18‐338‐cr
United States of America v. Zimmian Tabb

                    UNITED STATES COURT OF APPEALS
                         FOR THE SECOND CIRCUIT
                          _____________________

                                AUGUST TERM, 2019

    (ARGUED: NOVEMBER 4, 2019                      DECIDED:     FEBRUARY 6, 2020)

                                    No. 18‐338
                              _____________________

                           UNITED STATES OF AMERICA,

                                                    Appellee,

                                        ‐v.‐

                                  ZIMMIAN TABB,

                                               Defendant‐Appellant.

Before:            SACK and HALL, Circuit Judges, and RAKOFF, District Judge.1
                          _______________________

       At issue in this case is whether defendant‐appellant Zimmian Tabb’s prior
convictions for attempted assault in the second degree under N.Y. Penal Law
(“N.Y.P.L.”) § 120.05(2) and federal narcotics conspiracy under 21 U.S.C. § 846
constitute predicate offenses for purposes of the career offender sentencing
enhancement of the United States Sentencing Guidelines § 4B1.1. The district
court (Hellerstein, J.) applied the enhancement because it found that Tabb’s
conviction under N.Y.P.L. § 120.05(2) constituted a predicate “crime of violence”

1Jed S. Rakoff, of the United States District Court for the Southern District of
New York, sitting by designation.

                                          1
and that Tabb’s conviction under 21 U.S.C. § 846 constituted a predicate
“controlled substance offense.” The Court agrees with both findings.
Accordingly, application of the career offender sentencing enhancement was
appropriate and the judgment of the district court is AFFIRMED.
                         _______________________

FOR APPELLEE:                         WON S. SHIN, Assistant United States
                                      Attorney (Geoffrey S. Berman,
                                      United States Attorney for the Southern
                                      District of New York, David W. Denton, Jr.,
                                      Rebekah Donaleski, Assistant United States
                                      Attorneys, on the brief), New York, NY

FOR DEFENDANT‐APPELLANT:              RICHARD E. SIGNORELLI, Law Office of
                                      Richard E. Signorelli, New York, NY

                            _______________________
RAKOFF, District Judge:

   Zimmian Tabb appeals from a judgment of conviction entered on January 25,

2018 and a Sentencing Order entered on January 26, 2018 in the United States

District Court for the Southern District of New York (Hellerstein, J.). Tabb

contends that he was improperly classified as a career offender based on his

prior convictions for attempted assault in the second degree under N.Y. Penal

Law (“N.Y.P.L.”) § 120.05(2) and federal narcotics conspiracy under 21 U.S.C.

§ 846. Because we agree that both crimes constitute predicate offenses for

purposes of the career offender sentencing enhancement of the United States




                                         2
Sentencing Guidelines (“U.S.S.G.”) § 4B1.1, we affirm the judgment of the district

court.

I.       Facts

     On May 5, 2017, Tabb pled guilty to aiding and abetting the distribution of

3.75 grams of crack cocaine, in violation of 21 U.S.C. § 841(b)(1)(C) and 18 U.S.C.

§ 2. The plea agreement did not stipulate whether Tabb’s prior convictions

qualified him for the career offender enhancement of U.S.S.G. § 4B1.1. Under

U.S.S.G. § 4B1.1, a defendant is a career offender if (1) he is over 18; (2) the

present offense is a felony crime of violence or a controlled substance offense;

and (3) he “has at least two prior felony convictions of either a crime of violence

or a controlled substance offense.” U.S.S.G. § 4B1.2 sets out the definitions of

both a “crime of violence” and a “controlled substance offense.”

     At sentencing, the district court concluded that Tabb had two prior felony

convictions for purposes of the sentencing enhancement. First, Tabb’s 2014

conviction for conspiracy to distribute and possess with intent to distribute crack

cocaine in violation of 21 U.S.C. § 846 constituted a predicate controlled

substance offense. Second, Tabb’s 2010 conviction for attempted assault in the




                                           3
second degree in violation of N.Y. Penal Law (“N.Y.P.L.”) § 120.05(2) constituted

a predicate crime of violence.

