                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-1632
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                                Ramone N. Williams

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                             Submitted: May 14, 2018
                              Filed: August 13, 2018
                                  ____________

Before SMITH, Chief Judge, BEAM and COLLOTON, Circuit Judges.
                              ____________

SMITH, Chief Judge.

      After Ramone Williams pleaded guilty to firearm offenses, the district court1
sentenced him to 60 months’ imprisonment. Williams argues three Sentencing
Guidelines issues on appeal. We affirm.

      1
       The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
                                   I. Background
       In the summer of 2015, authorities found Williams in possession of loaded
pistols and ammunition in his vehicle. At the time, he had two prior felony
convictions in New York. After illegal weapons charges were filed, Williams pleaded
guilty to being a felon in possession of a firearm, possessing a stolen firearm, and
possessing a firearm with an obliterated serial number.

      At the sentencing hearing, the district court determined that Williams’s prior
New York attempted second-degree robbery conviction is a crime of violence. It also
assigned that conviction three criminal history points. The court calculated
Williams’s Guidelines range as 70 to 87 months and sentenced him to 60 months in
prison on each count, to run concurrently.

                                      II. Discussion
       Williams raises three issues on appeal. First, he argues that his attempted
second-degree robbery conviction does not qualify as a crime of violence. Second,
he argues that the district court erroneously assessed three criminal history points for
that offense, which he committed prior to age 18. Third, Williams contends that the
district court improperly used the 2015 Guidelines Manual rather than the 2016
Guidelines Manual in effect at the time of his sentencing.




      1. New York Attempted Second-Degree Robbery as Crime of Violence
      Williams argues that his New York second-degree robbery conviction was not
a crime of violence under the Guidelines. We review de novo the district court’s
determination that a conviction constitutes a crime of violence. See United States v.
Rembert, 851 F.3d 836, 840 (8th Cir. 2017) (citation omitted).




                                          -2-
       The Guidelines set a base offense level of 20 if the defendant has a felony
conviction for a “crime of violence.” U.S.S.G. § 2K2.1(a)(4)(a). A prior felony may
qualify as a crime of violence under either the force clause or as an enumerated
offense. See id. § 4B1.2(a). Under the force clause, a crime of violence is “any
offense under federal or state law, punishable by imprisonment for a term exceeding
one year, that . . . has as an element the use, attempted use, or threatened use of
physical force against the person of another.” Id. § 4B1.2(a)(1). A felony is thus a
force-clause crime of violence only if a conviction under the statute creating the
offense “requires the use, attempted use, or threatened use of [physical] force.”
United States v. Swopes, 886 F.3d 668, 671 (8th Cir. 2018) (en banc). Physical force
is “force capable of causing physical pain or injury to another person.” Johnson v.
United States, 559 U.S. 133, 140 (2010). In making the determination, “we examine
both the text of the statute and how the state courts have applied the statute.” Swopes,
886 F.3d at 671.

       We conclude that Williams’s New York attempted second-degree robbery
conviction was for a crime of violence under the force clause.2 We recently
considered an almost identical state statute. In Swopes, the Missouri statute of
conviction provided that “a person commits second-degree robbery ‘when he forcibly
steals property.’” 886 F.3d at 670 (quoting Mo. Rev. Stat. § 569.030.1 (1979)).

      A person “forcibly steals” when, in the course of stealing:

             he uses or threatens the immediate use of physical force
             upon another person for the purpose of: (a) Preventing or
             overcoming resistance to the taking of the property or to
             the retention thereof immediately after the taking; or (b)
             Compelling the owner of such property or another person


      2
       We therefore need not address whether it also qualifies as an enumerated
offense. See, e.g., United States v. Harper, 869 F.3d 624, 627 (8th Cir. 2017).

                                          -3-
             to deliver up the property or to engage in other conduct
             which aids in the commission of the theft[.]

Id. (alteration in original) (quoting Mo. Rev. Stat. § 569.010(1) (1979)). Based on the
plain statutory text and the Missouri cases that have interpreted it, we held that
Missouri second-degree robbery is a violent felony under the Armed Career Criminal
Act (ACCA). Id. at 672. In the past, Missouri appellate courts have affirmed
convictions where, for example, a defendant pushed a victim and knocked him
against a door, or where a defendant grabbed a purse and injured the victim’s finger.
See id. (citations omitted). In contrast, the Missouri courts have reversed convictions
where less force was used, such as where a defendant merely grabbed a purse and ran,
or where a defendant brushed a clerk’s arm during a theft. See id. (citations omitted).
Cases involving violent felonies under the ACCA are instructive in cases involving
crimes of violence. See United States v. Williams, 690 F.3d 1056, 1067 (8th Cir.
2012). Swopes is therefore instructive in the instant case.

       Similar to Missouri’s statute, New York’s second-degree robbery statute
contains “forcibly steals” as an element. See N.Y. Penal Law § 160.10 (“A person is
guilty of robbery in the second degree when he forcibly steals property and when [one
of three other circumstances occur].” (emphasis added)). New York and Missouri
define “forcibly steals” the same in all material respects. See id. § 160.00.

