                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                    Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                             File Name: 18a0059p.06

                         UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT



 MOISES PEREZ,                                                     ┐
                                       Petitioner-Appellant,       │
                                                                   │
                                                                    >        No. 17-3419
            v.                                                     │
                                                                   │
                                                                   │
 UNITED STATES OF AMERICA,                                         │
                                       Respondent-Appellee.        │
                                                                   ┘

                               Appeal from the United States District Court
                              for the Northern District of Ohio at Cleveland.
                 Nos. 1:14-cr-00312; 1:16-cv-02434—Patricia A. Gaughan, District Judge.

                                          Argued: March 15, 2018

                                    Decided and Filed: March 26, 2018

            Before: MERRITT, SUTTON, Circuit Judges, and CLELAND, District Judge.*
                                  _________________

                                                  COUNSEL

ARGUED: Claire C. Curtis, FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant.
Brian M. McDonough, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for
Appellee. ON BRIEF: Claire C. Curtis, FEDERAL PUBLIC DEFENDER, Cleveland, Ohio,
for Appellant. Brian M. McDonough, UNITED STATES ATTORNEY’S OFFICE, Cleveland,
Ohio, for Appellee.

    SUTTON, J., delivered the opinion of the court in which CLELAND, D.J., joined.
MERRITT, J. (pg. 11), delivered a separate dissenting opinion.




        *
         The Honorable Robert H. Cleland, United States District Judge for the Eastern District of Michigan, sitting
by designation.
 No. 17-3419                         Perez v. United States                               Page 2


                                      _________________

                                           OPINION
                                      _________________

       SUTTON, Circuit Judge. Moises Perez pleaded guilty to being a felon in possession of a
firearm. The court deemed Perez an armed career criminal and sentenced him to 210 months.
Our court affirmed the sentence. Perez filed this § 2255 motion, claiming his prior conviction
for New York second degree robbery should not have qualified as a predicate violent felony
under the Armed Career Criminal Act. The district court denied relief. Because the state
robbery offense requires the defendant to “use[] or threaten[] the immediate use of physical force
upon another person,” N.Y. Penal Law §§ 160.00, 160.10, and because that offense includes “as
an element the use, attempted use, or threatened use of physical force against the person of
another” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), we affirm.

                                                 I.

       On January 27, 2015, Moises Perez pleaded guilty to being a felon in possession of
firearms and ammunition. See 18 U.S.C. § 922(g)(1). The Armed Career Criminal Act imposes
a mandatory minimum sentence for defendants convicted of violating § 922(g) who have three
prior convictions for violent felonies or serious drug offenses. Id. § 924(e)(1). The presentence
report identified five predicate offenses: (1) a 1987 New York conviction for second degree
robbery, (2) a 2003 Ohio conviction for attempted intimidation, (3) a 2003 Ohio conviction for
attempted felonious assault, (4) a 2011 Ohio conviction for burglary, and (5) a 2011 Ohio
conviction for attempted felonious assault.       The district court agreed that the five prior
convictions qualified and sentenced Perez to 210 months. We affirmed. United States v. Perez,
667 F. App’x 543 (6th Cir. 2016) (per curiam).

       Perez seeks post-conviction relief on the ground that the district court imposed a sentence
“in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255. He claims that
three of his predicate offenses (Ohio attempted intimidation, Ohio burglary, and New York
second degree robbery) do not qualify because they turned on the residual clause of ACCA,
which the Supreme Court invalidated on vagueness grounds. Johnson v. United States, 135 S.
 No. 17-3419                         Perez v. United States                               Page 3


Ct. 2551 (2015). The government concedes that the two Ohio convictions no longer qualify but
maintains that the New York robbery conviction remains a violent felony under ACCA’s
elements clause. The district court agreed, concluding that the New York robbery conviction
amounted to a crime of violence. Perez appealed.

                                               II.

       Any “violent felony” trek requires some preparation for the climb.

