      16-2882
      United States v. Rios

                               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 TO 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 1st day of December, two thousand seventeen.

      PRESENT:
                          ROBERT A. KATZMANN,
                               Chief Judge,
                          RAYMOND J. LOHIER, JR.,
                          CHRISTOPHER F. DRONEY,
                               Circuit Judges.


      UNITED STATES OF AMERICA,

                                Appellee,

                          v.                                             No. 16-2882

      JOSE RIOS,

                                Defendant-Appellant.


      For Defendant-Appellant:                             Donald DuBoulay, Law Office of Donald
                                                           DuBoulay, New York, NY.

      For Appellee:                                        Emily Berger, Melody Wells, Assistant
                                                           United States Attorneys, for Bridget M.
                                                           Rohde, Acting United States Attorney for



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                                                     the Eastern District of New York, Brooklyn,
                                                     NY.

       Appeal from an amended judgment of the United States District Court for the Eastern

District of New York (Amon, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the amended judgment of the district court is AFFIRMED.

       Defendant-Appellant Jose Rios appeals from a sentence and final judgment of conviction

entered on August 18, 2016, by the United States District Court for the Eastern District of New

York (Amon, J.). We assume the parties’ familiarity with the underlying facts, procedural

history, and issues on appeal.

       Rios was convicted of being a felon in possession of a firearm in violation of 18 U.S.C.

§ 922(g) on September 3, 2009. At sentencing on December 10, 2010, the district court found

that Rios’ three prior convictions under New York law (second degree assault, attempted second

degree burglary, and attempted third degree burglary) constituted “violent felonies” under the

“residual” clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), and

sentenced Rios to the mandatory minimum of 15 years’ incarceration. As relevant to the instant

appeal, Rios’ conviction for second degree assault under N.Y. Penal Law § 120.05(2) required a

showing that “[w]ith intent to cause physical injury to another person, he cause[d] such injury to

such person or to a third person by means of a deadly weapon or a dangerous instrument.”

       Rios filed a petition for post-conviction relief pursuant to 28 U.S.C. § 2255, alleging

various errors not relevant to this appeal. See Motion, Rios v. United States, No. 13-cv-5577,

ECF No. 1 (E.D.N.Y. Oct. 7, 2013). While Rios’ petition was pending, the Supreme Court held

the ACCA’s “residual” clause void for vagueness in United States v. Johnson, 135 S. Ct. 2551,

2563 (2015) (Johnson 2015). The district court thereafter sua sponte ordered Rios to be

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resentenced because, as the Government conceded, Rios’ conviction for attempted third-degree

burglary no longer qualified as a violent felony.

        The Probation Office prepared two addenda to its previously issued Presentence

Investigation Report (“PSR”) recalculating Rios’ base offense level. In particular, Probation

determined that Rios’ conviction for second degree assault constitutes a “crime of violence”

under § 2K2.1(a)(4)(A) of the Guidelines, which define the term separately as “any offense

under federal or state law . . . that . . . has as an element the use, attempted use, or threatened use

of physical force against the person of another.” U.S.S.G. § 4B1.2(a)(1). Probation accordingly

calculated his base offense level as 20.

        Rios objected to Probation’s calculation of his base offense level in his sentencing

memorandum and at sentencing, arguing that the Supreme Court held in Johnson v. United

States, 559 U.S. 133 (2010) (Johnson 2010) that a crime of violence requires the use of “violent”

physical force, and that the relevant second degree assault statute requires no such showing.

Instead, Rios contended that he “could bump into the individual, push him, shove him, not

violently, he could fall on a dangerous instrument, and he could be convicted of that offense.”

        The district court held that Rios’ argument was foreclosed by this Court’s decision in

United States v. Walker, 442 F.3d 787, 787-89 (2d Cir. 2006) (per curiam), where we held that

second degree assault under N.Y. Penal Law § 120.05(2) constitutes a “violent felony” under

§ 924(e)(2)(b)(i) of the ACCA. Since the definition of a “violent felony” is materially identical to

that of a “crime of violence,” the district court concluded that the calculation of Rios’ base

offense level under § 2K2.1(a)(4)(A) was proper. The district court accordingly held that Rios’

total offense level was 24 and his Guidelines range was 100 to 120 months. After considering the

sentencing factors enumerated at 18 U.S.C. § 3553(a), the district court re-sentenced Rios to 110



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months. The amended judgment was entered on August 18, 2016, and Rios timely filed his

notice of appeal that same day.

          Rios argues on appeal that the district court erred in finding that our decision in Walker

controls the outcome of this dispute. Specifically, Rios asserts that there is “circumstantial

evidence” that the Walker court applied a definition of physical force that does not require the

use of violence, and that the Supreme Court rejected such a definition in Johnson 2010. Rios thus

contends that Walker was effectively overturned and this Court can reach the issue of whether

second degree assault constitutes a “crime of violence” under § 2K2.1(a)(4)(A) and

§ 4B1.2(a)(1) of the Guidelines. Rios urges that we should rule that it does not, pursuant to the

“categorical approach,” because in his view even a minimal use of force is sufficient to cause the

“physical injury” necessary for a second degree assault because the physical injury element is

satisfied where a victim suffered a subjective physical injury and a dangerous weapon was

tangentially involved.

          “In reviewing Guidelines calculations, we apply a de novo standard to legal conclusions

and we accept the sentencing court’s factual findings unless they are clearly erroneous.” United

States v. Walker, 595 F.3d 441, 443 (2d Cir. 2010) (citing United States v. Sero, 520 F.3d 187,

189 (2d Cir. 2008); United States v. Guang, 511 F.3d 110, 122 (2d Cir. 2007)). “Whether a prior

conviction qualifies as a predicate offense warranting a sentencing enhancement is a matter of

law that we review de novo.” Id. (citing United States v. Savage, 542 F.3d 959, 964 (2d Cir.

2008)).

          Given that the parties do not dispute the issue, we assume without deciding that this

Court’s two-step “modified categorical approach” applies to determine whether a conviction

under N.Y. Penal Law § 120.05(2) constitutes a crime of violence under the Sentencing



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Guidelines. Under the first step of this approach, we determine “whether the statute of the prior

conviction criminalizes conduct that falls exclusively within the federal definition of a predicate

offense.” Id. If the statute of conviction criminalizes certain conduct that does not fall within the

Guidelines’ definition of a crime of violence, we proceed to the second step, under which “the

government must demonstrate that the conviction ‘necessarily’ rested on facts identifying the

conviction as one for a ‘crime of violence.’” United States v. Reyes, 691 F.3d 453, 458 (2d Cir.

2012) (quoting Walker, 595 F.3d at 444)).

        We agree with the district court that Walker continues to control the outcome of this

dispute. Rios’ speculation about the definition of “physical force” employed by the Walker court

is belied by the plain text of the decision, which states that “[t]o . . . cause physical injury by

means of a deadly weapon or dangerous instrument is necessarily to . . . use ‘physical force,’ on

any reasonable interpretation of that term.” 442 F.3d at 788 (emphasis added). We therefore

conclude that Walker remains controlling law and dictates that a conviction under N.Y. Penal

Law § 120.05(2) constitutes a “crime of violence” under § 2K2.1(a)(4)(A) of the Guidelines.

        We have considered all of Rios’ contentions on appeal and have found in them no basis

to vacate the district court’s amended judgment and remand for re-sentencing. For the reasons

stated herein, the amended judgment of the district court is AFFIRMED.

                                                FOR THE COURT:
                                                Catherine O’Hagan Wolfe, Clerk




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