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

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Justia Opinion Summary

Defendant appealed his 180 month sentence after he was convicted of assaulting a federal officer and was sentenced as a career offender. In light of Beckles v. United States, 137 S. Ct. 886 (2017), the Second Circuit found that New York first‐degree robbery categorically qualifies as a crime of violence under the residual clause and the court therefore need not address defendant's argument based on the force clause. The court also found that defendant's sentence was substantively reasonable. Accordingly, the court affirmed the sentence and remanded for further considerations.

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 32 ________ AUGUST TERM, 2015 ARGUED: APRIL 27, 2016 DECIDED: SEPTEMBER 11, 2017 AMENDED: OCTOBER 5, 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 33 United States District Court for the Eastern District of New York 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 2 15 1518 cr 1 (Garaufis, J.) following a jury trial conviction for assaulting a federal 2 officer in violation of 18 U.S.C. § 111. He was sentenced as a career 3 offender principally to 180 months in prison to be followed by three 4 years of supervised release. The primary basis for Jones’ appeal is 5 that, in light of the Supreme Court’s holding in Johnson v. United 6 States, 559 U.S. 133 (2010) (Johnson I), New York first degree robbery 7 is no longer categorically a crime of violence under the force clause 8 of the Career Offender Guideline, U.S.S.G. §§ 4B1.1 and 4B1.2, and 9 that the district court therefore erred in concluding that his prior 10 conviction for first degree robbery would automatically serve as one 11 of the predicate offenses for a career offender designation. 12 After oral argument in this matter, the Supreme Court 13 decided Beckles v. United States, 137 S. Ct. 886 (2017), which held that 14 the residual clause of the Career Offender Guideline—a second basis 15 for finding a crime of violence—was not unconstitutional. The Court 16 reached this conclusion notwithstanding the government’s 17 concession to the contrary in cases around the country that the 18 residual clause, like the identically worded provision of the Armed 19 Career Criminal Act (“ACCA”), was void for vagueness. In light of 20 Beckles, we find that New York first degree robbery categorically 21 qualifies as a crime of violence under the residual clause and 22 therefore need not address Jones’ argument based on the force 23 clause. We also find that his sentence is substantively reasonable and 3 15 1518 cr 1 therefore AFFIRM the sentence imposed by the district court and 2 REMAND for further consideration as may be just under the 3 circumstances. 4 Judge CALABRESI and Judge HALL concur in the opinion of the 5 Court. Judge CALABRESI files a separate concurring opinion, which 6 Judge HALL joins. 7 8 9 10 11 12 13 14 15 16 17 ________ 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: 18 Defendant Corey Jones appeals from a sentence entered in the 19 United States District Court for the Eastern District of New York 20 (Garaufis, J.) following a jury trial conviction for assaulting a federal 21 officer in violation of 18 U.S.C. § 111. He was sentenced as a career 22 offender principally to 180 months in prison to be followed by three 23 years of supervised release. The primary basis for Jones’ appeal is 24 that, in light of the Supreme Court’s holding in Johnson v. United 25 States, 559 U.S. 133 (2010) (Johnson I), New York first degree robbery 26 is no longer categorically a crime of violence under the force clause 4 15 1518 cr 1 of the Career Offender Guideline, U.S.S.G. §§ 4B1.1 and 4B1.2, and 2 that the district court therefore erred in concluding that his prior 3 conviction for first degree robbery would automatically serve as one 4 of the predicate offenses for a career offender designation. 5 After oral argument in this matter, the Supreme Court 6 decided Beckles v. United States, 137 S. Ct. 886 (2017), which held that 7 the residual clause of the Career Offender Guideline—a second basis 8 for finding a crime of violence—was not unconstitutional. The Court 9 reached this conclusion notwithstanding the government’s 10 concession to the contrary in cases around the country that the 11 residual clause, like the identically worded provision of the Armed 12 Career Criminal Act (“ACCA”), was void for vagueness. In light of 13 Beckles, we find that New York first degree robbery categorically 14 qualifies as a crime of violence under the residual clause and 15 therefore need not address Jones’ argument based on the force 16 clause. We also find that his sentence is substantively reasonable and 17 therefore AFFIRM the sentence imposed by the district court and 18 REMAND for further consideration as may be just under the 19 circumstances. 20 Judge CALABRESI and Judge HALL concur in the opinion of the 21 Court. Judge CALABRESI files a separate concurring opinion, which 22 Judge HALL joins. 