United States v. Jones, No. 15-1518 (2d Cir. 2017)

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Justia Opinion Summary

The Second Circuit affirmed defendant's sentence of 180 months in prison after he was convicted of assaulting a federal officer. In light of Beckles v. United States, 137 S. Ct. 886 (2017), which held that the residual clause of the Career Offender Guideline—a second basis for finding a crime of violence—was not unconstitutional, the court held that New York first‐degree robbery categorically qualifies as a crime of violence under the residual clause and the court need not address defendant's argument based on the force clause. The court also held that defendant's sentence was substantively reasonable.

This opinion or order relates to an opinion or order originally issued on July 21, 2016.

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15 1518 cr United States v. Jones 1 2 In the 3 United States Court of Appeals 4 For the Second Circuit 31 ________ AUGUST TERM, 2015 ARGUED: APRIL 27, 2016 DECIDED: SEPTEMBER 11, 2017 No. 15 1518 cr UNITED STATES OF AMERICA, Appellee, v. COREY JONES, Defendant Appellant. ________ Appeal from the United States District Court for the Eastern District of New York. No. 13 Cr. 00438 – Nicholas G. Garaufis, District Judge. ________ Before: WALKER, CALABRESI, and HALL, Circuit Judges. ________ Defendant Corey Jones appeals from a sentence entered in the 32 United States District Court for the Eastern District of New York 33 (Garaufis, J.) following a jury trial conviction for assaulting a federal 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 2 15 1518 cr 1 officer in violation of 18 U.S.C. § 111. He was sentenced as a career 2 offender principally to 180 months in prison to be followed by three 3 years of supervised release. The primary basis for Jones’ appeal is 4 that, in light of the Supreme Court’s holding in Johnson v. United 5 States, 559 U.S. 133 (2010) (Johnson I), New York first degree robbery 6 is no longer categorically a crime of violence under the force clause 7 of the Career Offender Guideline, U.S.S.G. §§ 4B1.1 and 4B1.2, and 8 that the district court therefore erred in concluding that his prior 9 conviction for first degree robbery would automatically serve as one 10 of the predicate offenses for a career offender designation. 11 After oral argument in this matter, the Supreme Court 12 decided Beckles v. United States, 137 S. Ct. 886 (2017), which held that 13 the residual clause of the Career Offender Guideline—a second basis 14 for finding a crime of violence—was not unconstitutional. The Court 15 reached this conclusion notwithstanding the government’s 16 concession to the contrary in cases around the country that the 17 residual clause, like the identically worded provision of the Armed 18 Career Criminal Act (“ACCA”), was void for vagueness. In light of 19 Beckles, we find that New York first degree robbery categorically 20 qualifies as a crime of violence under the residual clause and 21 therefore need not address Jones’ argument based on the force 22 clause. We also find that his sentence is substantively reasonable and 23 therefore AFFIRM the sentence imposed by the district court. 3 15 1518 cr 1 Judge CALABRESI and Judge HALL concur in the opinion of the 2 Court. Judge CALABRESI files a separate concurring opinion, which 3 Judge HALL joins. 4 5 6 7 8 9 10 11 12 13 14 15 ________ BRIDGET M. ROHDE, Acting Assistant United States Attorney (Amy Busa, Assistant United States Attorney, on the brief), for Acting United States Attorney for the Eastern District of New York, for Appellee. MATTHEW B. LARSEN, Assistant Federal Defender, Federal Public Defenders of New York, New York, NY, for Defendant Appellant. ________ JOHN M. WALKER, JR., Circuit Judge: 16 Defendant Corey Jones appeals from a sentence entered in the 17 United States District Court for the Eastern District of New York 18 (Garaufis, J.) following a jury trial conviction for assaulting a federal 19 officer in violation of 18 U.S.C. § 111. He was sentenced as a career 20 offender principally to 180 months in prison to be followed by three 21 years of supervised release. The primary basis for Jones’ appeal is 22 that, in light of the Supreme Court’s holding in Johnson v. United 23 States, 559 U.S. 133 (2010) (Johnson I), New York first degree robbery 24 is no longer categorically a crime of violence under the force clause 25 of the Career Offender Guideline, U.S.S.G. §§ 4B1.1 and 4B1.2, and 26 that the district court therefore erred in concluding that his prior 4 15 1518 cr 1 conviction for first degree robbery would automatically serve as one 2 of the predicate offenses for a career offender designation. 3 After oral argument in this matter, the Supreme Court 4 decided Beckles v. United States, 137 S. Ct. 886 (2017), which held that 5 the residual clause of the Career Offender Guideline—a second basis 6 for finding a crime of violence—was not unconstitutional. The Court 7 reached this conclusion notwithstanding the government’s 8 concession to the contrary in cases around the country that the 9 residual clause, like the identically worded provision of the Armed 10 Career Criminal Act (“ACCA”), was void for vagueness. In light of 11 Beckles, we find that New York first degree robbery categorically 12 qualifies as a crime of violence under the residual clause and 13 therefore need not address Jones’ argument based on the force 14 clause. We also find that his sentence is substantively reasonable and 15 therefore AFFIRM the sentence imposed by the district court. 16 Judge CALABRESI and Judge HALL concur in the opinion of the 17 Court. Judge CALABRESI files a separate concurring opinion, which 18 Judge HALL joins. 