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Tuesday, December 19th, 2017

New District Court Opinions Hold That Neither New York Robbery Nor First-Degree Sexual Abuse are Violent Felonies Under the ACCA

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.

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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. § …

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Categories: ACCA, categorical approach, robbery, sex offenses

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Tuesday, October 31st, 2017

Circuits Rule that Hobbs Act and 924(c) Convictions Are Not Predicates Under the ACCA and COG.

This month two circuits held, respectively, that offenses cannot serve as predicates under the Career Offender Guideline or the Armed Career Criminal Act (ACCA) because they can involve force against property as well as against persons.

The Tenth Circuit held that robbery under the Hobbs Act, 18 U.S.C. § 1951, is not a crime of violence under the Career Offender Guideline (COG), U.S.S.G. § 4B1.2. See United States v. O’Connor. The enumerated clause of the COG identifies “robbery” as a crime of violence. The Tenth Circuit held that the elements of this generic offense include the use or threatened use of force against a person, but not against property. Hobbs Act robbery, by contrast, can involve “actual or threatened force, or violence, or fear of injury, immediate or future, to . . . [a] person or property.” 18 U.S.C. § 1951(b)(1) (emphasis added). The COG’s definition of robbery …

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Categories: 924(c), career offender, categorical approach, crime of violence, Johnson, robbery, sentencing

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Categories: 924(c), career offender, categorical approach, crime of violence, Johnson, robbery, sentencing

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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…

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Categories: career offender, categorical approach, crime of violence, Johnson, robbery, sentencing

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Tuesday, November 15th, 2016

Despite the Jones Delay, EDNY Rules New York Robbery is Not a “Crime of Violence”

still-not-a-cov

As blogged about here, the Second Circuit held in United States v. Jones that New York robbery is not a “crime of violence” for federal sentencing purposes.  And as blogged about here, the Circuit then vacated that ruling pending the Supreme Court’s decision in Beckles v. United States.

Notwithstanding Jones being put on hold, Judge Cogan of the Eastern District of New York has ruled — like the Jones court and Judges Ross and Weinstein in pre-Jones rulings — that New York robbery is not a “crime of violence.”  The decision, available here, explains that New York robbery can be committed with less than the “violent” force required by the force clause of the Career Offender Guideline (which controls in felon-in-possession cases), and that the Guideline’s residual clause was effectively invalidated by Johnson v. United States, 135 S. Ct. 2551 (2015).  Because the Guideline’s …

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Categories: crime of violence, robbery

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Tuesday, October 4th, 2016

U.S. v. Jones: Hold That Thought…

patience_2014_01_31-22

In United States v. Jones, previously blogged about here, the Second Circuit held New York robbery is not a categorical “crime of violence” under the Career Offender Guideline, U.S.S.G. § 4B1.2.  The Court’s opinion was based in part on the view, shared by the government and all but one of the circuits, that the Guideline’s residual clause is “likely void for vagueness in light of the Supreme Court’s analysis of the ACCA’s [Armed Career Criminal Act’s] identical phrase in Johnson v. United States, 135 S. Ct. 2551 (2015).”

In an order published yesterday, the Court vacated the Jones opinion pending the Supreme Court’s decision in Beckles v. United States.  Beckles will decide whether the Guideline’s residual clause survived Johnson.  After Beckles is decided, a final judgment will issue in Jones.

Takeaways for the Defense Bar

1.  In ACCA cases, the absence of Jones poses …

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Categories: ACCA, career offender, Johnson, robbery

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Thursday, July 21st, 2016

New York Robbery is Not a “Crime of Violence”

marble rye-blog

In today’s United States v. Jones, the Second Circuit (Walker, Calabresi, Hall, C.JJ.) overruled its prior precedents in light of Johnson v. United States, 559 U.S. 133 (2010), and Johnson v. United States, 135 S. Ct. 2551 (2015), to hold that “a first‐degree robbery conviction in New York is no longer necessarily a conviction for a ‘crime of violence’ as that term is used in the Career Offender Guideline.”

New York robbery, whatever its degree, is “forcible stealing” and requires actual or threatened “physical force upon another person.”  N.Y. Penal Law § 160.00.  This does not make the offense a “crime of violence,” the Circuit explained, because New York courts “have made clear that ‘forcible stealing’ alone does not necessarily involve the use of ‘violent force'” required to make something a “crime of violence” under the Guideline’s force clause.  “Violent force” is “strong” and “substantial,” Johnson, …

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Categories: ACCA, career offender, crime of violence, robbery

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Friday, August 31st, 2012

Family Plot

United States v. Antico, 10-5026-cr (2d Cir. August 14, 2012) (Pooler, Livingston, Lohier, CJJ)

Mario Gulinello won $1.6 million at a horse race.  Defendant Antico was convicted of conspiring with members of the Genovese crime family to rob him of that money, one of the predicates of a racketeering conviction. On appeal, Antico argued that the evidence was legally insufficient. A divided circuit affirmed.

As is usual in sufficiency cases, this decision is very fact specific, but the facts here are kind of unusual. About four years after Gulinello won the money, two members of the Genovese family took him for a drive. They pulled up next to Antico’s car, and said “Hey, Tico, say hello to my friend Mario.” The entire encounter lasted only a few seconds. Gulinello had been told that Antico was a “good guy,” who had recently been released from jail.  This was Gulinello’s only …

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Categories: robbery, Uncategorized

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