5 15 1518 cr BACKGROUND 1 2 On June 21, 2013, Corey Jones was finishing a ninety two 3 month federal sentence for unlawful gun possession in a halfway 4 house. Jones verbally threatened a staff member, a violation of the 5 rules of the halfway house, and thereby was remanded to the 6 custody of the Bureau of Prisons. Two Deputy U.S. Marshals arrived 7 to take Jones to prison, but Jones resisted the Marshals’ efforts to 8 take him into custody. During the ensuing altercation, Jones bit the 9 finger of one of the Marshals, who suffered puncture wounds, 10 necessitating antibiotics and a tetanus vaccine at a hospital. This 11 assault, it turned out, had grave consequences for Jones who was 12 now in all likelihood a “career offender” subject to a greatly 13 enhanced sentence. 14 A jury convicted Jones of assaulting a federal officer in 15 violation of 18 U.S.C. § 111. In the pre sentence report, the probation 16 officer calculated a relatively modest base offense level of fifteen for 17 the assault. But the probation officer then determined that Jones was 18 a career offender pursuant to the Career Offender Guideline 19 because, in addition to (1) being over eighteen years of age when he 20 committed the assault and (2) the assault being a crime of violence, 21 (3) he had at least two prior felony convictions of a crime of violence. 22 According to the report, Jones’ previous two convictions in New 23 York for first degree robbery and second degree assault satisfied the 6 15 1518 cr 1 third element of the test. The probation officer, following U.S.S.G. 2 § 4B1.1, increased the offense level to thirty two, which, when 3 combined with Jones’ criminal history category of VI, resulted in a 4 Guidelines range of 210 to 262 months of incarceration. Because the 5 statutory maximum for assault is twenty years, the effective 6 Guidelines range was 210 to 240 months. 7 The district court adopted the findings of the pre sentence 8 report and sentenced Jones to 180 months, or fifteen years, in prison 9 for the assault, to be followed by three years of supervised release. 10 Jones now appeals his sentence, arguing, first, that the district court 11 erred in designating him a career offender and, second, that his 12 sentence is substantively unreasonable. 13 After oral argument, we published an opinion that resolved 14 Jones’ appeal in his favor. The government had conceded that the 15 residual clause was void for vagueness, and we concluded that the 16 force clause could not be applied to Jones for reasons not relevant 17 here. Shortly after our decision was issued, however, we vacated the 18 opinion in order to await the Supreme Court’s decision in Beckles. 19 See United States v. Jones, 838 F.3d 291, 291 (2d Cir. 2016) (mem.). 20 Beckles addressed the constitutionality of the Career Offender 21 Guideline’s residual clause, which was in effect at the time of Jones’ 22 sentencing but has since been removed and replaced with new 7 15 1518 cr 1 language.1 Following Johnson v. United States, 135 S. Ct. 2551, 2557 2 (2015) (Johnson II), which held that the residual clause of the ACCA 3 was unconstitutionally void for vagueness, there existed a general 4 belief that the identically worded residual clause of the Career 5 Offender Guideline was similarly unconstitutional, as the 6 government had consistently maintained. In Beckles, however, the 7 Court held that the residual clause of the Career Offender Guideline 8 is immune from void for vagueness challenges, as are the 9 Guidelines generally. Beckles, 137 S. Ct. at 892. After Beckles, we 10 invited the parties in this case to provide supplemental briefing as to 11 whether first degree robbery, as defined in New York, categorically 12 qualifies as a crime of violence under the previously codified 13 residual clause of the Career Offender Guideline.2 We now address 14 that question. 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. The Sentencing Commission noted disagreements among courts of appeals regarding whether the clause was unconstitutionally vague in light of Johnson II and whether the Guidelines were susceptible to a vagueness challenge. U.S. Sentencing Comm’n, Amendments to the Sentencing Guidelines 4–5 (Jan. 21, 2016), https://www.ussc.gov/sites/default/files/pdf/amendment process/official text amendments/20160121_Amendments_0.pdf. The Commission, without taking a position on the constitutionality of the residual clause, “determined that the residual clause . . . implicates many of the same concerns cited by the Supreme Court in [Johnson II]” and removed it “as a matter of policy.” Id. at 5. The Commission suggested that the amendment would alleviate application difficulties associated with the clause and some of the ongoing litigation and uncertainty resulting from Johnson II. Id. 1 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 DISCUSSION 1 2 As noted, prior to Beckles, Jones’ argument centered upon the 3 force clause of the Career Offender Guideline. Aided now by the 4 Supreme Court’s holding that the residual clause of the Career 5 Offender Guideline is not void for vagueness, we find that first 6 degree robbery as defined in New York is categorically a crime of 7 violence under the residual clause and thus we need not address 8 Jones’ argument based on the force clause. 