18‐1770‐cr
United States v. Ojeda




                                   In the
             United States Court of Appeals
                         for the Second Circuit


                             AUGUST TERM 2019

                               No. 18‐1770‐cr

                         UNITED STATES OF AMERICA,
                                  Appellee,

                                      v.

                                DAVID OJEDA,
                             Defendant‐Appellant,

                              TIMOTHY CANTY,
                                 Defendant.



              On Appeal from the United States District Court
                  for the Southern District of New York



                         SUBMITTED: OCTOBER 30, 2019
                          DECIDED: FEBRUARY 24, 2020




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United States v. Ojeda


Before: CABRANES and RAGGI, Circuit Judges, and KORMAN, District
Judge.*
                            ________________


          On appeal from a judgment of conviction entered in the United
States District Court for the Southern District of New York (Carter, J.),
following defendant David Ojeda’s guilty plea to (1) being a felon in
possession of a firearm, see 18 U.S.C. § 922(g)(1); and (2) obstructing
justice, see id. § 1512(c)(1), defendant challenges his 15‐year prison
sentence on the felon‐in‐possession count. Ojeda argues that this
sentence, the minimum mandated by the Armed Career Criminal Act
(“ACCA”) for persons with three or more prior convictions for violent
felony and/or serious drug offenses, see id. § 924(e)(1), is unwarranted
for two reasons: (1) his prior conviction for New York first‐degree
robbery is not for a violent felony because the crime’s elements do not
categorically require the use of physical force as defined in Curtis
Johnson v. United States, 559 U.S. 133 (2010); and (2) ACCA’s definition
of a state “serious drug offense” is too vague to encompass his state
attempted drug crimes of conviction in light of Samuel Johnson v.
United States, 135 S. Ct. 2551 (2015). Ojeda’s reliance on the cited
Supreme Court precedents is misplaced, and his arguments are
defeated by this court’s decisions in United States v. Thrower, 914 F.3d
770 (2d Cir.), cert. denied, 140 S. Ct. 305 (2019); and United States v.
Wallace, 937 F.3d 130 (2d Cir. 2019).

          AFFIRMED.




*Judge Edward R. Korman, of the United States District Court for the
Eastern District of New York, sitting by designation.


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United States v. Ojeda


                           Devin McLaughlin, Langrock Sperry &
                           Wool, LLP, Middlebury, Vermont, for
                           Defendant‐Appellant.

                           Eli J. Mark, Daniel B. Tehrani, Assistant
                           United States Attorneys, for Geoffrey S.
                           Berman, United States Attorney for the
                           Southern District of New York, New York,
                           New York, for Appellee.



REENA RAGGI, Circuit Judge:

        Defendant David Ojeda appeals from a judgment of conviction
entered on June 7, 2018, in the United States District Court for the
Southern District of New York (Andrew L. Carter, Jr., Judge),
following his guilty plea to being a felon in possession of a firearm,
see 18 U.S.C. § 922(g)(1); and to obstructing justice, see id. § 1512(c)(1).
Ojeda challenges only that part of the judgment sentencing him to 15
years’ incarceration on the felon‐in‐possession count. That sentence
is the minimum mandated by the Armed Career Criminal Act
(“ACCA”) for § 922(g) violators who have three or more convictions
for a “violent felony” and/or “serious drug offense.” Id. § 924(e)(1).
The district court determined that ACCA applied in Ojeda’s case
based on three prior New York State convictions: in 2007, for first‐
degree robbery, see N.Y. Penal Law § 160.15; in 1998, for attempted
sale of a controlled substance in the third degree, see id. § 220.39; and
again in 1998, for attempted possession of a controlled substance with
intent to sell in the third degree, see id. § 220.16(1). On appeal, Ojeda
submits that none of these convictions qualifies as an ACCA
predicate. He argues here, as he did before the district court, that
Samuel Johnson v. United States, 135 S. Ct. 2551 (2015), compels the

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United States v. Ojeda


conclusion that ACCA’s definition of a state “serious drug offense,”
see 18 U.S.C. § 924(e)(2)(A)(ii), is too vague to be applied
constitutionally to his New York attempted drug crimes. For the first
time on appeal, Ojeda further argues that Curtis Johnson v. United
States, 559 U.S. 133 (2010), compels the conclusion that New York first‐
degree robbery is not a categorical “violent felony” under 18 U.S.C. §
924(e)(2)(B)(i).

