17-952-cr
United States v. Pereira-Gomez




                                      In the


              United States Court of Appeals
                            for the Second Circuit


                                 AUGUST TERM 2017

                                   No. 17-952-cr

                            UNITED STATES OF AMERICA,
                                     Appellee,

                                        v.

               MANUEL PEREIRA-GOMEZ, AKA Manuel Jesus
            Pereira, AKA Manuel Pereiro, AKA Manny Pereira,
                          Defendant-Appellant.



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



                            SUBMITTED: MARCH 9, 2018
                            DECIDED: SEPTEMBER 7, 2018
Before: CABRANES and CARNEY, Circuit Judges, and CAPRONI, District
Judge. *




       Defendant-Appellant          Manuel       Pereira-Gomez        (“Pereira”)
appeals from a March 29, 2017 judgment of the United States District
Court for the Eastern District of New York (Joan M. Azrack, Judge). The
District Court convicted Pereira, following his plea of guilty, of illegal
reentry into the United States after previously having been deported
after the commission of an aggravated felony, in violation of 8 U.S.C.
§§ 1326(a) and 1326(b)(2), and sentenced him principally to 46 months’
incarceration to be followed by three years of supervised release. On
appeal, Pereira argues that the District Court erred when it concluded
that his prior New York conviction for attempted robbery in the
second degree, in violation of N.Y. Penal Law §§ 110.00 and 160.10,
qualified as a “crime of violence” for enhancement purposes under
Section 2L1.2 of the November 1, 2014 United States Sentencing
Guidelines.

       This case presents two questions:

       (1) Whether attempted robbery in the second degree under New
           York law is a “crime of violence” under the “enumerated
           offenses” of application note 1(B)(iii) to Section 2L1.2 of the



       * Judge Valerie Caproni, of the United States District Court for the Southern
District of New York, sitting by designation.




                                         2
         November 1, 2014 edition of the Sentencing Guidelines; and,
         if not,

      (2) Whether attempted robbery in the second degree under New
         York law is a “crime of violence” under the “force clause” of
         application note 1(B)(iii) to Section 2L1.2 of the November 1,
         2014 edition of the Sentencing Guidelines.

      We conclude that attempted robbery in the second degree, in
violation of N.Y. Penal Law §§ 110.00 and 160.10, is not a “crime of
violence” under the “enumerated offenses,” but is a “crime of
violence” under the “force clause.”

      Accordingly, we AFFIRM the District Court’s judgment.




                         Raymond A. Tierney, Assistant United
                         States Attorney (Susan Corkery, Assistant
                         United States Attorney, on the brief), for
                         Bridget M. Rohde, Acting United States
                         Attorney for the Eastern District of New
                         York, Brooklyn, NY, Appellee.

                         Barry D. Leiwant, Federal Defenders of
                         New York, Inc., New York, NY, for
                         Appellant-Defendant.




                                   3
JOSÉ A. CABRANES, Circuit Judge:

       Defendant-appellant           Manuel     Pereira-Gomez        (“Pereira”)
appeals from a March 29, 2017 judgment of the United States District
Court for the Eastern District of New York (Joan M. Azrack, Judge). The
District Court convicted Pereira, following his plea of guilty, of illegal
reentry into the United States after previously having been deported
after the commission of an aggravated felony, in violation of 8 U.S.C.
§§ 1326(a) and 1326(b)(2), and sentenced him principally to 46 months’
incarceration to be followed by three years of supervised release. On
appeal, Pereira argues that the District Court erred when it concluded
that his prior New York conviction for attempted robbery in the
second degree, in violation of N.Y. Penal Law §§ 110.00 1 and 160.10,2


       1 N.Y. Penal Law § 110.00 provides: “A person is guilty of an attempt to
commit a crime when, with intent to commit a crime, he engages in conduct which
tends to effect the commission of such crime.”
       2   N.Y. Penal Law § 160.10 provides:

   A person is guilty of robbery in the second degree when he forcibly steals
   property and when:

       1. He is aided by another person actually present; or
       2. In the course of the commission of the crime or of immediate flight
          therefrom, he or another participant in the crime:
          (a) Causes physical injury to any person who is not a participant in
              the crime; or
          (b) Displays what appears to be a pistol, revolver, rifle, shotgun,
              machine gun or other firearm; or
       3. The property consists of a motor vehicle, as defined in section one
          hundred twenty-five of the vehicle and traffic law.