      Based on these prior convictions, the district court concluded that Tabb

qualified for the career offender enhancement and calculated his Guidelines

range to be 151 to 188 months’ imprisonment. Without the career offender

enhancement, Tabb’s Guidelines range would have been 33 to 41 months.2

Ultimately, the district court imposed a below‐guidelines sentence of 120

months. Tabb appeals the judgment and sentencing order on the ground that he

should not have been classified as a career offender. This Court reviews de novo a

district court’s interpretation of the Guidelines. United States v. Matthews, 205

F.3d 544, 545 (2d Cir. 2000).

II.      Analysis

      Tabb argues that he should not have been classified as a career offender under

U.S.S.G. § 4B1.1 because he did not have two predicate convictions. First, he

argues that attempted assault in the second degree under N.Y. Penal Law

§ 120.05(2) is not a predicate conviction because it is not crime of violence within




2As this illustrates, the career offender enhancement often dwarfs all other
Guidelines calculations and recommends the imposition of severe, even
Draconian, penalties.

                                           4
the relevant provision of U.S.S.G. § 4B1.2 (known as the “Force Clause”). Second,

he argues that his narcotics conspiracy conviction under 21 U.S.C. § 846 is not a

predicate conviction because it does not qualify as a controlled substance offense.

Neither argument is persuasive.

    A. Tabb’s Conviction for Attempted Assault in the Second Degree (N.Y.P.L §

       120.05(2))

    Tabb first argues that attempted assault in the second degree under N.Y.P.L

§ 120.05(2) is not a crime of violence under the Force Clause of § 4B1.2. A person

is guilty of second‐degree assault under N.Y.P.L. § 120.05(2) when, “[w]ith intent

to cause physical injury to another person, he causes such injury to such person

or to a third person by means of a deadly weapon or a dangerous instrument.”

This qualifies as a “crime of violence” under the Force Clause (also sometimes

referred to as the “Elements Clause”) if it “has as an element the use, attempted

use, or threatened use of physical force against the person of another.” U.S.S.G.

§ 4B1.2.3


3A crime can also qualify as a “crime of violence” if it meets the sentencing
guidelines’ “enumerated offenses clause,” or “is a murder, voluntary
manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery,
arson, extortion, or the use or unlawful possession of a firearm described in 26
U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).” Because
attempted assault in the second degree under N.Y.P.L. § 120.05(2) qualifies as a

                                         5
   U.S.S.G. § 4B1.2’s Force Clause is identical to language in two other statutes:

the definition of “violent felony” under the Armed Career Criminal Act

(“ACCA”), and the definition of “crime of violence” under 18 U.S.C. § 16(a).

“[T]he identical language of the elements clauses of 18 U.S.C. § 16(a) and [ACCA]

means that cases interpreting the clause in one statute are highly persuasive in

interpreting the other statute,” as well as in interpreting U.S.S.G. § 4B1.2. Stuckey

v. United States, 878 F.3d 62, 68 n.9 (2d Cir. 2017), cert. denied, 139 S. Ct. 161 (2018).

Thus, in evaluating Tabb’s claim, this Court is guided by its ACCA and § 16(a)

jurisprudence.

   Tabb first argues that attempted assault in the second degree under N.Y.

Penal Law § 120.05(2) cannot be a crime of violence because the substantive

crime of second‐degree assault is not itself a crime of violence. To determine

whether a state crime falls under the Sentencing Guidelines, the Second Circuit

generally uses the “categorical approach” prescribed by the Supreme Court.

Taylor v. United States, 495 U.S. 575, 600 (1990). Under this abstract approach, a

court considers the “generic, contemporary meaning” of the crime in the

guidelines, id. at 598, and then determines whether the crime committed by the


crime of violence under the Force Clause, we need not determine whether it
would also meet the enumerated offenses clause definition of a crime of violence.

                                            6
defendant falls under this “generic offense.” The Court “ignores the

circumstances of the particular defendant’s crime and asks instead what is the

minimum criminal conduct necessary to sustain a conviction under the relevant

statute.” Singh v. Barr, 939 F.3d 457, 462 (2d Cir. 2019) (internal quotation marks

and citation omitted). “[O]nly if the statute’s elements are the same as, or

narrower than, those of the generic offense does the prior conviction serve as a

predicate offense for a sentencing enhancement.” United States v. Castillo, 896

F.3d 141, 149‐50 (2d Cir. 2018) (internal quotation marks and citation omitted).