        For reasons explained herein, we conclude that Ojeda’s reliance
on the cited Supreme Court precedents is misplaced, and that his
arguments are, in fact, defeated by this court’s recent decisions in
United States v. Thrower, 914 F.3d 770 (2d Cir.), cert. denied, 140 S. Ct.
305 (2019), and United States v. Wallace, 937 F.3d 130 (2d Cir. 2019).
Identifying no error in Ojeda’s felon‐in‐possession sentence, we
affirm the judgment of conviction in all respects.

                            BACKGROUND

        I.       The Crimes of Conviction

        The facts pertaining to Ojeda’s felon‐in‐possession and
obstruction crimes are quickly stated.

        On November 25, 2014, in the vicinity of Madison Avenue and
East 111th Street in Manhattan, Ojeda brandished a 9‐millimeter
pistol while threatening a person with whom he was having an
argument. The pistol was stolen, but Ojeda was prohibited from
possessing it in any event by 18 U.S.C. § 922(g)(1) because he had
previously been convicted of multiple felony crimes. Indeed, the
Indictment charging Ojeda with violating § 922(g)(1) advised him that
any sentence for that crime would be subject to the 15‐year mandatory
minimum stated in ACCA because his prior New York first‐degree
robbery conviction was for a “violent felony,” and his two prior


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United States v. Ojeda


attempted controlled substance convictions were for “serious drug
offense[s].”

        Following Ojeda’s federal arrest for being a felon in possession
of a firearm, he enlisted his mother to obstruct justice by having her
use false pretenses to retrieve his cellular phone from police custody
and then delete potentially incriminating evidence from that phone.

        II.      Sentencing

        On October 22, 2015, Ojeda pleaded guilty to both the felon‐in‐
possession and obstruction charges. The Probation Department’s
Presentence Report calculated Ojeda’s Sentencing Guidelines offense
level as 30, which, with a criminal history category of VI, yielded an
advisory sentencing range of 168–210 months’ imprisonment. The
Department reported that if, based on Ojeda’s prior record of
convictions, the district court were to identify him as an Armed
Career Criminal, ACCA mandated a minimum sentence of 180
months, or 15 years, for the felon‐in‐possession crime. ACCA states
in pertinent part that,

        a person who violates section 922(g) . . . and has three
        previous convictions . . . for a violent felony or a serious
        drug offense, or both, committed on occasions different
        from one another, . . . shall be . . . imprisoned not less
        than fifteen years.

18 U.S.C. § 924(e)(1).

        ACCA defines “violent felony” to include any crime having a

force element, as well as certain enumerated crimes:

        “[V]iolent felony” means any crime [that, when
        committed by an adult, is] punishable by imprisonment
        for a term exceeding one year, [and]

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United States v. Ojeda


        (i)      has as an element the use, attempted use, or
                 threatened use of physical force against the person
                 of another; or

        (ii)     is burglary, arson, or extortion, involves use of
                 explosives, or otherwise involves conduct that
                 presents a serious potential risk of physical injury
                 to another . . . .

Id. § 924(e)(2)(B).

        It defines “serious drug offense” by reference to both federal

and state law as either,

        (i)      an offense under the Controlled Substances Act (21
                 U.S.C. 801 et seq.), [and other specified provisions
                 of federal law], for which a maximum term of
                 imprisonment of ten years or more is prescribed by
                 law, or

        (ii)     an offense under State law, involving
                 manufacturing, distributing, or possessing with
                 intent to manufacture or distribute, a controlled
                 substance (as defined in . . . 21 U.S.C. 802), for
                 which a maximum term of imprisonment of ten
                 years or more is prescribed by law . . . .

Id. § 924(e)(2)(A).

        Preliminary to deciding whether Ojeda was subject to an
ACCA sentence for his § 922(g)(1) crime, the district court ordered
briefing as to whether attempted controlled substance crimes qualify
as serious drug offenses under § 924(e)(2)(A)(ii), specifically, whether
this court’s holding in United States v. King, 325 F.3d 110 (2d Cir. 2003),
which supports that conclusion, remains good law after Samuel
Johnson v. United States, 135 S. Ct. 2551 (holding ACCA’s
§ 924(e)(2)(B)(ii) residual clause definition of violent felony void for

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United States v. Ojeda


vagueness). Upon review of the parties’ filings, the district court
concluded that Ojeda’s attempted controlled substance crimes do
qualify as serious drug offenses. Based on that finding, and in the
absence of any challenge to Ojeda’s first‐degree robbery conviction
being a violent felony, the district court sentenced Ojeda to the ACCA
mandated minimum 15‐year term on the felon‐in‐possession count,
with a concurrent 60‐month, or five‐year, term on the obstruction
count.

