Published on: Tuesday, February 13, 2018

On January 12, the First Circuit held that attempted second-degree robbery under New York Penal Law § 160.10(2)(a) is not a “crime of violence” under the force clause of the Career Offender Guideline, USSG §4b1.2(a)(1).  See United States v. Steed, 879 F.3d 440 (1st Cir. 2018), available here.  

New York Penal Law § 160.00 defines the general offense of robbery as:

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 ... [p]reventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or ... [c]ompelling 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.

One of the four variants of second degree robbery, which was at issue in Steed, defines the offense as occurring “when [someone] forcibly steals property,” and “[i]n the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime: ... [c]auses physical injury to any person who is not a participant in the crime.” N.Y. Penal Law § 160.10(2)(a).

In Steed, the Court applied the categorical method and exhaustively examined relevant state court precedents interpreting the elements of § 160.10(2)(a) as it stood at the time the defendant was convicted of attempting to commit that crime, which was 2000.  Relying on First Circuit precedent holding that purse snatching was too slight a use of force to constitute a “violent felony” under the Armed Career Criminal Act, see United States v. Mulkern, 854 F.3d 87 (1st Cir. 2017) (relying on Johnson v. United States, 559 U.S. 133 (2010)), the First Circuit held:

[A]s we read the relevant New York precedents, there is a realistic probability that Steed's conviction was for attempting to commit an offense for which the least of the acts that may have constituted that offense included “purse snatching, per se.” Santiago, 405 N.Y.S.2d at 757. As Mulkern held that such conduct falls outside the scope of the nearly identically-worded force cause at issue there, Mulkern, 854 F.3d at 93-94, we cannot say that, under the categorical approach, Steed's conviction was for an offense that the force clause of the career offender guideline's definition of a “crime of violence” encompasses.

Steed, 879 F.3d at 450–51.

The Court also considered the government’s alternative argument that attempted second degree robbery was a “crime of violence” covered by Career Offender’s residual clause, USSG §4b1.2(a)(2).  Because the government had conceded that the residual clause was vague under Johnson I in the district court pre Beckles v. United States, 137 S. Ct. 886 (2017), the Court applied the plain error standard of review to the government’s argument.  Under the plain error rule, the Court held the government had not shown, or even argued, how a decision to let the defendant’s non-career offender enhanced sentenced stand “would impair the ‘fairness, integrity, or public reputation of judicial proceedings.”

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