19 BACKGROUND 20 On June 21, 2013, Corey Jones was finishing a ninety two 21 month federal sentence for unlawful gun possession in a halfway 22 house. Jones verbally threatened a staff member, a violation of the 23 rules of the halfway house, and thereby was remanded to the 5 15 1518 cr 1 custody of the Bureau of Prisons. Two Deputy U.S. Marshals arrived 2 to take Jones to prison, but Jones resisted the Marshals’ efforts to 3 take him into custody. During the ensuing altercation, Jones bit the 4 finger of one of the Marshals, who suffered puncture wounds, 5 necessitating antibiotics and a tetanus vaccine at a hospital. This 6 assault, it turned out, had grave consequences for Jones who was 7 now in all likelihood a “career offender” subject to a greatly 8 enhanced sentence. 9 A jury convicted Jones of assaulting a federal officer in 10 violation of 18 U.S.C. § 111. In the pre sentence report, the probation 11 officer calculated a relatively modest base offense level of fifteen for 12 the assault. But the probation officer then determined that Jones was 13 a career offender pursuant to the Career Offender Guideline 14 because, in addition to (1) being over eighteen years of age when he 15 committed the assault and (2) the assault being a crime of violence, 16 (3) he had at least two prior felony convictions of a crime of violence. 17 According to the report, Jones’ previous two convictions in New 18 York for first degree robbery and second degree assault satisfied the 19 third element of the test. The probation officer, following U.S.S.G. 20 § 4B1.1, increased the offense level to thirty two, which, when 21 combined with Jones’ criminal history category of VI, resulted in a 22 Guidelines range of 210 to 262 months of incarceration. Because the 6 15 1518 cr 1 statutory maximum for assault is twenty years, the effective 2 Guidelines range was 210 to 240 months. 3 The district court adopted the findings of the pre sentence 4 report and sentenced Jones to 180 months, or fifteen years, in prison 5 for the assault, to be followed by three years of supervised release. 6 Jones now appeals his sentence, arguing, first, that the district court 7 erred in designating him a career offender and, second, that his 8 sentence is substantively unreasonable. 9 After oral argument, we published an opinion that resolved 10 Jones’ appeal in his favor. The government had conceded that the 11 residual clause was void for vagueness, and we concluded that the 12 force clause could not be applied to Jones for reasons not relevant 13 here. Shortly after our decision was issued, however, we vacated the 14 opinion in order to await the Supreme Court’s decision in Beckles. 15 See United States v. Jones, 838 F.3d 291, 291 (2d Cir. 2016) (mem.). 16 Beckles addressed the constitutionality of the Career Offender 17 Guideline’s residual clause, which was in effect at the time of Jones’ 18 sentencing but has since been removed and replaced with new 19 language.1 Following Johnson v. United States, 135 S. Ct. 2551, 2557 After Johnson v. United States, 135 S. Ct. 2551, 2557 (2015) (Johnson II), the Sentencing Commission amended the Guidelines, effective August 1, 2016, to remove the residual clause on the belief that, contrary to Beckles’ later holding, the residual clause was unconstitutional. See U.S. Sentencing Comm’n, Amendments to the Sentencing Guidelines 1 3 (Jan. 21, 2016), http://www.ussc.gov/sites/default/files/pdf/amendment process/official text amendments/20160121_Amendments_0.pdf. 1 7 15 1518 cr 1 (2015) (Johnson II), which held that the residual clause of the ACCA 2 was unconstitutionally void for vagueness, there existed a general 3 belief that the identically worded residual clause of the Career 4 Offender Guideline was similarly unconstitutional, as the 5 government had consistently maintained. In Beckles, however, the 6 Court held that the residual clause of the Career Offender Guideline 7 is immune from void for vagueness challenges, as are the 8 Guidelines generally. Beckles, 137 S. Ct. at 892. After Beckles, we 9 invited the parties in this case to provide supplemental briefing as to 10 whether first degree robbery, as defined in New York, categorically 11 qualifies as a crime of violence under the previously codified 12 residual clause of the Career Offender Guideline.2 We now address 13 that question. DISCUSSION 14 15 As noted, prior to Beckles, Jones’ argument centered upon the 16 force clause of the Career Offender Guideline. Aided now by the 17 Supreme Court’s holding that the residual clause of the Career 18 Offender Guideline is not void for vagueness, we find that first 19 degree robbery as defined in New York is categorically a crime of 20 violence under the residual clause and thus we need not address 21 Jones’ argument based on the force clause. The alternative basis for the career offender enhancement—the commission of a “controlled substance offense”—is not relevant here. See U.S.S.G. § 4B1.1(a). 2 8 15 1518 cr 1 In the district court, Jones contested his career offender 2 designation solely on the basis that his first degree robbery 3 conviction occurred when he was a juvenile. He raised no argument 4 that robbery in New York was not a crime of violence. We 5 accordingly review his present challenge on that ground for plain 6 error. See United States v. Gamez, 577 F.3d 394, 397 (2d Cir. 2009) (per 7 curiam). To meet this standard, Jones must establish the existence of 8 (1) an error; (2) “that is plain”; (3) “that affects substantial rights”; (4) 9 and that “seriously affects the fairness, integrity, or public 10 reputation of judicial proceedings.” Id. (alterations and citation 11 omitted). We apply this standard less “stringently in the sentencing 12 context, where the cost of correcting an unpreserved error is not as 13 great as in the trial context.” Id. We first address point (1): whether 14 the district court committed error of any kind in designating Jones a 15 career offender. 16 I. The Legal Provisions at Issue in This Appeal 17 This appeal involves the interplay between substantive state 18 criminal law and the federal Sentencing Guidelines (“Guidelines”). 19 The question we face is straightforward: is first degree robbery in 20 New York, defined in New York Penal Law §§ 160.00 and 160.15, 21 however it may be committed, categorically a crime of violence 22 under the Career Offender Guideline? 