In United States v. Tabb, __ F.3d __, 2020 WL 573379 (2d Cir. Feb. 6, 2020), the Court of Appeals held that New York’s attempted assault in the second degree with a deadly weapon or dangerous instrument qualifies as a crime of violence under the force clause. The Court had previously held, in Singh v. Barr, 939 F.3d 457 (2d Cir. 2019), that the completed crime qualifies under the force. It relied here on Singh and on its pre-Johnson decision in United States v. Walker, 442 F.3d 787 (2d Cir. 2006), which held that attempted assault with a deadly weapon was a violent felony under the ACCA’s force clause. The Court followed Singh in rejecting the argument, based on Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir. 2003), that the substantive offense could be committed by indirect force or omission. Chrzanoski held that Connecticut third degree assault (requiring no use of a deadly weapon) did not qualify under the force clause for those reasons. The Circuit held that it had rejected Chrzanoski’s view that indirect force did not qualify in light of the Supreme Court’s holding in United States v. Castleman. As for Chrzanoski’s holding that an act of omission does not require the use of force, the Court reaffirmed Singh’s holding that the use of a deadly weapon against a person necessarily involves “affirmative, forceful conduct.”
To hold that attempt also qualified, the Court reaffirmed Walker. It ruled that Walker was not abrogated by Johnson v. United States, 559 U.S. 133 (2010) because it encompassed “any reasonable interpretation of [the ] term” physical force, presumably including Johnson’s definition. It rejected the argument that a dangerous instrument could include substances that can cause death or physical injury without force, on the ground that indirect force qualified under Castleman.
Finally, the Court held that New York “attempt” is no broader than the generic attempt in the guidelines, because New York’s requirement of an “action” “so near [the crime’s] accomplishment that in all reasonable probability the crime itself would have been committed” categorically requires the “substantial step” of generic attempt.
The Court also held that a §846 narcotics conspiracy qualifies as a “controlled substance offense,” even though conspiracy is only included in Application Note 1, not the Guideline itself. The Court rejected the argument that the Note conflicts with the Guideline by improperly expanding it, an argument that has been accepted in D.C. and Sixth Circuits. The Second Circuit insisted that it was bound by its own decision in United States v. Jackson, 60 F.3d 128 (2d Cir. 1995), holding that the Sentencing Commission had the authority to expand the definition of controlled substance. Finally, the Court rejected the argument, accepted by the Fourth Circuit, that the Application Note encompasses only generic conspiracy, which requires an overt act, and that a §846 conspiracy does not require an overt act. The Court held the text and structure of the Note make it clear that it was intended to include § 846 conspiracies.
This decision creates more than one Circuit split.
Posted by: Colleen P. Cassidy
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