Two valuable opinions have been published outside the Second Circuit in recent weeks:
(1) The First Circuit has held that attempted second-degree robbery in New York is not a “crime of violence” for purposes of the Career Offender Guideline’s force clause, U.S.S.G. § 4B1.(2)(a)(1). The opinion in United States v. Steed, No. 17-1011 (1st Cir. 2018) (Barron, J.) is available here. The court’s reasoning in Steed should be familiar to those following the district court and (vacated) Second Circuit opinions reaching the same conclusion.
As its starting point, the court looked to First Circuit case law holding that purse snatching does not necessarily require the degree of force required under Johnson I. The court then considered whether, as of 2000 (the year of the defendant’s relevant conviction), such purse snatching was a violation of New York’s second degree robbery statute, NY Penal Law § 160.10. After an impressively thorough survey of New York case law, the court identified an opinion holding that a defendant committed third-degree robbery by snatching a purse without having bodily contact with the victim. See People v. Lawrence, 617 N.Y.S.2d 769 (N.Y. App. Div. 1994). The court further concluded that the elements of second-degree New York robbery do not meaningfully differ from those of third-degree robbery in terms of the level of force required to accomplish the crime.
As an interesting bonus, under a modified plain error standard (because the government forfeited the argument below), the court declined to decide that second-degree robbery was a crime of violence under the residual clause of the pre-2016 Career Offender Guideline, U.S.S.G. § 4B1.2 (2015).
(2) The Ninth Circuit recently held that, for purposes of U.S.S.G. § 2K.2.1(a)(4)(A), a conviction for conspiracy to distribute methamphetamine was not a “controlled substance offense” in a unilateral conspiracy jurisdiction—that is, a jurisdiction where a defendant can be convicted for conspiracy based on an agreement with an undercover government agent. The opinion in United States v. Brown, No. 16-30218 (9th Cir. 2018) (Wardlaw, J.), is available here. The defendant in Brown was convicted under Washington state’s drug conspiracy statute. That statute provides for liability even where the defendant’s sole co-conspirator is an undercover agent who lacked intent to enter into the unlawful agreement. Under the generic federal definition of conspiracy, by contrast, “a defendant cannot be convicted if the only alleged coconspirator is a federal agent or informant.” Slip op. at 7. The court thus concluded that under the categorical approach, see Taylor v. United States, 495 U.S. 575 (1990), the Washington statute sweeps more broadly than the generic federal offense.
Significantly, New York is a unilateral conspiracy state. See People v. Schwimmer, 394 N.E.2d 288 (1979).