     08-2016-cr
     U.S. v. Thrower

 1                      UNITED STATES COURT OF APPEALS
 2
 3                             F OR THE S ECOND C IRCUIT
 4
 5
 6
 7                            September Term, 2009
 8
 9   (Argued: September 11, 2009                Decided: October 14, 2009)
10
11                           Docket No. 08-2016-cr
12
13
14                           U NITED S TATES OF A MERICA,
15
16                                                                  Appellee,
17
18                                      –v.–
19
20                                W ILLIAM T HROWER,
21
22                                                     Defendant - Appellant.
23
24
25
26   Before:
27             P ARKER and W ESLEY, Circuit Judges, R ESTANI, Judge *
28
29        Appeal from an April 23, 2008 order of the United
30   States District Court for the Eastern District of New York
31   (Ross, J.), entering judgment on a jury verdict convicting
32   the defendant for being a felon in possession of a firearm
33   and ammunition in violation of 18 U.S.C. § 922(g)(1) and
34   imposing the statutory minimum sentence of fifteen years


         *
          The Honorable Jane A. Restani, Chief Judge of the
     United States Court of International Trade, sitting by
     designation.

                                     Page 1 of 13
 1   imprisonment under the Armed Career Criminal Act, 18 U.S.C.
 2   § 924(e)(1).
 3
 4         A FFIRMED.
 5
 6
 7
 8               N ORMAN T RABULUS, New York, NY, for Defendant -
 9                      Appellant.
10
11               A MANDA H ECTOR, Assistant United States Attorney
12                      (Emily Berger, Assistant United States
13                      Attorney, of counsel) for B ENTON J. C AMPBELL,
14                      United States Attorney for the Eastern
15                      District of New York, for Appellee.
16
17
18
19   P ER C URIAM:

20         Defendant-Appellant William Thrower (“Thrower”) appeals

21   from a judgment entered on April 23, 2008, in the United

22   States District Court for the Eastern District of New York

23   (Ross, J.), after a jury verdict convicting Thrower of being

24   a felon in possession of a firearm and ammunition in

25   violation of 18 U.S.C. § 922(g)(1), and appeals his

26   statutory minimum sentence of fifteen years imposed under

27   the Armed Career Criminal Act (“ACCA”), 18 U.S.C. §

28   924(e)(1).      For the reasons stated below, the district

29   court’s order entering final judgment and sentencing

30   determination are AFFIRMED.



                                    Page 2 of 13
 1                               Background

 2       Thrower was indicted and charged with one count of

 3   violating 18 U.S.C. § 922(g)(1), which criminalizes the

 4   knowing possession of a firearm in and affecting commerce by

 5   an individual who has previously been convicted in any court

 6   of a crime punishable by a term of imprisonment exceeding

 7   one year.    A jury convicted him of the charge.

 8       At sentencing, the Probation Department provided a

 9   Presentence Investigation Report (“PSR”) that listed

10   Thrower’s five previous felony convictions in New York state

11   courts.     Because of this criminal history, Probation

12   recommended that Thrower’s sentence be enhanced pursuant to

13   the Armed Career Criminal Act (“ACCA”), 18 U.S.C. §

14   924(e)(1).     The PSR did not designate which of Thrower’s

15   five previous felony convictions counted as predicate

16   offenses for the purposes of the ACCA.     The PSR also noted

17   that Thrower’s criminal history report indicated that he was

18   granted a Certificate of Relief from Disabilities from the

19   New York State Division of Parole, but the Probation

20   Department failed to provide a copy of the document.

21       The court found that the ACCA enhancement applied to



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 1   Thrower and sentenced him to 15 years imprisonment, the

 2   statutory minimum.   Thrower contests the enhancement, inter

 3   alia, arguing that he does not have the requisite number of

 4   offenses necessary to qualify for the ACCA.   He claims that

 5   two of his offenses do not count because he received a

 6   Certificate of Relief from Disabilities that restored his

 7   civil rights, and that a third conviction — larceny in the

 8   fourth degree — does not qualify as a violent felony. 1

 9   Because we find that New York’s larceny in the fourth

10   degree, specifically larceny from the person, N.Y. Penal Law

11   §155.30(5), does qualify as a violent felony under the

12   residual clause for purposes of the ACCA, Thrower has three


         1
            Thrower also argues that he was unlawfully arrested in
     violation of the Fourth Amendment. We have reviewed this
     argument, and the additional arguments raised in his
     supplemental pro se brief, and find them to be without
     merit.
           Thrower submitted a letter to the court that was
     received on September 28, 2009, seventeen days after oral
     argument. Attached to the letter was Thrower’s pro se reply
     brief. Under Federal Rule of Appellate Procedure 31, a
     reply brief must be filed at least three days before
     argument. F ED. R. A PP. P. 31(a)(1). However, we may extend
     the time limits dictated by the rules for good cause. F ED.
     R. A PP. P. 26(b). We give pro se defendants wider latitude
     with procedural rules. See In re Sims, 534 F.3d 117, 133
     (2d Cir. 2008). As a result, we accept the reply brief as
     part of the record. We have reviewed the brief, and the
     arguments therein, and find them to be without merit.