9 15 1518 cr 1 A defendant commits robbery in New York when he “forcibly 2 steals property,” which the statute defines as “a larceny” involving 3 the use or threatened “immediate use of physical force upon another 4 person.” N.Y. Penal Law § 160.00. The various degrees of robbery, 5 which carry different penalties, turn upon the presence of particular 6 aggravating factors. Compare § 160.05 (defining third degree 7 robbery), with § 160.10 (defining second degree robbery), and with 8 § 160.15 (defining first degree robbery). First degree robbery occurs 9 when a defendant commits robbery and during the course of the 10 crime or his immediate flight either “(1) [c]auses serious physical 11 injury to any person who is not a participant in the crime; or (2) [i]s 12 armed with a deadly weapon; or (3) [u]ses or threatens the 13 immediate use of a dangerous instrument; or (4) [d]isplays what 14 appears to be a . . . firearm.” § 160.15. 15 The Career Offender Guideline enhances sentences for 16 defendants in federal court who satisfy certain criteria. See U. S. 17 Sentencing Guidelines Manual § 4B1.1(a) (U.S. Sentencing Comm’n 18 Nov. 2014) (U.S.S.G.). A defendant is a career offender if (1) he is “at 19 least eighteen years old at the time [he] committed the instant 20 offense of conviction”; (2) his “instant offense of conviction is a 21 felony that is . . . a crime of violence”; and (3) he “has at least two 22 prior felony convictions of . . . a crime of violence.” Id. 10 15 1518 cr 1 At the time of Jones’ sentencing in 2015,3 as mentioned earlier, 2 there were two separate clauses defining “crime of violence.” See 3 § 4B1.2(a). The first definition, the “force clause,” specifies that a 4 crime of violence is a felony “that has as an element the use, 5 attempted use, or threatened use of physical force against the person 6 of another.” § 4B1.2(a)(1). The second clause enumerates several 7 offenses that qualify as crimes of violence—“burglary of a dwelling, 8 arson, [] extortion[, or] involves use of explosives”—before ending 9 with the “residual clause,” which specifies that a crime of violence 10 also includes any offense that “otherwise involves conduct that 11 presents a serious potential risk of physical injury to another.” 12 § 4B1.2(a)(2) (2015). II. 13 The Categorical and Modified Categorical Approaches 14 The Supreme Court has set forth the methodology for 15 determining whether a state conviction qualifies as a predicate 16 offense for a federal sentence enhancement. There are two possible 17 methods: the categorical approach and the modified categorical 18 approach. See Descamps v. United States, 133 S. Ct. 2276, 2281 (2013). 19 The categorical approach is confined to an examination of the 20 legal elements of the state criminal statute to determine whether 3 With only one exception not relevant here, district courts are to sentence defendants pursuant to the version of the Guidelines in effect on the date of sentencing. See 18 U.S.C. § 3553(a)(4)(A); see also Beckles, 137 S. Ct. at 890 & n.1. Accordingly, all references to the Guidelines are to the November 2014 version, which was in effect when Jones was sentenced on April 24, 2015. 11 15 1518 cr 1 they are identical to or narrower than the relevant federal statute. 2 See id. If so, a conviction under the state statute categorically 3 qualifies as a predicate offense. See id. However, if the state statute 4 criminalizes any conduct that would not fall within the scope of 5 either the force clause or the residual clause, a conviction under the 6 state statute is not categorically a crime of violence and cannot serve 7 as a predicate offense. See id. 8 Under the categorical approach we must confine our inquiry 9 to the legal elements of the state statute without at all considering 10 the facts of the underlying crime. The Supreme Court has set forth 11 two reasons for this. First, the text of the Career Offender Guideline, 12 like that of the ACCA, explicitly refers to convictions rather than 13 conduct. See Mathis v. United States, 136 S. Ct. 2243, 2252 (2016). The 14 Career Offender Guideline directs the sentencing court to consider 15 whether the offender “has at least two prior felony convictions of . . . 16 a crime of violence,” U.S.S.G. § 4B1.1(a), which indicates that “the 17 sentencer should ask only about whether the defendant had been 18 convicted of crimes falling within certain categories, and not about 19 what the defendant had actually done,” Mathis, 136 S. Ct. at 2252 20 (internal quotation marks and citation omitted). 21 Second, by focusing upon the legal elements, rather than the 22 facts of the offense, the sentencing court “avoids unfairness to 23 defendants.” Id. at 2253. “Statements of ‘non elemental fact’ in the 12 15 1518 cr 1 records of prior convictions [such as the precise manner in which the 2 crime was committed] are prone to error precisely because their 3 proof is unnecessary.” Id. (citation omitted). Defendants therefore 4 may have little incentive to ensure the correctness of those details of 5 earlier convictions that could later trigger the unforeseen career 6 offender enhancement. 7 Occasionally, however, a state statute will criminalize 8 multiple acts in the alternative. Where this occurs, courts may 9 employ what is known as the modified categorical approach. But the 10 Supreme Court has emphasized that the modified categorical 11 approach is available only where the state statute is “divisible” into 12 separate crimes. Descamps, 122 S. Ct. at 2281 82; see also Flores v. 13 Holder, 779 F.3d 159, 165 66 (2d Cir. 2015). A statute is divisible if it 14 “list[s] elements in the alternative, and thereby define[s] multiple 15 crimes” but is not divisible if it instead lists “various factual means of 16 committing a single element.” Mathis, 136 S. Ct. at 2249 (emphases 17 added). 