9 In the district court, Jones contested his career offender 10 designation solely on the basis that his first degree robbery 11 conviction occurred when he was a juvenile. He raised no argument 12 that robbery in New York was not a crime of violence. We 13 accordingly review his present challenge on that ground for plain 14 error. See United States v. Gamez, 577 F.3d 394, 397 (2d Cir. 2009) (per 15 curiam). To meet this standard, Jones must establish the existence of 16 (1) an error; (2) “that is plain”; (3) “that affects substantial rights”; (4) 17 and that “seriously affects the fairness, integrity, or public 18 reputation of judicial proceedings.” Id. (alterations and citation 19 omitted). We apply this standard less “stringently in the sentencing 20 context, where the cost of correcting an unpreserved error is not as 21 great as in the trial context.” Id. We first address point (1): whether 22 the district court committed error of any kind in designating Jones a 23 career offender. 9 1 15 1518 cr I. The Legal Provisions at Issue in This Appeal 2 This appeal involves the interplay between substantive state 3 criminal law and the federal Sentencing Guidelines (“Guidelines”). 4 The question we face is straightforward: is first degree robbery in 5 New York, defined in New York Penal Law §§ 160.00 and 160.15, 6 however it may be committed, categorically a crime of violence 7 under the Career Offender Guideline? 8 A defendant commits robbery in New York when he “forcibly 9 steals property,” which the statute defines as “a larceny” involving 10 the use or threatened “immediate use of physical force upon another 11 person.” N.Y. Penal Law § 160.00. The various degrees of robbery, 12 which carry different penalties, turn upon the presence of particular 13 aggravating factors. Compare § 160.05 (defining third degree 14 robbery), with § 160.10 (defining second degree robbery), and with 15 § 160.15 (defining first degree robbery). First degree robbery occurs 16 when a defendant commits robbery and during the course of the 17 crime or his immediate flight either “(1) [c]auses serious physical 18 injury to any person who is not a participant in the crime; or (2) [i]s 19 armed with a deadly weapon; or (3) [u]ses or threatens the 20 immediate use of a dangerous instrument; or (4) [d]isplays what 21 appears to be a . . . firearm.” § 160.15. 22 The Career Offender Guideline enhances sentences for 23 defendants in federal court who satisfy certain criteria. See U. S. 10 15 1518 cr 1 Sentencing Guidelines Manual § 4B1.1(a) (U.S. Sentencing Comm’n 2 Nov. 2014) (U.S.S.G.). A defendant is a career offender if (1) he is “at 3 least eighteen years old at the time [he] committed the instant 4 offense of conviction”; (2) his “instant offense of conviction is a 5 felony that is . . . a crime of violence”; and (3) he “has at least two 6 prior felony convictions of . . . a crime of violence.” Id. 7 At the time of Jones’ sentencing in 2015,3 as mentioned earlier, 8 there were two separate clauses defining “crime of violence.” See 9 § 4B1.2(a). The first definition, the “force clause,” specifies that a 10 crime of violence is a felony “that has as an element the use, 11 attempted use, or threatened use of physical force against the person 12 of another.” § 4B1.2(a)(1). The second clause enumerates several 13 offenses that qualify as crimes of violence—“burglary of a dwelling, 14 arson, [] extortion[, or] involves use of explosives”—before ending 15 with the “residual clause,” which specifies that a crime of violence 16 also includes any offense that “otherwise involves conduct that 17 presents a serious potential risk of physical injury to another.” 18 § 4B1.2(a)(2) (2015). 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 1 15 1518 cr II. The Categorical and Modified Categorical Approaches 2 The Supreme Court has set forth the methodology for 3 determining whether a state conviction qualifies as a predicate 4 offense for a federal sentence enhancement. There are two possible 5 methods: the categorical approach and the modified categorical 6 approach. See Descamps v. United States, 133 S. Ct. 2276, 2281 (2013). 7 The categorical approach is confined to an examination of the 8 legal elements of the state criminal statute to determine whether 9 they are identical to or narrower than the relevant federal statute. 10 See id. If so, a conviction under the state statute categorically 11 qualifies as a predicate offense. See id. However, if the state statute 12 criminalizes any conduct that would not fall within the scope of 13 either the force clause or the residual clause, a conviction under the 14 state statute is not categorically a crime of violence and cannot serve 15 as a predicate offense. See id. 16 Under the categorical approach we must confine our inquiry 17 to the legal elements of the state statute without at all considering 18 the facts of the underlying crime. The Supreme Court has set forth 19 two reasons for this. First, the text of the Career Offender Guideline, 20 like that of the ACCA, explicitly refers to convictions rather than 21 conduct. See Mathis v. United States, 136 S. Ct. 2243, 2252 (2016). The 22 Career Offender Guideline directs the sentencing court to consider 23 whether the offender “has at least two prior felony convictions of . . . 12 15 1518 cr 1 a crime of violence,” U.S.S.G. § 4B1.1(a), which indicates that “the 2 sentencer should ask only about whether the defendant had been 3 convicted of crimes falling within certain categories, and not about 4 what the defendant had actually done,” Mathis, 136 S. Ct. at 2252 5 (internal quotation marks and citation omitted). 