                               Page 4 of 13
 1   eligible convictions that support the district court’s ACCA

 2   enhancement.   As a result, we need not reach the Certificate

 3   of Relief from Disabilities issue.

 4                             Discussion

 5       The ACCA dictates a 15-year mandatory minimum sentence

 6   for a felon convicted of possessing a firearm when that

 7   felon has three previous convictions for violent felonies.

 8   18 U.S.C. § 924(e)(1).   A “violent felony” is defined as

 9   “any crime punishable by imprisonment for a term exceeding

10   one year . . . that (i) has as an element the use, attempted

11   use, or threatened use of physical force against the person

12   of another; or (ii) is burglary, arson, or extortion,

13   involves use of explosives, or otherwise involves conduct

14   that presents a serious potential risk of physical injury to

15   another.”   18 U.S.C. § 924(e)(2)(B).    A crime may qualify as

16   a violent felony even if it does not have an element of

17   physical force against another person as described in clause

18   (i), or is not one of the enumerated offenses detailed in

19   clause (ii).   To qualify, the crime must fit within the

20   remaining language in clause (ii), “conduct that presents a

21   serious potential risk of physical injury to another,” known



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 1   as the residual clause.   Id.

 2       In order to fall within the residual clause, a crime

 3   must both “involve[] conduct that presents a serious

 4   potential risk of physical injury to another” and be

 5   “roughly similar, in kind as well as in degree of risk

 6   posed” to the enumerated offenses in the ACCA.   18 U.S.C. §

 7   924(e)(2)(B)(ii); Begay v. United States, 128 S. Ct. 1581,

 8   1585 (2008).   Thrower has a previous conviction for grand

 9   larceny in the fourth degree under New York Penal Law §

10   155.30.   The PSR does not specify under which subdivision of

11   New York Penal Law § 155.30 Thrower was convicted.

12   Thrower’s plea colloquy indicates it was larceny from the

13   person, falling within subdivision (5), meaning he “st[ole]

14   property and . . . [t]he property, regardless of its nature

15   and value, [wa]s taken from the person of another.”    N.Y.

16   Penal Law § 155.30(5).

17       We may look to the guilty plea transcript to determine

18   whether the conviction is a violent felony.   See Shepard v.

19   United States, 544 U.S. 13, 20 (2005).   New York Penal Law §

20   155.30 has a number of subsections detailing conduct that

21   qualifies as larceny in the fourth degree —   including theft



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 1   of property worth over one thousand dollars and theft of

 2   secret scientific material — that on their face do not

 3   appear to qualify as violent crimes.          N.Y. Penal Law §§

 4   155.30(1), (3).     Because larceny in the fourth degree has

 5   subsections that potentially may not fit as violent felonies

 6   under the ACCA, we must determine if the subcategory of

 7   conduct to which Thrower pled qualifies as a violent felony.

 8   We look to the plea colloquy, then, not to analyze whether

 9   Thrower’s specific conduct meets the violent felony

10   requirements (an inquiry barred by Taylor v. United States,

11   495 U.S. 575, 600-02 (1990)), but instead to determine under

12   which subsection his conviction falls.          Once we have

13   determined the subsection in play, we look only to the

14   elements of the offense itself without examining Thrower’s

15   specific conduct.     James v. United States, 550 U.S. 192, 202

16   (2007).

17        The government argues that larceny from the person

18   qualifies under the residual clause.          This court has not yet

19   addressed the question of whether larceny from the person

20   qualifies as a violent felony, though seven sister circuits

21   have answered in the affirmative.          See, e.g. United States



                                 Page 7 of 13
 1   v. Hawley, 516 F.3d 264, 272 (5th Cir. 2008), cert. denied,

 2   129 S. Ct. 994 (2009); United States v. Jennings, 515 F.3d

 3   980, 988 (9th Cir. 2008); United States v. Strong, 415 F.3d

 4   902, 908 (8th Cir. 2005); United States v. Smith, 359 F.3d

 5   662, 665 (4th Cir. 2004); United States v. Howze, 343 F.3d

 6   919, 923-24 (7th Cir. 2003); United States v. Payne, 163

 7   F.3d 371, 375 (6th Cir. 1998); United States v. De Jesus,

 8   984 F.2d 21, 25 (1st Cir. 1993).

 9       1) Conduct presenting serious potential risk of

10   physical injury to another

11        In Taylor, the Supreme Court noted that “Congress

12   singled out burglary (as opposed to other frequently

13   committed property crimes such as larceny and auto theft)

14   for inclusion as a predicate offense . . . because of its

15   inherent potential for harm to persons.”      495 U.S. at 588.

16   The harm includes the “possibility of a violent

17   confrontation” between the perpetrator and the victim, or a

18   third party bystander or investigator.      Id.   Because of this

19   possibility of confrontation, there is an assumption that

20   the perpetrator is aware of the risk, and most likely is

21   prepared to use violent means to escape or complete his


                                  Page 8 of 13
 1   criminal objective.     Id.    This risk of confrontation alone

 2   is enough to qualify the offense for inclusion as a

 3   predicate offense.    Id.     It need not be present for every

 4   possible factual scenario covered by the conduct described

 5   in the elements of the offense.         James, 550 U.S. at 208.   An

 6   offense qualifies as a violent felony if “the conduct

 7   encompassed by the elements of the offense, in the ordinary

 8   case, presents a serious potential risk of injury to

 9   another.”   Id.

