U.S. v. Thrower, No. 08-2016 (2d Cir. 2009)

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08-2016-cr U.S. v. Thrower 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 UNITED STATES COURT OF APPEALS F OR THE S ECOND C IRCUIT September Term, 2009 (Argued: September 11, 2009 Decided: October 14, 2009) Docket No. 08-2016-cr U NITED S TATES OF A MERICA, Appellee, v. W ILLIAM T HROWER, Defendant - Appellant. Before: P ARKER and W ESLEY, Circuit Judges, R ESTANI, Judge * Appeal from an April 23, 2008 order of the United States District Court for the Eastern District of New York (Ross, J.), entering judgment on a jury verdict convicting the defendant for being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1) and imposing the statutory minimum sentence of fifteen years * The Honorable Jane A. Restani, Chief Judge of the United States Court of International Trade, sitting by designation. Page 1 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 imprisonment under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1). A FFIRMED. N ORMAN T RABULUS, New York, NY, for Defendant Appellant. A MANDA H ECTOR, Assistant United States Attorney (Emily Berger, Assistant United States Attorney, of counsel) for B ENTON J. C AMPBELL, United States Attorney for the Eastern District of New York, for Appellee. P ER C URIAM: Defendant-Appellant William Thrower ( Thrower ) appeals 21 from a judgment entered on April 23, 2008, in the United 22 States District Court for the Eastern District of New York 23 (Ross, J.), after a jury verdict convicting Thrower of being 24 a felon in possession of a firearm and ammunition in 25 violation of 18 U.S.C. § 922(g)(1), and appeals his 26 statutory minimum sentence of fifteen years imposed under 27 the Armed Career Criminal Act ( ACCA ), 18 U.S.C. § 28 924(e)(1). 29 court s order entering final judgment and sentencing 30 determination are AFFIRMED. For the reasons stated below, the district Page 2 of 13 1 Background 2 Thrower was indicted and charged with one count of 3 violating 18 U.S.C. § 922(g)(1), which criminalizes the 4 knowing possession of a firearm in and affecting commerce by 5 an individual who has previously been convicted in any court 6 of a crime punishable by a term of imprisonment exceeding 7 one year. 8 9 A jury convicted him of the charge. At sentencing, the Probation Department provided a Presentence Investigation Report ( PSR ) that listed 10 Thrower s five previous felony convictions in New York state 11 courts. 12 recommended that Thrower s sentence be enhanced pursuant to 13 the Armed Career Criminal Act ( ACCA ), 18 U.S.C. § 14 924(e)(1). 15 five previous felony convictions counted as predicate 16 offenses for the purposes of the ACCA. 17 that Thrower s criminal history report indicated that he was 18 granted a Certificate of Relief from Disabilities from the 19 New York State Division of Parole, but the Probation 20 Department failed to provide a copy of the document. 21 Because of this criminal history, Probation The PSR did not designate which of Thrower s The PSR also noted The court found that the ACCA enhancement applied to Page 3 of 13 1 Thrower and sentenced him to 15 years imprisonment, the 2 statutory minimum. 3 alia, arguing that he does not have the requisite number of 4 offenses necessary to qualify for the ACCA. 5 two of his offenses do not count because he received a 6 Certificate of Relief from Disabilities that restored his 7 civil rights, and that a third conviction larceny in the 8 fourth degree does not qualify as a violent felony. 1 9 Because we find that New York s larceny in the fourth Thrower contests the enhancement, inter He claims that 10 degree, specifically larceny from the person, N.Y. Penal Law 11 §155.30(5), does qualify as a violent felony under the 12 residual clause for purposes of the ACCA, Thrower has three 1 Thrower also argues that he was unlawfully arrested in violation of the Fourth Amendment. We have reviewed this argument, and the additional arguments raised in his supplemental pro se brief, and find them to be without merit. Thrower submitted a letter to the court that was received on September 28, 2009, seventeen days after oral argument. Attached to the letter was Thrower s pro se reply brief. Under Federal Rule of Appellate Procedure 31, a reply brief must be filed at least three days before argument. F ED. R. A PP. P. 31(a)(1). However, we may extend the time limits dictated by the rules for good cause. F ED. R. A PP. P. 26(b). We give pro se defendants wider latitude with procedural rules. See In re Sims, 534 F.3d 117, 133 (2d Cir. 2008). As a result, we accept the reply brief as part of the record. We have reviewed the brief, and the arguments therein, and find them to be without merit. Page 4 of 13 1 eligible convictions that support the district court s ACCA 2 enhancement. 