                                         4
qualified as a “crime of violence” for enhancement purposes under
Section 2L1.2 of the November 1, 2014 United States Sentencing
Guidelines (“2014 Guidelines”). 3

       This case presents two questions:

       (1) Whether attempted robbery in the second degree under New
           York law is a “crime of violence” under the “enumerated
           offenses” of application note 1(B)(iii) to Section 2L1.2 of the
           November 1, 2014 edition of the Sentencing Guidelines; and,
           if not,

       (2) Whether attempted robbery in the second degree under New
           York law is a “crime of violence” under the “force clause” of
           application note 1(B)(iii) to Section 2L1.2 of the November 1,
           2014 edition of the Sentencing Guidelines.

       We conclude that attempted robbery in the second degree, in
violation of N.Y. Penal Law §§ 110.00 and 160.10, is not a “crime of

   Robbery in the second degree is a class C felony.
       3  Both Pereira and the government assume that the November 1, 2015
version of the United States Sentencing Guidelines (“2015 Guidelines”) was in place
when Pereira committed the offenses at issue in this appeal. But the October 21,
2015 Indictment—itself filed before November 1, 2015—charged that the offenses
were committed “[o]n or about September 5, 2015,” when the 2014 Guidelines were
in place. App’x at 8. We therefore refer to the 2014 Guidelines, not the 2015
Guidelines, when discussing the version of the Guidelines in place when Pereira
violated 8 U.S.C. §§ 1326(a) and 1326(b)(2). As the Guidelines provisions at issue in
this case are identical in the 2014 and 2015 Guidelines, this correction does not affect
our analysis.




                                           5
violence” under the “enumerated offenses,” but is a “crime of
violence” under the “force clause.” 4

       Accordingly, we AFFIRM the District Court’s judgment.

                              I.       BACKGROUND

       In 1997, Pereira pleaded guilty in New York state court to
attempted robbery in the second degree. He was subsequently
deported from the United States on three occasions. After reentering
the United States a fourth time, he was arrested for, inter alia, felony
offenses of driving while intoxicated and aggravated unlicensed
operation of a motor vehicle. On October 21, 2015, Pereira was indicted
for having been found in the United States, on or about September 5,




       Application note 1(B)(iii) of Section 2L1.2 of the November 2014 Guidelines
       4

provided:

       “Crime of violence” means any of the following offenses under
       federal, state, or local law: murder, manslaughter, kidnapping,
       aggravated assault, forcible sex offenses (including where consent
       to the conduct is not given or is not legally valid, such as where
       consent to the conduct is involuntary, incompetent, or coerced),
       statutory rape, sexual abuse of a minor, robbery, arson, extortion,
       extortionate extension of credit, burglary of a dwelling, or any other
       offense under federal, state, or local law that has as an element the use,
       attempted use, or threatened use of physical force against the person of
       another.

       The “force clause” is emphasized above.




                                           6
2015, after having been previously deported from the United States
following a conviction for an aggravated felony. 5

         On March 23, 2016, Pereira pleaded guilty to the charges against
him. He and the government, however, were unable to reach a plea
agreement because they disputed the applicable advisory Guidelines
range.

