13-2941-cr
United States v. Flores

                            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
17th day of June two thousand fourteen.

Present:          ROSEMARY S. POOLER,
                  PETER W. HALL,
                  SUSAN L. CARNEY,
                             Circuit Judges.

_____________________________________________________

UNITED STATES OF AMERICA,

                                Appellee,

                          -v-                                               13-2941-cr

MARIO FLORES, AKA Sealed Defendant 1,

                        Defendant-Appellant.
_____________________________________________________

Appearing for Appellant:        Colleen P. Cassidy, Federal Defenders of New York, Inc., Appeals
                                Bureau, New York, N.Y.

Appearing for Appellee:         Paul M. Monteleoni, Assistant United States Attorney (Preet
                                Bharara, United States Attorney for the Southern District of New
                                York, Brian A. Jacobs, Assistant United States Attorney, on the
                                brief), New York, N.Y.


        Appeal from the United States District Court for the Southern District of New York
(Stein, J.).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Mario Flores pleaded guilty to one violation of 18 U.S.C. § 922(g)(1), possessing a
firearm that had been shipped in interstate commerce after having been convicted of a felony. He
was sentenced principally to 60 months imprisonment by the United States District Court for the
Southern District of New York (Stein, J.). Flores now appeals from his July 31, 2013 judgment
of conviction, entered on August 1, 2013. On appeal, he asserts that the district court erred in
determining that burglary in the third degree under New York law, N.Y. Penal Law § 140.20,
constitutes a “crime of violence” under Section 4B1.2(a)(2) of the United States Sentencing
Guidelines. We assume the parties’ familiarity with the underlying facts, procedural history, and
specification of issues for review.

       The argument Flores advances is foreclosed by our precedent. In United States v. Brown,
we concluded that a conviction for “third-degree burglary in violation of New York law was a
crime of violence within the meaning of the last clause of [U.S.S.G.] § 4B1.2(a)(2).” 514 F.3d
256, 269 (2d Cir. 2008). The upshot for the defendant in Brown was that “his record included
two crimes of violence, making his base offense level 24.” Id. The same result obtains here.

        Flores recognizes our holding in Brown, but suggests that a trio of recent Supreme Court
decisions have undermined our reasoning in that decision. We are not persuaded. Flores first
points us to Begay v. United States, 553 U.S. 137 (2008), and to Chambers v. United States, 555
U.S. 122 (2009). It is true that both Begay and Chambers interpreted the residual clause of the
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii), to require analysis of the risk
posed by crimes which putatively fell under ACCAs residual clause, compared to the risk posed
by enumerated crimes. Begay, 553 U.S. at 141-45 (risk posed by driving under the influence is
not comparable to risk posed by enumerated offenses of burglary, arson, extortion, or crimes
involving explosives); Chambers, 555 U.S. at 127-29 (failure to report for periodic
imprisonment does not pose comparable risk as enumerated offenses). We relied on the parallel
natures of the residual clauses of ACCA and U.S.S.G. § 4B1.2(a)(2) in reaching our conclusion
in Brown. 514 F.3d at 266-68. But it does not follow that the reasoning of Begay and Chambers,
which required a comparison between the potential risks of enumerated offenses and putative
similar offenses falling under the residual clause, has cast doubt upon our approach in Brown. If
anything, these cases have arguably strengthened it (as the government argues) because our
conclusion in Brown was based on our determination that “third-degree ‘burglary itself is a crime
that inherently involves a risk of personal injury.’” 514 F.3d at 268 (quoting United States v.
Andrello, 9 F.3d 247, 249 (2d Cir. 1993)).

        Nor are we persuaded that the Supreme Court’s decision in Descamps v. United States,
133 S. Ct. 2276 (2013), has undermined Brown. Flores correctly points out that Descamps
concerned the appropriate reach of the “categorical” approach to determining whether a state law
crime might serve as an enumerated ACCA predicate. 133 S. Ct. at 2283-86. But Brown applied
the categorical approach to New York’s third-degree burglary statute. Brown, 514 F.3d at 265.
Flores apparently takes no issue with Brown’s application of the categorical approach, and we
thus fail to appreciate how, exactly, Flores believes Brown was undermined by Descamps.



                                                2
         We are “bound by the decision of a prior panel unless the decision has been overturned
either by the Supreme Court or this Court en banc.” United States v. Thomas, 628 F.3d 64, 69
(2d Cir. 2010). Finding no merit in Flores’s argument that our holding in Brown has been
disturbed (and cognizant that this Court has not revisited Brown en banc), we cannot find that the
district court committed procedural error in determining Flores’s baseline sentence under the
Guidelines.

        We have examined the remainder of Flores’s arguments, and find them to be without
merit. Accordingly, the judgment of the district court hereby is AFFIRMED.


                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




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