                                     PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                      No. 17-4702


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

THOMAS ANTHONY HAMMOND,

                    Defendant - Appellant.


Appeal from the United States District Court for the Western District of North Carolina,
at Charlotte. Robert J. Conrad, Jr., District Judge. (3:17-cr-00044-RJC-DSC-1)


Argued: November 1, 2018                                      Decided: January 4, 2019


Before AGEE, KEENAN, and RICHARDSON, Circuit Judges.


Affirmed by published opinion. Judge Keenan wrote the opinion, in which Judge Agee
and Judge Richardson joined.


ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anthony Joseph Enright,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee. ON BRIEF: Anthony Martinez, Federal Public Defender, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina,
for Appellant. R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
BARBARA MILANO KEENAN, Circuit Judge:

       In this appeal, we consider whether the offense of New York first-degree robbery,

in violation of New York Penal Law § 160.15, qualifies as a “crime of violence” for

purposes of the United States Sentencing Guidelines § 4B1.1 “career offender”

enhancement. Thomas Anthony Hammond contends that the district court erred in

sentencing him as a career offender, in part based on his prior conviction for that offense.

Among other things, Hammond argues that the crime of first-degree robbery under New

York law does not qualify as a crime of violence under the Guidelines’ “force clause.”

We disagree and, upon our review, conclude that New York statutory robbery,

irrespective of the degree of the offense, is a crime of violence, because it necessarily

involves the “use, attempted use, or threatened use of physical force against the person of

another.” U.S.S.G. § 4B1.2(a)(1). Accordingly, we affirm the district court’s judgment.



                                             I.

       In 2017, Hammond pleaded guilty to one count of attempted bank robbery and one

count of bank robbery, both in violation of 18 U.S.C. § 2113(a). Before sentencing, the

probation officer prepared a presentence report, which included a summary of

Hammond’s criminal history. The criminal history showed that Hammond previously

had been convicted of North Carolina common law robbery, and of New York first-

degree robbery, in violation of New York Penal Law § 160.15.

       Based on these convictions, the probation officer recommended that the district

court impose the career offender sentencing enhancement under Guidelines § 4B1.1(a).

                                             2
Applying this enhancement, the probation officer calculated a Guidelines range of

between 151 and 188 months’ imprisonment. Hammond contends that without the career

offender enhancement, his advisory sentencing range would have been between 84 and

105 months’ imprisonment.

      Hammond objected to his classification as a career offender, arguing that his

conviction for New York first-degree robbery did not qualify as a crime of violence under

the Guidelines. 1   The district court rejected Hammond’s argument and imposed a

sentence of 168 months’ imprisonment, followed by three years of supervised release.

Hammond now appeals.



                                           II.

      Hammond advances the same argument on appeal that he raised in the district

court. Thus, we consider whether the offense of New York first-degree robbery, in

violation of New York Penal Law § 160.15, qualifies as a crime of violence within the

meaning of Guidelines § 4B1.1. This question presents an issue of law, which we review

de novo. United States v. Jenkins, 631 F.3d 680, 682 (4th Cir. 2011).

                                            A.

      Before addressing Hammond’s arguments, we begin with an overview of the

Guidelines’ career offender enhancement.         Under Guidelines § 4B1.1, a defendant

      1
        Because we have concluded that North Carolina common law robbery “qualifies
as ‘robbery,’ as that term is used in U.S.S.G. § 4B1.2(a)(2),” Hammond concedes that his
conviction for North Carolina common law robbery qualifies as a predicate offense under
the Guidelines. See United States v. Gattis, 877 F.3d 150, 160 (4th Cir. 2017).

                                            3
qualifies as a career offender if he has “at least two prior felony convictions for either a

crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a)(3). A “crime

of violence” is defined as any state or federal offense punishable by imprisonment for a

term exceeding one year, that

       (1) has as an element the use, attempted use, or threatened use of physical
           force against the person of another [the force clause], or

       (2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a
           forcible sex offense, robbery, arson, extortion or the use or unlawful
           possession of a firearm . . . or explosive material [the enumerated
           offense clause].

Id. § 4B1.2(a).

       We focus our analysis on the force clause of subparagraph (1) set forth above,

because that clause provides the most direct route to answering the question before us.

To determine whether a conviction for a state offense is a crime of violence under the

force clause, we apply the “categorical approach.” United States v. Gardner, 823 F.3d

793, 802 (4th Cir. 2016). Under that approach, the state crime necessarily must have as

an element the “use, attempted use, or threatened use of physical force against the person

of another” to qualify as a crime of violence under the force clause.           U.S.S.G. §

4B1.2(a)(1). The Supreme Court has interpreted the term “physical force” as “violent

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

Johnson v. United States, 559 U.S. 133, 140 (2010). If the elements of the state offense

can be satisfied by “de minimis physical contact,” the offense does not qualify

categorically as a crime of violence. See United States v. Burns-Johnson, 864 F.3d 313,

316 (4th Cir. 2017).

