Archive | robbery

Tuesday, September 12th, 2017

New Circuit Opinion on Old Career Offender Residual Clause

Yesterday the Circuit re-decided United States v. Jones. The panel held that in light of the Supreme Court’s recent decision in United States v. Beckles, armed New York first-degree robbery is categorically a crime of violence under the residual clause of the pre-2016 Career Offender Guideline. See U.S.S.G. § 4B1.2 (2015). (The Guidelines have since been amended to remove the residual clause.) The opinion is available here.

In a concurring opinion, two of the panel’s three judges confirmed that New York robbery is not a violent felony under ACCA’s elements clause. Specifically, the concurrence observed that the Circuit’s decision in United States v. Spencer, 955 F.2d 814, 820 (2d Cir. 1992), which had held that New York attempted third-degree robbery was a crime of violence under the Career Offender Guideline’s elements clause, had been “abrogated” by Johnson v. United States, 559 U.S. 133 (2010) (“2010 Johnson


Posted By
Categories: career offender, categorical approach, crime of violence, Johnson, robbery, sentencing

Continue Reading
Tuesday, November 15th, 2016

Despite the Jones Delay, EDNY Rules New York Robbery is Not a “Crime of Violence”

still-not-a-cov

As blogged about here, the Second Circuit held in United States v. Jones that New York robbery is not a “crime of violence” for federal sentencing purposes.  And as blogged about here, the Circuit then vacated that ruling pending the Supreme Court’s decision in Beckles v. United States.

Notwithstanding Jones being put on hold, Judge Cogan of the Eastern District of New York has ruled — like the Jones court and Judges Ross and Weinstein in pre-Jones rulings — that New York robbery is not a “crime of violence.”  The decision, available here, explains that New York robbery can be committed with less than the “violent” force required by the force clause of the Career Offender Guideline (which controls in felon-in-possession cases), and that the Guideline’s residual clause was effectively invalidated by Johnson v. United States, 135 S. Ct. 2551 (2015).  Because the Guideline’s …

Posted by
Categories: crime of violence, robbery

Posted By
Categories: crime of violence, robbery

Continue Reading
Tuesday, October 4th, 2016

U.S. v. Jones: Hold That Thought…

patience_2014_01_31-22

In United States v. Jones, previously blogged about here, the Second Circuit held New York robbery is not a categorical “crime of violence” under the Career Offender Guideline, U.S.S.G. § 4B1.2.  The Court’s opinion was based in part on the view, shared by the government and all but one of the circuits, that the Guideline’s residual clause is “likely void for vagueness in light of the Supreme Court’s analysis of the ACCA’s [Armed Career Criminal Act’s] identical phrase in Johnson v. United States, 135 S. Ct. 2551 (2015).”

In an order published yesterday, the Court vacated the Jones opinion pending the Supreme Court’s decision in Beckles v. United States.  Beckles will decide whether the Guideline’s residual clause survived Johnson.  After Beckles is decided, a final judgment will issue in Jones.

Takeaways for the Defense Bar

1.  In ACCA cases, the absence of Jones poses …


Posted By
Categories: ACCA, career offender, Johnson, robbery

Continue Reading
Thursday, July 21st, 2016

New York Robbery is Not a “Crime of Violence”

marble rye-blog

In today’s United States v. Jones, the Second Circuit (Walker, Calabresi, Hall, C.JJ.) overruled its prior precedents in light of Johnson v. United States, 559 U.S. 133 (2010), and Johnson v. United States, 135 S. Ct. 2551 (2015), to hold that “a first‐degree robbery conviction in New York is no longer necessarily a conviction for a ‘crime of violence’ as that term is used in the Career Offender Guideline.”

New York robbery, whatever its degree, is “forcible stealing” and requires actual or threatened “physical force upon another person.”  N.Y. Penal Law § 160.00.  This does not make the offense a “crime of violence,” the Circuit explained, because New York courts “have made clear that ‘forcible stealing’ alone does not necessarily involve the use of ‘violent force'” required to make something a “crime of violence” under the Guideline’s force clause.  “Violent force” is “strong” and “substantial,” Johnson, …


Posted By
Categories: ACCA, career offender, crime of violence, robbery

Continue Reading
Friday, August 31st, 2012

Family Plot

United States v. Antico, 10-5026-cr (2d Cir. August 14, 2012) (Pooler, Livingston, Lohier, CJJ)

Mario Gulinello won $1.6 million at a horse race.  Defendant Antico was convicted of conspiring with members of the Genovese crime family to rob him of that money, one of the predicates of a racketeering conviction. On appeal, Antico argued that the evidence was legally insufficient. A divided circuit affirmed.

As is usual in sufficiency cases, this decision is very fact specific, but the facts here are kind of unusual. About four years after Gulinello won the money, two members of the Genovese family took him for a drive. They pulled up next to Antico’s car, and said “Hey, Tico, say hello to my friend Mario.” The entire encounter lasted only a few seconds. Gulinello had been told that Antico was a “good guy,” who had recently been released from jail.  This was Gulinello’s only …

Posted by
Categories: robbery, Uncategorized

Posted By
Categories: robbery, Uncategorized

Continue Reading