3 of Relief from Disabilities issue. As a result, we need not reach the Certificate 4 5 Discussion The ACCA dictates a 15-year mandatory minimum sentence 6 for a felon convicted of possessing a firearm when that 7 felon has three previous convictions for violent felonies. 8 18 U.S.C. § 924(e)(1). 9 any crime punishable by imprisonment for a term exceeding A violent felony is defined as 10 one year . . . that (i) has as an element the use, attempted 11 use, or threatened use of physical force against the person 12 of another; or (ii) is burglary, arson, or extortion, 13 involves use of explosives, or otherwise involves conduct 14 that presents a serious potential risk of physical injury to 15 another. 16 a violent felony even if it does not have an element of 17 physical force against another person as described in clause 18 (i), or is not one of the enumerated offenses detailed in 19 clause (ii). 20 remaining language in clause (ii), conduct that presents a 21 serious potential risk of physical injury to another, known 18 U.S.C. § 924(e)(2)(B). A crime may qualify as To qualify, the crime must fit within the Page 5 of 13 1 2 as the residual clause. Id. In order to fall within the residual clause, a crime 3 must both involve[] conduct that presents a serious 4 potential risk of physical injury to another and be 5 roughly similar, in kind as well as in degree of risk 6 posed to the enumerated offenses in the ACCA. 7 924(e)(2)(B)(ii); Begay v. United States, 128 S. Ct. 1581, 8 1585 (2008). 9 larceny in the fourth degree under New York Penal Law § 18 U.S.C. § Thrower has a previous conviction for grand 10 155.30. 11 New York Penal Law § 155.30 Thrower was convicted. 12 Thrower s plea colloquy indicates it was larceny from the 13 person, falling within subdivision (5), meaning he st[ole] 14 property and . . . [t]he property, regardless of its nature 15 and value, [wa]s taken from the person of another. 16 Penal Law § 155.30(5). 17 The PSR does not specify under which subdivision of N.Y. We may look to the guilty plea transcript to determine 18 whether the conviction is a violent felony. 19 United States, 544 U.S. 13, 20 (2005). 20 155.30 has a number of subsections detailing conduct that 21 qualifies as larceny in the fourth degree Page 6 of 13 See Shepard v. New York Penal Law § including theft 1 of property worth over one thousand dollars and theft of 2 secret scientific material that on their face do not 3 appear to qualify as violent crimes. 4 155.30(1), (3). 5 subsections that potentially may not fit as violent felonies 6 under the ACCA, we must determine if the subcategory of 7 conduct to which Thrower pled qualifies as a violent felony. 8 We look to the plea colloquy, then, not to analyze whether 9 Thrower s specific conduct meets the violent felony N.Y. Penal Law §§ Because larceny in the fourth degree has 10 requirements (an inquiry barred by Taylor v. United States, 11 495 U.S. 575, 600-02 (1990)), but instead to determine under 12 which subsection his conviction falls. 13 determined the subsection in play, we look only to the 14 elements of the offense itself without examining Thrower s 15 specific conduct. 16 (2007). 17 Once we have James v. United States, 550 U.S. 192, 202 The government argues that larceny from the person 18 qualifies under the residual clause. 19 addressed the question of whether larceny from the person 20 qualifies as a violent felony, though seven sister circuits 21 have answered in the affirmative. Page 7 of 13 This court has not yet See, e.g. United States 1 v. Hawley, 516 F.3d 264, 272 (5th Cir. 2008), cert. denied, 2 129 S. Ct. 994 (2009); United States v. Jennings, 515 F.3d 3 980, 988 (9th Cir. 2008); United States v. Strong, 415 F.3d 4 902, 908 (8th Cir. 2005); United States v. Smith, 359 F.3d 5 662, 665 (4th Cir. 2004); United States v. Howze, 343 F.3d 6 919, 923-24 (7th Cir. 2003); United States v. Payne, 163 7 F.3d 371, 375 (6th Cir. 1998); United States v. De Jesus, 8 984 F.2d 21, 25 (1st Cir. 1993). 9 10 11 1) Conduct presenting serious potential risk of physical injury to another In Taylor, the Supreme Court noted that Congress 12 singled out burglary (as opposed to other frequently 13 committed property crimes such as larceny and auto theft) 14 for inclusion as a predicate offense . . . because of its 15 inherent potential for harm to persons. 16 The harm includes the possibility of a violent 17 confrontation between the perpetrator and the victim, or a 18 third party bystander or investigator. 19 possibility of confrontation, there is an assumption that 20 the perpetrator is aware of the risk, and most likely is 21 prepared to use violent means to escape or complete his Page 8 of 13 495 U.S. at 588. Id. Because of this 1 criminal objective. 2 is enough to qualify the offense for inclusion as a 3 predicate offense. 4 possible factual scenario covered by the conduct described 5 in the elements of the offense. 6 offense qualifies as a violent felony if the conduct 7 encompassed by the elements of the offense, in the ordinary 8 case, presents a serious potential risk of injury to 9 another. 