18-2802-pr
Baldwin 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 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 30th day of September, two thousand nineteen.

PRESENT:            JOSÉ A. CABRANES,
                    GERARD E. LYNCH,
                    CHRISTOPHER F. DRONEY,
                                 Circuit Judges.


FREDDERICK BALDWIN, also known as FRANK KEITH,

                           Petitioner-Appellee,                     18-2802-pr

                           v.

UNITED STATES OF AMERICA,

                           Respondent-Appellant.


FOR PETITIONER-APPELLEE:                                 Darrell Fields, Federal Defenders of New
                                                         York, New York, NY.

FOR RESPONDENT-APPELLANT:                                Amy Busa and Sylvia Shweder, Assistant
                                                         United States Attorneys, for Richard P.
                                                         Donoghue, United States Attorney for the
                                                         Eastern District of New York, Brooklyn,
                                                         NY.

        Appeal from an August 23, 2018 order of the United States District Court for the Eastern
District of New York (Edward R. Korman, Judge).

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     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the District Court be and hereby is
VACATED AND REMANDED.

        The Government challenges the District Court’s determination that the New York offense
of robbery in the third degree is not a “violent felony” under the Armed Career Criminal Act, 18
U.S.C. § 924(e) (“ACCA”). In doing so, the Government seeks re-sentencing for Fredderick Baldwin
(“Baldwin”).

         In 1997, Baldwin was convicted of possession of a firearm as a convicted felon, in violation
of 18 U.S.C. § 922(g), and received a sentencing enhancement under ACCA due to three prior
violent felony convictions: one conviction for the New York offense of robbery in the first degree
and two convictions for the New York offense of robbery in the third degree. Nineteen years later,
in 2016, Baldwin petitioned the District Court, under 28 U.S.C. § 2255, to vacate his sentence. He
argued that both New York robbery in the first and third degrees were incorrectly found to be
categorically violent felonies at sentencing. The District Court agreed with regard to third-degree
robbery (without reaching the issue of first-degree robbery) and determined that Baldwin had his
sentence wrongly enhanced under ACCA. We assume the parties’ familiarity with the underlying
facts, the procedural history of the case, and the issues on appeal.

        “We review de novo questions of law relating to a district court’s application of the ACCA.”
United States v. Brown, 629 F.3d 290, 293 (2d Cir. 2011).

        Since the District Court’s ruling, we decided United States v. Thrower, 914 F.3d 770 (2d Cir.
2019), in which we concluded that “the New York offense of robbery in the third degree, which like
every degree of robbery in New York requires the common law element of ‘forcible stealing,’ is a
‘violent felony’ under ACCA.” Id. at 776. Under Thrower, Baldwin’s initial sentencing decision was
correct. With two convictions for third-degree robbery and one conviction for first-degree robbery
(which Thrower also concluded is a “violent crime”), Baldwin was clearly eligible for the ACCA
sentencing enhancement that he received. Id.

        As we noted in Villanueva v. United States, 893 F.3d 123 (2d Cir. 2018)—a case in which we
also reversed a District Court judgment that had vacated an ACCA sentence—resentencing should
occur “in light of the circumstances as they stood at the time of resentencing.” Id. at 132 (internal
quotation marks omitted). The fact that Baldwin has been out of prison for over a year and the fact
that he had only six months remaining on his sentence at the time he was released are




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“circumstance[s] the District Court is entitled to consider in deciding whether to impose a sentence
that requires him to serve all, part, or none of the unexpired term of the original sentence.” Id.

                                         CONCLUSION

      For the foregoing reasons, we VACATE the August 23, 2018 order of the District Court
and REMAND the cause for resentencing. The mandate shall issue forthwith.


                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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