         At the time of sentence, Pereira argued that the District Court
should apply the 2014 Guidelines, which were in place when he
violated 8 U.S.C. §§ 1326(a) and 1326(b)(2), because the 2014
Guidelines set forth a lower advisory range than the November 1, 2016
Guidelines Manual (“2016 Guidelines”) in effect at the time of Pereira’s
sentencing. 6 He further contended that under the 2014 Guidelines, his
1997 conviction for attempted robbery in the second degree was not a
“crime of violence” that triggered a 16-level prior offense
enhancement under Guidelines Section 2L1.2(b)(1)(A). 7 Finally,



         5   See note 3 and accompanying text, ante.

         A sentencing court typically applies the Guidelines Manual in place at the
         6

time of sentencing, which here would be the 2016 Guidelines. However, “there is
an ex post facto violation when a defendant is sentenced under Guidelines
promulgated after he committed his criminal acts and the new version provides a
higher applicable Guidelines sentencing range than the version in place at the time
of the offense.” Peugh v. United States, 569 U.S. 530, 533 (2013). Accordingly, the
sentencing court would be required to apply the 2014 Guidelines if that version
provided a lower sentencing range than the 2016 Guidelines. See also note 4, ante.
         7   In the 2014 Guidelines, Section 2L1.2(b)(1)(A) provided:




                                             7
Pereira argued that, absent the 16-level enhancement, his total
adjusted offense level was 10, yielding an advisory Guidelines range
of 15 to 21 months’ imprisonment.

       The government calculated Pereira’s advisory Guidelines range
under both the 2014 and the 2016 Guidelines. Under the 2014
Guidelines, the government argued, Pereira’s 1997 conviction
qualified as “crime of violence”—thus resulting in a 16-level
enhancement and a total adjusted offense level of 21. Based on
Pereira’s criminal history category of IV, the government arrived at a
2014 Guidelines advisory range of 57 to 71 months’ imprisonment.
Under the 2016 Guidelines, by contrast, the government argued that
Pereira’s total offense level fell to 19 with a corresponding advisory
range of 46 to 57 months’ imprisonment. 8



   If the defendant previously was deported, or unlawfully remained in the
   United States, after—

       (A) a conviction for a felony that is (i) a drug trafficking offense for
           which the sentence imposed exceeded 13 months; (ii) a crime of
           violence; (iii) a firearms offense; (iv) a child pornography offense;
           (v) a national security or terrorism offense; (vi) a human trafficking
           offense; or (vii) an alien smuggling offense, increase by 16 levels if
           the conviction receives criminal history points under Chapter Four
           or by 12 levels if the conviction does not receive criminal history
           points.
       8  The government computed a lower sentence range under the 2016
Guidelines because Section 2L1.2(b)(1) of the 2016 Guidelines eliminated the use of
the term “crime of violence,” and instead based the enhancement primarily on the
length of the sentence imposed for the prior offense.




                                         8
        The District Court sentenced Pereira on March 29, 2017. It
determined that Pereira’s prior conviction was a “crime of violence”
under the 2014 Guidelines. The District Court then applied the 2016
Guidelines, which produced a lower range, and sentenced Pereira
principally to 46 months’ imprisonment to be followed by three years
of supervised release. 9

        This appeal followed.


                                II.     DISCUSSION

        On appeal, Pereira argues that the District Court erred in finding
that his prior New York state conviction for attempted robbery in the
second degree is a “crime of violence” under Section 2L1.2 of the 2014
Guidelines. Specifically, he contends that his prior conviction does not
qualify as a “crime of violence” under either the “enumerated
offenses” or the “force clause” of application note 1(B)(iii) of
Section 2L1.2.

        We agree with Pereira that his prior conviction is not a “crime
of violence” under the “enumerated offenses” in application note
1(B)(iii). We conclude, however, that his prior conviction is a crime of

        9As the Supreme Court reminds us, the Guidelines merely “guide district
courts in exercising their [sentencing] discretion . . . , but they do not constrain that
discretion.” Beckles v. United States, 137 S. Ct. 886, 894 (2017) (internal quotation
marks and alterations omitted). Because Pereira’s sentence falls within the statutory
range, the District Court had the discretion to impose that sentence regardless of
whether Pereira’s prior conviction was, in fact, a “crime of violence” under the 2014
Guidelines.




