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 no bar to courts holding that New York robbery is not a “violent felony” (analogous to a “crime of violence” under the Guideline). Though the Supreme Court has yet to settle whether the Guideline’s residual clause survived Johnson, it is settled that ACCA’s residual clause is void. That leaves ACCA’s enumerated offenses (burglary, arson, extortion, and crimes involving explosives) and ACCA’s force clause, under which an offense must require not just any force but “violent force.” Johnson v. United States, 559 U.S. 133, 140 (2010) (emphasis in original).
As the Jones opinion explained, citing New York caselaw, New York robbery does not require “violent force.” District judges came to that same conclusion even before Jones was decided. See United States v. Moncrieffe, ___ F.Supp.3d ___, 2016 WL 913391, *17 (E.D.N.Y. Mar. 10, 2016) (“[T]he New York robbery statute does not require violent physical force.”); United States v. Avitto, E.D.N.Y. No. 15-cr-265, Transcript of Sentencing on Mar. 14, 2016 at p. 7 (“While ‘forcibly stealing property’ will likely often entail the use of violent force, it is not a necessary element of the crime.”).
Indeed, every circuit that has considered the effect of the two Johnson decisions on robbery statutes requiring only slight force have held such offenses are not “violent felonies.” See United States v. Eason, 829 F.3d 633, 642 (8th Cir. 2016) (“[W]e cannot conclude that the degree of physical force required to commit robbery in Arkansas rises to the level of physical force required to establish a crime of violence for ACCA purposes.”); United States v. Gardner, 823 F.3d 793, 804 (4th Cir. 2016) (“North Carolina has defined common law robbery to encompass cases involving the use of minimal force, which does not satisfy the condition of ‘violent force’ required by federal law for application of the ACCA enhancement.”); United States v. Parnell, 818 F.3d 974, 979 (9th Cir. 2016) (“[R]obbery under Massachusetts law does not satisfy the requirement of physical force under [ACCA].”).
None of the questions presented in Beckles concerns ACCA or its force clause.
To the extent that circuit caselaw predating the Johnson decisions held New York robbery to be a “violent” crime, see United States v. Brown, 52 F.3d 415 (2d Cir. 1995), such caselaw was abrogated by the Johnson rulings and thus courts are free to rule — and they have ruled — that New York robbery is not a “violent” crime. See Moncrieffe; Avitto; Diaz v. United States, 2016 WL 4524785, at *4 (W.D.N.Y. Aug. 30, 2016) (“[E]ven prior to Jones . . . , Brown had been implicitly overruled by 2010 Johnson.”); United States v. Polouizzi, 564 F.3d 142, 160 (2d Cir. 2009) (“Courts in this Circuit are bound to apply [a panel ruling] ‘unless and until its rationale is overruled, implicitly or expressly, by the Supreme Court or this court.'”) (citation omitted); F.D.I.C. v. Bear Stearns Asset Backed Sec. I LLC, 92 F.Supp.3d 206, 214 (S.D.N.Y. 2015) (“‘Lower courts are bound by Second Circuit precedent “unless it is expressly or implicitly overruled” by the Supreme Court or an en banc panel of the Second Circuit.'”) (quoting In re S. African Apartheid Litig., 15 F.Supp. 3d 454, 459-60 (S.D.N.Y. 2014)).
2. In Guideline cases, the same arguments as above can be made as to why New York robbery is not a “crime of violence.” Given the chance that Beckles will sustain the Guideline’s residual clause, however, and given the Second Circuit’s decision to await Beckles on this issue, a stay of proceedings pending Beckles may be the appropriate course in certain cases.
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