6 Second, by focusing upon the legal elements, rather than the 7 facts of the offense, the sentencing court “avoids unfairness to 8 defendants.” Id. at 2253. “Statements of ‘non elemental fact’ in the 9 records of prior convictions [such as the precise manner in which the 10 crime was committed] are prone to error precisely because their 11 proof is unnecessary.” Id. (citation omitted). Defendants therefore 12 may have little incentive to ensure the correctness of those details of 13 earlier convictions that could later trigger the unforeseen career 14 offender enhancement. 15 Occasionally, however, a state statute will criminalize 16 multiple acts in the alternative. Where this occurs, courts may 17 employ what is known as the modified categorical approach. But the 18 Supreme Court has emphasized that the modified categorical 19 approach is available only where the state statute is “divisible” into 20 separate crimes. Descamps, 122 S. Ct. at 2281 82; see also Flores v. 21 Holder, 779 F.3d 159, 165 66 (2d Cir. 2015). A statute is divisible if it 22 “list[s] elements in the alternative, and thereby define[s] multiple 23 crimes” but is not divisible if it instead lists “various factual means of 13 15 1518 cr 1 committing a single element.” Mathis, 136 S. Ct. at 2249 (emphases 2 added). 3 When a statute is divisible, a court employing the modified 4 categorical approach can then peer into the record to see which of 5 the multiple crimes was implicated. But the court may discern this 6 only from “a limited class of documents (for example, the 7 indictment, jury instructions, or plea agreement and colloquy) to 8 determine what crime, with what elements, a defendant was 9 convicted of.” Id. Once that determination is made, the modified 10 categorical approach is at an end and the court must apply the 11 categorical approach to the legal elements of the appropriate 12 criminal offense. Id. 13 New York’s first degree robbery statute is divisible and 14 therefore subject to the modified categorical approach. New York 15 defines robbery as “forcibly stea[ling] property.” N.Y. Penal Law §§ 16 160.00–.15. There are four categories of first degree robbery, 17 depending on whether: the perpetrator “(1) [c]auses serious physical 18 injury to any person who is not a participant in the crime; or (2) [i]s 19 armed with a deadly weapon; or (3) [u]ses or threatens the 20 immediate use of a dangerous instrument; or (4) [d]isplays what 21 appears to be a . . . firearm.” § 160.15; see also Flores, 779 F.3d at 166 22 (analyzing the divisibility of New York’s first degree sexual abuse 23 statute). 14 15 1518 cr 1 In the typical case under the modified categorical approach 2 we would examine certain documents in the record to ascertain 3 which of the four crimes Jones committed. In this instance, however, 4 we are stymied and unable to employ the modified categorical 5 approach because no one has produced the record. Where this 6 occurs, however, we are not at a complete loss. We instead look to 7 “the least of [the] acts” proscribed by the statute to see if it qualifies 8 as a predicate offense for the career offender enhancement. See 9 Johnson I, 559 U.S. at 137. If so, Jones’s first degree robbery 10 conviction can serve as a predicate offense for the enhancement 11 regardless of which first degree robbery subpart provided the basis 12 for his conviction. See id. 13 Jones identifies the act of “forcibly stealing property” while 14 “armed with a deadly weapon” as being the “least of the acts” in the 15 statute, and we agree. See N.Y. Penal Law § 160.15(2). The question 16 we must answer, therefore, is whether a defendant who perpetrates 17 such an act commits a crime of violence within the meaning of the 18 residual clause of the Career Offender Guideline. 19 20 we addressed only the force clause. We did not concern ourselves 21 with whether Jones’ first degree robbery conviction qualified as a 22 crime of violence under the Career Offender Guideline’s residual 23 clause because, consistent with the government’s concession on that In the opinion we issued and then withdrew, prior to Beckles, 15 15 1518 cr 1 point, we had previously held that the residual clause was 2 unconstitutional in light of Johnson II. See United States v. Welch, 641 3 F. App’x 37, 42 43 (2d Cir. 2016) (summary order). Now that the 4 Supreme Court has held in Beckles that the Guidelines, regardless of 5 whatever other defects they may have, cannot be void for 6 vagueness, 137 S. Ct. at 890, we are free to assess whether New York 7 first degree robbery categorically qualifies as a crime of violence 8 under the residual clause. 9 10 III. Whether Jones’ Conviction Qualifies as a Crime of Violence Under the Residual Clause 11 We have little difficulty concluding that the “least of the acts” 12 of first degree robbery satisfies the definition of the Guidelines’ 13 residual clause. The least of the acts, both sides agree, is “forcibly 14 stealing property” while “armed with a deadly weapon.” The 15 residual clause provides that a crime of violence includes any 16 offense that “ involves conduct that presents a serious potential risk 17 of physical injury to another.” U.S.S.G. § 4B1.2(a)(2). Plainly, a 18 robber who forcibly steals property from a person or from his 19 immediate vicinity, while armed with a deadly weapon, engages in 20 “conduct that presents a serious potential risk of physical injury to 21 another.” See id. 22 If there were any misgiving on this score, it is removed by the 23 commentary provision to the Guidelines in effect at the time of 16 15 1518 cr 1 Jones’ sentencing, which specifically enumerated robbery as a crime 2 of violence.4 § 4B1.2 cmt. n.1. 