                                           9
violence under the application note’s “force clause.” Accordingly, we
affirm the judgment of the District Court.

       A. Standard of Review

       When reviewing Guidelines calculations, we ordinarily “apply
a de novo standard to legal conclusions and we accept the sentencing
court’s factual findings unless they are clearly erroneous.” 10 But where
a defendant raises arguments for the first time on appeal, “we review
his claims for plain error.” 11 We apply the plain error standard “less
stringently in the sentencing context, where the cost of correcting an
unpreserved error is not as great as in the trial context.” 12

       B. The “Enumerated Offenses” Analysis

       We first consider whether Pereira’s prior conviction is a “crime
of violence” under the “enumerated offenses” in application note
1(B)(iii) to Section 2L1.2 of the 2014 Guidelines. We conclude that it is
not.

                                      *       *       *

        Where the Guidelines enumerate an offense as a “crime of
violence,” we undertake what is known as the “categorical

       10   United States v. Walker, 595 F.3d 441, 443 (2d Cir. 2010).
       11   United States v. Zillgitt, 286 F.3d 128, 131 (2d Cir. 2002).
       12United States v. Jones, 878 F.3d 10, 14–15 (2d Cir. 2017) (“Jones II”) (internal
quotation marks omitted).




                                             10
approach.” 13 We “look only to the statutory definitions—i.e., the
elements—of a defendant’s prior offenses, and not to the particular
facts underlying those convictions.” 14 We then compare the elements
of the statutory offense to “the generic, contemporary” definition of
the offense. 15 A prior conviction will constitute a “crime of violence”
for a sentencing enhancement “only if the statute’s elements are the
same as, or narrower than, those of the generic offense.” 16

       In some cases, however, the defendant is convicted under a
more complicated statute that criminalizes multiple acts in the
alternative—thereby requiring a sentencing court to deduce which of
these elements “was integral to the defendant’s conviction.” 17 In these
circumstances, we apply what is known as the “modified categorical
approach.” This requires us to “look[ ] to a limited class of documents
(for example, the indictment, jury instructions, or plea agreement and




       13   Id. at 18.
       14 Descamps v. United States, 570 U.S. 254, 261 (2013) (emphasis in original)
(internal quotation marks omitted); see also United States v. Genao, 869 F.3d 136, 144
(2d Cir. 2017) (same). Descamps involved the Armed Career Criminal Act
(“ACCA”), not the Guidelines, but “we apply the same categorical approach
irrespective of whether the enhancement is pursuant to the ACCA or the
Guidelines.” Walker, 595 F.3d at 444 n.1.
       15   Taylor v. United States, 495 U.S. 575, 598 (1990).
       16   Descamps, 570 U.S. at 257.
       17   Mathis v. United States, 136 S. Ct. 2243, 2249 (2016).




                                             11
colloquy) to determine what crime, with what elements, a defendant
was convicted of.” 18

       Here, because Pereira was convicted under a statute that
criminalizes multiple acts in the alternative, we adopt the modified
categorical approach. The government concedes that Pereira’s
certificate of disposition “does not specify which subsection of N.Y.
Penal Law § 160.10 was charged.” 19 Ordinarily, we would therefore be
required to determine “the least of the acts proscribed by the statute.” 20
We need not do so here, however, because the outcome of that analysis
does not affect our conclusion.