18 When a statute is divisible, a court employing the modified 19 categorical approach can then peer into the record to see which of 20 the multiple crimes was implicated. But the court may discern this 21 only from “a limited class of documents (for example, the 22 indictment, jury instructions, or plea agreement and colloquy) to 23 determine what crime, with what elements, a defendant was 13 15 1518 cr 1 convicted of.” Id. Once that determination is made, the modified 2 categorical approach is at an end and the court must apply the 3 categorical approach to the legal elements of the appropriate 4 criminal offense. Id. 5 New York’s first degree robbery statute is divisible and 6 therefore subject to the modified categorical approach. New York 7 defines robbery as “forcibly stea[ling] property.” N.Y. Penal Law §§ 8 160.00–.15. There are four categories of first degree robbery, 9 depending on whether: the perpetrator “(1) [c]auses serious physical 10 injury to any person who is not a participant in the crime; or (2) [i]s 11 armed with a deadly weapon; or (3) [u]ses or threatens the 12 immediate use of a dangerous instrument; or (4) [d]isplays what 13 appears to be a . . . firearm.” § 160.15; see also Flores, 779 F.3d at 166 14 (analyzing the divisibility of New York’s first degree sexual abuse 15 statute). 16 In the typical case under the modified categorical approach 17 we would examine certain documents in the record to ascertain 18 which of the four crimes Jones committed. In this instance, however, 19 we are stymied and unable to employ the modified categorical 20 approach because no one has produced the record. Where this 21 occurs, however, we are not at a complete loss. We instead look to 22 “the least of [the] acts” proscribed by the statute to see if it qualifies 23 as a predicate offense for the career offender enhancement. See 14 15 1518 cr 1 Johnson I, 559 U.S. at 137. If so, Jones’s first degree robbery 2 conviction can serve as a predicate offense for the enhancement 3 regardless of which first degree robbery subpart provided the basis 4 for his conviction. See id. 5 Jones identifies the act of “forcibly stealing property” while 6 “armed with a deadly weapon” as being the “least of the acts” in the 7 statute, and we agree. See N.Y. Penal Law § 160.15(2). The question 8 we must answer, therefore, is whether a defendant who perpetrates 9 such an act commits a crime of violence within the meaning of the 10 residual clause of the Career Offender Guideline. 11 12 we addressed only the force clause. We did not concern ourselves 13 with whether Jones’ first degree robbery conviction qualified as a 14 crime of violence under the Career Offender Guideline’s residual 15 clause because, consistent with the government’s concession on that 16 point, we had previously held that the residual clause was 17 unconstitutional in light of Johnson II. See United States v. Welch, 641 18 F. App’x 37, 42 43 (2d Cir. 2016) (summary order). Now that the 19 Supreme Court has held in Beckles that the Guidelines, regardless of 20 whatever other defects they may have, cannot be void for 21 vagueness, 137 S. Ct. at 890, we are free to assess whether New York 22 first degree robbery categorically qualifies as a crime of violence 23 under the residual clause. In the opinion we issued and then withdrew, prior to Beckles, 15 15 1518 cr III. 1 Whether Jones’ Conviction Qualifies as a Crime of Violence Under the Residual Clause 2 3 We have little difficulty concluding that the “least of the acts” 4 of first degree robbery satisfies the definition of the Guidelines’ 5 residual clause. The least of the acts, both sides agree, is “forcibly 6 stealing property” while “armed with a deadly weapon.” The 7 residual clause provides that a crime of violence includes any 8 offense that “ involves conduct that presents a serious potential risk 9 of physical injury to another.” U.S.S.G. § 4B1.2(a)(2). Plainly, a 10 robber who forcibly steals property from a person or from his 11 immediate vicinity, while armed with a deadly weapon, engages in 12 “conduct that presents a serious potential risk of physical injury to 13 another.” See id. 14 If there were any misgiving on this score, it is removed by the 15 commentary provision to the Guidelines in effect at the time of 16 Jones’ sentencing, which specifically enumerated robbery as a crime 17 of violence.4 § 4B1.2 cmt. n.1. The relevant commentary provision specified in full: “Crime of violence” includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included as ‘crimes of violence’ if (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives 4 16 15 1518 cr 1 Commentary provisions must be given “controlling weight” 2 unless they: (1) conflict with a federal statute, (2) violate the 3 Constitution, or (3) are plainly erroneous or inconsistent with the 4 Guidelines provisions they purport to interpret. Stinson v. United 5 States, 508 U.S. 36, 45 (1993). Jones has not identified any such flaws 6 nor do we discern any. Where the basis for categorizing a prior 7 conviction as a crime of violence is that the offense is specifically 8 enumerated as such in the Career Offender Guideline or its 9 commentary, we undertake the categorical approach by comparing 10 the state statute to the generic definition of the offense. See United 11 States v. Walker, 595 F.3d 441, 445 46 (2d Cir. 2010). 12 That there is consensus in the criminal law as to what 13 constitutes robbery thus further convinces us that the least of the 14 acts constituting New York first degree robbery, i.e., “forcibly 15 stealing property” while “armed with a deadly weapon,” is a crime 16 of violence under the residual clause. As we have noted, “all fifty 17 states define robbery, essentially, as the taking of property from 18 another person or from the immediate presence of another person 19 by force or by intimidation.” Id. (emphasis in original). Indeed, it 20 would seem that, pursuant to the commentary to the former residual (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another. U.S.S.G. § 4B1.2 cmt. n.1 (2015). 17 15 1518 cr 1 clause, robbery of any degree in New York qualifies as a crime of 2 violence. 3 Jones contends nonetheless that New York’s robbery statute is 4 broader than the generic definition. He argues, specifically, that the 5 generic definition of robbery requires the use or threat of force in the 6 process of asserting dominion over the property that is the subject of 7 the offense, whereas the New York statute would be violated by a 8 robber who uses or threatens force after assuming dominion of the 9 property. We disagree. 