                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT



                                       No. 17-1205


                            UNITED STATES OF AMERICA

                                             v.

                               JOSE NIEVES-GALARZA,

                                                                 Appellant


                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                        (District Court No.: 1-11-cr-00057-001)
                      District Judge: Honorable Sylvia H. Rambo



                       Submitted under Third Circuit LAR 34.1(a)
                                on November 17, 2017


              Before: AMBRO, KRAUSE, and RENDELL, Circuit Judges


                           (Opinion filed: December 21, 2017)



                                      O P I N I O N*

       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
RENDELL, Circuit Judge:

       Jose Nieves-Galarza pleaded guilty to possession of a firearm by a convicted felon

and was sentenced, as an armed career criminal, to 87 months in prison. He now

asserts—despite a waiver of collateral rights contained in his plea agreement—that the

Supreme Court’s 2015 opinion in Johnson rendered his sentencing enhancement invalid

because his five New York state robbery convictions no longer designated him an armed

career criminal. Because we conclude that his robbery convictions still qualify as

“violent crimes” under the Armed Career Criminal Act’s elements clause, we disagree.

For the reasons that follow, we will affirm the District Court’s ruling denying Nieves-

Galarza’s § 2255 motion.


                                   I. BACKGROUND

       In 2011, Nieves-Galarza was indicted by a grand jury in the Middle District of

Pennsylvania on four counts related to drug trafficking.1 Only the fourth count is

relevant to this appeal: possession of a firearm by a convicted felon. Before trial,

Nieves-Galarza entered into a plea agreement with the United States, in which he agreed




1
 Nieves-Galarza was indicted on one count of conspiring to distribute and possession
with intent to distribute cocaine, actual distribution and possession with intent to
distribute cocaine, possession of a firearm in furtherance of drug trafficking, and
possession of a firearm by a convicted felon. The indictment was for violations of 21
U.S.C. §§ 846, 841(a)(1)–(2) and 18 U.S.C. §§ 924(c)(1)(A), 922(g)(1), 924(a)(2) &
924(e).

                                             2
to plead guilty to count four, in return for the dismissal of the remaining charges and a

recommendation of a sentencing reduction for acceptance of responsibility.

        The plea agreement also contained a waiver of appeal, under which he waived

direct and collateral challenges to his conviction and sentence. Under this agreement,

Nieves-Galarza relinquished his “right to appeal the conviction and sentence and the right

to attack his conviction or sentence collaterally. . . . including, but not limited to, a

motion to vacate judgment under Title 28, United States Code, Section 2255.” United

States Br. at 12. He also admitted to the status of “armed career criminal.” In addition,

Nieves-Galarza’s five prior New York state robbery convictions and one drug offense

triggered the career offender designation as “violent felon[ies]” and a “serious drug

offense” under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). The

District Court granted a downward departure and sentenced Nieves-Galarza to 109

months’ imprisonment. Citing changed circumstances for substantial assistance under

Federal Rule of Criminal Procedure 35(b), it then amended the judgment to reduce the

sentence to 87 months.

       Nieves-Galarza did not pursue a direct appeal, but in 2016 filed a motion to

correct his sentence pursuant to 28 U.S.C. § 2255. He argued that the Supreme Court’s

decision in Johnson v. United States, 135 S. Ct. 2551 (2015) (Johnson 2015) rendered his

armed career criminal classification erroneous, and his sentence should therefore have

been significantly lower. The District Court denied his motion, citing post-Johnson 2015

decisions of the United States Court of Appeals for the Second Circuit holding that first-

and second-degree robbery convictions under New York state law qualify under the

                                               3
ACCA’s “elements clause.”2 The District Court granted a Certificate of Appealability,

and this appeal followed.

       II. STATEMENT OF JURISDICTION AND STANDARD OF REVIEW

       The District Court had jurisdiction over Nieves-Galarza’s claims pursuant to 18

U.S.C. § 3231 and 28 U.S.C. § 2255. We have jurisdiction under 28 U.S.C. § 1291

because this appeal is from a final decision of the District Court, and pursuant to 28

U.S.C. § 2253 because this appeal is from the District Court’s final order in a 28 U.S.C. §

2255 proceeding.

       When reviewing a District Court’s denial of a motion to correct sentence under 28

U.S.C. § 2255, we “exercise plenary review of the District Court’s legal conclusions and

apply a clearly erroneous standard to the court’s factual findings.” United States v.

Travillion, 759 F.3d 281, 289 (3d Cir. 2014) (quoting Lambert v. Blackwell, 134 F.3d

507, 512 (3d Cir. 1997)). As a § 2255 motion is a collateral challenge, our review is

“much less favorabl[e]” than for a direct appeal of the sentence. Id. at 288. We may

affirm on any basis supported by the record. Helvering v. Gowran, 302 U.S. 238, 245

(1937).