                                      *        *       *

       Regardless of which particular aggravating factor set forth in
N.Y. Penal Law § 160.10 applies, we must consider whether the statute
under which Pereira was convicted is the same as, or narrower than,
the generic offense of robbery. 21 His crime of conviction will not


       18   Id.; see also Shepard v. United States, 544 U.S. 13, 26 (2005).
       19   Appellee Br. at 4 n.2.
       20   Jones II, 878 F.3d at 17 (internal quotation marks and alteration omitted).
       21 This Court, discussing the so-called residual clause of former Guidelines
Section 4B1.2(a)(2), recently observed that “it would seem that . . . robbery of any
degree in New York qualifies as a crime of violence.” Jones II, 878 F.3d at 17
(emphasis in original); see also United States v. Dove, 884 F.3d 138, 152 (2d Cir. 2018)
(describing Jones II as holding “that New York robbery, regardless of degree, is
categorically a crime of violence pursuant to the residual clause”). The “residual
clause” in effect allowed the rule to apply to situations not explicitly enumerated




                                              12
qualify as a “crime of violence” under the “enumerated offenses” if the
statute he was convicted of violating “sweeps more broadly than the
generic crime.” 22




within it. The holding in Jones II does not control in this case because Section 2L1.2
of the 2014 Guidelines does not include a “residual clause.”

        A court must be careful to distinguish between the categorical approach as
applied to the two clauses. Under the “residual clause” analysis, a court asks
whether the offense of conviction “involves conduct that presents a serious
potential risk of physical injury to another.” Jones II, 878 F.3d at 15 (quoting U.S.S.G.
§ 4B1.2(a)(2) (2015)); see also Johnson v. United States, 135 S. Ct. 2551, 2557 (2015)
(“Deciding whether the residual clause covers a crime thus requires a court to
picture the kind of conduct that the crime involves in ‘the ordinary case,’ and to
judge whether that abstraction presents a serious potential risk of physical
injury.”(internal citation omitted)).

        In contrast, under the “enumerated offenses” analysis, a court asks whether
the offense of conviction is substantially similar to, or narrower than, the generic
definition of the offense. See Mathis, 136 S. Ct. at 2248 (“To determine whether a
prior conviction is for generic burglary (or other listed crime) courts apply what is
known as the categorical approach: They focus solely on whether the elements of
the crime of conviction sufficiently match the elements of generic burglary, while
ignoring the particular facts of the case.”).

       A court also applies the categorical approach to the “force clause.” As will
be discussed further below, the “force clause” analysis asks whether the predicate
offense “has as an element the use, attempted use, or threatened use of physical
force against the person of another.” U.S.S.G. § 2L1.2, cmt. 1(B)(iii) (2014); see also
Stuckey v. United States, 878 F.3d 62, 70 (2d Cir. 2017).
       22   Descamps, 570 U.S. at 261.




                                           13
       The generic definition of an offense “is the ‘contemporary
understanding’ of the term.” 23 This understanding will often be the
“sense in which the term is now used in the criminal codes of most
States.” 24 In some cases, however, “courts also consult other sources,
including federal criminal statutes, the Model Penal Code, scholarly
treatises, and legal dictionaries.” 25

       Surveying these sources, we conclude that the generic definition
of robbery includes, as an element, that the stolen property be taken
“from the person or in the presence of” the owner or victim. The
statutes and decisions of the highest courts in at least twenty-seven
states and the District of Columbia include the presence element in
their definitions of robbery. 26 The presence element is also found in

       23 United States v. Castillo, 896 F.3d 141, 150 (2d Cir. 2018) (quoting Taylor,
495 U.S. at 593).
       24   Taylor, 495 U.S. at 598.
       25   Castillo, 896 F.3d at 150.
       26See, e.g., Alaska Stat. § 11.41.510(a) (“immediate presence and control of
another”); Ariz. Rev. Stat. § 13-1902(A) (“from his person or immediate presence”);
Cal. Penal Code § 211 (“personal property in the possession of another, from his
person or immediate presence”); Colo. Rev. Stat. § 18-4-301(1) (“from the person or
presence of another”); D.C. Code § 22-2801 (“from the person or immediate actual
possession of another”); Fla. Stat. § 812.13(1) (“from the person or custody of
another”); Ga. Code Ann. § 16-8-40(a) (“from the person or the immediate presence
of another”); Idaho Code § 18-6501 (“from his person or immediate presence”); Ill.
Comp. Stat. Ch. 720, § 5/18-1(a) (“from the person or presence of another”); Ind.
Code § 35-42-5-1 (“from another person or from the presence of another person”);
Kan. Stat. § 21-5420(a) (“from the person or presence of another”); La. Rev. Stat.
§ 14:65(A) (“from the person of another or that is in the immediate control of
another”); Ball v. State, 699 A.2d 1170, 1183 (Md. 1997) (“from his person or in his




