Today, in a short opinion, the Second Circuit confirmed that second-degree robbery in New York is categorically a crime of violence under the residual clause of the pre-2016 Career Offender Guideline (COG). See U.S.S.G. § 4B1.2 (2015). The opinion in United States v. Smith, No. 15-3313 (2d Cir. 2018) (Winter, Cabranes, Restani) (appeal from Failla, J., SDNY), is available here.* (A separate panel reached the same conclusion, with less analysis, earlier this week in United States v. Dove.)
Its decision, the Smith panel held, was compelled by Jones II, where the Second Circuit held that under Beckles first-degree robbery is a crime of violence under the pre-2016 COG’s residual clause. See Smith, slip op. at 9-10 (“The rationale of Jones is directly applicable to this case. In New York law, the first element of second-degree robbery is the same as the first element of first-degree robbery . . . The first elements of both provisions, taken on their own, bring these offenses within the scope of the generic definition of robbery that we discussed in Jones.”). Notably, the panel did not have the occasion to decide whether second-degree New York robbery is a crime of violence under the COG’s force clause. (The Guidelines have been amended to remove the COG’s residual clause.)
N.B. The Federal Defenders represents Mr. Smith.
*The panel also rejected a sufficiency of the evidence challenge to the defendant’s conviction for possessing crack cocaine with intent to distribute.