                                             4
        In making this assessment, we review the elements of the offense and “the

minimum conduct necessary for a violation” as defined by state law. See Gardner, 823

F.3d at 803 (citation omitted). To determine the “minimum conduct” required for the

state offense, this Court must ensure that there is “a realistic probability, not a theoretical

possibility, that a state would actually punish that conduct.” United States v. Doctor, 842

F.3d 306, 308 (4th Cir. 2016) (internal quotation marks and citation omitted). With this

framework in mind, we turn to consider Hammond’s arguments.

                                              B.

        Hammond raises two arguments in support of his contention that New York first-

degree robbery does not constitute a crime of violence. He contends (1) that New York

robbery, regardless of degree, does not include as an element the use of violent physical

force as defined by the Supreme Court, and (2) that New York first-degree robbery in

particular can be committed without the use of any force. We address each argument in

turn.

                                              1.

        Hammond first argues that New York robbery does not qualify categorically as a

crime of violence, because the offense does not require the use of violent physical force

“capable of causing physical pain or injury to another person.” Johnson, 559 U.S. at 140.

He contends that New York courts have interpreted New York’s robbery statutes to

require only de minimis force, such as “mere snatching.” We disagree with Hammond’s

argument.



                                              5
       At the outset, we note that this Court, in an unpublished decision, recently

concluded that New York second- and third-degree robbery constitute violent felonies

under the identically-worded force clause of the Armed Career Criminal Act (ACCA), 18

U.S.C. § 924(e). United States v. Bowles, 733 F. App’x 699, 702 (4th Cir. 2018).

Because unpublished decisions may constitute persuasive, but not binding, authority, we

independently examine the New York statutes. See Collins v. Pond Creek Mining Co.,

468 F.3d 213, 219 (4th Cir. 2006).

       New York has divided its robbery offense into three distinct statutes (the New

York robbery statutes), each involving an increasing degree of culpable conduct. N.Y.

Penal Law §§ 160.00-160.15; see People v. Miller, 661 N.E.2d 1358, 1360-61 (N.Y.

1995). All the New York robbery statutes, however, require the same element of force,

namely, “forcible stealing.” See N.Y. Penal Law § 160.00. Stated differently, the “core

crime” of New York robbery, irrespective of degree, is defined as “forcibly steal[ing]

property.” Id.; Miller, 661 N.E.2d at 1360 (“The essence of the [New York] crime of

robbery is forcible stealing.”). Accordingly, if “forcible stealing” requires the use of

“force capable of causing physical pain or injury,” Johnson, 559 U.S. at 140, the New

York robbery statutes all qualify as predicate offenses under the Guidelines’ force clause.

       A person “forcibly steals property” under New York law when

       in the course of committing a larceny, he uses or threatens the immediate
       use of physical force upon another person for the purpose of:

       1.      Preventing or overcoming resistance to the taking of the property or
       to the retention thereof immediately after the taking; or



                                             6
       2.      Compelling the owner of such property or another person to deliver
       up the property or to engage in other conduct which aids in the commission
       of the larceny.

N.Y. Penal Law § 160.00 (emphasis added). Although “physical force” in this context is

not defined, New York law gives common-law terms their common-law meanings, unless

context suggests otherwise. People v. King, 463 N.E.2d 601, 603 (N.Y. 1984). “Physical

force” as used to define robbery under the common law has “long been understood to

require violent force or intimidation of violent force.” Perez v. United States, 885 F.3d

984, 988-89 (6th Cir. 2018) (citations omitted). Thus, the plain language of the New

York robbery statutes suggests that the use or threat of violent physical force is required

for all degrees of the offense. See United States v. Pereira-Gomez, 903 F.3d 155, 165 (2d

Cir. 2018) (“By its plain language . . . New York’s robbery statute includes as an element

the use of violent force.”).

       This interpretation is supported by New York case law applying the New York

robbery statutes.    New York courts have interpreted “forcible stealing” to require

“significantly more [force] than mere unwanted physical contact.” People v. Curet, 683

N.Y.S.2d 602, 603 (N.Y. App. Div. 1998); see People v. Chatman, 833 N.Y.S.2d 794,

795 (N.Y. App. Div. 2007) (affirming second-degree robbery conviction when the

defendant pushed the victim aside and entered her vehicle, later breaking the victim’s

hold by driving away); People v. Dixon, 648 N.Y.S.2d 1009, 1010 (N.Y. App. Div. 1996)

(concluding that evidence that a victim “experienced pain in her neck and suffered a

scratch” as a result of the defendant pulling the victim’s necklaces was sufficient to

support the defendant’s conviction for third-degree robbery). Indeed, New York courts