3 Commentary provisions must be given “controlling weight” 4 unless they: (1) conflict with a federal statute, (2) violate the 5 Constitution, or (3) are plainly erroneous or inconsistent with the 6 Guidelines provisions they purport to interpret. Stinson v. United 7 States, 508 U.S. 36, 45 (1993). Jones has not identified any such flaws 8 nor do we discern any. Where the basis for categorizing a prior 9 conviction as a crime of violence is that the offense is specifically 10 enumerated as such in the Career Offender Guideline or its 11 commentary, we undertake the categorical approach by comparing 12 the state statute to the generic definition of the offense. See United 13 States v. Walker, 595 F.3d 441, 445 46 (2d Cir. 2010). 14 That there is consensus in the criminal law as to what 15 constitutes robbery thus further convinces us that the least of the 16 acts constituting New York first degree robbery, i.e., “forcibly 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 (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). 4 17 15 1518 cr 1 stealing property” while “armed with a deadly weapon,” is a crime 2 of violence under the residual clause. As we have noted, “all fifty 3 states define robbery, essentially, as the taking of property from 4 another person or from the immediate presence of another person 5 by force or by intimidation.” Id. (emphasis in original). Indeed, it 6 would seem that, pursuant to the commentary to the former residual 7 clause, robbery of any degree in New York qualifies as a crime of 8 violence. 9 Jones contends nonetheless that New York’s robbery statute is 10 broader than the generic definition. He argues, specifically, that the 11 generic definition of robbery requires the use or threat of force in the 12 process of asserting dominion over the property that is the subject of 13 the offense, whereas the New York statute would be violated by a 14 robber who uses or threatens force after assuming dominion of the 15 property. We disagree. 16 The specific language of the New York robbery statute that 17 Jones points to is that “forcible stealing” consists of (1) the “use[] or 18 threat[] [of] immediate use of physical force upon another person” 19 (2) “in the course of committing a larceny” (3) for the purpose of 20 either “preventing or overcoming resistance to the taking of the 21 property or to the retention thereof immediately after the taking” or 22 “[c]ompelling the owner of such property or another person to 23 deliver up the property or to engage in other conduct which aids in 18 15 1518 cr 1 the commission of the larceny.” N.Y. Penal Law § 160.00 (emphasis 2 added). 3 The generic definition of robbery, however, is broader than 4 Jones acknowledges. It is true that the common law definition 5 confines robbery to the use or threat of force before, or simultaneous 6 to, the assertion of dominion over property and therefore comports 7 with Jones’ argument. See, e.g., Wayne LaFave, 3 Substantive Criminal 8 Law § 20.3(e) (2d ed. Supp. 2016); Charles E. Torcia, 4 Wharton’s 9 Criminal Law § 463 (15th ed. Supp. 2016). But a majority of states 10 have departed from the common law definition of robbery, 11 broadening it, either statutorily or by judicial fiat, to also prohibit 12 the peaceful assertion of dominion followed by the use or threat of 13 force. See, e.g., LaFave § 20.3(e); Torcia § 463; State v. Moore, 274 S.C. 14 468, 480 81 (S.C. Ct. App. 2007) (collecting state statutes and judicial 15 decisions that have departed from the common law definition of 16 robbery). Indeed, the Model Penal Code, which we relied upon in 17 United States v. Walker, 595 F.3d at 446, is often cited as the authority 18 for expanding the definition of robbery in this manner, see LaFave 19 § 20.3(e), because it specifies that robbery includes conduct where 20 the initial use or threat of force occurs “in flight after the attempt or 21 commission [of the theft],” Model Penal Code § 222.1. As a result, 22 this broader definition has supplanted the common law meaning as 23 the generic definition of robbery. See Taylor v. United States, 495 U.S. 19 15 1518 cr 1 575, 598 (1990) (specifying that the “generic” definition of a crime is 2 the “sense in which the term is now used in the criminal codes of 3 most states”). 4 Moreover, New York places two restrictions on the temporal 5 relationship between the underlying theft and the use or threat of 6 force that buttress the conclusion that its definition of robbery falls 7 within the generic definition of the offense: (1) force must be “in the 8 course of committing a larceny,” i.e., a theft, and (2) force must occur 9 during “immediate flight” after the taking for purposes of retaining 10 the property. See N.Y. Penal Law § 160.00. Jones does not provide, 11 and we are not aware of, any authority that the New York statute 12 criminalizes the use of force after the robber has successfully carried 13 the property away and reached a place of temporary safety. 14 For all of the foregoing reasons, we easily conclude that New 15 York’s definition of robbery necessarily falls within the scope of 16 generic robbery as set forth in the commentary to U.S.S.G. § 4B1.2(a). 17 Because Jones’ argument that first degree robbery is not necessarily 18 a crime of violence within the meaning of U.S.S.G. § 4B1.2(a) under 19 the categorical approach is without merit, the district court did not 20 commit error, much less plain error, in sentencing Jones as a career 21 offender. 