                                    III. DISCUSSION




2
  The District Court declined to rule on whether Nieves-Galarza’s motion was barred by
the collateral review waiver. We assume that the waiver was invalid in order to reach the
merits of Nieves-Galarza’s claim.

                                             4
       Nieves-Galarza argues that following the Supreme Court’s decision in Johnson

2015 invalidating the ACCA’s residual clause, he no longer qualifies for a sentencing

enhancement because his prior New York state robbery convictions are not statutory

predicates anymore. The Government contends that Nieves-Galarza’s claim fails for

three reasons: (1) his appellate waiver bars our review; (2) his motion was untimely; and

(3) his state robbery convictions qualify as statutory predicates under the “elements”

clause of the ACCA. We will assume arguendo that his waiver is invalid and that his

motion was timely in order to decide this appeal on the merits. We conclude that because

his convictions for New York state first-degree robbery qualify as “violent felonies”

under the elements clause—which Johnson 2015 does not affect—the ACCA’s statutory

predicates are satisfied, and his sentence does not violate due process.

       Under the ACCA, a convicted felon who possesses a firearm may be punished by

up to 10 years in prison. 18 U.S.C. §§ 924(a)(2) & 992(g). If the offender has three or

more earlier convictions for a “violent felony” or “serious drug offense,” however, the

ACCA mandates a minimum prison term of 15 years. Id. § 924(e)(1). The ACCA

defines “violent felony” as an offense punishable by more than one year’s imprisonment

that either (1) “has as an element the use, attempted use, or threatened use of physical

force against the person of another” [elements clause]; (2) “is burglary, arson, or

extortion, involves use of explosives,” [enumerated offenses clause]; or (3) “otherwise

involves conduct that presents a serious potential risk of physical injury to another.”

[residual clause] Id. § 924(e)(2)(B) (naming conventions added in brackets).



                                             5
       Because the Supreme Court held the ACCA’s residual clause unconstitutional in

Johnson 2015, and because robbery is not listed in § 924(e)(2)(B)(ii)’s enumerated

offenses clause, Nieves-Galarza’s robbery convictions will be predicate offenses for

enhancement purposes only if they qualify under the elements clause. Nieves-Galarza

does not dispute that he has a qualifying “serious drug offense.” We must therefore

determine if at least two of his five prior state law robbery convictions qualify as violent

felonies under § 924(e)(2)(B)(i)’s elements clause. If they do not, then Nieves-Galarza

does not have the requisite predicate convictions to justify an ACCA enhancement.

       To qualify as a predicate “violent felony” offense under the ACCA’s elements

clause, the crime must include physical force as a necessary element. In Johnson v.

United States, 559 U.S. 133 (2010) (Johnson 2010), the Supreme Court held that “in the

context of a statutory definition of ‘violent felony,’ the phrase ‘physical force’ means

violent force—that is, force capable of causing physical pain or injury to another person.”

559 U.S. at 140. Thus, if the definition of a crime can be satisfied with less than violent

force, it will not qualify as a violent felony under the ACCA.

       In discerning whether a crime constitutes a violent felony, we apply either the

“categorical approach” or the “modified categorical approach.” United States v. Dahl,

833 F.3d 345, 350–53 (3d Cir. 2016). Either approach requires us—without considering

the defendant’s actual conduct—to determine the minimum statutory elements that the

prosecution must prove beyond a reasonable doubt to secure a conviction for the offense.

Id. The modified categorical approach applies when a defendant was previously

convicted under a “divisible” statute. Descamps v. United States, 133 S. Ct. 2276, 2283–

                                              6
84 (2013). A statute is divisible when it lists multiple, alternative elements, effectively

creating “multiple, alternative versions of the crime.” Id. If the statute is divisible, we

must ascertain which of the alternative elements listed was “integral to the defendant’s

conviction.” Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). To do so, we may

consult “a limited class of documents to determine which of a statute’s alternative

elements formed the basis of the defendant’s prior conviction.” Descamps, 133 S. Ct. at

2284. These so-called “Shepard documents” may include “the indictment, jury

instructions, or plea agreement and colloquy,” Mathis, 136 S. Ct. at 2249, or “some

comparable judicial record of this information,” Shepard v. United States, 544 U.S. 13,

26 (2005). We then compare that crime with the relevant ACCA offense. Mathis, 136 S.

Ct. at 2249.

