In a disappointing but relatively narrow opinion, the Second Circuit held yesterday that first-degree New York robbery is a violent felony for purposes of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The opinion in United States v. Stuckey, No. 16-4133 (Chin, Droney, Restani (Ct. Intl. Trade) (appeal from Oetken, J., SDNY), is available here. Significantly, the panel expressly declined to address whether second- or third-degree New York robbery is a violent felony under the ACCA — and its holding does not speak to those questions.
The issue in Stuckey is whether, in order to constitute a violent felony under ACCA, an offense must require that a defendant intend to use violent force. Specifically, the issue is whether an offense can constitute a violent felony under the ACCA if it involves the degree of force required under Johnson v. United States (“Johnson I”), 559 U.S. 133 (2010), but does not require that a defendant intend to use that degree of force.
The panel was presented with this question because, in New York, first-degree robbery has no mens rea requirement with respect to the attendant circumstances of the offense. The statute provides that “[a] person is guilty of [first-degree] robbery . . . when he forcibly steals property and when, in the course of the commission of the crime . . . he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime; or (2) Is armed with a deadly weapon; or (3) Uses or threatens the immediate use of a dangerous instrument; or (4) Displays what appears to be a . . . firearm . . . .” N.Y. Penal Law § 106.15 (emphasis added). The defendant in Stuckey was convicted of offenses under sections (3) and (4) of this statute. The statute imposes strict liability with respect to these aggravating circumstances. As long as the defendant intended to “forcibly steal,” he may be found guilty of first-degree robbery even if an accomplice uses (or threatens to use) a dangerous instrument or displays what appears to be a firearm. The statute does not categorically require that a defendant intended to commit an offense involving those attendant circumstances.
With respect to this statute, the panel held that a violent felony under the ACCA does not have to require that a defendant intended to use the level of force required under Johnson I. Under Leocal v. Ashcroft, 543 U.S. 1 (2004), a violent offense must involve “a higher degree of intent than negligent or merely accidental conduct.” Id. at 9 (addressing the elements clause of 18 U.S.C. § 16). Beyond this requirement, however, Johnson I does not heighten the mens rea requirement for violent felonies under the ACCA. Thus, the panel held, “ACCA predicate convictions must satisfy these two requirements: (1) intent (as required by Leocal) and (2) sufficiently violent conduct (as required by Johnson [I]).” Slip op. at 20. In New York, first degree robbery requires that a defendant intend to “engage in the commission of the robbery,” id. at 20, and this mens rea requirement is sufficient for the offense to constitute a violent felony under the ACCA.
Significantly, the panel expressly declined to address whether second- or -third- degree robbery are violent felonies under the ACCA. Numerous courts—including the Second Circuit in a vacated opinion—have held that the conduct element of New York robbery, “forcible stealing,” can be accomplished without the level of violent force required under Johnson I. The panel declined to weigh in on this issue. Instead, it summarily concluded that subsections (3) and (4) of New York’s first-degree robbery statute both describe conduct that involves the level of violence required under Johnson I. See Stuckey, slip op. at 20 (“The ‘[u]se or threaten[ed] . . . immediate use of a 10 dangerous instrument,’ N.Y. Penal Law § 160.15(3), or ‘[d]isplay 11 [of] what appears to be a [firearm],’ id. § 160.15(4), in the course of a robbery well exceeds the degree of violent physical force the ACCA requires.”).
Stuckey thus resolves the status of first-degree New York robbery under the ACCA, but leaves many important questions unresolved.