         Ojeda timely filed this appeal.

                              DISCUSSION

         Whether Ojeda’s prior New York State crimes of conviction
qualify as ACCA predicates presents two questions of law that we
review de novo: (1) whether first‐degree robbery is a “violent felony”
under 18 U.S.C. § 924(e)(2)(B)(i);1 and (2) whether attempted drug sale
in the third degree or attempted drug possession (with intent to sell)
in the third degree is a “serious drug offense” under § 924(e)(2)(A)(ii).
See United States v. Bordeaux, 886 F.3d 189, 192 (2d Cir. 2018). Because
Ojeda did not raise the first question in the district court, however,
our de novo review of that matter is limited to plain error. See United
States v. Marcus, 560 U.S. 258, 262 (2010) (requiring “that (1) there is
an error; (2) the error is clear or obvious, rather than subject to
reasonable dispute; (3) the error affected the appellant’s substantial
rights . . . ; and (4) the error seriously affects the fairness, integrity or
public reputation of judicial proceedings” (brackets omitted) (internal


1 Because robbery is not among the crimes enumerated as violent felonies
in 18 U.S.C. § 924(e)(2)(B)(ii), we here consider whether Ojeda’s first‐degree
robbery conviction qualifies as a violent felony only under ACCA’s
elements clause, see id. § 924(e)(2)(B)(i).


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United States v. Ojeda


quotation marks omitted)); United States v. Boyland, 862 F.3d 279, 288–
89 (2d Cir. 2017). For the reasons explained herein, we conclude that
the district court committed no error—plain or otherwise—in
identifying Ojeda’s prior convictions, both for robbery and attempted
controlled substance trafficking, as ACCA predicates.

    I.      New York First‐Degree Robbery Is a Categorical “Violent
            Felony” as Defined in 18 U.S.C. § 924(e)(2)(B)(i)

         A defendant’s prior conviction can be found to be for a “violent
felony” under 18 U.S.C. § 924(e)(2)(B)(i) only if it “has as an element
the use, attempted use, or threatened use of physical force against the
person of another.” In Curtis Johnson v. United States, the Supreme
Court construed “physical force” to mean “violent force—that is, force
capable of causing physical pain or injury to another.” 559 U.S. at 140
(emphasis in original). Last term, in Stokeling v. United States, the
Court clarified that this force standard “does not require any
particular degree of likelihood or probability that the force used will
cause physical pain or injury; only potentiality.” 139 S. Ct. 544, 554
(2019). Applying that standard to the Florida robbery statute at issue
in Stokeling, the Court concluded that the crime was a violent felony
under ACCA’s elements clause. See id. at 554–55.

         This court has long recognized New York robbery—in any
degree—to be a violent crime under the elements clause of ACCA and
other federal laws. See Stuckey v. United States, 878 F.3d 62, 72 (2d Cir.
2017) (holding New York first‐degree robbery convictions to be for
violent felonies under ACCA elements clause); see also United States v.
Pereira‐Gomez, 903 F.3d 155, 164–66 & n.45 (2d Cir. 2018) (holding New
York “robbery in any degree is a crime of violence under the ‘force
clause’” applicable to U.S.S.G. § 2L1.2, and declining to overturn
earlier ruling to same effect dating from 1992). In urging us to


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United States v. Ojeda


conclude otherwise here, Ojeda suggests that these cases are wrongly
decided or, at least, that Stuckey should be cabined to recognize New
York first‐degree robbery as a categorical violent felony only in the
two particular aggravating circumstances there proved, i.e., when
robbery is committed using or threatening the immediate use of a
dangerous instrument, see N.Y. Penal Law § 160.15(3), or displaying
what appears to be a firearm, see id. § 160.15(4). These arguments are
defeated by our recent decision in United States v. Thrower, 914 F.3d
770.

        In Thrower, this court ruled that New York robbery, even in the
third degree—which proscribes “forcibly steal[ing] property”
without any aggravating circumstances, N.Y. Penal Law § 160.05—is
a categorical violent felony under ACCA. United States v. Thrower, 914
F.3d at 776. Thus, “[b]y extension,” so too is “robbery in the first
degree” without regard to the particular aggravating circumstances
proved. Id. Thrower’s holding controls this panel unless and until
reversed by the Supreme Court or this court en banc. See United States
v. Jass, 569 F.3d 47, 58 (2d Cir. 2009).