       What part of the Armed Career Criminal Act applies? If a defendant has “three previous
convictions . . . for a violent felony or a serious drug offense,” ACCA imposes a mandatory
minimum 15-year sentence. 18 U.S.C. § 924(e)(1). A felony qualifies as “violent,” among other
ways, if it “has as an element the use, attempted use, or threatened use of physical force against
the person of another.” Id. § 924(e)(2)(B)(i). Check.

       How do we determine whether the elements of a crime satisfy the violence requirement?
To figure out whether a crime meets the elements clause, we look to the statutory definition of
the state offense rather than the underlying facts of the conviction, what has come to be known as
the categorical approach. Taylor v. United States, 495 U.S. 575, 600 (1990). That means we
care only whether each predicate crime requires the government to prove that the defendant used,
attempted to use, or threatened to use physical force against another—not what actually
happened on that day. If a State convicts a person of criminal trespass, it would not matter
whether he dug a hole or punched a security guard to commit the offense.             Because our
touchstone is whether the crime requires physical force, not whether the criminal conduct
involves physical force, our test case becomes the least forceful conduct generally criminalized
under the statute. The predicate conviction qualifies if that conduct involves violent physical
force. Check.
 No. 17-3419                         Perez v. United States                               Page 4


       Relevant state law to put under this microscope? Here is the language of New York’s
second degree robbery statute:

       160.10 Robbery in the second degree
       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.

N.Y. Penal Law § 160.10. Check.

       Divisible or indivisible law? The statute identifies four possible crimes: (1) robbery
aided by another person, (2)(a) robbery causing physical injury, (2)(b) robbery with a firearm, or
(3) robbery of a car. Because these options describe different crimes with different elements, the
statute is divisible. Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). Check.

       Application of the modified categorical approach with a divisible law? When a statute
identifies separate crimes with separate elements, we may look at the record of the prior
conviction, including the indictment, jury instructions, plea agreement, and colloquy, to
determine what crime the defendant committed. Shepard v. United States, 544 U.S. 13, 26
(2005). The indictment confirms that Perez committed New York second degree robbery aided
by another person (§ 160.10(1)). Check.

       With this information in hand, we can proceed to the track and the question in front of us:
Does this form of New York second degree robbery—defined as “forcibly steal[ing] property”
while “aided by another person actually present,” N.Y. Penal Law § 160.10(1)—have “as an
element the use, attempted use, or threatened use of physical force against the person of
another,” 18 U.S.C. § 924(e)(2)(B)(i)? Yes.
 No. 17-3419                         Perez v. United States                              Page 5


       Text. The parties agree that Perez’s petition turns on what it means to “forcibly steal
property” under New York law, an element common to New York robbery of all degrees. (The
aggravating factor of being aided by another person does not impose an independent physical
force requirement. Help can take a number of different forms, some forceful and some not.)
Here is how the New York legislature defines “forcibly stealing property”:

       160.00 Robbery; defined.
       Robbery is forcible stealing. A person forcibly steals property and commits
       robbery 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
          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.

       As a matter of statutory text, the elements requirement of ACCA and the elements of the
New York offense line up perfectly. Section 160.10 criminalizes “forcibly steal[ing] property,”
which involves “us[ing] or threaten[ing] the immediate use of physical force upon another
person.” And ACCA treats a state crime as a predicate violent felony if it “has as an element the
use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C.
§ 924(e)(2)(B)(i). Put another way: A (“forcibly steal[ing] property” under § 160.10) = B (using
“physical force” under § 160.00) = C (using “physical force” under ACCA).

