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”). Jones, slip op. at 2 (Calabresi, J., joined by Hall, J., concurring). And the concurrence cited with approval United States v. Yates, 866 F.3d 723 (6th Cir. 2017), which held that a conviction under Ohio’s “analogous” robbery statute is not a crime of violence under the Guideline’s elements clause. Id. at 3 n.3. The concurrence’s reasoning compels the conclusion that 2010 Johnson has likewise “abrogated” United States v. Brown, 52 F.3d 415, 426 (2d Cir. 1995) (holding that New York third-degree robbery is a violent felony under ACCA’s elements clause). Applying similar analysis, Judge Oetken last week ruled in Buie v. United States, 05 Cr. 664 (S.D.N.Y. Sept. 8, 2017), that New York first-degree robbery is not a violent felony under ACCA’s elements clause. That opinion can be found here.

The Federal Defenders represents Mr. Jones. If you are a CJA attorney that has a Career Offender Guideline issue, or other Johnson-related questions, please contact us for guidance.

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