   Tabb’s argument that N.Y.P.L. § 120.05(2) is not a crime of violence under the

categorical approach is severely undercut by this Court’s holdings from the

ACCA and § 16(a) contexts. In United States v. Walker, 442 F.3d 787 (2d Cir. 2006)

(per curiam), this Court held that attempted assault in the second degree

N.Y.P.L. § 120.05(2) is “categorically” a violent felony under ACCA because “[t]o

(attempt to) cause physical injury by means of a deadly weapon or dangerous

instrument is necessarily to (attempt to) use ‘physical force,’ on any reasonable

interpretation of that term.” Id. at 788. More recently, in Singh v. Barr, 939 F.3d

457 (2d Cir. 2019) (per curiam), the Court reaffirmed Walker’s holding and held

that the substantive crime of second‐degree assault under N.Y.P.L. § 120.05(2) is




                                          7
also categorically a crime of violence under § 16(a)’s Force Clause. Thus, this

Court has found that the substantive crime of N.Y.P.L. § 120.05(2) categorically

“has as an element the use, attempted use or threatened use of physical force

against the person of another” under both ACCA and § 16(a).

   Tabb provides no reason why the result should be different under U.S.S.G.

§ 4B1.2. Indeed, Tabb largely relies on cases from both the ACCA and § 16(a)

context to argue that second‐degree assault under N.Y.P.L. § 120.05(2) is not a

crime of violence. For example, Tabb relies on an earlier § 16(a) case, Chrzanoski v.

Ashcroft, 327 F.3d 188 (2d Cir. 2003), to argue that second‐degree assault does not

qualify as a crime of violence because it may be accomplished by indirect force.

Singh, however, necessarily, and explicitly, rejected this argument when it found

that second‐degree assault under N.Y.P.L. § 120.05(2) was a crime of violence

under § 16(a). 939 F.3d at 463 (“[I]ndirect methods of inflicting serious physical

injury still meet the physical force requirement of § 16(a).”). Moreover, the view

of “force” set forth in Chrzanoski was subsequently modified by our Court in light

of the Supreme Court decision in United States v. Castleman, which held that

physical force in the context of a misdemeanor crime of domestic violence

“encompasses even its indirect application.” Villanueva v. United States, 893 F.3d




                                         8
123, 130 (2d Cir. 2018) (quoting Castleman, 572 U.S. 157, 170 (2014)); see also United

States v. Hill, 890 F.3d 51, 60 (2d Cir. 2018) (recognizing the Chrzanoski court “did

not have the benefit of the Supreme Court’s reasoning in Castleman”).

   Tabb’s alternative Chrzanoski‐based argument ‐‐ that second‐degree assault

under N.Y.P.L. § 120.05(2) is not categorically a crime of violence because it can

be committed by omission ‐‐ is no more successful. In Singh, the Court requested

supplemental briefing on “whether NYPL § 120.05(2) allows for the imposition of

liability based on a defendant’s omission to act.” Singh, 939 F.3d at 463. Neither

the parties nor the panel were able to find a single example of such liability being

imposed. Id. Indeed, the panel explained that “it is nearly impossible to conceive

of a scenario in which a person could knowingly or intentionally injure, or

attempt to injure, another person with a deadly weapon without engaging in at

least some affirmative, forceful conduct.” Id. at 463‐64 (quoting United States v.

Ramos, 892 F.3d 599, 612 (3d Cir. 2018)). Thus, notwithstanding Tabb’s objections,

we find that the substantive crime of second degree assault under N.Y.P.L.

§ 120.05(2) “has as an element the use, attempted use or threatened use of

physical force against the person of another” and is categorically a crime of

violence under U.S.S.G. § 4B1.2.




                                          9
   We next examine whether attempted second degree assault under N.Y.P.L.

§ 120.05(2) may nonetheless not categorically be a crime of violence. We reject

this possibility. Walker, although an ACCA case, squarely held that attempted

second‐degree assault under N.Y.P.L. § 120.05(2) requires the attempted use of

physical force “on any reasonable interpretation of that term.” 442 F.3d at 788.

This essentially precludes finding that New York attempted second‐degree

assault does not have “as an element the . . . attempted use . . . of physical force

against the person of another” under U.S.S.G. § 4B1.2.