       Judicial interpretations of “physical force.”     In construing “physical force” under
ACCA, the Supreme Court has explained that it requires not just an “unwanted touching” but
“violent force—that is, force capable of causing physical pain or injury to another person.”
Johnson v. United States, 559 U.S. 133, 140, 142 (2010). The New York courts by and large
have construed the statute to go beyond a mere touching and to include force that would cause
pain to another. A recent decision from the New York Court of Appeals says that robbery
requires a threshold level of force and cannot be “a taking ‘by sudden or stealthy seizure or
snatching’” that is “akin to pickpocketing, or the crime of jostling.” People v. Jurgins, 46
N.E.3d 1048, 1053 (N.Y. 2015).
 No. 17-3419                          Perez v. United States                               Page 6


       New York law also gives common-law terms of art their common-law meaning unless
context suggests otherwise. People v. King, 463 N.E.2d 601, 603 (N.Y. 1984). “Physical force”
is used to define robbery, which has long been understood to require violent force or intimidation
of violent force. 4 William Blackstone, Commentaries *241 (St. George Tucker ed. 1803)
(“Open and violent larceny from the person, or robbery, . . . is the felonious and forcible taking,
from the person of another, of goods or money to any value by violence or putting him in fear.”);
1 W. Blake Odgers & Walter Blake Odgers, The Common Law of England 331 (2d ed. 1920)
(“Robbery is the unlawful taking possession of the goods of another by means of violence or
threats of violence, used with the object of obtaining those goods from the owner . . . . ”);
3 Wayne R. LaFave, Substantive Criminal Law § 20.3(d) (3d ed. & 2017 Update) (“Robbery
requires that the taking be done by means of violence or intimidation.”) (emphases added). This
common law background provides a good reason to believe the “physical force” in the New
York robbery statute means the same kind of physical force that ACCA requires.

       Several New York intermediate court decisions have embraced this interpretation. In
one, the court noted that the victim “was not intimidated, knocked down, struck, or injured,
which would [have] elevate[d] the purse snatching to a robbery.”            People v. Middleton,
212 A.D.2d 809, 810 (N.Y. App. 2d Dep’t 1995). In another, the victim was not “threatened,
pushed, shoved or injured” during the incident, which precluded the crime from being robbery.
People v. Dobbs, 24 A.D.3d 1043, 1044 (N.Y. App. 3d Dep’t 2005). In still another, the victim
fell but “did not feel anything on her body” and thus the “fall could have been due to a cause
other than a push” and thus the crime did not have the requisite physical force for robbery.
People v. Chessman, 75 A.D.2d 187, 190 (N.Y. App. 2d Dep’t 1980). And in a final one, there
was “no evidence that the victim was injured or was in danger of injury,” which again precluded
the crime from rising to the level of robbery. People v. Davis, 71 A.D.2d 607, 607 (N.Y. App.
2d Dep’t 1979).

       Several cases from the Second Circuit (which covers New York) have looked at the
matter in just this way. Each of the following cases treated New York robbery as a predicate
conviction under ACCA’s elements clause or the identically-worded Sentencing Guideline,
§ 4B1.2(a)(1). See United States v. Kornegay, 641 F. App’x 79, 85 (2d Cir. 2016); United States
 No. 17-3419                          Perez v. United States                               Page 7


v. Bogle, 522 F. App’x 15, 19 (2d Cir. 2013); Gonzalez v. United States, 433 F. App’x 24, 27 (2d
Cir. 2011); United States v. Brown, 52 F.3d 415, 426 (2d Cir. 1995). All of these sources
considered, the district court properly treated this conviction as an ACCA predicate.

       But this is a false peak, Perez warns, noting that United States v. Yates held that Ohio
robbery was not a crime of violence under the Guidelines. 866 F.3d 723 (6th Cir. 2017). But
that decision turned on Ohio’s broad definition of force as “any violence, compulsion, or
constraint physically exerted by any means upon or against a person or thing.” Ohio Rev. Code
§ 2901.01(A)(1). The New York statute contains no such definition, and thus a New York
conviction may not result from “any . . . constraint physically exerted by any means . . . against a
person.” As in Yates, this case turns on the language of the state law: The New York definition
satisfies Johnson, while the Ohio definition does not.