                                            7
consistently have reversed robbery convictions when the taking at issue was committed

without the use or threat of significant physical force. See, e.g., People v. Dobbs, 805

N.Y.S.2d 734, 735-36 (N.Y. App. Div. 2005) (affirming reduction in charge from third-

degree robbery to petit larceny because there was “no indication” that the victim was

threatened or injured by the defendant); People v. Middleton, 623 N.Y.S.2d 298, 299

(N.Y. App. Div. 1995) (reversing a third-degree robbery conviction when the victim was

not “intimidated, knocked down, struck, or injured”). Thus, we do not discern any

material difference between the amount of force required under the New York robbery

statutes and the violent physical force necessary to satisfy the Guidelines’ force clause.

See Johnson, 559 U.S. at 142 (recognizing that violent force requires more than “a mere

unwanted touching”).

      Contrary to Hammond’s contention, the great weight of New York authority

establishes that the act of merely “snatching” property from a victim does not amount to

“forcibly steal[ing] property” from a person.      See, e.g., People v. Chessman, 429

N.Y.S.2d 224, 227-29 (N.Y. App. Div. 1980) (holding that a purse snatching when the

victim “did not feel anything on her body” did not constitute third-degree robbery under

New York law); People v. Davis, 418 N.Y.S.2d 127, 128 (N.Y. App. Div. 1979)

(concluding that a purse snatching did not amount to third-degree robbery in the absence

of evidence that the victim “was injured or was in danger of injury”). Indeed, the New

York Court of Appeals recently stated that “a taking ‘by sudden or stealthy seizure or

snatching,’” such as “pickpocketing” or “jostling” a victim, is insufficient to support a

conviction for New York second-degree robbery. People v. Jurgins, 46 N.E.3d 1048,

                                            8
1052-53 (N.Y. 2015). Based on the foregoing, we conclude that all the New York

robbery statutes have as an element the use or threatened use of violent physical force

sufficient to satisfy the force clause of Guidelines § 4B2.1(a)(1). 2

       Notably, none of the decisions on which Hammond relies suggests a different

result. Hammond first cites to a decision in which a defendant and a victim had “tugged

at each other” until the defendant was able to pull his hand away. People v. Safon, 560

N.Y.S.2d 552, 552 (N.Y. App. Div. 1990). The court in Safon concluded that the

interaction between the defendant and the victim was sufficient to uphold a conviction for

New York third-degree robbery. Id.

       We recognize that an offense that requires only a “slight degree of force” does not

qualify as a crime of violence under the Guidelines’ force clause. See United States v.

Winston, 850 F.3d 677, 685 (4th Cir. 2017) (internal quotation marks and citation

omitted). Nonetheless, the Supreme Court has emphasized that, to constitute a crime of

violence, a state offense need only require force that is “capable of causing physical pain

or injury,” such as a “slap in the face.” Johnson, 559 U.S. at 140, 143 (emphasis added).

If a slap constitutes enough physical force to satisfy Johnson, we cannot say that a pull,


       2
        We note that our conclusion is consistent with the majority of courts of appeals
to consider whether the New York robbery statutes require, as an element, the use or
threatened use of violent physical force. See United States v. Pereira-Gomez, 903 F.3d
155, 166 (2d Cir. 2018) (concluding that New York second-degree robbery qualifies as a
crime of violence under Section 2L1.2 of the Guidelines); United States v. Williams, 899
F.3d 659, 663-65 (8th Cir. 2018) (same); Perez, 855 F.3d at 989 (holding that New York
second-degree robbery qualifies as a violent felony for purposes of the ACCA). But see
United States v. Steed, 879 F.3d 440, 448-50 (1st Cir. 2018) (concluding that New York
second-degree robbery is not a crime of violence under Guidelines § 4B2.1(a)).

                                              9
powerful enough to break a person’s grip, would not be “capable of causing physical

pain.” 3 Id. at 140.

       Hammond next cites to a New York state case in which the defendant and three

others “formed a human wall that blocked the victim’s path as the victim attempted to

pursue” the defendant, who had “picked” the victim’s “pocket,” People v. Bennett, 631

N.Y.S.2d 834, 834 (N.Y. App. Div. 1995), and to another case in which the defendant

physically “block[ed] the victim’s passage,” People v. Patton, 585 N.Y.S.2d 431, 431

(N.Y. App. Div. 1992). Hammond contends that because there was no actual force

employed against the victims in those cases, yet the defendants were convicted of New

York second-degree robbery, the decisions in Bennett and Patton demonstrate that

“forcible stealing” can be committed without any use or threatened use of force.

       Hammond, however, minimizes the defendants’ conduct in those cases. In Patton,

the defendant not only blocked the victim’s path, but “persistently shoved [the victim]

back” multiple times. Id. The codefendant in that case also stole the victim’s gold chain

by “yank[ing]” it from the victim’s neck, “scratching the victim and tearing his shirt.” Id.


