Author Archive | Anthony O'Rourke

A Second Circuit panel held today that, under the force clause of the subsequently revised U.S.S.G. § 2L1.2 (2014), all degrees of New York robbery are crimes of violence. United States v. Pereira-Gomez, No. 17-952 (2d Cir. 2018) (Cabranes, Carney, Caproni (SDNY)) (appeal from Azrack, J., EDNY), opinion available here. Despite this holding, practitioners are urged to preserve the argument that New York robbery is not a crime of violence under the force clause, as the Supreme Court will soon be deciding this issue in Stokeling v. United States, No. 17-5554.

Mr. Pereira-Gomez was convicted of illegal reentry, in violation of 8 U.S.C.§§ 1326(a) and 1326(b)(2). The version of U.S.S.G. § 2L1.2 then in effect provided for a sentencing enhancement if the defendant had a prior conviction for an offense that “has as an element the use,attempted use, or threatened use of physical force against …

Magistrate Judge Gold (SDNY) recently issued a Report & Recommendation (R&R), available here, concluding that third degree New York robbery, N.Y. Penal Law §160.05, is not a violent felony under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). See Baldwin v. United States, No. 16-CV-3350. Judge Korman has adopted the R&R.

Judge Gold’s reasoning will be familiar to those who have read opinions by the First Circuit, Judge Rakoff, and others reaching the same conclusion. Significantly, Judge Gold rejects the reasoning of a Sixth Circuit opinion, Perez v. United States, 885 F.3d 984, 990 (6th Cir. 2018), holding that third degree NY robbery is a crime of violence under the ACCA. The Sixth Circuit’s holding, Judge Gold explains, relies on a recent New York Court of Appeals case for the proposition that New York robbery cannot be “a taking” “by sudden or stealthy …