in-possession” offense.
  • Delligatti v. United States, 604 U.S. 423, 426 (2025): Used to confirm the conventional terminology “elements clause” for force-based definitions (there, in a similarly worded ACCA context), supporting the analytic framing of U.S.S.G. § 4B1.2(a)(1).

2. Standard of review

  • United States v. Salmons, 873 F.3d 446, 448 (4th Cir. 2017): De novo review of whether a prior conviction qualifies as a crime of violence.
  • Gall v. United States, 552 U.S. 38, 41 (2007): Abuse-of-discretion review of the ultimate sentence; also later used for the principle that larger variances require more substantial justification.

3. The categorical approach and divisibility mechanics

  • United States v. Covington, 880 F.3d 129, 132 (4th Cir. 2018): Reiterates that the categorical approach compares statutory elements, not the defendant’s real-world conduct.
  • Mathis v. United States, 579 U.S. 500, 505 (2016): Cited for the concept of divisibility; the parties agreed Va. Code § 18.2-53.1 is divisible by predicate offense.
  • Jay v. Commonwealth, 659 S.E.2d 311, 321 (Va. 2008): Establishes that a § 18.2-53.1 conviction depends on commission of one of the enumerated predicates (here, robbery), meaning the compound offense incorporates robbery’s elements plus firearm-related elements.

4. Binding Fourth Circuit law on Virginia robbery and stare decisis

  • United States v. Parham, 129 F.4th 280 (4th Cir. 2025): Central precedent. Held Virginia robbery is not a crime of violence under the Guidelines elements clause because it can be committed by threatening to publicly accuse the victim of sodomy (citing Virginia’s authoritative definition).
  • White v. United States, 863 S.E.2d 483, 486 (Va. 2021): (Supreme Court of Virginia answer to a certified question) supplies the key doctrinal fact that Virginia robbery includes the sodomy-accusation theory.
  • Gibbons v. Gibbs, 99 F.4th 211, 215 (4th Cir. 2024): Invoked to emphasize that later panels are bound by earlier panel holdings (even if arguably flawed).
  • United States v. White, 24 F.4th 378, 380 (4th Cir. 2022); United States v. Williams, 64 F.4th 149, 156 (4th Cir. 2023); United States v. Crawley, 140 F.4th 165, 171-72 (4th Cir. 2025): Cited to show the circuit’s consistent elements-based reasoning about Virginia robbery across ACCA and Guidelines contexts.
  • United States v. White, 987 F.3d 340, 344 (4th Cir. 2021): Notes the parties had identified no actual prosecutions on the sodomy-accusation theory, illustrating that categorical analysis does not turn on empirical frequency.

5. “Least culpable conduct” and statute breadth

  • United States v. King, 673 F.3d 274, 278 (4th Cir. 2012): Used for the “least culpable conduct” framing within categorical analysis.

6. Supreme Court reinforcement: no fact-hunting; focus on elements

  • United States v. Taylor, 596 U.S. 845, 850, 857, 859-60 (2022): A centerpiece for rejecting hypotheticals and empirical “realistic probability” demands when the legal mismatch is elements-based; also used to reject shifting a burden to the defendant to prove prosecutorial practice.