10 The specific language of the New York robbery statute that 11 Jones points to is that “forcible stealing” consists of (1) the “use[] or 12 threat[] [of] immediate use of physical force upon another person” 13 (2) “in the course of committing a larceny” (3) for the purpose of 14 either “preventing or overcoming resistance to the taking of the 15 property or to the retention thereof immediately after the taking” or 16 “[c]ompelling the owner of such property or another person to 17 deliver up the property or to engage in other conduct which aids in 18 the commission of the larceny.” N.Y. Penal Law § 160.00 (emphasis 19 added). 20 The generic definition of robbery, however, is broader than 21 Jones acknowledges. It is true that the common law definition 22 confines robbery to the use or threat of force before, or simultaneous 23 to, the assertion of dominion over property and therefore comports 18 15 1518 cr 1 with Jones’ argument. See, e.g., Wayne LaFave, 3 Substantive Criminal 2 Law § 20.3(e) (2d ed. Supp. 2016); Charles E. Torcia, 4 Wharton’s 3 Criminal Law § 463 (15th ed. Supp. 2016). But a majority of states 4 have departed from the common law definition of robbery, 5 broadening it, either statutorily or by judicial fiat, to also prohibit 6 the peaceful assertion of dominion followed by the use or threat of 7 force. See, e.g., LaFave § 20.3(e); Torcia § 463; State v. Moore, 274 S.C. 8 468, 480 81 (S.C. Ct. App. 2007) (collecting state statutes and judicial 9 decisions that have departed from the common law definition of 10 robbery). Indeed, the Model Penal Code, which we relied upon in 11 United States v. Walker, 595 F.3d at 446, is often cited as the authority 12 for expanding the definition of robbery in this manner, see LaFave 13 § 20.3(e), because it specifies that robbery includes conduct where 14 the initial use or threat of force occurs “in flight after the attempt or 15 commission [of the theft],” Model Penal Code § 222.1. As a result, 16 this broader definition has supplanted the common law meaning as 17 the generic definition of robbery. See Taylor v. United States, 495 U.S. 18 575, 598 (1990) (specifying that the “generic” definition of a crime is 19 the “sense in which the term is now used in the criminal codes of 20 most states”). 21 Moreover, New York places two restrictions on the temporal 22 relationship between the underlying theft and the use or threat of 23 force that buttress the conclusion that its definition of robbery falls 19 15 1518 cr 1 within the generic definition of the offense: (1) force must be “in the 2 course of committing a larceny,” i.e., a theft, and (2) force must occur 3 during “immediate flight” after the taking for purposes of retaining 4 the property. See N.Y. Penal Law § 160.00. Jones does not provide, 5 and we are not aware of, any authority that the New York statute 6 criminalizes the use of force after the robber has successfully carried 7 the property away and reached a place of temporary safety. 8 For all of the foregoing reasons, we easily conclude that New 9 York’s definition of robbery necessarily falls within the scope of 10 generic robbery as set forth in the commentary to U.S.S.G. § 4B1.2(a). 11 Because Jones’ argument that first degree robbery is not necessarily 12 a crime of violence within the meaning of U.S.S.G. § 4B1.2(a) under 13 the categorical approach is without merit, the district court did not 14 commit error, much less plain error, in sentencing Jones as a career 15 offender. 16 IV. 17 Finally, we reject Jones’ argument that his sentence of 180 18 months is substantively unreasonable. In assessing the substantive 19 reasonableness of a sentence for abuse of discretion, we review 20 questions of law de novo and questions of fact for clear error. United 21 States v. Bonilla, 618 F.3d 102, 108 (2d Cir. 2010) (citation omitted). 22 We may not substitute our own judgment for that of the district 23 court and can find substantively unreasonable only those sentences The Substantive Reasonableness of Jones’ Sentence 20 15 1518 cr 1 that are so “shockingly high, shockingly low, or otherwise 2 unsupportable as a matter of law” that affirming them would 3 “damage the administration of justice.” United States v. Rigas, 583 4 F.3d 108, 123 (2d Cir. 2009). In the “overwhelming majority of 5 cases,” a sentence within the Guidelines range will “fall comfortably 6 within the broad range of sentences that would be reasonable.” 7 United States v. Perez Frias, 636 F.3d 39, 43 (2d Cir. 2011) (citation 8 omitted). 9 Jones’ Guidelines range was 210 months to 262 months, the 10 top of which was lowered to 240 months, the statutory maximum for 11 assault of a federal officer. The court imposed a sentence of 180 12 months, or fifteen years, which, while substantial, was considerably 13 below the Guidelines range. 14 The primary thrust of Jones argument is that a fifteen year 15 sentence is substantively unreasonable for an assault of a federal 16 officer that consists solely of biting the victim s finger and in which 17 the injury was not permanent. Jones argument, however, misses the 18 mark. The district court specified a combination of reasons for the 19 fifteen year sentence, including: (1) the need to encourage respect 20 for the law and cooperation with law enforcement officials who are 21 attempting to carry out their lawful duties; (2) Jones substantial 22 prior criminal history, consisting of seven prior convictions, two of 23 which, in addition to the assault of the officer, resulted in him being 21 15 1518 cr 1 designated a career offender; and (3) Jones substantial history of 2 misconduct while incarcerated, including twenty seven occasions 3 upon which he was disciplined. 4 Jones attempts to compare his case to instances where 5 defendants were convicted of violating the same statute, received 6 lower sentences, and arguably committed more egregious conduct. 