        Even if we were not so bound, however, we would reject
Ojeda’s argument that his New York first‐degree robbery conviction
is not for a violent felony. To explain, New York defines first‐degree
robbery by reference to two elements. The first requires forcible
stealing; the second, an aggravating circumstance:

        A person is guilty of robbery in the first degree [A] when
        he forcibly steals property and [B] when, in the course of
        the commission of the crime or of immediate flight
        therefrom, he or another participant in the crime:

        1. Causes serious physical injury to any person who is
           not a participant in the crime; or


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United States v. Ojeda


        2. Is armed with a deadly weapon; or

        3. Uses or threatens the immediate use of a dangerous
           instrument; or

        4. Displays what appears to be a pistol, revolver, rifle,
           shotgun, machine gun or other firearm . . . .

N.Y. Penal Law § 160.15.

        Ojeda argues that it is possible to commit New York first‐
degree robbery without the use, attempted use, or threatened use, of
physical force as defined in Curtis Johnson because, under the second
aggravating circumstance, a robber might arm himself with a
concealed deadly weapon that is never discharged, displayed, or even
referenced during the robbery.2 To demonstrate that the first‐degree
robbery statute has, in fact, been applied in this way, Ojeda cites to a
footnote in People v. Pena, 50 N.Y.2d 400, 407 n.2, 429 N.Y.S.2d 410, 413
n.2 (1980). See United States v. Hill, 890 F.3d 51, 56 (2d Cir. 2018)
(“[T]here must be a realistic probability, not a theoretical possibility,
that the statute at issue could be applied to conduct that does not


2 Although the police arrest report indicates that Ojeda threatened his
robbery victim by displaying a handgun, the record does not clearly
indicate what aggravating factor was pleaded or proved to support Ojeda’s
first‐degree robbery conviction. Thus, Ojeda argues that his case does not
admit modified categorical review as in Stuckey v. United States, 878 F.3d at
67, where it was clear that the defendant stood convicted based on the third
and fourth aggravating factors. He submits that his case must be viewed
by the minimum conduct necessary to prove any of the four aggravating
factors. See United States v. Jones, 878 F.3d 10, 17 (2d Cir. 2017) (holding that,
when the record does not support a modified categorical approach, “[w]e
instead look to ‘the least of [the] acts’ proscribed by the statute” (alteration
in original) (quoting Curtis Johnson v. United States, 559 U.S. at 137)). Even
when we do so, however, Ojeda’s ACCA sentencing challenge fails for
reasons explained in text.


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United States v. Ojeda


constitute a [violent felony].” (internal quotation marks omitted)).

        At the outset, we note that the circumstances Ojeda posits were
not at issue in Pena. There, a robber armed with a concealed knife
verbally threatened to “shoot” his victim. People v. Pena, 50 N.Y.2d at
405–06, 429 N.Y.S.2d at 412. Despite the disconnect between the
weapon and the threat, the New York Court of Appeals ruled the
totality of evidence sufficient to establish the third aggravating factor
for first‐degree robbery, i.e., using or threatening the immediate use
of a dangerous instrument. See id. at 406–09, 429 N.Y.S.2d at 412–14.
Even assuming, however, that Pena supports Ojeda’s construction of
the second statutory aggravator not to require the use or threatened
use of physical force,3 that does not show that New York first‐degree


3 The cited footnote draws a distinction between § 160.15 and its
predecessor statute, explaining,

        [The] predecessor statute was far less precise, specifying as an
        aggravating circumstance that the perpetrator was “armed
        with a dangerous weapon” (Penal Law of 1909, § 2124, subd.
        1); it permitted the prosecution for first degree robbery
        whether the culprit openly menaced the victim with a
        shotgun or, without issuing any threat to use it, merely had,
        let us say, a penknife in his pocket. The more subtle grading
        scheme introduced by the revised Penal Law somewhat
        mitigated this problem. Thus, only one who commits robbery
        while carrying a “deadly weapon” upon his person is now
        guilty of robbery in the first degree. However, if he does not
        carry a weapon classified as “deadly” but instead a more
        broadly defined “dangerous instrument” the statute now
        requires a showing not merely of possession but of “use” or
        threatened “immediate use[,”] on the theory that it was the
        employment of such an instrumentality that was significant.