20 15 1518 cr 1 IV. The Substantive Reasonableness of Jones’ Sentence 2 Finally, we reject Jones’ argument that his sentence of 180 3 months is substantively unreasonable. In assessing the substantive 4 reasonableness of a sentence for abuse of discretion, we review 5 questions of law de novo and questions of fact for clear error. United 6 States v. Bonilla, 618 F.3d 102, 108 (2d Cir. 2010) (citation omitted). 7 We may not substitute our own judgment for that of the district 8 court and can find substantively unreasonable only those sentences 9 that are so “shockingly high, shockingly low, or otherwise 10 unsupportable as a matter of law” that affirming them would 11 “damage the administration of justice.” United States v. Rigas, 583 12 F.3d 108, 123 (2d Cir. 2009). In the “overwhelming majority of 13 cases,” a sentence within the Guidelines range will “fall comfortably 14 within the broad range of sentences that would be reasonable.” 15 United States v. Perez Frias, 636 F.3d 39, 43 (2d Cir. 2011) (citation 16 omitted). 17 Jones’ Guidelines range was 210 months to 262 months, the 18 top of which was lowered to 240 months, the statutory maximum for 19 assault of a federal officer. The court imposed a sentence of 180 20 months, or fifteen years, which, while substantial, was considerably 21 below the Guidelines range. 22 The primary thrust of Jones argument is that a fifteen year 23 sentence is substantively unreasonable for an assault of a federal 21 15 1518 cr 1 officer that consists solely of biting the victim s finger and in which 2 the injury was not permanent. Jones argument, however, misses the 3 mark. The district court specified a combination of reasons for the 4 fifteen year sentence, including: (1) the need to encourage respect 5 for the law and cooperation with law enforcement officials who are 6 attempting to carry out their lawful duties; (2) Jones substantial 7 prior criminal history, consisting of seven prior convictions, two of 8 which, in addition to the assault of the officer, resulted in him being 9 designated a career offender; and (3) Jones substantial history of 10 misconduct while incarcerated, including twenty seven occasions 11 upon which he was disciplined. 12 Jones attempts to compare his case to instances where 13 defendants were convicted of violating the same statute, received 14 lower sentences, and arguably committed more egregious conduct. 15 That defendants convicted of similar or even more serious conduct 16 received lower sentences, however, does not render Jones sentence 17 substantively unreasonable. Plainly, the district court also relied 18 upon Jones’ criminal and prison history, including his career 19 offender status, which distinguishes this case from those to which he 20 refers. Under these circumstances, we cannot say that Jones’ 21 sentence was substantively unreasonable. 22 1 15 1518 cr CONCLUSION 2 For the reasons stated above, we AFFIRM the sentence 3 imposed by the district court and REMAND for further 4 consideration as may be just under the circumstances. 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 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 1 Jones slipped down Jones’ face, and Jones bit him, causing the finger to bleed. 2 Shortly thereafter, Jones said, “I give,” and was arrested and taken away. The 3 marshal provided a sworn affidavit indicating that he suffered no loss because of 4 the injury and that he did not request damages. At trial, the bite was described 5 by the prosecutor as “not the most serious wound you’ll ever see.” Pursuant to a single-count indictment for assaulting a federal officer, Jones 6 7 was found guilty in violation of 18 U.S.C. § 111(a)(1)–(b). Under the Guidelines 8 as they were then calculated, and as described in Judge Walker’s opinion, Jones 9 faced a sentence of between 210–240 months, (seventeen-and-one-half to twenty 10 years), with the high end being the statutory maximum. This calculation was 11 based on Jones’ designation as a career offender, a status that was triggered by 12 two earlier convictions: (i) an assault in which the then twenty-year-old Jones 13 shot a man in the leg, which later needed to be amputated, and (ii) a conviction 14 for first-degree robbery in New York, a crime Jones committed when he was 15 sixteen years old.2 The district court, applying what it believed was the law of this circuit as it 16 17 stood at that time, found that Jones’ robbery conviction constituted a “crime of 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). 2 2 1 violence” under the categorical approach to the Sentencing Guidelines. See 2 United States v. Spencer, 955 F.2d 814, 820 (2d Cir. 1992) (holding that, under the 3 law of New York, the crime of attempted third-degree robbery constitutes a 4 “crime of violence” for the purposes of the “force clause” of the Sentencing 5 Guidelines), abrogated by Johnson v. United States, 559 U.S. 133 (2010) (Johnson I); 6 see also United States v. Reyes, 691 F.3d 453 (2d Cir. 2012) (per curiam).3 Given this 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 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 3 3 1 holding and beca g, ause Jones’ prior con ’ nviction for assault ce r ertainly co onstituted a 2 crime of violence, the distric court de o , ct etermined that the ca areer offen nder status s 3 applied Absent Jo d. ones’ desig gnation as a career