       Other New York intermediate court decisions, Perez separately points out, suggest that
second degree robbery can be committed without “force capable of causing physical pain or
injury to another person.” Johnson, 559 U.S. at 140. In People v. Bennett, the defendant and
three others “formed a human wall that blocked the victim’s path as the victim attempted to
pursue” a pickpocket. 219 A.D.2d 570, 570 (N.Y. App. 1st Dep’t 1995). In People v. Lee, the
defendant “bumped his unidentified victim, took money, and fled while another forcibly blocked
the victim’s pursuit.” 197 A.D.2d 378, 378 (N.Y. App. Div. 1st Dep’t 1993). In People v.
Spencer, the defendant stood “‘chest to chest’ with the victim, moving in unison with the victim
until the latter was backed up against a subway pole.” 255 A.D.2d 167, 168 (N.Y. App. Div. 1st
Dep’t 1988). And in People v. Safon, a store clerk “grabbed the hand in which [the] defendant
was holding the money and the two tugged at each other until [the] defendant’s hand slipped out
of the glove holding the money.” 166 A.D.2d 892, 893 (N.Y. App. 4th Dep’t 1990).

       Based on these cases, the Second Circuit in one instance opted not to treat second degree
robbery as a crime of violence under the Sentencing Guidelines, United States v. Jones, No. 15-
1518-cr, 2016 U.S. App. LEXIS 13296 (2d Cir. July 21, 2016), though the decision was later
vacated on other grounds, 838 F.3d 296 (2d Cir. 2016) (mem.). And the First Circuit recently
adopted a similar approach. United States v. Steed, 879 F.3d 440, 448–51 (1st Cir. 2018).
 No. 17-3419                           Perez v. United States                               Page 8


       Recall, however, that ACCA’s elements clause covers state crimes that involve the actual
“use of physical force” and the “threatened use of physical force.” Even the New York cases
that do not seem to have the requisite use of physical force may have the requisite threatened use
of physical force. To take an example from one of the cases, a human wall may be unforceful by
its nature. But it may well turn violent if the victim attempts to break through it. And although
the victims may not have suffered injury in the instant cases, that does not mean they were not
confronted with threats “capable of causing physical pain or injury,” which is all the statute
requires. Johnson, 559 U.S. at 140 (emphasis added). Neither Jones nor Steed seems to account
for this consideration.

       The other point is that our “focus on the minimum conduct criminalized by the state
statute is not an invitation to apply ‘legal imagination’ to the state offense.” Moncrieffe v.
Holder, 569 U.S. 184, 191 (2013). There must be a “realistic probability, not a theoretical
possibility, that the State would apply its statute to conduct that falls outside the generic
definition of a crime.” Gonzales v. Duenas-Alvarez, 549 U.S. 184, 193 (2007). If we “indulge in
imaginative flights” about different ways a law could be broken without physical force (or
different ways to read a two-sentence lower-court opinion about a state law)—even, as here,
when the law by its terms requires “the immediate use of physical force”—we run the risk of
transforming many countable violent offenses into non-countable offenses. See United States v.
Doctor, 842 F.3d 306, 313 (4th Cir. 2016) (Wilkinson, J., concurring). Fair interpretation
requires us to presume “that the legislature was made up of reasonable persons pursuing
reasonable purposes reasonably.” Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process
1378 (1958). To excuse thousands of violent career criminals from ACCA’s consequences on
account of a few (potentially) outlier lower court decisions, or gossamer-thin distinctions
between the definitions of two offenses, is not to “apply the rule to particular cases,” but to erase
it. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

       What of the rule of lenity, Perez might argue? Shouldn’t we use it to resolve ambiguities
in criminal statutes (including sentencing statutes) in favor of the individual? Bifulco v. United
States, 447 U.S. 381, 387 (1980) (applying rule of lenity to a sentencing statute). There is
something to be said for the point. Under the categorical approach, as this case shows, we map a
 No. 17-3419                          Perez v. United States                               Page 9


hypothetical test case under an oft-evolving state law onto a federal law that itself can change
from time to time.      The approach creates serial opportunities for uncertainty.        It is no
exaggeration to say that interpretive complications in this area, like a flu virus, can spread
exponentially. Plus, a principal rationale for lenity is notice—that “a fair warning should be
given to the world in language that the common world will understand.” McBoyle v. United
States, 283 U.S. 25, 27 (1931). Yet when the federal courts of appeals find themselves twisted in
knots trying to figure out whether a crime is divisible into parts, involves physical force capable
of causing injury, or sweeps more broadly than a common law analog, it is easy to wonder
whether an ordinary person knows what law applies to him.