7 That defendants convicted of similar or even more serious conduct 8 received lower sentences, however, does not render Jones sentence 9 substantively unreasonable. Plainly, the district court also relied 10 upon Jones’ criminal and prison history, including his career 11 offender status, which distinguishes this case from those to which he 12 refers. Under these circumstances, we cannot say that Jones’ 13 sentence was substantively unreasonable. 14 15 16 CONCLUSION For the reasons stated above, we AFFIRM the sentence imposed by the district court. 1 GUIDO CALABR O RESI, Circuit Judge, with whom Peter W. H w m Hall, Circu Judge, jo uit oins, 2 concurr ring: I believe Judge Walke opinio states th law corr er’s on he rectly, and I concur i d in 3 4 its reaso oning and in its resu I write separately because t ult. y that result, while , 5 mandat by the law, seem to me to be highly unjust, an little sho of absu ted ms nd ort urd. 6 To expl lain why I think so, let me give the facts a proced e and dural histo of this case ory 7 in a way that is slightly diff y ferent from the major opinio m rity on—which however is h, r, 8 also cor rrect, and in which, as noted ab i a bove, I join fully. n, A. Backgroun B nd 9 Corey Jones is a nowC -39-year-old man wi an I.Q. of 69.1 Wh at a ith hile 10 11 residential reentry center (“ y “RRC”), fin nishing a n nearly eigh ht-year sen ntence for 12 felony possession of a firear (he wa five mon p n rm, as nths’ shy o his sched of duled 13 release) Jones alle ), egedly gru umbled a threat and was insole to a sta membe t ent aff er. 14 The staf member called th federal marshals t take custody of Jon who ff rs he m to nes, 15 resisted arrest. Th marshal conceded that, dur d he ls ring his re esistance, Jo ones never r 16 stepped towards, kicked, or punched them. Non d r netheless, as they were trying to 17 lower his head to the groun the han of the m h nd, nd marshal wh was app ho prehending 18 Jones sl lipped dow Jones’ face, and Jo wn f ones bit hi causing the finge to bleed im, g er d. 19 Shortly thereafter Jones sai “I give,” and was arrested a taken away. The r, id, s and e 20 marshal provided a sworn affidavit in d a ndicating t that he suf ffered no lo becaus of oss se 21 the inju and tha he did not request damages. At trial, th bite wa describe ury at n t . he as ed 22 by the prosecutor as “not th most ser p r he rious woun you’ll e nd ever see.” This I.Q. s score is con nsidered to o be in the e “mentally y deficient t” range of f intellect tual functi ioning, bel low the gen nerally acc cepted ran nge for “int tellectual disability,” which h is an I.Q. score of approximat tely 70 75. See Dist. C Dkt. 46 Ct. 6–1 at 5, Jon Sentencing Mem nes morandum, Exhibit A “Sentenc A, cing Memo Letter of Dr. o Sanford L. Drob”, at 5. d , 1 1 Pursuant to a single-count indictment for assaulting a federal officer, Jones 1 2 was found guilty in violation of 18 U.S.C. § 111(a)(1)–(b). Under the Guidelines 3 as they were then calculated, and as described in Judge Walker’s opinion, Jones 4 faced a sentence of between 210–240 months, (seventeen-and-one-half to twenty 5 years), with the high end being the statutory maximum. This calculation was 6 based on Jones’ designation as a career offender, a status that was triggered by 7 two earlier convictions: (i) an assault in which the then twenty-year-old Jones 8 shot a man in the leg, which later needed to be amputated, and (ii) a conviction 9 for first-degree robbery in New York, a crime Jones committed when he was 10 sixteen years old.2 The district court, applying what it believed was the law of this circuit as it 11 12 stood at that time, found that Jones’ robbery conviction constituted a “crime of 13 violence” under the categorical approach to the Sentencing Guidelines. See 14 United States v. Spencer, 955 F.2d 814, 820 (2d Cir. 1992) (holding that, under the 15 law of New York, the crime of attempted third-degree robbery constitutes a 16 “crime of violence” for the purposes of the “force clause” of the Sentencing 17 Guidelines), abrogated by Johnson v. United States, 559 U.S. 133 (2010) (Johnson I); 18 see also United States v. Reyes, 691 F.3d 453 (2d Cir. 2012) (per curiam).3 Given this A defendant’s youthful offender adjudications are, for the purposes of the relevant Guidelines calculations, deemed “‘adult convictions’ [where the defendant] (1) pleaded guilty to both felony offenses in an adult forum and (2) received and served a sentence of over one year in an adult prison for each offense.” See United States v. Jones, 415 F.3d 256, 264 (2d Cir. 2005). 3 A crime of violence, along with other factors, serves as a predicate requiring a district court to sentence a defendant as a “career offender” subject to an increased sentencing spectrum. See U.S. Sentencing Guidelines Manual § 4B1.1(a) (U.S. Sentencing Comm’n Nov. 2014) (U.S.S.G.) (defining “career offender” as a defendant who is (1) “at least eighteen years old at the time [he] committed the instant offense of conviction;” (2) his “instant offense of 2 2 1 holding, and because Jones’ prior conviction for assault certainly constituted a 2 crime of violence, the district court determined that the career offender status 3 applied. Absent Jones’ designation as a career offender, his Guidelines sentence conviction is a felony that is . . . a crime of violence;” and (3) he “has at least two prior felony convictions of . . . a crime of violence.”) . As described in Judge Walker’s opinion, there were, at the time of Jones’ sentencing, two clauses in the Sentencing Guidelines, either of which could define a “crime of violence.” These two clauses are referred to as the “force clause,” and the “residual clause.” The “force clause” specifies that a crime of violence is a felony that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 4B1.2(a)(1). The “residual clause” comes at the end of a second set of enumerated offenses, and provides that a crime of violence also includes any offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. § 4B1.2(a)(2). In Spencer, we had held that, under the force clause, third