People v. Pena, 50 N.Y.2d at 407 n.2, 549 N.Y.S.2d at 413 n.2 (emphasis in
original) (citations omitted).


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United States v. Ojeda


robbery can be committed without such force.

        The flaw in Ojeda’s reasoning is his singular focus on the
aggravating element of first‐degree robbery while completely
ignoring the foundational element being aggravated, i.e., forcible
stealing. That element, as this court has recognized, must be proved
for every degree of robbery in New York. See United States v. Thrower,
914 F.3d at 776; United States v. Pereira‐Gomez, 903 F.3d at 166; Stuckey
v. United States, 878 F.3d at 70.       And that element categorically
requires the use of physical force.

        This is evident from New York’s definition of “forcible
stealing”:

        when, in the course of committing a larceny, [a person]
        uses or threatens the immediate use of physical force upon
        another person for the purpose of:

        1. Preventing or overcoming resistance to the taking of
           the property or to the retention thereof immediately
           after the taking; or

        2. 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.

N.Y. Penal Law § 160.00 (emphasis added). This language “matches
ACCA’s definition of a ‘violent felony.’” United States v. Thrower, 914
F.3d at 777; see United States v. Pereira‐Gomez, 903 F.3d at 165 (holding,
by reference to New York’s definition of “forcible stealing,” that “[b]y
its plain language, . . . New York’s robbery statute includes as an
element the use of violent force”). This is hardly surprising. New
York’s definition of “forcible stealing” “is modeled on the common
law definition of robbery,” which requires “the amount of force


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United States v. Ojeda


necessary to overcome a victim’s resistance.” United States v. Thrower,
914 F.3d at 775 (quoting Stokeling v. United States, 139 S. Ct. at 555).
And, as the Supreme Court has explained, “the term ‘physical force’
in ACCA encompasses the degree of force necessary to commit
common‐law robbery.” Stokeling v. United States, 139 S. Ct. at 555.
Curtis Johnson recognized as much when, in defining physical force, it
relied on a definition that “specifically encompassed robbery: [f]orce
consisting in a physical act, esp. a violent act directed against a robbery
victim.”     Id. at 553 (alteration in original) (emphasis in original)
(internal quotation marks omitted).       Thus, when in Stokeling the
Supreme Court recognized Florida robbery as a violent felony, it
explained that “ACCA encompasses the degree of force necessary to
commit common‐law robbery, and . . . Florida robbery requires that
same degree of ‘force.’” Id. at 555.

        The same reasoning informs this court’s decisions in Thrower,
Pereira‐Gomez, and Stuckey recognizing a physical‐force element in
any degree of New York robbery. We reiterate that conclusion here.
Even if, as Ojeda argues, it is possible to satisfy the aggravating
element of first‐degree robbery through circumstances that do not
themselves require the use or threatened use of physical force, it is not
possible to satisfy the forcible taking element of New York robbery
without physical force as defined by the Supreme Court in Curtis
Johnson and Stokeling.

    Thus, the district court, far from committing plain error, correctly
concluded that Ojeda’s 2007 New York first‐degree robbery
conviction was for a violent felony as defined in ACCA’s elements
clause.




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    II.      Ojeda’s Attempted Controlled Substance Crimes Are
             “Serious Drug Offenses” as Defined in 18 U.S.C.
             § 924(e)(2)(A)(ii)

          ACCA defines “serious drug offense” to include those state law
crimes “involving manufacturing, distributing, or possessing with
intent to manufacture or distribute, a [federally recognized]
controlled substance” punishable by a maximum prison term of ten
years or more. 18 U.S.C. § 924(e)(2)(A)(ii) (emphasis added). Ojeda
argues that the highlighted word “involving” is too vague to alert
average persons to what conduct might constitute a serious drug
offense beyond the actual manufacture, distribution, or possession
(with intent to manufacture or distribute) of controlled substances.
Specifically, he argues that the word is too vague to encompass the
New York attempted drug sale and possession with intent to sell
crimes for which he was convicted in 1998.