7. Interpreting Va. Code § 18.2-53.1’s “use” requirement

  • Rowland v. Commonwealth, 707 S.E.2d 331, 334 (Va. 2011): Supreme Court of Virginia states a person “uses” a firearm for § 18.2-53.1 purposes if he “employs it,” supporting the majority’s conclusion that “use” is not inherently “against another person.”
  • Gurley v. Rhoden, 421 U.S. 200, 208 (1975): Reinforces that the state’s highest court is the final arbiter of state statutory meaning.
  • Rose v. Commonwealth, 673 S.E.2d 489, 492 (Va. Ct. App. 2009): The government relied on a sentence suggesting “use” intended to cause physical injury; the majority read Rose as addressing whether the firearm must be used in its designed manner (expelling a projectile), and as defining “use” broadly as employing an object “for some purpose.”
  • Wright v. Commonwealth, 685 S.E.2d 655, 658 (Va. 2009): Cited for rejecting the notion that a similarly worded firearm offense requires the firearm be used “to further” the predicate offense—supporting the majority’s view that § 18.2-53.1 does not necessarily link firearm “use/attempt” to overcoming a victim.
  • Rowland v. Commonwealth, 707 S.E.2d 331, 334 (Va. 2011): Also used for the meaning of “while” as limiting the statute to use “during” the predicate offense.
  • Jones v. Commonwealth, 235 S.E.2d 313, 315 (Va. 1977): Provides the shorthand “using a firearm in committing robbery.”

8. Circuit comity and the First Circuit split

  • Scott v. Baltimore Cnty., 101 F.4th 336, 348 (4th Cir. 2024): The majority cites this for the principle of attempting to avoid circuit splits when possible.
  • United States v. Mao, No. 24-2107, 2026 WL 1162679, at *3-4 (1st Cir. Apr. 29, 2026): The First Circuit reached the opposite conclusion, holding § 18.2-53.1 (robbery predicate) qualifies under the elements clause (and also under the enumerated offense clause). The Fourth Circuit respectfully disagreed, stressing its own binding precedent and a stricter elements-only reading of § 18.2-53.1’s firearm component.
  • Mena v. Lynch, 820 F.3d 114, 119 (4th Cir. 2016): Used to underscore that the court must perform the categorical inquiry rather than rely on “common sense.”

9. Waiver/forfeiture and briefing rules

  • Stokes v. Stirling, 64 F.4th 131, 137 (4th Cir. 2023): Cited for the principle that appellees can forfeit arguments by not briefing them; here used to dispose of a “realistic probability” argument not made in the government’s brief.
  • JH ex rel. JD v. Henrico Cnty. Sch. Bd., 326 F.3d 560, 567 n.5 (4th Cir. 2003): Appellee may defend the judgment on any record-supported ground, even if not adopted below. The majority used this to reject the government’s claim that Scott had to anticipate and rebut alternative affirmance theories in his opening brief.

10. Textual canons and whole-text reasoning

  • Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 167-69, 174-79 (2012): Cited for the Whole-Text Canon and Surplusage Canon to question the government’s “it’s generic robbery” framing given § 4B1.2(a)(2)’s separate firearm language.
  • Graham v. Connor, 490 U.S. 386, 394-95 (1989): Used as an analogy for the “more specific language governs” idea.

11. Harmless error and sentencing reasonableness

  • Puckett v. United States, 556 U.S. 129, 141 (2009): Procedural sentencing errors are routinely subject to harmless-error review.
  • United States v. Olano, 507 U.S. 725, 734 (1993): Government bears the burden on harmlessness/prejudice.
  • United States v. Gomez-Jimenez, 750 F.3d 370, 382 (4th Cir. 2014): Sets the two-part harmlessness test for Guidelines calculation errors (same result; and sentence reasonable under correct range).
  • Rita v. United States, 551 U.S. 338, 341 (2007): A within-Guidelines sentence may be presumed reasonable on appeal; the majority contrasts that with the lack of similar comfort for an above-Guidelines variance.
  • Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990): A decision based on a clearly erroneous assessment of the evidence is an abuse of discretion—applied here to the district court’s apparent misapprehension that Scott himself pointed a gun.