degree robbery, as defined by New York law, was a crime of violence. After the Supreme Court’s analysis of the force clause in Johnson I, however, we held that battery, as defined by the state of Florida, was not a crime of violence. Reyes, 691 F.3d 453. In Reyes, we noted Johnson I’s dictate that, to constitute a “crime of violence” under the categorical approach, a crime must involve the “use of physical force,” and found that battery did not meet that definition. Id. at 460. Even after Spencer, it was an open question whether first degree robbery was a crime of violence. After Reyes, that question depended on whether the use of physical force was, indeed, present in the New York definition of that crime. Judge Garaufis held that the reasoning of Spencer meant that first degree robbery was a crime of violence. In our former, withdrawn opinion, we held, for reasons similar to those given in Reyes, that first degree robbery was not. Cf., United States v. Yates, No. 16 3997, 2017 WL 3402084 (6thCir. Aug 9, 2017) (finding in analogous circumstances that the force clause does not apply). All of that analysis, however, was with respect to the force clause, not the co extant – and here essential – residual clause. 3 1 range would have been betw w e ween 36 an 48 mon nd nths (or thr to four years), ree r 2 instead of the ran of 210-2 month or the se nge 240 hs, eventeen-a and-one-h years to half o 3 twenty years that the court deemed ap t pplicable. Departing downward significa D antly from the Guidelines, Ju m udge Gara aufis 4 5 sentenc Jones to fifteen ye ced o ears. B. Doctrinal D D Developm ments and I Impact on Sentencin ng 6 Ju udge Gara aufis’ opini rested on his inte ion erpretation of the ap n pplication o of 7 8 the forc clause to New Yor State’s definition o robbery Because J ce o rk d of y. Judge 9 Garaufi was of th view th first-deg is he hat gree robbe was a c ery crime of vi iolence un nder 10 the forc clause ev after Johnson I, Ju ce ven J udge Gara aufis did n address the not s 11 addition possible determi nal inant of a crime of vi c iolence now at issue before us: the w : 12 “residu clause.” ual ” After Jones’ initial sen A ntencing, but before we heard Jones’ app b peal, the 13 14 Suprem Court fo me ound langu uage in the Armed C e Career Crim minal Act (“ACCA”) ) 15 which was identic to the language used in the residual c w cal l u e clause of th he 16 Guideli ines—the lynchpin clause unde l ergirding t author of Jone current the rity es’ t 17 sentenc ce—to be unconstitut u tionally va ague. Johns v. Unite States, 1 S. Ct. 2 son ed 135 2551, 18 2557 (20 015) (Johns II). Sub son bsequent to Johnson II most fed o I, deral courts of appea als 19 to decid the issue found th given the Suprem Court’s decision, the residu de hat, t me s ual 20 clause was also un w nconstitutionally vag gue. See U United State v. Pawlak 822 F.3d es k, d 21 902, 907 7-11 (6th Cir. 2016); United Stat v. Hurlb C U tes burt, 835 F. 715, 72 (7th Cir. .3d 25 . 22 2016); United State v. Calabr U es retta, 831 F.3d 128, 13 (3d Cir. 2016); Un F 37 . nited States v. 23 Madrid, 805 F.3d 1204, 1210 (10th Cir. 2015); but see United States v. M , 1 d Matchett, 80 02 24 F.3d 118 1193-96 (11th Cir 2015). 85, 6 r. As a result— A —with the applicatio of the fo e on orce clause to Jones i doubt a a e in as 25 26 result of Johnson I, and with the residu clause struck dow across several o I h ual wn 4 1 circuits as a result of Johnson II—any number of defendan were fo t n n f nts ound not to o 2 have co ommitted crimes of violence, ei c v ither as a m matter of f first instance, or on 3 appeal, for purpo oses of dete ermining their career offender status und the t r der 4 Guideli ines. Accor rdingly, th were re hey esentenced (or sente d enced in th first he 5 instance to lower sentences We are told the go e) r s. t overnment is not cha t allenging th hese 6 lower se entences. C. Removal of the Resid R dual Claus se from th he Guideli ines 7 The Sentencing Comm T mission, in light of th decision of sever courts o n he ns ral of 8 9 appeals grounded on the Su s d upreme Co ourt’s deci ision in Joh hnson II, rev vised the 10 Guideli ines and re emoved th residual clause as a basis for future sen he r ntencing. ( (See 11 Majority Opinion n.1). n, D. Procedural P l History in n this Cou urt 12 13 We heard Jones’ appe after Johnson II, an we held (i) that, under John W eal nd d: nson 14 I, the fo orce clause was not applicable to him; (ii) (like seve of our sister circu a t ) eral uits) 15 that the other pos e ssible grou for Jon career offender s und nes’ status, the residual 16 clause, was uncon nstitutiona pursuan to Johnso II; and, (iii) that, a a result, al, nt on as 17 r nviction did not qua alify as a predicate vi iolent offe ense under the r Jones’ robbery con 18 Guideli ines. We th herefore or rdered Jon sentenc vacated and sent the case ba nes’ ce d ack 19 for rese entencing. We expres W ssly instruc cted the di istrict cour that, in r rt resentencin ng 20 Jones, it should no treat him as a care offende t ot m eer er. Before the district cou resente B d urt enced Jone howeve the Supr es, er, reme Cour rt 21 22 granted certiorari in Beckles v. United States, 137 S Ct. 886 ( d v S S. (2017), to c consider 23 whether the langu uage that, in Johnson II it had d deemed un nconstitutio onally vag gue 24 in a statute, was al void fo vaguene when th identica languag was lso or ess he al ge 25 employ in the Guidelines In view of the Supreme Cour action, we withd yed G s. o rt’s , drew 26 our opin nion, and suspended resenten d ncing pend ding the Bec ckles decision. 