Tuesday, December 10th, 2019

Second Circuit restates its holding that Connecticut’s simple robbery statute, Conn. Gen. Stat. § 53a-133, qualifies as a violent felony under ACCA’s force clause. Estremera v. United States, No. 17-831-pr, __ F. 3d__, 2019 WL 6690775 (Dec. 9, 2019).

In Shabazz v. United States, 912 F.3d 73 (2d Cir. 2019), the Circuit held that Connecticut’s simple robbery statute, Connecticut General Statute § 53a-133, qualifies as a violent felony under the force clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1) (“ACCA”). Id. at 78.

Here, the Circuit holds that Shabazz “resolves” Petitioner Nelson Estremera’s claims that his Connecticut convictions for first-degree robbery and attempted robbery, in violation of Conn. Gen. Stat. §§ 53a-134(a)(3) and 53a-49, and for second-degree robbery and conspiracy to commit robbery, in violation of Conn. Gen. Stat. §§ 53a-135(a)(1) and 53a-48 do not qualify as ACCA predicates. Estremera, 2019 WL 6690775 at * 2.  [17-831_Documents.]

All Connecticut first-degree robbery offenses — the Circuit holds — are qualifying ACCA predicates. It states that although Connecticut’s first-degree robbery statute, Conn. Gen. Stat. § 53a-134(a), enumerates different ways of committing first-degree robbery, “every manner of committing robbery defined therein requires that the defendant commit ‘the crime of robbery as defined in section 53a-133.’”  Estremera, 2019 WL 6690775 at * 2 (quoting Conn. Gen. Stat. § 53a-134(a)).

As for second-degree robbery, subsection one of § 53a-135(a), “the subsection under which Estremera was convicted defines the crime in part as ‘commit[ting] robbery, as defined in section 53a-133.’” Estremera, 2019 WL 6690775 at * 2 (brackets in original)  (quoting § 53a-135(a)(1)).  Thus, subsection one of Connecticut’s second-degree robbery statute is an ACCA predicate because it requires that the defendant have committed simple robbery. Id.

But the Circuit doesn’t decide whether second-degree robbery under subsection two of  § 53a-135(a) qualifies as a violent felony. See id. § 53a-135(a)(2).  That subsection, the Circuit notes,  “does not appear to incorporate § 53a-133 [simple robbery].”   Estremera, 2019 WL 6690775 at n.1 (citing Conn. Gen. Stat. § 53a-135(a)(2)).  Section 53a-135(a)(2) provides rather, that a person commits second-degree robbery when such person, “in the course of committing a larceny while on the premises of a bank, Connecticut credit union or federal credit union, …  intimidates an employee … by intentionally engaging in conduct that causes another person to reasonably fear for his or her physical safety or the physical safety of another for the purpose of: (A) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking of the property; or (B) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.” Conn. Gen. Stat. § 53a-135(a)(2).

Finally, the Circuit rejected the Petitioner’s argument that Connecticut robbery doesn’t require the level of force discussed in Stokeling v. United States, 139 S. Ct. 544 (2019). According to the Circuit, “Estremera identifies no Connecticut case” where a robbery was committed either “without the use of force or without a physical confrontation” or “without overpowering a victim’s will.”  Estremera, 2019 WL 6690775 at * 3.

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Categories: ACCA, Johnson, violent felony
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