   Recognizing that application of Walker’s holding would negate his argument,

Tabb offers a number of reasons why it is not controlling here. None is

persuasive. Tabb first argues that Walker is not controlling because the Walker

Court did not discuss the statutory definition of “dangerous instrument,” which

can include substances that can cause death or physical injury without the use of

any force. As discussed above, however, the Supreme Court has rejected the

notion that the use of poison or another indirect application of force does not

involve the use of physical force, see Castleman, 134 S. Ct. at 1414, and the Second

Circuit has recognized and adopted this holding in multiple statutory contexts.




                                          10
See Villanueva, 893 F.3d at 128‐29 (ACCA); Hill, 890 F.3d at 59‐60 (18 U.S.C. §

924(c)(3)(A)).

    Tabb next argues that an intervening Supreme Court case, Johnson v. United

States, 559 U.S. 133 (2010), effectively abrogated Walker. In Johnson, the Supreme

Court clarified that “physical force” means “violent force ‐‐ that is, force capable

of causing physical pain or injury to another person.” Id. at 140. However, Walker

held that attempted assault in the second degree necessarily involves an attempt

to use such physical force “on any reasonable interpretation of that term.”

Walker, 442 F.3d at 788. For this reason, this Court has already rejected, albeit in

an unpublished opinion, the notion that Johnson abrogated Walker. See Brunstorff

v. United States, 754 F. App’x 48, 50 (2d Cir.), cert. denied, 140 S. Ct. 254 (2019). We

agree.

    Finally, Tabb argues that Walker is not controlling because “attempt” under

New York law is broader than the generic “attempt” described in the guidelines.

Thus, Tabb argues, a defendant could be convicted of attempted assault in the

second degree in New York without ever “attempt[ing]” to use physical force in

the sense defined in the sentencing guidelines.4


4Although this argument is essentially a veiled request to overrule Walker, we
nonetheless address and thereby reaffirm Walker’s holding and clarify its scope.

                                           11
    The elements of New York attempt, however, are no broader than generic

attempt. The Second Circuit has found that generic attempt is “the presence of

criminal intent and the completion of a substantial step toward committing the

crime.” Sui v. INS, 250 F.3d 105, 115 (2d Cir. 2001). New York attempt requires

intent to commit the crime and an “action taken by an accused [] ‘so near [the

crime’s] accomplishment that in all reasonable probability the crime itself would

have been committed.’” United States v. Pereira‐Gomez, 903 F.3d 155, 166 (2d Cir.

2018) (quoting People v. Mahboubian, 74 NY.2d 174, 196 (1989)). The Second

Circuit has held that this latter element of New York attempt “categorically

requires that a person take a ‘substantial step’ toward the use of physical force.”

United States v. Thrower, 914 F.3d 770, 777 (2d Cir. 2019) (per curiam).5 Thus, the

elements of New York attempt are the same as or narrower than generic attempt,




5Tabb’s citation to People v. Naradzay, 11 N.Y.3d 460 (2008), in which an
individual was convicted of attempted murder without ever having been in the
presence of his victims, does not change this outcome. Someone can take a
“substantial step” towards using force against a victim even if that victim is not
physically present at that moment, for example by “load[ing] a firearm and then
start[ing] towards the person to be assailed.” People v. Sullivan, 173 N.Y. 122, 136
(1903).



                                         12
and attempted assault in the second degree under New York law categorically

involves the “attempted use . . . of physical force” under U.S.S.G. § 4B1.2.

   For the foregoing reasons, we find that attempted assault in the second degree

under N.Y.P.L. § 120.05(2) is categorically a crime of violence under the Force

Clause of U.S.S.G. § 4B1.2. Tabb’s conviction under this statute thus properly

served as a predicate for his sentencing enhancement.

   B. Tabb’s Conviction for Narcotics Conspiracy Under 21 U.S.C. § 846

   Tabb also argues that his conviction for conspiracy to distribute and possess

with intent to distribute crack cocaine in violation of 21 U.S.C. § 846 (“Section

846”) cannot qualify as a predicate “controlled substance offense” under U.S.S.G.

