In recent weeks both the Eastern and Southern Districts have issued useful opinions on the scope of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). In summary, these opinions conclude that none of the following New York offenses is a “violent felony” within the meaning of the ACCA: (1) second-degree robbery and attempted robbery, N.Y. Penal Law §160.10; (2) attempted third-degree robbery N.Y. Penal Law §160.10; and (3) first-degree sexual abuse, N.Y. Penal Law § 130.65. For those grappling with Johnson issues, the relatively short opinions may be worth reading in their entirety.
In the Southern District, Judge Rakoff issued an opinion holding that neither second- nor third-degree NY robbery offenses are violent felonies under the ACCA. See Austin v. United States, 16-cv-4446, available here. As Judge Rakoff notes, the Second Circuit reached the same result with respect to the Career Offender Guideline, U.S.S.G. § 4B1.2, in an opinion was vacated and re-decided on other grounds. Aside from that opinion, the Circuit has held that third-degree robbery is a violent felony under the ACCA’s force clause. See United States v. Brown, 52 F.3d 415 (2d Cir. 1995), Judge Rakoff’s opinion carefully explains why Johnson v. United States (“Johnson I”), 559 U.S. 133 (2010), compels district courts to disregard Brown and independently analyze whether an offense categorically involves “violent force – that is, force capable of causing physical pain or injury to another person.” Johnson I, 559 U.S. at 140.
Judge Rakoff goes on provide an excellent analysis of the degree of force required for an offense generally—and New York robbery specifically—to qualify as a violent felony under the ACCA’s force clause. The New York Penal Code defines robbery as “forcible stealing.” N.Y. Penal Law §160.00. (First- and second- degree robbery involve additional aggravating factors.) State case law makes clear, however, that one can engage in “forcible stealing” without using the level of violent force that the ACCA requires. As Judge Rakoff explains, “[m]erely standing in someone’s way does not involve the use of physical force capable of causing substantial physical pain or injury. And neither pulling away when someone grabs your hand, nor hitting someone with a purse, nor a shove that only causes someone to step backward, amounts to “substantial” or “strong” physical force under Johnson and Castleman. These acts are wrong, and they are illegal. But they are not violent.” Austin, slip op. at 13 (citations to New York case law omitted).
In the Eastern District, Judge Kuntz recently held that the New York offense of first-degree sexual abuse is not a violent felony within the meaning of the ACCA. Judge Kuntz’s opinion in United States v. Thomas, No. 16-cr-147, is available here.
Judge Kuntz’s opinion highlights that, in the ACCA context, statutory language can be deceptive. New York defines first-degree sexual abuse to include “subject[ing] another person to sexual contact . . . [b]y forcible compulsion.” N.Y. Penal Law § 130.65. “Forcible compulsion” is in turn defined to include the “use of physical force.” § 130.00(8). Judge Kuntz observes that, notwithstanding this language, New York courts have held that “forcible compulsion” can include sexual contact that is non-violent, but not consensual. This case law demonstrates that, as a categorical matter, the offense can be committed without engaging in “violent force” as required under Johnson. (Judge Kuntz’s opinion also relies on an EDNY opinion by Judge Cogan to hold that third-degree robbery is not a violent felony under the ACCA.)
N.B. The Federal Defenders of New York represents both Mr. Austin and Mr. Thomas.