10       Larceny from the person as defined by New York Penal

11   Law § 155.30(5) requires the victim and perpetrator to be in

12   very close proximity.       Under New York law, larceny from the

13   person requires a physical nexus between the person and the

14   property, meaning “physical contact between the victim and

15   either the property taken or, at least, the article from

16   which the property was taken.”        People v. Cheatham, 168

17   A.D.2d 258, 259 (N.Y. App. Div. 1990); see also People v.

18   Auguste, 283 A.D.2d 373, 373 (N.Y. App. Div. 2001) (finding

19   theft of a purse from the back of a chair as insufficient

20   physical nexus to support a conviction of fourth degree

21   larceny).   Surely larceny that requires a physical nexus


                                   Page 9 of 13
 1   between the victim and the property, as opposed to larceny

 2   generally, creates a risk of violent confrontation.       The

 3   victim’s presence is an element of the crime.     This fact

 4   alone makes the risk of violence and struggle ubiquitous.

 5   Thus, in our view, larceny from the person meets the first

 6   prong of the inquiry required under the residual clause of

 7   the ACCA.

 8       2) Roughly similar to an offense enumerated in the ACCA

 9       In order to qualify, the offense must not only present

10   a serious risk of physical injury, but must also be roughly

11   similar to an enumerated offense in the ACCA.     In Begay v.

12   United States, the Supreme Court determined that a DUI

13   conviction could not serve as a violent felony under the

14   ACCA.   128 S. Ct. 1581 (2008).    Although the offense

15   certainly created a serious potential risk of physical

16   injury to another, the Court found that a DUI was not

17   similar in kind to the enumerated offenses.     Id. at 1584,

18   1588.   The Court noted that the offenses listed in the

19   statute “all typically involve purposeful, violent, and

20   aggressive conduct.”   Id. at 1586 (internal quotation marks

21   omitted).   The purpose of the statute was to address the


                               Page 10 of 13
 1   “special danger created when a particular type of offender —

 2   a violent criminal or drug trafficker — possesses a gun.”

 3   Id. at 1587.    The Court read the residual clause of the

 4   statute as limited to crimes that are “roughly similar, in

 5   kind as well as in degree of risk posed, to the examples

 6   themselves.”    Id. at 1585.

 7       Of the crimes enumerated in the ACCA, larceny from the

 8   person most closely resembles burglary.        Burglary under the

 9   ACCA is defined as “unlawful or unprivileged entry into, or

10   remaining in, a building or structure, with intent to commit

11   a crime.”    Taylor, 495 U.S. at 599.      Burglary is considered

12   violent and aggressive because of the inherent potential for

13   harm to others.    Entering a building to commit a crime

14   creates the possibility of a violent confrontation with

15   someone in the building or someone who comes to investigate,

16   and the perpetrator’s awareness of that risk may indicate

17   his willingness to use violence in order to accomplish his

18   unlawful objective or to escape.       Id. at 588.

19       Larceny from the person involves the same type of

20   conduct.    It is surely purposeful; the perpetrator must gain

21   control of the property by stealing it.        See N.Y. Penal Law


                                Page 11 of 13
 1   § 155.30(5).   The perpetrator must act “with intent to

 2   deprive another of property or to appropriate the same to

 3   himself or to a third person” and “wrongfully take[],

 4   obtain[] or withhold[]” the property from its owner.       N.Y.

 5   Penal Law § 155.05(1).    The perpetrator must have the

 6   requisite intent to take property wrongfully when he acts.

 7   See People v. Green, 5 N.Y.3d 538, 543 (N.Y. 2005).       Thus,

 8   larceny is characterized by purposeful conduct.

 9        Larceny from the person is as inherently violent and

10   aggressive as burglary.    Larceny from the person raises the

11   possibility of a violent confrontation between the victim

12   and perpetrator or someone who witnesses the offense.       The

13   perpetrator’s purposeful theft from the victim also may

14   indicate both his awareness of that risk and his willingness

15   to use violence in order to commit the larceny or escape.

16   Larceny from the person may, in fact, carry higher risk of

17   confrontation than burglary.     Burglary can occur without

18   anyone other than the offender present, whereas larceny from

19   the person requires the immediate presence of the victim.

20       Because it is defined by conduct that presents a

21   serious potential risk of violence and is roughly similar to



                                Page 12 of 13
1   burglary, larceny from the person meets both requirements

2   for a violent felony under the residual clause of the ACCA.

3   As a result, Thrower’s conviction for larceny in the fourth

4   degree qualifies as a predicate offense for purposes of the

5   ACCA.

6                                Conclusion

7       The district court’s order of April 23, 2008 entering

8   final judgment and the district court’s sentencing

9   determination is hereby A FFIRMED.




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