o s offender, h Guidelin senten his nes nce 4 range would have been betw w e ween 36 an 48 mon nd nths (or thr to four years), ree r 5 instead of the ran of 210-2 month or the se nge 240 hs, eventeen-a and-one-h years to half o 6 twenty years that the court deemed ap t pplicable. Departing downward significa D antly from the Guidelines, Ju m udge Gara aufis 7 8 sentenc Jones to fifteen ye ced o ears. B. Doctrinal D D Developm ments and I Impact on Sentencin ng 9 Ju udge Gara aufis’ opini rested on his inte ion erpretation of the ap n pplication o of 10 11 the forc clause to New Yor State’s definition o robbery Because J ce o rk d of y. Judge 12 Garaufi was of th view th first-deg is he hat gree robbe was a c ery crime of vi iolence un nder 13 the forc clause ev after Johnson I, Ju ce ven J udge Gara aufis did n address the not s categorical approach, a crim me must in nvolve the “use of ph hysical forc ce,” and found that battery y did not m meet that d definition. Id. at 460. Even after r Spencer, i it was an open ques stion whet ther first degree robb bery was a a crime of v violence. A After Reyes, th hat questio on depend ded on whe ether the u use of phys sical force was, indeed, present t in the New w York de efinition of f that crime e. Ju udge Gara aufis held t that the rea asoning of f Spencer m meant that first degre ee robbery y was a crim me of violence. In ou ur former, withdraw wn opinion n, we held, for reasons s similar to o those given in Reyes s, that first t degree ro obbery wa as not. Cf., United S States v. Ya ates, No. 16 6 3997, 201 17 WL 3402 2084 (6thC Cir. Aug 9, 2017) (finding g in analog gous circum mstances t that the for rce clause does not a apply). All l of that ana alysis, how wever, was s with resp pect to the force claus se, not the e co extant – and her re essential – residua al clause. 4 1 additional possible determinant of a crime of violence now at issue before us: the 2 “residual clause.” After Jones’ initial sentencing, but before we heard Jones’ appeal, the 3 4 Supreme Court found language in the Armed Career Criminal Act (“ACCA”) 5 which was identical to the language used in the residual clause of the 6 Guidelines—the lynchpin clause undergirding the authority of Jones’ current 7 sentence—to be unconstitutionally vague. Johnson v. United States, 135 S. Ct. 2551, 8 2557 (2015) (Johnson II). Subsequent to Johnson II, most federal courts of appeals 9 to decide the issue found that, given the Supreme Court’s decision, the residual 10 clause was also unconstitutionally vague. See United States v. Pawlak, 822 F.3d 11 902, 907-11 (6th Cir. 2016); United States v. Hurlburt, 835 F.3d 715, 725 (7th Cir. 12 2016); United States v. Calabretta, 831 F.3d 128, 137 (3d Cir. 2016); United States v. 13 Madrid, 805 F.3d 1204, 1210 (10th Cir. 2015); but see United States v. Matchett, 802 14 F.3d 1185, 1193-96 (11th Cir. 2015). As a result—with the application of the force clause to Jones in doubt as a 15 16 result of Johnson I, and with the residual clause struck down across several 17 circuits as a result of Johnson II—any number of defendants were found not to 18 have committed crimes of violence, either as a matter of first instance, or on 19 appeal, for purposes of determining their career offender status under the 20 Guidelines. Accordingly, they were resentenced (or sentenced in the first 5 1 instance to lower sentences We are told the go e) r s. t overnment is not cha t allenging th hese 2 lower se entences. C. Removal of the Resid R dual Claus se from th he Guideli ines 3 The Sentencing Comm T mission, in light of th decision of sever courts o n he ns ral of 4 5 appeals grounded on the Su s d upreme Co ourt’s deci ision in Joh hnson II, rev vised the 6 Guideli ines and re emoved th residual clause as a basis for future sen he r ntencing. ( (See 7 Majority Opinion n.1). n, D. Procedural P l History in n this Cou urt 8 9 We heard Jones’ appe after Johnson II, an we held (i) that, under John W eal nd d: nson 10 I, the fo orce clause was not applicable to him; (ii) (like seve of our sister circu a t ) eral uits) 11 that the other pos e ssible grou for Jon career offender s und nes’ status, the residual 12 clause, was uncon nstitutiona pursuan to Johnso II; and, (iii) that, a a result, al, nt on as 13 r nviction did not qua alify as a predicate vi iolent offe ense under the r Jones’ robbery con 14 Guideli ines. We th herefore or rdered Jon sentenc vacated and sent the case ba nes’ ce d ack 15 for rese entencing. We expres W ssly instruc cted the di istrict cour that, in r rt resentencin ng 16 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 17 18 granted certiorari in Beckles v. United States, 137 S Ct. 886 ( d v S S. (2017), to c consider 19 whether the langu uage that, in Johnson II it had d deemed un nconstitutio onally vag gue 20 in a statute, was al void fo vaguene when th identica languag was lso or ess he al ge 6 1 employed in the Guidelines. In view of the Supreme Court’s action, we withdrew 2 our opinion, and suspended resentencing pending the Beckles decision. 