      In New York, force capable of causing physical pain or injury suffices to
support a conviction just as in Missouri. See, e.g., People v. Barksdale, 858 N.Y.S.2d
5 (N.Y. App. Div. 2008) (affirming conviction where the defendant pushed an
employee out of the way as he attempted to leave store with stolen merchandise);
People v. Chatman, 833 N.Y.S.2d 794 (N.Y. App. Div. 2007) (affirming conviction
where the defendant pushed victim, allowing the defendant to enter her vehicle, and
broke her grip on him by driving off). Also like Missouri, New York does not permit
a conviction if a taking is without such force. See People v. Harvey, 985 N.Y.S.2d

                                         -4-
721, 722 (N.Y. App. Div. 2014) (vacating conviction where “the defendant [did not]
use[] or threaten[] the use of physical force upon the victim to prevent or overcome
resistance to the taking of her bag” (citations omitted)); People v. Dobbs, 805
N.Y.S.2d 734, 735 (N.Y. App. Div. 2005) (affirming reduction where the defendant
took a purse, but victim was not “threatened, pushed, shoved or injured during the
incident”); see also People v. Jurgins, 46 N.E.3d 1048, 1053 (N.Y. 2015) (stating that
“a taking ‘by sudden or stealthy seizure or snatching’ would not be considered a
robbery or other felony in New York . . . as it is akin to pickpocketing, or the crime
of jostling”).3

       We therefore conclude that the district court did not err in determining that
New York attempted second-degree robbery is a crime of violence.4 However, even
if Williams were correct that the court erred, any error would be harmless because it
caused Williams no prejudice. See United States v. Idriss, 436 F.3d 946, 951 (8th Cir.
2006) (“When the guidelines are incorrectly applied, we remand for resentencing

       3
        Persuasive authority from some of our sister circuits supports our conclusion.
See, e.g., Perez v. United States, 885 F.3d 984, 988 (6th Cir. 2018) (noting that the
New York elements “line up perfectly” with ACCA’s force requirement and
explaining that “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”);
United States v. Kornegay, 641 F. App’x 79, 85 (2d Cir. 2016) (summary order)
(holding that a New York second-degree robbery conviction is a crime of violence
under the force clause). But cf. United States v. Steed, 879 F.3d 440, 448–50 (1st Cir.
2018) (concluding that New York second-degree robbery was not a crime of violence
as of 2000).
       4
        Williams also argues that the district court erred by failing to find that his prior
felony involved “the use or carrying of a firearm, knife, or destructive device,” which
is required under the ACCA for prior juvenile adjudications. See 18 U.S.C.
§ 924(e)(2)(B). The Guidelines do not require this finding. See U.S.S.G. § 4B1.2(a)
& cmt. n.1. We decline to impose such a finding when the Guidelines speak clearly.
See United States v. Anton, 380 F.3d 333, 335 (8th Cir. 2004). Williams cites no law
for his argument, and we conclude that it lacks merit.

                                            -5-
unless the error was harmless, such as when the district court would have imposed the
same sentence absent the error.” (citation omitted)). The district court affirmed at
sentencing that its “imposition of sentence [would have] been the same regardless of
which way [it] would have ruled on the guideline objections.” Sentencing Transcript
at 13–14, United States v. Williams, No. 4:15-cr-00257-GAF (W.D. Mo. Mar. 9,
2017), ECF No. 56.

       The district court considered the 18 U.S.C. § 3553(a) factors in imposing the
sentence. It specifically addressed Williams’s record, including his juvenile status
when he committed the attempted robbery. And it discussed “[t]he need for the
sentence to reflect the seriousness of [the] offense, promote respect for the law,
provide just punishment, afford adequate deterrence to criminal conduct, protect the
public from future crimes, and provide [Williams] with needed educational or
correctional treatment.” Id. at 12. Because the sentence imposed considered the
§ 3553(a) factors and would have been the same based on those factors regardless of
the court’s ruling on the crime of violence issue, any alleged error was harmless. See,
e.g., United States v. Thigpen, 848 F.3d 841, 844 (8th Cir. 2017) (holding harmless
an error in determining prior felony was a crime of violence, where the district court
stated it would impose the same sentence regardless of the Guidelines calculation).

                               2. Criminal History Points
       Williams next argues that the district court erred in assessing three criminal
history points for the attempted second-degree robbery he committed in 2007, before
he turned 18. He says that “as he was not convicted as an adult, he should not have
been given three . . . points towards his criminal history.” Appellant’s Br. at 26. We
review for clear error the district court’s calculation of criminal history points. United
States v. Simms, 695 F.3d 863, 864 (8th Cir. 2012) (“Decisions regarding offenses
counted in a criminal history calculation are factual determinations subject to clear-
error review.” (citation omitted)).