          Ojeda acknowledges that this court ruled to the contrary in
United States v. King, 325 F.3d 110, 115 (2d Cir. 2003). There, we
expressly recognized New York attempted possession of a controlled
substance with intent to sell as a serious drug offense under ACCA.4
He nevertheless maintains that King must be reconsidered in light of

4 Every other circuit to address the issue since King has agreed. See United
States v. Daniels, 915 F.3d 148, 152 (3d Cir. 2019) (holding ACCA’s definition
of serious drug offense encompasses Pennsylvania attempt and accomplice
liability crimes); United States v. Coleman, 700 F.3d 329, 339 (8th Cir. 2012)
(holding attempted sale of controlled substance involves distributing or
possessing with intent to distribute so as to qualify as serious drug offense
under ACCA); United States v. Williams, 488 F.3d 1004, 1008–09 (D.C. Cir.
2007) (holding attempted distribution of cocaine qualifies as serious drug
offense under ACCA); United States v. Winbush, 407 F.3d 703, 705–08 (5th
Cir. 2005) (holding Louisiana attempted possession of cocaine with intent
to distribute qualifies as serious drug offense under ACCA).


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Samuel Johnson v. United States, 135 S. Ct. 2551. The Supreme Court
there held another definitional provision of ACCA, specifically,
§ 924(e)(2)(B)(ii)’s residual clause definition of violent felony,
unconstitutionally vague.     Ojeda submits that just as the phrase
“conduct that presents a serious potential risk of physical injury” in
§ 924(e)(2)(B)(ii) “fails to give ordinary people fair notice of the
conduct it punishes,” id. at 2556 (citing Kolender v. Lawson, 461 U.S.
352, 357–58 (1983)), so the phrase “involving manufacturing,
distributing, or possessing” in § 924(e)(2)(A)(ii) suffers from the same
defect.

        The argument is defeated by this court’s post‐Samuel Johnson
decision in United States v. Wallace, 937 F.3d 130. There, we cited
approvingly to King’s recognition that the word “involving” has
“expansive connotations,” which signal § 924(e)(2)(A)(ii)’s reach
“beyond the precise offenses of distributing, manufacturing, or
possessing” drugs. Id. at 142. We concluded therefrom that just as an
attempt to possess a controlled substance (the crime of conviction in
King) “involves possessing a controlled substance, so too does an
attempt to sell—or to offer or agree to sell—a controlled substance
involve distributing a controlled substance.” Id. at 142–43 (alterations
and ellipses omitted) (internal quotation marks omitted). Thus, such
attempt crimes qualify as serious drug offenses under ACCA. See id.
at 144.

        We recognize that, in reaching this conclusion, Wallace did not
specifically discuss Samuel Johnson.     The omission is irrelevant,
however, because nothing in Samuel Johnson warrants a different
conclusion.

        The word identified as unconstitutionally vague in Samuel
Johnson is not “involving” but “risk.” The Supreme Court concluded

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that the latter word as used in the residual clause of ACCA’s violent
felony definition left “grave uncertainty about how to estimate the risk
posed by a crime,” particularly “a judicially imagined ‘ordinary case’
of a crime.”         Samuel Johnson v. United States, 135 S. Ct. at 2557
(emphasis added). Further, it left “uncertainty about how much risk it
takes for a crime to qualify as a violent felony.” Id. at 2558 (emphasis
added). Such uncertainties do not arise with respect to the word
“involving.”5        Although we have recognized that word to have
“expansive connotations,” allowing § 924(e)(2)(A)(ii) to reach beyond
substantive manufacturing, distribution, and possession drug crimes,
United States v. King, 325 F.3d at 113, that does not mean that it is
boundless, much less unconstitutionally vague. Indeed, when the
word is given its ordinary meaning, it focuses attention on the
elements of a drug crime, not on some hypothetical “ordinary case.”

        To explain, in Biocad JSC v. Hoffman‐La Roche, 942 F.3d 88 (2d
Cir. 2019), this court construed the word “involving” as used in the
Foreign Trade Antitrust Improvements Act, see 15 U.S.C. § 6a (stating
that Sherman Act “shall not apply to conduct involving trade or

5 At least one other circuit has held, in a precedential opinion, that Samuel
Johnson did not invalidate—implicitly or otherwise—the definition of the
word “involving” in the context of a serious drug offense. See United States
v. Cain, 877 F.3d 562, 563 (5th Cir. 2017) (holding that Samuel Johnson
“addressed the residual clause under the violent‐felonies portion of the
ACCA” and did not “expressly or implicitly overrule” earlier decisions
describing word “involving” in “serious‐drug‐offense portion” of ACCA
(internal quotation marks omitted)). Other circuits have held in non‐
precedential summary orders that Samuel Johnson did not implicitly
invalidate other ACCA definitions. See, e.g., United States v. Hunter, 749 F.
App’x 811, 813 (11th Cir. 2018) (summary order); United States v.
Washington, 726 F. App’x 483, 484 (6th Cir. 2018) (summary order); United
States v. Cilla, 712 F. App’x 880, 884 (11th Cir. 2017) (summary order); United
States v. Collazo, 672 F. App’x 796, 797 (10th Cir. 2016) (summary order).