3 Interestingly, at least one district court, in an independent case, had already 4 granted a motion for resentencing in light of our now-recalled decision. Miles v. 5 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 6 7 to be unconstitutionally vague.4 Hence, the clause remained applicable to cases 8 like the one before us. As a result, we are bound to consider Jones’ earlier convictions on the basis 9 10 of the revived (but no longer extant, since it has been removed by the Sentencing 11 Commission) residual clause. Under that clause, we today correctly find that 12 Jones’ robbery conviction constituted a crime of violence and, as such, served as 13 a predicate offense which—together with his assault convictions—categorically 14 renders Jones a career offender. He was, therefore, correctly subject to the 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. 7 1 sentenc cing guidel lines of 210 0–240 mon nths on the basis of w e which the d district 2 court— —albeit, per rhaps incor rrectly rely ying on the force clau rather than the e use 3 residua clause— had impo al osed his ori iginal sent tence of fif fteen years s. Because tha sentence was corre B at e ectly based on the G d Guidelines as we now w 4 5 hold the stood when the district court sentence Jones, w now aff ey w d ed we firm that 6 sentenc We also hold that, given the applicabl Guidelin the sen ce. o e le nes, ntence 7 imposed—which departed significant downw tly ward from these appl licable 8 ines—was not substa antively un nreasonable. Guideli E. DISCUSSI D ION 9 I agree that the senten is not substantiv t nce s vely unreas sonable; bu I believe ut e 10 11 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 12 13 nature and signifi a icance the district co ourt is bette able to e er evaluate th we. Th han he 14 district court deci ided on a fifteen-yea sentence Perhaps this senten was ba f ar e. nce ased 15 on its view of Jones’ prior cr riminal activity, and on Jones’ dangerou d ’ usness. 16 s ence, depar rting down nward not tably from the Guide m elines, was s, Perhaps the sente 17 howeve imposed because the distric court bel er, d ct lieved that given those t, 18 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 19 20 have de eemed app propriate if Jones had been sub f d bject to diff ferent Guidelines. H Had 8 1 our opinion come down slightly earlier, as did those of most other circuits 2 dealing with similar issues, Jones would have been resentenced pursuant to a 3 substantively lower Guidelines range. We would, then, know what sentence 4 would have seemed appropriate to the district court in those circumstances. Had 5 that sentence been lower—as it apparently was in any number of other cases in 6 other circuits—the Government apparently would not have objected to it. Had 7 Jones committed his crime under the currently existing Guidelines, (i.e., in which 8 the residual clause has been removed by the Sentencing Commission), and 9 assuming that we would have read the force clause not to apply (as we did in 10 our earlier, now-retracted opinion), the district court would have had, again, the 11 opportunity to gauge Jones’ degree of dangerousness under a very different set 12 of Guidelines than those we, today, finally conclude it correctly applied at 13 sentencing. Because we (advisedly) withdrew our earlier opinion in light of the 14 15 Supreme Court’s grant of certiorari in Beckles, and because of the Supreme Court’s 16 ultimate decision in Beckles, I agree that we now are bound to affirm Jones’ 17 original sentence. This means that, as a result of timing quirks (his appeal to us 18 was slightly too late, leading to our decision to pull our earlier opinion), Jones 19 receives a very, very high sentence in contrast with almost every similarly 20 situated defendant. 9 What is more—and this may be the true source of my sense of absurdity— 1 2 there appears to be no way in which we can ask the district court to reconsider 3 the sentence it ordered in view of the happenstances that have worked against 4 Jones, and in view of its assessment of Jones’ crimes and of its downward 5 departure. Were this a civil case, there would be any number of ways of letting the 6 7 lower court revisit matters.5 But, as far as I have been able to discern, there is no 8 way for us to send this back to the district court and ask it to tell us what I 9 believe should determine Jones’ sentence: 10 In the light of sentences that other similarly guilty defendants have 11 received, and in the light of Jones’ own situation, both of which you, as 12 a district judge, are best suited to determine, what is the sentence that 13 you deem appropriate in this case? 14 I find our inability to learn this to be both absurd and deeply troubling. I 15 believe our affirmance is correct, and that we can do no other. I hope, however, 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 10 1 that somewhere, somehow, there exists a means of determining what would, in 2 fact, be an appropriate sentence for Jones. 6 After our opinion was issued, it was called to our attention that 28 U.S.C. § 2106 permits affirmances and remands for further proceedings in the interest of justice, and has been applied in criminal situations, United States v. Guiliano, 644 F.2d 85, 89 (2d Cir. 1981); United States v. Robin, 553 F.2d 8 (2d Cir. 1977) (en banc); see also United States v. Algahaim, 842 F.3d 796, 800 (2d Cir. 2016) (affirming a sentence but remanding for further consideration of that sentence, without making express reference to § 2106). We have now altered our disposition in this case to that effect. This altered disposition may permit the district court to reconsider the sentence imposed and thereby go a long way to avoid the absurdity, which this opinion has suggested. 6 11