5 1 Interestingly, at least one district court, in an independent case, had already 2 granted a motion for resentencing in light of our now-recalled decision. Miles v. 3 United States, No. 11-cr-581, 2016 WL 4367958 (S.D.N.Y. Aug 15, 2016). In Beckles, the Supreme Court held the relevant clause of the Guidelines not 4 5 to be unconstitutionally vague.4 Hence, the clause remained applicable to cases 6 like the one before us. As a result, we are bound to consider Jones’ earlier convictions on the basis 7 8 of the revived (but no longer extant, since it has been removed by the Sentencing 9 Commission) residual clause. Under that clause, we today correctly find that 10 Jones’ robbery conviction constituted a crime of violence and, as such, served as 11 a predicate offense which—together with his assault convictions—categorically 12 renders Jones a career offender. He was, therefore, correctly subject to the 13 sentencing guidelines of 210–240 months on the basis of which the district 14 court—albeit, perhaps incorrectly relying on the force clause rather than the 15 residual clause— had imposed his original sentence of fifteen years. Because that sentence was correctly based on the Guidelines as we now 16 17 hold they stood when the district court sentenced Jones, we now affirm that 18 sentence. We also hold that, given the applicable Guidelines, the sentence 4 The Supreme Court held as it did based on the history of discretion in sentencing before the Guidelines and the discretionary nature of the Guidelines themselves. My concern with our holding today does not dispute the correctness of the Court’s decision. That the Court’s decision was unexpected, however, cannot be doubted. Between Johnson II and Beckles, courts of appeals, prosecutors, and the Sentencing Commission took actions which assumed a different result. Indeed, the Justice Department had taken the position that Johnson II governed Beckles, and the Supreme Court had to appoint special counsel to present the opposite view. It is that unexpectedness and what happened between Johnson II and Beckles that is, in significant part, responsible for making today’s result so troubling to me. 6 1 imposed—which departed significant downw tly ward from these appl licable 2 Guideli ines—was not substa antively un nreasonable. E. DISCUSSI D ION 3 I agree that the senten is not substantiv t nce s vely unreas sonable; bu I believe ut e 4 5 the resu to be clo to absu ult ose urd. Jo ones was about to be released when he c a e committed a crime w d whose full 6 7 nature and signifi a icance the district co ourt is bette able to e er evaluate th we. Th han he 8 district court deci ided on a fifteen-yea sentence Perhaps this senten was ba f ar e. nce ased 9 on its view of Jones’ prior cr riminal activity, and on Jones’ dangerou d ’ usness. 10 Perhaps the sente s ence, depar rting down nward not tably from the Guide m elines, was s, 11 howeve imposed because the distric court bel er, d ct lieved that given those t, 12 Guideli ines, it had gone dow as much as it felt it reasona d wn ably could. . The fact is that we do not know what sen T t o w ntence the d district cou would urt 13 14 have de eemed app propriate if Jones had been sub f d bject to diff ferent Guidelines. H Had 15 our opin nion come down slig e ghtly earlie as did t er, those of m most other c circuits 16 dealing with simi issues, Jones wou have b g ilar uld been resent tenced pur rsuant to a 17 substan ntively low Guideli wer ines range We woul then, kn e. ld, now what sentence t 18 would have seem approp h med priate to th district c he court in th hose circum mstances. H Had 19 that sen ntence been lower—a it appar n as rently was in any number of ot ther cases in 20 other ci ircuits—th Governm he ment apparently wou not ha objected to it. Ha uld ave ad 21 Jones co ommitted his crime under the currently e u existing G Guidelines, (i.e., in wh hich 22 the residual claus has been removed by the Sen se n d ntencing C Commissio and on), 23 assumin that we would ha read th force cla ng e ave he ause not to apply (as we did in o s n 24 our earl lier, now-r retracted opinion), th district court wou have ha again, the o he uld ad, 25 opportu unity to ga auge Jones’ degree of dangerou f usness und a very different s der set 26 of Guid delines than those we today, fi n e, inally conc clude it cor rrectly app plied at 27 sentenc cing. 7 Because we (advisedly) withdrew our earlier opinion in light of the 1 2 Supreme Court’s grant of certiorari in Beckles, and because of the Supreme Court’s 3 ultimate decision in Beckles, I agree that we now are bound to affirm Jones’ 4 original sentence. This means that, as a result of timing quirks (his appeal to us 5 was slightly too late, leading to our decision to pull our earlier opinion; his 6 crimes too early so that the now-removed, but no longer unconstitutional, 7 residual clause was in effect when he committed them), Jones receives a very, 8 very high sentence in contrast with almost every similarly situated defendant. What is more—and this may be the true source of my sense of absurdity— 9 10 there appears to be no way in which we can ask the district court to reconsider 11 the sentence it ordered in view of the happenstances that have worked against 12 Jones, and in view of its assessment of Jones’ crimes and of its downward 13 departure. Were this a civil case, there would be any number of ways of letting the 14 15 lower court revisit matters.5 But, as far as I have been able to discern, there is no 16 way for us to send this back to the district court and ask it to tell us what I 17 believe should determine Jones’ sentence: 18 In the light of sentences that other similarly guilty defendants have 19 received, and in the light of Jones’ own situation, both of which you, as 20 a district judge, are best suited to determine, what is the sentence that 21 you deem appropriate in this case? For example: Federal Rule of Civil Procedure 60(b)(6) provides a court with the power to entertain a motion to relieve a party from a final judgment for “any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). To similar effect, Rule 60(d) states that a court has the power to “entertain an independent action to relieve a party from a judgment, order, or proceeding.” Id. 60(d)(1). 5 8 1 I find our inability to learn this to be both absurd and deeply troubling. I 2 believe our affirmance is correct, and that we can do no other. I hope, however, 3 that somewhere, somehow, there exists a means of determining what would, in 4 fact, be an appropriate sentence for Jones. 9