       3
         We disagree with Hammond’s argument that this Court’s decisions in Winston,
850 F.3d 677, and Gardner, 823 F.3d 793, require a different result here. In Winston and
Gardner, we considered whether Virginia’s and North Carolina’s respective common law
robbery crimes constituted “violent felonies” under the ACCA. See Winston, 850 F.3d at
685; Gardner, 823 F.3d at 803-04. Based on each states’ interpretation of its own
robbery offense, we concluded that each respective crime could be committed without the
force required by the Supreme Court. See Winston, 850 F.3d at 685; Gardner, 823 F.3d
at 803-04. We conduct the same analysis in the present case, applying the same legal
standards. That we reach a different conclusion based on New York courts’
interpretation of the New York robbery statutes does not create a tension among our
cases.

                                            10
Taken as a whole, the conduct at issue in Patton plainly involved the use or threatened

use of violent physical force.

       With respect to Bennett, Hammond correctly observes that the defendant in that

case did not use actual force against the victim.       Nonetheless, Hammond fails to

recognize that the defendant’s action with others of forming the “human wall” involved

the “threatened use of physical force.”    See Bennett, 631 N.Y.S.2d at 834.       Stated

differently, the actions of the defendant and his accomplices involved a threat of violent

force that dissuaded the victim from attempting to break through the human wall or

otherwise to pursue the defendant. Accord Pereira-Gomez, 903 F.3d at 166; Perez, 885

F.3d at 989-90. Because the Guidelines’ force clause includes the “threatened use of

physical force,” U.S.S.G. § 4B2.1(a)(1), the cases on which Hammond relies involve a

degree of threatened force sufficient to come within the scope of the Guidelines’ career

offender enhancement.

                                                2.

       In a related argument, Hammond contends that, regardless of New York’s

statutory definition of robbery, New York first-degree robbery is not a crime of violence

because that statute can be violated by merely possessing, without displaying, a deadly

weapon. See N.Y. Penal Law § 160.15(2) (“A person is guilty of robbery in the first

degree when he forcibly steals property and when . . . [he] is armed with a deadly

weapon.”). However, Hammond misconstrues New York’s first-degree robbery statute.

       As we have explained, the New York robbery statutes all require that the

prosecution prove the same element of “forcible stealing.” See People v. Gordon, 16

                                           11
N.E.3d 1178, 1183-84 (N.Y. 2014). A person is guilty of New York first-degree robbery

when he “forcibly steals property,” as defined in New York Penal Law § 160.00, and his

conduct satisfies one of four additional aggravating circumstances, such as being armed

with a deadly weapon. 4 See N.Y. Penal Law § 160.15. Thus, anyone convicted of New

York first-degree robbery necessarily has been convicted of “us[ing] or threaten[ing] the

immediate use of physical force upon another person.” Id. § 160.00; see Miller, 661

N.E.2d at 1360-62.

       The aggravating factors necessary to commit New York first-degree robbery do

not eliminate the “core” physical force element of New York robbery, but merely elevate

the crime based on additional culpable conduct. See Miller, 661 N.E.2d at 1360-61; see

also Perez, 885 F.3d at 988. Accordingly, because all the New York robbery statutes

require the same element of violent physical force or threatened violent force, New York

first-degree robbery qualifies as a crime of violence under Guidelines § 4B1.2(a)(1). 5




       4
         The other aggravating circumstances are when the defendant: (1) “[c]auses
serious physical injury to any person who is not a participant in the crime;” (2) “[u]ses or
threatens the immediate use of a dangerous instrument;” or (3) displays certain types of
operable firearms. N.Y. Penal Law § 160.15.
       5
         For the same reason, we reject Hammond’s contention that we must apply the
modified categorical approach to New York’s first-degree robbery statute. The modified
categorical approach is not required when each of the crimes into which a statute may be
divided constitutes a crime of violence. See United States v. Cabrera-Umanzor, 728 F.3d
347, 352 (4th Cir. 2013) (citing Descamps v. United States, 570 U.S. 254, 264 (2013)).
Because we conclude that all subsections of New York first-degree robbery qualify as
crimes of violence, we need not apply the modified categorical approach.

                                            12
                                            III.

       For these reasons, we hold that Hammond’s conviction for New York first-degree

robbery qualifies as a crime of violence under the force clause of Guidelines §

4B1.2(a)(1). 6 We therefore affirm the district court’s judgment.

                                                                           AFFIRMED




       6
         Based on our holding, we need not address Hammond’s alternative argument
concerning whether New York first-degree robbery qualifies as a crime of violence under
the “enumerated offense” clause of Guidelines § 4B1.2(a)(2).


                                            13