                                           -6-
       In considering offenses committed prior to age 18, the court must add three
points “[i]f the defendant was convicted as an adult and received a sentence of
imprisonment exceeding one year and one month.” U.S.S.G. § 4A1.2(d)(1). Crucial
to the inquiry is determining whether an offense committed prior to age 18 would be
“classified as an adult conviction under the laws of the jurisdiction in which the
defendant [wa]s convicted.” United States v. Hazelett, 32 F.3d 1313, 1320 (8th Cir.
1994) (citations omitted).

       The Second Circuit has recognized that the New York youthful offender
scheme is complex and the title “youthful offender adjudication” is far from
dispositive. United States v. Driskell, 277 F.3d 150, 154–57 (2d Cir. 2002). But a
youthful offender is first “convicted as an adult and only later may, in the court’s
discretion, have that conviction vacated and replaced by a youthful offender finding.”
Id. at 155 (citing Capital Newspapers Div. of the Hearst Corp. v. Moynihan, 519
N.E.2d 825, 827 (N.Y. 1988) (“Most significantly, youthful offender status is under
the statute determined only after [a] defendant has been tried and convicted
criminally . . . .” (citation omitted))). Moreover, the Guidelines are clear that the
conviction attaches when the defendant’s guilt is “established, not when a formal
entry of judgment is made.” Id. at 156 (citing U.S.S.G. § 4A1.2(a)(4) (“‘Convicted
of an offense,’ for the purposes of this provision, means that the guilt of the defendant
has been established, whether by guilty plea, trial, or plea of nolo contendere.”)).
Although an individual in New York can receive a youthful offender “adjudication,”
the relevant establishment of guilt happens before any potential youthful offender
adjudication might occur. See id.; Capital Newspapers, 519 N.E.2d at 827.

      Without dispute, the record shows that Williams has a prior conviction for
attempted second-degree robbery in Queens County Supreme Court. See Presentence
Investigation Report (PSR) at 8, United States v. Williams, No. 4:15-cr-00257-GAF
(W.D. Mo. Oct. 13, 2016), ECF No. 37. He committed the offense in July 2007, about
three months before he turned 18. He was found guilty. Thus, his guilt was

                                          -7-
established—pursuant to U.S.S.G. § 4A1.2(a)(4)—in March 2008. Then, in April
2008, Williams was adjudicated a youthful offender. He was sentenced to one to three
years’ custody5 and was housed in a maximum-security facility for adult males. See
Driskell, 277 F.3d at 151 (directing district courts to consider, among other things,
where the defendant was incarcerated). The district court did not clearly err in finding
that this conviction was an adult conviction even though Williams was later deemed
to be a youthful offender. However, even if the district court erred in assessing these
criminal history points, no prejudice resulted and any error was harmless. See Idriss,
436 F.3d at 951. Again, the district court was clear that it would have imposed the
same sentence regardless of its ruling on Williams’s guideline objections. See, e.g.,
Simms, 695 F.3d at 866 (holding harmless any error in assessing a criminal history
point for a prior offense where the district court stated it would have imposed the
same sentence regardless).

                   3. Alleged Use of the Wrong Guidelines Manual
       Williams last argues that the district court applied the 2015 Guidelines Manual
rather than the Guidelines Manual in effect at the time of sentencing. We review de
novo the district court’s application of the Guidelines. United States v. Steward, 880
F.3d 983, 985 (8th Cir. 2018). But because Williams failed to object to the use of the
wrong Guidelines Manual, we review for plain error. See United States v. Wilson, 184
F.3d 798, 800 (8th Cir. 1999). Williams must show that the court committed a plain
error that affected his substantial rights and that “seriously affect[ed] the fairness,
integrity or public reputation of judicial proceedings.” United States v. Shumpert, 889
F.3d 488, 490 (8th Cir. 2018) (quoting United States v. Olano, 507 U.S. 725, 732
(1993)).


      5
        An exhibit to Williams’s sentencing memorandum indicates that Williams was
sentenced in April 2008. The PSR, on the other hand, states that he was sentenced in
March 2008. The date of the sentencing is not material to our analysis. What matters
is that he was adjudicated a youthful offender after he was convicted of the crime.

                                          -8-
       The district courts must use the Guidelines Manual in effect at the time of
sentencing, unless doing so would violate the Ex Post Facto Clause. U.S.S.G.
§ 1B1.11. Here, the prepared PSR stated that the 2015 Guidelines Manual was used
to determine Williams’s offense level. However, Williams’s sentencing occurred in
spring 2017, when the 2016 Guidelines Manual was in effect. Fatal to Williams’s
argument is that he has not identified any prejudice by the alleged error: the relevant
Guidelines provisions were unchanged between the 2015 and 2016 Guidelines
Manuals. And Williams has not shown, or even argued, that the supposed error
seriously affected the fairness, integrity, or public reputation of judicial proceedings.
See Wilson, 184 F.3d at 800.

                                    III. Conclusion
      We affirm.
                        ______________________________




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