12. The dissent’s competing precedent set

Judge Niemeyer’s dissent leaned heavily on “robbery-as-quintessential violent felony” reasoning and argued that adding firearm use to robbery collapses the nonviolent “sodomy-threat” possibility into a “null set.” In support, the dissent cited:

  • Stokeling v. United States, 586 U.S. 73, 80, 83 (2019)
  • United States v. Shanton, 125 F.4th 548 (4th Cir. 2025)
  • United States v. Dinkins, 928 F.3d 349, 355-57 (4th Cir. 2019)
  • United States v. Doctor, 842 F.3d 306 (4th Cir. 2016)
  • Durham v. Commonwealth, 198 S.E.2d 603, 605 (Va. 1973)
  • Houston v. Commonwealth, 12 S.E. 385, 387 (Va. 1890)
  • Bivins v. Commonwealth, 454 S.E.2d 741, 753 (Va. Ct. App. 1995)
  • Poyner v. Commonwealth, 329 S.E.2d 815, 836 (Va. 1985)
  • Williams v. Commonwealth, 685 S.E.2d 178, 181 (Va. 2009)

The majority did not dispute robbery’s usual violent character in general; it held instead that binding circuit precedent about Virginia robbery’s elements, combined with the absence of an “against-the-person” (or “to-overcome-resistance”) element in § 18.2-53.1’s firearm component, precluded the enhancement under the elements clause.

B. The Court’s Legal Reasoning

1. The operative interpretive method: categorical approach + “least culpable conduct”

The majority treated the case as an orthodox categorical-approach problem: compare the elements of the prior offense to the federal “crime of violence” definition, ignoring the defendant’s actual conduct (United States v. Covington). It emphasized two corollaries:

  • Courts examine the least culpable conduct covered by the statute (United States v. King).
  • Courts do not demand empirical proof of how prosecutors use statutes; the question is whether the statute always requires proof of the relevant force element (United States v. Taylor).

2. The critical constraint: Parham’s binding rule about Virginia robbery

Because United States v. Parham held Virginia robbery can be committed via non-physical threats (public accusation of sodomy), the majority treated it as settled that Virginia robbery does not itself satisfy § 4B1.2(a)(1). Under Gibbons v. Gibbs, the panel considered itself bound to accept that baseline.

3. Why adding Va. Code § 18.2-53.1 does not supply the missing “force against a person” element

The heart of the majority’s reasoning is a precise element-matching point: Va. Code § 18.2-53.1 adds a requirement that the defendant “use,” “attempt to use,” or “display [a firearm] in a threatening manner” while committing the predicate felony. But, according to the majority, nothing in the statute’s text—or in the Virginia cases it viewed as controlling—requires that the firearm’s “use/attempt” be against another person or used to overcome resistance.

Two moves do most of the work:

  1. Undivided firearm modalities: The government did not argue that § 18.2-53.1 is divisible into separate “use,” “attempt,” and “display” crimes for categorical purposes. As a result, even if “display in a threatening manner” might align with “threatened use of physical force,” the Court still had to consider the “use” and “attempt to use” possibilities as part of the minimum conduct.
  2. State-law meaning of “use”: The government’s “use = intended to cause physical injury” reading of Rose v. Commonwealth was rejected. The majority relied on Rowland v. Commonwealth (Supreme Court of Virginia) for “use” meaning “employ,” and on the broader context of Rose itself (which, in the majority’s view, spoke to “use” not requiring firing a projectile, and defined “use” broadly as employing the item for a purpose).

4. Rejection of the “find a plausible fact pattern” approach

The majority repeatedly returned to United States v. Taylor to dismiss the government’s and parties’ hypothetical wrangling as beside the point. The “only relevant question,” as framed by the majority, is whether the prosecution must prove, as an element, the “use, attempted use, or threatened use of force” against a person. If an element is absent, common sense about how robberies “usually” occur cannot supply it.

5. The Mao disagreement and the birth of a circuit split

The Fourth Circuit acknowledged United States v. Mao (1st Cir. 2026) but declined to follow it, characterizing Mao’s reasoning as (i) relying on a “violence or intimidation” description that Parham already undermines for Virginia robbery, and (ii) inferring a person-directed threat from the mere presence of a firearm—a move the majority saw as incompatible with a strict elements-only inquiry and unsupported by the Virginia interpretive cases it cited (Rowland, Wright).