                                         14
law treatises 27 and legal dictionaries. 28 And the United States Code
includes a presence element in its definition of robbery. 29

       New York, however, deliberately revised its robbery statute to
eliminate the presence element. 30 In 1961, the New York Legislature
“created a Temporary State Commission whose purpose was to revise



presence”); Minn. Stat. § 609.24 (“from the person or in the presence of another”);
Miss. Code § 97-3-73 (“in his presence or from his person”); Neb. Rev. Stat. § 28-
324(1) (“from the person of another”); Nev. Rev. Stat. § 200.380(1) (“from the person
of another, or in the person’s presence”); N.M. Stat. § 30-16-2 (“from the person of
another or from the immediate control of another”); Okla. Stat. tit. 21, § 791 (“from
his person or immediate presence”); State v. Rolon, 45 A.3d 518, 525 (R.I. 2012)
(“from the person of another, or in his presence” (internal quotation marks
omitted)); State v. Rosemond, 589 S.E.2d 757, 758 (S.C. 2003) (“from the person of
another or in his presence”); S.D. Cod. Laws § 22-30-1 (“from the other’s person or
immediate presence”); Tenn. Code § 39-13-401(a) (“from the person of another”);
Vt. Stat., tit. 13, § 608(a) (“from his or her person or in his or her presence”); Pierce
v. Commonwealth, 138 S.E.2d 28, 31 (Va. 1964) (“from his person or in his presence”);
Wash. Rev. Code § 9A.56.190 (“from the person of another or in his or her
presence”); W. Va. Code § 61-2-12(c)(1) (“from the person or presence of another”);
Wis. Stat. § 943.32(1) (“from the person or presence of the owner”).
       27See, e.g., 3 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 20.3 (3d ed.
2017) (Robbery includes the requirement “that the property be taken from the
person or presence of the other.”).
       28See, e.g., Robbery, BLACK’S LAW DICTIONARY (10th ed. 2014) (“The illegal
taking of property from the person of another, or in the person’s presence, by
violence or intimidation; aggravated larceny.”).
       29   18 U.S.C. § 1951(b)(1) (“from the person or in the presence of another”).
       30 See People v. Smith, 79 N.Y.2d 309, 313–14 & n.3 (1992) (summarizing
statutory history).




                                           15
and simplify the existing Penal Law.” 31 The Commission proposed
eliminating the “‘from the person or in the presence of’ limitation
[because it] would exclude a variety of forcible thefts that were
‘robberies in spirit.’” 32 The New York Legislature subsequently
adopted the proposal, expanding the definition of robbery by not
including a presence element. Under New York law, robbery can now
be committed through the use or threat of force to compel another “to
deliver up” property not in his presence, or simply “to engage in other
conduct which aids in the commission of the larceny.” 33

      Because generic robbery contains an element not found in New
York’s robbery statute, the New York statute “sweeps more broadly
than the generic crime.” 34 Accordingly, robbery under New York law
does not qualify as a crime of violence under the “enumerated
offenses” in application note 1(B)(iii) to Section 2L1.2 of the 2014
Guidelines. 35

      Pereira, of course, was convicted of attempted robbery in the
second degree in violation of N.Y. Penal Law §§ 110.00 and 160.10, not
simple robbery. But none of the aggravating factors set forth in N.Y.


      31   Id. at 313.
      32   Id. at 314.
      33   N.Y. Penal Law § 160.00(2).
      34   Descamps, 570 U.S. at 261.
      35   Id. at 257.