10 Id. Id. This risk of confrontation alone It need not be present for every James, 550 U.S. at 208. An Id. Larceny from the person as defined by New York Penal 11 Law § 155.30(5) requires the victim and perpetrator to be in 12 very close proximity. 13 person requires a physical nexus between the person and the 14 property, meaning physical contact between the victim and 15 either the property taken or, at least, the article from 16 which the property was taken. 17 A.D.2d 258, 259 (N.Y. App. Div. 1990); see also People v. 18 Auguste, 283 A.D.2d 373, 373 (N.Y. App. Div. 2001) (finding 19 theft of a purse from the back of a chair as insufficient 20 physical nexus to support a conviction of fourth degree 21 larceny). Under New York law, larceny from the People v. Cheatham, 168 Surely larceny that requires a physical nexus Page 9 of 13 1 between the victim and the property, as opposed to larceny 2 generally, creates a risk of violent confrontation. 3 victim s presence is an element of the crime. 4 alone makes the risk of violence and struggle ubiquitous. 5 Thus, in our view, larceny from the person meets the first 6 prong of the inquiry required under the residual clause of 7 the ACCA. The This fact 8 2) Roughly similar to an offense enumerated in the ACCA 9 In order to qualify, the offense must not only present 10 a serious risk of physical injury, but must also be roughly 11 similar to an enumerated offense in the ACCA. 12 United States, the Supreme Court determined that a DUI 13 conviction could not serve as a violent felony under the 14 ACCA. 15 certainly created a serious potential risk of physical 16 injury to another, the Court found that a DUI was not 17 similar in kind to the enumerated offenses. 18 1588. 19 statute all typically involve purposeful, violent, and 20 aggressive conduct. 21 omitted). 128 S. Ct. 1581 (2008). In Begay v. Although the offense Id. at 1584, The Court noted that the offenses listed in the Id. at 1586 (internal quotation marks The purpose of the statute was to address the Page 10 of 13 1 special danger created when a particular type of offender 2 a violent criminal or drug trafficker possesses a gun. 3 Id. at 1587. 4 statute as limited to crimes that are roughly similar, in 5 kind as well as in degree of risk posed, to the examples 6 themselves. 7 The Court read the residual clause of the Id. at 1585. Of the crimes enumerated in the ACCA, larceny from the 8 person most closely resembles burglary. 9 ACCA is defined as unlawful or unprivileged entry into, or 10 remaining in, a building or structure, with intent to commit 11 a crime. 12 violent and aggressive because of the inherent potential for 13 harm to others. 14 creates the possibility of a violent confrontation with 15 someone in the building or someone who comes to investigate, 16 and the perpetrator s awareness of that risk may indicate 17 his willingness to use violence in order to accomplish his 18 unlawful objective or to escape. 19 Taylor, 495 U.S. at 599. Burglary under the Burglary is considered Entering a building to commit a crime Id. at 588. Larceny from the person involves the same type of 20 conduct. 21 control of the property by stealing it. It is surely purposeful; the perpetrator must gain Page 11 of 13 See N.Y. Penal Law 1 § 155.30(5). 2 deprive another of property or to appropriate the same to 3 himself or to a third person and wrongfully take[], 4 obtain[] or withhold[] the property from its owner. 5 Penal Law § 155.05(1). 6 requisite intent to take property wrongfully when he acts. 7 See People v. Green, 5 N.Y.3d 538, 543 (N.Y. 2005). 8 larceny is characterized by purposeful conduct. 9 The perpetrator must act with intent to N.Y. The perpetrator must have the Thus, Larceny from the person is as inherently violent and 10 aggressive as burglary. 11 possibility of a violent confrontation between the victim 12 and perpetrator or someone who witnesses the offense. 13 perpetrator s purposeful theft from the victim also may 14 indicate both his awareness of that risk and his willingness 15 to use violence in order to commit the larceny or escape. 16 Larceny from the person may, in fact, carry higher risk of 17 confrontation than burglary. 18 anyone other than the offender present, whereas larceny from 19 the person requires the immediate presence of the victim. 20 Because it is defined by conduct that presents a 21 Larceny from the person raises the The Burglary can occur without serious potential risk of violence and is roughly similar to Page 12 of 13 1 burglary, larceny from the person meets both requirements 2 for a violent felony under the residual clause of the ACCA. 3 As a result, Thrower s conviction for larceny in the fourth 4 degree qualifies as a predicate offense for purposes of the 5 ACCA. 6 7 Conclusion The district court s order of April 23, 2008 entering 8 final judgment and the district court s sentencing 9 determination is hereby A FFIRMED. 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