C. Impact and Significance

1. Guidelines implications within the Fourth Circuit

The immediate doctrinal consequence is that, in the Fourth Circuit, a prior conviction under Va. Code § 18.2-53.1 (even with a robbery predicate) does not qualify as a “crime of violence” under U.S.S.G. § 4B1.2(a)(1)’s elements clause—at least on the reasoning accepted by this panel and in light of Parham.

Practically, this narrows the circumstances in which § 2K2.1(a)(4)(A) will raise the base offense level for federal firearms defendants with this common Virginia “firearm during felony” conviction in their record.

2. Enumerated offense clause: an expressly unresolved interpretive avenue

The opinion leaves open a potentially consequential question: whether § 18.2-53.1 might qualify under the enumerated clause not as “robbery,” but under the clause’s separate reference to “the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material.” The majority flagged the textual issue and refused to affirm on the government’s “generic robbery” theory partly because the firearm language complicates “which enumerated offense” is the closest match.

That unresolved point invites future litigation about how § 4B1.2(a)(2)’s firearm language should be applied—especially to state statutes that criminalize using a firearm during another felony.

3. Harmless-error discipline in Guidelines cases

The decision reinforces that “same sentence anyway” statements do not automatically establish harmlessness. Under United States v. Gomez-Jimenez, appellate courts must still be persuaded the sentence is reasonable under the correct range. The Court’s emphasis on (i) the magnitude of the variance (33 months vs. a correct 15–21 month range), (ii) the district court’s limited variance explanation, and (iii) factual confusion about Scott’s history, signals stricter scrutiny when a Guidelines error masks what would otherwise be a substantial upward variance.

4. Inter-circuit conflict

By expressly disagreeing with the First Circuit’s United States v. Mao, the Fourth Circuit deepened an interpretive conflict over § 18.2-53.1’s treatment under federal sentencing definitions—raising the stakes for potential en banc review or eventual Supreme Court attention if the split persists and broadens.

IV. Complex Concepts Simplified

  • “Categorical approach”: A method that asks what the statute of conviction requires the government to prove (its “elements”), not what the defendant actually did. If the statute can be violated in a way that does not require the federally demanded element (here, force against a person), the prior conviction may not count—even if most real-world cases are violent.
  • “Elements clause” (U.S.S.G. § 4B1.2(a)(1)): Covers crimes that have, as an element, the use/attempt/threat of “physical force” against another person. The words “as an element” are decisive: courts look for a requirement the jury must find beyond a reasonable doubt.
  • “Enumerated offense clause” (U.S.S.G. § 4B1.2(a)(2)): Instead of focusing on force, it lists certain crimes (like “robbery”) that count by category. Courts then compare the state offense to the generic form of the listed crime.
  • “Divisible statute”: A statute that effectively contains multiple different crimes (e.g., depending on the predicate felony). Courts can determine which crime the defendant was convicted of and then apply the categorical comparison to that version.
  • “Harmless error” at sentencing: Even if the Guidelines were miscalculated, the government can win if it shows the same sentence would have been imposed and that the sentence would still be reasonable under the correct range.

V. Conclusion

United States v. Raquan Scott establishes—within the Fourth Circuit—that a conviction under Va. Code § 18.2-53.1 predicated on robbery does not qualify as a “crime of violence” under the Guidelines’ elements clause, because the compound offense does not necessarily require proof of physical force “against the person of another” as an element. The Court refused to affirm on the government’s generic-robbery enumerated-clause theory in light of Parham and textual tensions within § 4B1.2(a)(2), and it demanded meaningful harmless-error proof where the correct range would make the imposed sentence a major upward variance—especially given the district court’s thin explanation and factual misunderstanding of Scott’s prior conduct. The decision also crystallizes a circuit split with United States v. Mao, setting up continued litigation over how federal “crime of violence” definitions interact with Virginia’s firearm-in-commission statute.