       But this is not a good case for applying the rule of lenity, which may explain why Perez
did not argue it in his appellate briefs. There is one salient feature of this case that provides
plenty of notice of the best kind: the text of the New York law. And that law lines up exactly
with ACCA. It is fair to presume that a crime requiring a defendant to “use[] or threaten[] the
immediate use of physical force upon another person,” N.Y. Penal Law § 160.00, “has as an
element the use, attempted use, or threatened use of physical force against the person of
another,” 18 U.S.C. § 924(e)(2)(B)(i). Courts need a good reason to deviate from such clear
textual clues, and Perez has not met that burden.

       One other thing. The lower court New York cases on which Perez relies are brief orders,
devoid of anything more than a few sentences of reasoning, and susceptible to multiple
interpretations. Bennett, 219 A.D.2d at 570; Lee, 197 A.D.2d at 378; Spencer, 255 A.D.2d at
168; Safon, 166 A.D.2d at 893. Because our task is to determine what conduct can realistically
(not merely possibly) be punished under the statute, there is no reason to give these cases any
more weight than the New York lower court cases going the other way and certainly not more
weight than the text of the law or the pertinent New York Court of Appeals decision.

       Before concluding, a word of caution is in order. By focusing on the elements of state
crimes and not the circumstances of particular convictions, the categorical approach endorses a
generalized inquiry. That method limits the scope of the sentencing court’s analysis, reduces
decision costs, and promotes consistency between individual defendants. While that approach
requires federal courts to examine state precedents to determine the scope of the state law at
 No. 17-3419                           Perez v. United States                          Page 10


issue, that inquiry must be a sensible one—lest the benefits of the categorical approach
evaporate. If we hyper-scrutinize the factual details of every prior conviction and hypothesize
generalizations based on a few-sentence analysis in such cases, that takes us far afield from the
categorical approach’s mandate—and creates an unfortunate irony to boot. How odd to dissect
the precise contours of all New York robbery convictions but one: the conviction of today’s
criminal defendant.     We should pause before adopting a mindset that reintroduces—and
multiplies—some of the very ills the categorical approach was meant to cure.           Else, the
occasional risks of the modest slope (reviewing state cases to understand the meaning of a state
criminal law) will surpass the perils of the steep slope (reviewing the facts of each defendant’s
relevant state court convictions).

       For these reasons, we affirm.
 No. 17-3419                           Perez v. United States                            Page 11


                                       _________________

                                               DISSENT
                                       _________________

       MERRITT, Circuit Judge, dissenting. There are many cases under New York’s second
degree robbery statute. Some of them find a violation but do not require any violent physical
force. Take the case of People v. Bennett, 631 N.Y.S.2d 834 (N.Y. App. Div. 1995), in which
the defendant was part of a human wall holding hands in order to block the victim’s path as he
attempted to pursue a pickpocket. No violence or threat. The New York court applied the
statute. As a result, as my colleagues seem to admit, the First and Second Circuits do not
consider the New York statute to necessarily require the use or threatened use of violent physical
force. The application of the statute is uncertain, to say the least. On the question of force, the
statute has been interpreted all over the place. The various umpires have different “strike zones.”
As applied, the meaning of the statute is ambiguous.

       I would, therefore, apply the Rule of Lenity. When applying the Rule of Lenity in this
situation, I would think that my colleagues would not apply the Armed Career Criminal Act to
impose the longest possible mandatory minimum sentence. We have the choice of not applying
the harsher sentence under the Rule of Lenity. But no. Given the choice of a harsher or milder
sentence by this unstable maze of cases, the Court chooses the harsher sentence. Why? I don’t
know. I leave it to the reader to speculate.
