18-2082-cr
United States v. Davis

                                UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 5th day of November, two thousand nineteen.

PRESENT:            JOSÉ A. CABRANES,
                    REENA RAGGI,
                                 Circuit Judges,
                    EDWARD R. KORMAN,
                                 District Judge.*


UNITED STATES OF AMERICA

                           Appellant,                      18-2082-cr

                           v.

CLIVE DAVIS a/k/a Cliver Davis, a/k/a Link Davis,
a/k/a Olive Davis, Jr., a/k/a Clive Davis, Jr.,

                           Defendant-Appellee.


FOR APPELLANT:                                          Craig R. Heeren (Amy Busa, on the brief),
                                                        Assistant United States Attorneys, for
                                                        Richard P. Donoghue, United States




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

                                                    1
                                                           Attorney, Eastern District of New York,
                                                           Brooklyn, NY.

FOR DEFENDANT-APPELLEE:                                    Darrell Fields, Federal Defenders of New
                                                           York, Inc., New York, NY.

        Appeal from a June 19, 2018 judgment of the United States District Court for the Eastern
District of New York (Margo K. Brodie, Judge).

        UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the June 19, 2018 judgment of the District Court be and
hereby is VACATED.

        The United States appeals from that part of a judgment of conviction sentencing Defendant-
Appellee Clive Davis (“Davis”) without the enhancement specified in the Armed Career Criminal
Act, 18 U.S.C. § 924(e) (“ACCA”). The Government submits that the District Court erred in ruling
orally on June 19, 2018, and then in writing on June 22, 2019, that Davis’s prior conviction for New
York attempted third-degree robbery did not qualify as a “violent felony” for the purposes of
ACCA. We assume the parties’ familiarity with the underlying facts, the procedural history of the
case, and the issues on appeal.

        We review de novo questions of law relating to a district court’s interpretation of ACCA. See
United States v. Brown, 629 F.3d 290, 293 (2d Cir. 2011).

        Following the District Court’s sentencing of Davis, this Court decided United States v.
Thrower, which holds that “the New York offense of robbery in the third degree, which like every
degree of robbery in New York requires the common law element of ‘forcible stealing,’ is a ‘violent
felony’ under ACCA.” 914 F.3d 770, 776 (2d. Cir 2019). This decision is consistent with our earlier
holding in United States v. Pereira-Gomez which concludes that any degree of robbery under New York
law, including attempted robbery, is a “violent felony” for the purposes of the Career Offender
Guidelines’ “force clause.” 903 F.3d 155, 164-166 (2d Cir. 2018), cert. denied, 139 S. Ct. 1600
(2019). Similarly, the Supreme Court recently decided Stokeling v. United States, holding that ACCA’s
“elements clause encompasses robbery offenses that require the criminal to overcome the victim’s
resistance.” 139 S. Ct. 544, 550 (2019) (interpreting Florida’s robbery statute). Our jurisprudence
thus dictates that Davis’s conviction for attempted third-degree robbery does qualify as a violent
felony under ACCA, therefore requiring resentencing.




                                                   2
                                      CONCLUSION

        We have reviewed all of Davis’s counter-arguments to this appeal and find them to be
without merit. For the foregoing reasons, we VACATE as much of the June 19, 2018 judgment of
conviction as sentenced Davis to 70 months’ incarceration, and we REMAND the cause for
resentencing consistent with this order. The mandate shall issue forthwith.


                                                  FOR THE COURT:
                                                  Catherine O’Hagan Wolfe, Clerk




                                              3
