17-1943
Brown v. United States

                                 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 14th day of February, two thousand nineteen.

PRESENT:
                 GERARD E. LYNCH,
                 SUSAN L. CARNEY,
                 CHRISTOPHER F. DRONEY,
                             Circuit Judges,

_________________________________________

ACESHUNN BROWN,

                 Petitioner-Appellee,

                         v.                                            No. 17-1943

UNITED STATES OF AMERICA,

           Respondent-Appellant.
_________________________________________

FOR APPELLANT:                                    DAVID K. KESSLER (Amy Busa, on the
                                                  brief), for Richard P. Donoghue, United
                                                  States Attorney for the Eastern District of
                                                  New York, Brooklyn, NY.

FOR APPELLEE:                                     ELIZABETH E. MACEDONIO, Esq., New
                                                  York, NY.
       Appeal from a judgment of the United States District Court for the Eastern District
of New York (Weinstein, J.).

       UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the grant of the 28 U.S.C. § 2255 motion is
REVERSED, the amended judgment entered on June 1, 2017, is VACATED, and the
cause REMANDED for the District Court to reinstate the original sentence.

       The government appeals from an order entered on May 31, 2017, and amended
judgment entered on June 1, 2017, that (1) granted Aceshunn Brown’s second and successive
motion under 28 U.S.C. § 2255, (2) reduced his sentence from the mandatory minimum of
180 months to time served, and (3) ordered his immediate release from prison. We assume
the parties’ familiarity with the underlying facts, procedural history, and arguments on
appeal, to which we refer only as necessary to explain our decision to reverse the District
Court’s grant of Brown’s § 2255 motion, vacate the amended judgment, and remand the
cause for the District Court to reinstate Brown’s original sentence.

       The government argues that the District Court erred in concluding that Brown’s two
prior convictions for the New York offense of attempted second-degree robbery, in
violation of New York Penal Law §§ 160.10 and 110, did not qualify as “violent felon[ies]”
under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). We review de novo the
District Court’s ruling on this question. See United States v. Brown, 629 F.3d 290, 294 (2d Cir.
2011) (per curiam).

       The recent Supreme Court decision in Stokeling v. United States, 139 S. Ct. 544 (2019),
and our recent decisions in United States v. Thrower, -- F.3d --, 2019 WL 385652 (2d Cir. Jan.
31, 2019) (per curiam), and United States v. Pereira-Gomez, 903 F.3d 155 (2d Cir. 2018), resolve
this case in the government’s favor. In Stokeling, the Supreme Court held that the “the term
‘physical force’ in the ACCA encompasses the degree of force necessary to commit
common-law robbery”—it is “the amount of force necessary to overcome a victim’s
resistance.” 139 S. Ct. at 555. In Thrower, we held that New York robbery in the first and
third degrees, “which like every degree of robbery in New York require[] the common law


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element of ‘forcible stealing,’” are “violent felon[ies]” under the ACCA. 2019 WL 385652, at
*4. We further held in Pereira-Gomez that all degrees of New York robbery, including
attempted robbery, qualify as “crimes of violence” under the 2014 Sentencing Guidelines’
nearly identical force clause. 903 F.3d at 166; compare U.S.S.G. § 2L1.2, cmt. n.1(b)(iii) (2014),
with 18 U.S.C. § 924(e)(2)(B)(i).

        In light of these decisions, it is evident that Brown’s prior convictions under New
York law for attempted second-degree robbery qualify as violent felonies under the ACCA.1
Accordingly, the District Court erred in granting Brown’s § 2255 motion and reducing his
sentence to time served.

                                                   * * *

        We therefore REVERSE the District Court’s grant of Brown’s § 2255 motion,
VACATE the amended judgment, and REMAND the cause for the District Court to
reinstate Brown’s original sentence.

                                                           FOR THE COURT:
                                                           Catherine O’Hagan Wolfe, Clerk of Court




1In light of this disposition, we do not reach the government’s arguments that Brown’s claim for relief under
§ 2255 is procedurally barred.


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