§ 4B1.1. As defined in U.S.S.G. § 4B1.2, a controlled substance offense is:

   an offense under federal or state law, punishable by imprisonment for a term
   exceeding one year, that prohibits the manufacture, import, export,
   distribution, or dispensing of a controlled substance (or a counterfeit
   substance) or the possession of a controlled substance (or a counterfeit
   substance) with intent to manufacture, import, export, distribute, or dispense.

Application Note 1 of the commentary clarifies that controlled substance offenses

“include the offenses of aiding and abetting, conspiring, and attempting to

commit such offenses.” U.S.S.G. § 4B1.2 cmt. n.1. The plain text of U.S.S.G.

§ 4B1.2 as interpreted by Application Note 1 thus appears to include narcotics




                                         13
conspiracies such as 21 U.S.C. § 846. Tabb nonetheless argues that narcotics

conspiracy under Section 846 is not encompassed by this definition, and is thus

not a proper predicate for a sentencing enhancement.

   Tabb first argues that narcotics conspiracy under 21 U.S.C. § 846 is not a

proper predicate conviction because Application Note 1 conflicts with the

Guidelines text by improperly expanding it. See Stinson v. United States, 508 U.S.

36, 45 (1993) (holding that Guidelines commentary is valid and binding on the

judiciary unless it is “plainly erroneous or inconsistent with” the Guidelines

text). This argument, however, is foreclosed in this Circuit by United States v.

Jackson, 60 F.3d 128 (2d Cir. 1995). In Jackson, this Court directly addressed and

dismissed the argument that “the Sentencing Commission exceeded its statutory

mandate . . . by including drug conspiracies as controlled substance offenses.” Id.

at 131.

   Although Tabb attempts to argue that Jackson only addressed the Sentencing

Commission’s authority, not Tabb’s specific argument that Application Note 1

improperly conflicts with the guideline text, this purported distinction is without

substance. In our view, there is no way to reconcile Jackson’s holding that the

Commission had the “authority to expand the definition of ‘controlled substance




                                         14
offense’ to include aiding and abetting, conspiring, and attempting to commit

such offenses” through Application Note 1, id. at 133, with Tabb’s proposed

holding that the Guideline text forbids expanding the definition of a controlled

substance offense to include conspiracies.

   To be sure, Jackson only applies in the Second Circuit. Tabb correctly notes

that the Sixth and D.C. Circuits have recently agreed with Tabb’s argument that

Application Note 1 conflicts with the text of U.S.S.G. § 4B1.2(b) by including

crimes that the Guideline text excludes. See United States v. Havis, 927 F.3d 382,

385‐87 (6th Cir. 2019) (en banc) (per curiam); United States v. Winstead, 890 F.3d

1082, 1090‐92 (D.C. Cir. 2018); see also United States v. Crum, 934 F.3d 963, 966 (9th

Cir. 2019) (per curiam) (“If we were free to do so, we would follow the Sixth and

D.C. Circuits’ lead.”). But these decisions are of no moment here, because we,

acting as a three judge panel, are not at liberty to revisit Jackson. See Doscher v. Sea

Port Grp. Sec., LLC, 832 F.3d 372, 378 (2d Cir. 2016) (finding that this Court is

“bound by a prior panel’s decision until it is overruled either by this Court

sitting en banc or by the Supreme Court”). Accordingly, we find that Jackson

precludes Tabb’s argument that Application Note 1 is invalid.




                                           15
    Tabb next argues that even if Application Note 1 is valid, the word

“conspiracy” does not encompass his conviction for federal narcotics conspiracy

under Section 846.6 Specifically, he argues that narcotics conspiracy under 21

U.S.C. § 846 is not a predicate “controlled substance offense” under U.S.S.G. §

4B1.1 because the term conspiracy in Application Note 1 encompasses only

“generic” conspiracy. To do so, Tabb relies on United States v. Norman, 935 F.3d

232 (4th Cir. 2019), in which the Fourth Circuit held that Application Note 1

incorporates a generic definition of conspiracy, that generic conspiracy requires

an overt act, and that federal narcotics conspiracy under 21 U.S.C. § 846 is not a

generic conspiracy because it does not require an overt act. Id. at 237‐38.7

    We respectfully disagree. The essence of a conspiracy is an agreement by two

or more persons to commit an unlawful act. See United States v. Praddy, 725 F.3d




6The Government argues that Jackson forecloses this argument because it
affirmed the application of a sentencing enhancement based on a conviction for
Section 846 conspiracy. In Jackson, however, the defendant “d[id] not challenge
the application of the Sentencing Guidelines,” Jackson, 60 F.3d at 131, but instead
focused on whether Applied Note 1 was a proper exercise of the Sentencing
Commission’s authority. Thus, Jackson does not control the specific question of
whether the district court erred in finding that Application Note 1’s language
includes Section 846 narcotics conspiracy.