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United States v. Ojeda


commerce (other than import trade or import commerce) with foreign
nations” (emphasis added)). While acknowledging the “expansive
connotations” of “involving,” Biocad JSC v. Hoffman‐La Roche, 942 F.3d
at 97 (quoting United States v. King, 325 F.3d at 113), we observed that
the “most common meaning” of the word “is including (or having) as
a necessary feature, accompaniment, or consequence,” and concluded
that 15 U.S.C. § 6a used the word in that sense, id. at 96 (citing OXFORD
ENGLISH DICTIONARY (2d ed. 1989) and AMERICAN HERITAGE COLLEGE
DICTIONARY (3d ed. 1997) definitions of “involve”).

        Applying that “common meaning” here, we conclude that the
“necessary features” of a crime are its elements.          Indeed, that
conclusion appears dictated by Kawashima v. Holder, 565 U.S. 478
(2012). The Supreme Court there ruled that determining whether tax
crimes “involve fraud or deceit,” so as to constitute aggravated
felonies subjecting convicted aliens to deportation, requires “a
categorical approach” that depends on whether “the elements of the
offenses” establish that the crimes involve fraud or deceit. Id. at 483
(concluding that fraud and deceit are elements both of knowingly and
willfully making false tax returns and knowingly and willfully aiding
in the making of such returns).

        In considering whether the elements of Ojeda’s attempted drug
crimes are “manufacturing, distributing, or possessing” controlled
substances, we begin by recognizing that a crime’s elements serve to
give notice of both the actus reus proscribed by a particular crime and
the mens rea required for culpability.           Where manufacture,
distribution, or possession of a controlled substance is a crime’s actus
reus element, the crime will generally be substantive.           Where
manufacture, distribution, or possession defines the mens rea element,
the crime may also be inchoate, as in the case of attempt or conspiracy.


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In the latter circumstance as well as the former, however, the element
serves fair notice on ordinary persons that the crime necessarily
“involv[es] manufacturing, distributing, or possessing” a controlled
substance so as to constitute a serious drug offense under ACCA. 18
U.S.C. § 924(e)(2)(A)(ii) (emphasis added); see Kolender v. Lawson, 461
U.S. at 357–58 (discussing “fair notice” necessary to avoid
unconstitutional vagueness).6

        The conclusion that “involving” reasonably identifies inchoate
as well as substantive drug crimes is only bolstered by 18 U.S.C.
§ 924(e)(2)(A)(i). Congress there defines “serious drug offense” by
reference to federal law, including any “offense under the Controlled
Substances Act (21 U.S.C. 801 et seq.).” That federal law proscribes
not only the substantive manufacture, distribution, and possession of
controlled substances, but also related attempts and conspiracies to
manufacture, distribute, or possess controlled substances. See 21
U.S.C. § 846.            Further, it prescribes identical punishments for
substantive and inchoate manufacture, distribution, or possession
crimes, signaling Congress’s view that they are equally serious drug
offenses. See id. From this statutory structure, we conclude that in
identifying state offenses qualifying as serious drug offenses in 18
U.S.C. § 924(e)(2)(A)(ii), Congress used the word “involving” to

6Indeed, the significance of a mens rea element in providing notice is evident
in a case presently before the Supreme Court. See Shular v. United States,
No. 18‐662 (argued Jan. 21, 2020). Defendant there argues that his state
substantive drug conviction for selling a controlled substance does not
“involve” distribution—and therefore is not a serious drug offense—
because the law under which he was convicted does not require proof of
knowledge as to the substance’s illicit nature. We need not await the
outcome of that case because Ojeda’s attempt crimes of conviction clearly
require such knowledge. See N.Y. Penal Law §§ 110.00, 220.16(1), 220.39
(discussed infra at 19–20).


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reference both substantive crimes of actual manufacture, distribution,
and possession, and inchoate attempt or conspiracy crimes of
intended manufacture, distribution, and possession. See United States
v. Daniels, 915 F.3d at 157 (“There was no reason for Congress to add
specific language regarding attempt crimes because it had already
included the term ‘involving’—a term that . . . clearly encompasses
attempts.”).