                                         16
Penal Law § 160.10 creates a requirement of presence. 36 Nor does New
York’s definition of criminal attempt. 37

       We therefore hold that Pereira’s prior conviction for attempted
robbery in the second degree in violation of N.Y. Penal Law §§ 110.00
and 160.10 is not a “crime of violence” under the “enumerated
offenses” in application note 1(B)(iii) to Section 2L1.2 of the 2014
Guidelines.

       C. The “Force Clause” Analysis

       We must next consider whether Pereira’s prior conviction
qualifies as a “crime of violence” under the “force clause” of
application note 1(B)(iii) to Section 2L1.2 of the 2014 Guidelines. We
conclude that it does.

       To determine whether a particular prior conviction is a “crime
of violence” under the “force clause,” we again apply the categorical
approach or its modified counterpart. 38 But the analysis differs from
that applied to an “enumerated offense.” Instead of asking whether
the statutory elements of the predicate offense “are the same as, or

       36   See N.Y. Penal Law § 160.10.
       37See id. § 110.00 (“A person is guilty of an attempt to commit a crime when,
with intent to commit a crime, he engages in conduct which tends to effect the
commission of such crime.”).
       38 See Stuckey, 878 F.3d at 66–67. As discussed above, the statute at issue
criminalizes multiple acts in the alternative. We therefore apply the modified
categorical approach.




                                           17
narrower than, those of the generic offense,” 39 we consider whether
the predicate offense “has as an element the use, attempted use, or
threatened use of physical force against the person of another.” 40 In so
doing, we focus on “the minimum criminal conduct necessary for
conviction under a particular statute.” 41

       Not all criminal offenses involving actual, attempted, or
threatened physical contact qualify as “crimes of violence” under the
“force clause.” In Johnson v. United States, the Supreme Court clarified
that the phrase “physical force” in the “force clause” of the Armed
Career Criminal Act, 18 U.S.C. § 924(b)(2)(B), “means violent force—
that is, force capable of causing physical pain or injury to another
person.” 42 The battery statute at issue there had, as an element, that the
defendant “actually and intentionally touched the victim.” 43 The
Supreme Court held that this statute did not qualify as a “crime of
violence” because it could be committed “by any intentional physical
contact, no matter how slight.” 44




       39   Descamps, 570 U.S. at 257.
       40   U.S.S.G. § 2L1.2, cmt. 1(B)(iii) (2014); see also Stuckey, 878 F.3d at 70.
       41United States v. Hill, 890 F.3d 51, 55 (2d Cir. 2018) (internal quotation marks
omitted).
       42   559 U.S. 133, 140 (2010) (emphasis in original).
       43   Id. at 137 (internal quotation marks and alterations omitted).
       44   Id. at 138 (emphasis in original) (internal quotation marks omitted).




                                             18
       Pereira argues that, after Johnson, we must overturn our earlier
holding in United States v. Spencer that robbery under New York law is
a “crime of violence” under the “force clause.” 45 We disagree.

       Unlike the battery statute in Johnson, New York’s robbery statute
cannot be violated “by any intentional physical contact, no matter how
slight.” 46 New York defines robbery as “forcible stealing,” which
requires “us[ing] or threaten[ing] the immediate use of physical force
upon another person.” 47 That level of physical force must be enough
“to prevent resistance to the taking or to compel the owner to deliver
up the property.” 48 By its plain language, then, New York’s robbery
statute includes as an element the use of violent force.

       The New York Court of Appeals recently supplied support for
this interpretation of New York robbery in People v. Jurgins. 49 Jurgins
challenged his second felony offender adjudication on the grounds


       45 United States v. Spencer, 955 F.2d 814, 820 (2d Cir. 1992). In United States v.
Jones, this Court initially reversed Spencer on the basis of perceived supervening
Supreme Court guidance. United States v. Jones, 830 F.3d 142 (2d Cir.), vacated, 838
F.3d 296 (2d Cir. 2016) (“Jones I”). But Jones I was subsequently vacated and our
ruling in Spencer was reinstated. See Massey v. United States, 895 F.3d 248, 251 n.6
(2d Cir. 2018) (describing sequence of events).
       46   Johnson, 559 U.S. at 138 (emphasis in original) (internal quotation marks
omitted).
       47   N.Y. Penal Law § 160.00.
       48   People v. Jurgins, 26 N.Y.3d 607, 614 (2015).
       49   Id.