7Norman joined United States v. Martinez‐Cruz, 836 F.3d 1305 (10th Cir. 2016),
which reached the same conclusions with respect to U.S.S.G. 2L1.2. Id. at 1310‐14.

                                         16
147, 153 (2d Cir. 2013). Although conspiracy at common law often required that

an overt act, however trivial, be taken in furtherance of the conspiracy, Congress

has chosen to eliminate this requirement in the case of several federal crimes,

most notably narcotics conspiracy. United States v. Shabani, 513 U.S. 10, 14‐15

(1994).

   The text and structure of Application Note 1 demonstrate that it was intended

to include Section 846 narcotics conspiracy. Application Note 1 clarifies that

“controlled substance offenses” include “the offense[] of . . . conspiring . . . to

commit such offenses,” language that on its face encompasses federal narcotics

conspiracy. As the Ninth Circuit recognized in relation to a similar Guideline

provision, “To hold otherwise would be to conclude that the Sentencing

Commission intended to exclude federal drug . . . conspiracy offenses when it

used the word ‘conspiring’ to modify the phrase” controlled substance offenses.

United States v. Rivera‐Constantino, 798 F.3d 900, 904 (9th Cir. 2015). Such a

holding would also require finding that term “conspiracy” includes Section 846

narcotics conspiracy in some parts of the guidelines, see, e.g., U.S.S.G. § 2D1.1;

U.S.S.G. § 2X1.1, but not others. “A standard principle of statutory construction

provides that identical words and phrases within the same statute should




                                          17
normally be given the same meaning.” Rivera‐Constantino, 798 F.3d at 905

(quoting Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 232 (2007)).

    Moreover, as this Court noted in Jackson, interpreting “controlled substance

offense” conspiracies to include Section 846 conspiracies harmonizes the

Sentencing Commission’s intent with congressional intent. This Court upheld

Application Note 1 in Jackson in part because Section 846 manifested

congressional “intent that drug conspiracies and underlying offenses should not

be treated differently” by “impos[ing] the same penalty for a narcotics

conspiracy conviction as for the substantive offense.” 60 F.3d at 133. Reading

Application Note 1 as intended to exclude Section 846 conspiracy would place

the Sentencing Commission at odds with Congress itself by attaching sentencing

enhancements to substantive narcotics crimes but not to the very narcotics

conspiracies that Congress wanted treated the same.

    To us, it is patently evident that Application Note 1 was intended to and does

encompass Section 846 narcotics conspiracy. Tabb’s conviction under this statute

thus properly served as a predicate for his sentencing enhancement.8


8As a final argument, Tabb urges that because it is at least arguably ambiguous
whether his prior offenses qualify as predicate offenses under U.S.S.G. § 4B1.1,
the rule of lenity requires us to interpret the sentencing guidelines in his favor.
The rule of lenity, however, is a tool of last resort “reserved for cases where,

                                          18
III.      Conclusion

       For the foregoing reasons, the district court correctly concluded that Tabb’s

convictions for attempted assault in the second degree under N.Y.P.L. § 120.05(2)

and federal narcotics conspiracy under 21 U.S.C. § 846 constituted predicate

crimes for purposes of the career offender sentencing enhancement. The district

court’s judgment and sentence are AFFIRMED.




‘after seizing every thing from which aid can be derived, the Court is left with an
ambiguous statute.’” DePierre v. United States, 564 U.S. 70, 88 (2011) (quoting
Smith v. United States, 508 U.S. 223, 239 (1993)). As described above, this Court’s
prior precedent, along with traditional rules of statutory interpretation, resolve
any ambiguity in the sentencing guidelines decidedly against Tabb. Accordingly,
the rule of lenity has no application here. Id.



                                            19