       Here, we apply the modified categorical approach because Nieves-Galarza’s two

most serious convictions were for first-degree robbery, and the first-degree robbery

statute lists multiple, alternative elements, effectively creating several different crimes of

robbery. See N.Y. Penal Law § 160.15.3 We next ask which of the four types of first-


3
 In relevant part, the statute for first-degree robbery reads:
       A person is guilty of robbery in the first degree when he forcibly steals
       property and 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
              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.

                                              7
degree robbery Nieves-Galarza was convicted of committing. To do so, we turn to the

Shepard documents available in this case—the Certificates of Disposition.4 See United

States v. Green, 480 F.3d 627 (2d Cir. 2007) (stating that Certificates of Disposition are

the type of judicial record that sentencing courts may consider).5

       The Certificates of Disposition reveal that, inter alia, Nieves-Galarza was

convicted under N.Y. Penal Law §§ 160.15(1) and 160.15(4). We examine each in turn

to determine whether it meets § 924(e)(2)(B)(i)’s requirements, including that it be

committed using “force capable of causing physical pain or injury to another,” as

required by Johnson 2010.

       N.Y. Penal Law § 160.15(1) makes it a crime to forcibly steal property while

causing “serious physical injury to any person who is not a participant in the crime.” If a

defendant is convicted of “[c]aus[ing] serious physical injury” in the course of a robbery,

we are satisfied that he has employed “force capable of causing physical pain or injury to

another” as required by Johnson 2010, and that § 924(e)(2)(B)(i)’s requirements are met.


4
  The District Court did not rely on the Certificates of Disposition, but rather, citing two
non-precedential opinions from the Second Circuit, used the strict categorical approach to
determine that any of Nieves-Galarza’s robbery convictions would qualify as a violent
felony under the elements clause. See Dist. Ct. Op. at 3–4 (citing United States v.
Kornegay, 641 F. App’x 79, 85 (2d Cir. 2016)); United States v. Bennett, 604 F. App’x
11, 15–16 (2d Cir. 2015). Because the charging documents are available to us in the
record, however, we can determine this appeal based on Nieves-Galarza’s actual
convictions, using the modified categorical approach.
5
  While we previously questioned the use of a charging document as a Shepard document
in United States v. Hernandez, 218 F.3d 272, 278 (3d Cir. 2000), in that case the accuracy
of the document was highly questionable, as it was nine years old and originated in the
county clerk’s office, rather than the court. Here, we have no reason to doubt the
accuracy of the Certificates of Disposition.

                                             8
See also United States v. Castleman, 134 S. Ct. 1405, 1414–15 (2014) (stating that, in the

common law sense, a bodily injury can only result from the application of force). Thus,

this conviction was a valid ACCA predicate.

       Nieves-Galarza’s other first degree robbery conviction was under § 160.15(4),

which criminalizes forcibly stealing property while displaying “what appears to be a

pistol, revolver, rifle, shotgun, machine gun or other firearm.” N.Y. Penal Law §

160.15(4). The ACCA’s elements clause can be satisfied not only through the “use of

force,” but also through the “threatened use of physical force against the person of

another.” 18 U.S.C. § 924(e)(2)(B)(i) (emphasis added). Nieves-Galarza urges that the

“display” of a firearm during a robbery does not amount to a “threat” to use it. We are

not persuaded.

       To explain why displaying a firearm necessarily threatens its use, we turn to New

York state courts’ interpretation of § 160.15(4). The New York Court of Appeals has

explained that the reason for making the display of a firearm an aggravating statutory

factor is the “effect upon the victim put in fear of his or her life.” People v. Baskerville,

60 N.Y.2d 374, 381 (1983). And it has interpreted the “display” of a firearm in violation

of § 160.15(4) as something more that “a mere threat to use one.” See People v. Lopez,

73 N.Y.2d 214, 221 (1989). In Lopez, the Court also said that § 160.15(4) “recognizes

that the additional fear suffered by a robbery victim confronted by what appears to be a

firearm aggravates the nature of the offense and warrants additional punishment.” Id.

Given these precedents, we are satisfied that § 160.15(4) constitutes the “threatened use

of physical force against the person of another,” such that it was a valid predicate offense

                                              9
for the purpose of designating Nieves-Galarza as an armed career criminal under §

924(e)(2)(B)(i)’s elements clause.

      Because Nieves-Galarza’s Certificates of Disposition make clear that the use of

physical force was an element of his two first-degree robbery convictions, those

convictions qualify as “violent felonies” under the elements clause of the ACCA. Thus,

his designation as an armed career criminal was appropriate, and his sentence does not

violate Due Process.


                                     IV. CONCLUSION

      For the foregoing reasons, we will affirm the District Court’s ruling.




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