        There can be no question that the mens rea element of Ojeda’s
attempt crimes of conviction required proof that he specifically
intended (1) to distribute (indeed, to sell) what he knew was a
controlled substance, and (2) to possess what he knew was a
controlled substance with intent to distribute it. New York law states
that a person is guilty of third‐degree criminal sale of a controlled
substance “when he knowingly and unlawfully sells . . . a [controlled
substance].” N.Y. Penal Law § 220.39(1) (emphasis added). A person
is guilty of third‐degree criminal possession of a controlled substance
“when he knowingly and unlawfully possesses . . . a [controlled
substance] with intent to sell it.” Id. § 220.16(1) (emphasis added). A
person is guilty of attempt to commit either of these crimes “when,
with intent to commit [the] crime, he engages in conduct which tends to
effect the commission of such crime.” Id. § 110.00 (emphasis added);
see also People v. Acosta, 80 N.Y.2d 665, 670, 593 N.Y.S.2d 978, 981
(1993). In New York, “a person can be convicted of an attempt to
commit an offense only if it is proven that he came ‘very near’ or
‘dangerously near’ to successfully completing the intended crime.”
United States v. King, 325 F.3d at 114 (quoting People v. Acosta, 80
N.Y.2d at 670, 593 N.Y.S.2d at 981, and collecting other New York
cases to same effect). Where a defendant, such as Ojeda, is thus found
to have intended to sell, or to have possessed with intent to sell, what
he knew were controlled substances and, indeed, to have come

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United States v. Ojeda


dangerously near to achieving that intended objective, he can hardly
claim to have lacked fair notice that his conviction was for a crime
“involving” the distribution of a controlled substance.

        Thus, we reject Ojeda’s vagueness challenge to 18 U.S.C.
§ 924(e)(2)(A)(ii), and we conclude that the district court correctly
identified his 1998 convictions to be for two serious drug offenses.
With prior convictions for two serious drug offenses and for a violent
felony, Ojeda had to be sentenced for his § 922(g)(1) crime to a
mandatory minimum term of 15 years’ imprisonment pursuant to
ACCA.

                              CONCLUSION

        To summarize, we conclude as follows:

        (1) First‐degree robbery, like every degree of robbery under
New York law, is a violent felony as defined in ACCA, see 18 U.S.C.
§ 924(e)(2)(B)(i), because the forcible‐takings element common to
New York robbery in every degree requires the use or threatened use
of physical force as defined by the Supreme Court in Curtis Johnson v.
United States, 559 U.S. 133, and Stokeling v. United States, 139 S. Ct. 544.
This court has previously so recognized in United States v. Thrower,
914 F.3d at 770, and Stuckey v. United States, 878 F.3d 62, and in a
Sentencing Guidelines context in United States v. Pereira‐Gomez, 903
F.3d 155. Ojeda cannot urge otherwise by focusing only on the
aggravating element of first‐degree robbery, while ignoring the
forcible‐takings element.

        (2) Samuel Johnson v. United States, 135 S. Ct. 2551, which
invalidated ACCA’s residual clause definition of violent felony as
unconstitutionally       vague,   does   not   undermine     this   court’s
precedents, both before and after Samuel Johnson,             recognizing


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United States v. Ojeda


attempted drug sales or attempted drug possession with intent to sell
in violation of New York law as serious drug offenses under ACCA.
See United States v. Thrower, 914 F.3d 770; United States v. King, 325 F.3d
110.      Whether a crime’s actus reus element proscribes actual
manufacture, distribution, or possession of a controlled substance, or
a crime’s mens rea element requires intent knowingly to engage in
such conduct, a person is given fair notice that the crime involves
manufacture, distribution, or possession and, thus, qualifies as a
serious drug offense under ACCA.

        (3) The district court correctly followed controlling precedent
in identifying defendant’s two prior New York State drug
convictions, one for attempted drug sale and the other for attempted
drug possession with intent to sell, as serious drug offenses under
ACCA. Further, in light of those two drug convictions, as well as
defendant’s conviction for the violent felony of New York first‐degree
robbery, the district court correctly sentenced defendant to the ACCA
mandated minimum term of 15 years’ incarceration on the § 922(g)(1)
felon‐in‐possession count of conviction in this case.

        Accordingly, the judgment of conviction is AFFIRMED.




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