                                            19
that his prior Washington, DC conviction for attempted robbery was
“not equivalent to any New York felony.” 50 He argued that robbery
under Washington, DC law—unlike robbery under New York law—
could be committed by such little force as “sudden or stealthy seizure”
or a “snatching.” 51 The Court of Appeals agreed with the parties that
“taking ‘by sudden or stealthy seizure or snatching,’ would not be
considered a robbery or other felony in New York, inasmuch as it is
akin to pickpocketing, or the crime of jostling, which is a misdemeanor
in this state.” 52

       Pereira identifies several New York Appellate Division
decisions that could be read to suggest that robbery does not
necessarily involve the use of violent force. For example, Pereira cites
a case in which defendants were convicted of robbery by forming “a
human wall that blocked the victim’s path,” 53 and another in which
the defendant physically “block[ed] the victim’s passage.” 54

       Pereira minimizes the conduct presented in these cases. The
“human wall” was no mere obstacle to the victim’s pursuit of the
robber; it constituted a threat that pursuit would lead to a violent
confrontation. So too did blocking the victim’s passage in the latter

       50   Id. at 610.
       51   Id. at 614–15.
       52   Id. at 614.
       53   People v. Bennett, 631 N.Y.S.2d 834, 834 (App. Div. 1995).
       54   People v. Patton, 585 N.Y.S.2d 431, 431 (App. Div. 1992).




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case. Only by backing down in the face of these threats did the victims
avoid physical force.

       Finally, Pereira argues his prior offense of attempted robbery in
the second degree does not qualify as a “crime of violence” because
“attempted robbery can be committed without the defendant using,
attempting to use, or threatening to use physical force.” 55 This
argument misrepresents criminal attempt under New York law.
Regarding attempt, the state’s highest court requires that the action
taken by an accused be “so near to its accomplishment that in all
reasonable probability the crime itself would have been committed,
but for timely interference.” 56

       In short, we conclude that “robbery” as it is defined in N.Y.
Penal Law § 160.00, qualifies as a “crime of violence” under the “force
clause” of application note 1(B)(iii) to Section 2L1.2 of the 2014
Guidelines. Because that definition of robbery—forcible stealing—is
common to all degrees of robbery under New York law, we hold that
robbery in any degree is a crime of violence under the “force clause”
of application note 1(B)(iii) to Section 2L1.2 of the 2014 Guidelines. We
also hold that attempted robbery under New York law is a “crime of
violence” under the “force clause.”




       55   Appellant Br. at 16.
       56 People v. Mahboubian, 74 N.Y.2d 174, 196 (1989) (internal quotation marks
omitted); see also People v. Bracey, 41 N.Y.2d 296, 300 (1977) (“[I]t must be proven
that the defendant acted to carry out his intent.”).




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                       III. CONCLUSION

     To summarize, we hold as follows:

     (1) Attempted robbery in the second degree, in violation of N.Y.
        Penal Law §§ 110.00 and 160.10, is not a “crime of violence”
        under the “enumerated offenses” of application note 1(B)(iii)
        to Section 2L1.2 of the November 1, 2014 edition of the
        Sentencing Guidelines; and

     (2) Robbery and attempted robbery in any degree under New
        York law are “crimes of violence” under the “force clause” of
        application note 1(B)(iii) to Section 2L1.2 of the November 1,
        2014 edition of the Sentencing Guidelines.

     For the foregoing reasons, we AFFIRM the District Court’s
judgment.




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