United States Court of Appeals For the First Circuit

No. 18-1678

UNITED STATES OF AMERICA,

Appellee,

v.

DEJUAN RABB, a/k/a SLIM,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Barron, Selya, and Boudin, Circuit Judges.

Syrie Davis Fried, with whom Good Schneider Cormier & Fried was on brief, for appellant. Julia M. Lipez, Assistant United States Attorney, with whom Halsey B. Frank, United States Attorney, was on brief, for appellee.

October 30, 2019 BARRON, Circuit Judge. DeJuan Rabb brings this appeal

to challenge the 2018 sentence that he received after pleading

guilty in the United States District Court for the District of

Maine to possession with intent to distribute furanyl fentanyl and

cocaine base in violation of

(a)(1) and for the

distribution of furanyl fentanyl, also in violation of

(a)(1). Rabb contends that the District Court erred in

concluding that he was a "career offender" under the 2016 version

of the United States Sentencing Guidelines Manual ("Guidelines"),

see U.S.S.G. §§ 4B1.1, 4B1.2(a)(2), based on his 2000 New York

state law robbery conviction. We agree with Rabb and thus vacate

and remand for resentencing.

I.

The Guidelines define a "career offender" to be an

individual over eighteen years of age at the time of the offense

of conviction whose offense of conviction is at least their third

felony conviction -- whether state or federal -- for either a

"crime of violence" or a "controlled substance offense" or a

combination thereof. U.S.S.G. § 4B1.1(a) (U.S. Sentencing Comm'n

2016). The Guidelines define a "crime of violence," in turn, as

a felony that:

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery,

- 2 - arson, extortion, or the use or unlawful possession of a firearm described in

(a) or explosive material as defined in

(c).

U.S.S.G § 4B1.2(a) (emphasis added).

The first clause in the "crime of violence" definition

is known as the "elements clause," or the "force clause." The

second clause is commonly referred to as the "enumerated offenses

clause," as it lists a series of crimes, "robbery" among them.

U.S.S.G §§ 4B1.2, 4B1.1(a) (2016).

The United States Probation Office's Second Revised

Presentence Investigation Report ("PSR") in Rabb's case found that

he had the requisite number of prior felony convictions to be a

"career offender" under the Guidelines. The PSR found that he had

committed a "controlled substance offense" based on his 2014

conviction under New York state law for criminal possession of a

controlled substance in the third degree. The PSR also found that

he had committed a "crime of violence" based on his 2000 conviction

for second-degree robbery in violation of New York Penal Law

§160.10(1).1

The PSR specifically determined that his 2000 New York

state law robbery conviction was for a "crime of violence" because

the enumerated offenses clause of the "crime of violence"

definition in the Guidelines included "robbery." The PSR relied

1Rabb was arrested in 1999 and convicted in 2000 for second- degree New York robbery.

- 3 - on that clause after concluding that the force clause did not apply

in light of our ruling in United States v. Steed,

(1st Cir. 2018). There, we held that it was reasonably probable

that, as of 2000, a robbery of the type for which Rabb was convicted

encompassed even a purse snatching committed by means so sudden

that the victim was merely made aware of the perpetrator's

presence. We further held that such means did not amount to a use

of force or threatened force within the meaning of the force

clause. See Steed,

.

The PSR followed the Guidelines' instruction to group

related counts of conviction -- which Rabb's two counts are --

pursuant to U.S.S.G. § 3D1.2, and then determine a combined offense

level for the group, id. § 3D1.3. Based on the application of the

"career offender" sentencing enhancement and other calculations

not at issue here, the PSR determined that Rabb's total offense

level under the Guidelines for his grouped 2018 convictions was

31. The PSR further noted that, given the "career offender"

determination, Rabb was subject to U.S.S.G. § 4B1.1(b), which

increases the criminal history category for all career offenders

to VI. The PSR thus found that Rabb's sentencing range for the

grouped convictions under the Guidelines was for a prison sentence

of 188 to 235 months.

At his sentencing hearing, Rabb argued that his 2000 New

York state law robbery conviction did not qualify as a "crime of

- 4 - violence" even under the enumerated offenses clause of the "crime

of violence" definition in the Guidelines. He relied for that

argument, in substantial part, on our reasoning in Steed. But,

the District Court concluded that Steed "at most forecloses a

finding that a New York second degree robbery conviction falls

under the force clause." The District Court ruled, however, that

Rabb's 2000 conviction was for a variant of robbery in New York

that "substantially corresponds to generic robbery" and thus that

is encompassed by the enumerated offenses clause of the Guidelines'

"crime of violence" definition.

Having made that determination, the District Court

adopted the PSR's determination that Rabb's offense level for the

group of convictions was 31 and thus that his sentencing range

under the Guidelines was for a prison sentence of 188 to 235

months. The District Court varied downwards, however, and imposed

a 140-month prison sentence for each conviction to be served

concurrently, to be followed by six years of supervised release.

Rabb now appeals.

II.

The only issue that we must resolve on appeal is whether

"robbery" in the enumerated offenses clause of the "crime of

violence" definition in the Guidelines encompasses the variant of

robbery under New York law that Rabb was convicted of in 2000.

- 5 - That issue is one of law, and so our review is de novo. United

States v. Almenas,

(1st Cir. 2009).

The parties agree that we must apply what is known as

the "categorical approach" to resolve this issue. Taylor v. United

States,

(1990). Under that approach, we focus

on the least of the conduct encompassed by the assertedly

qualifying offense for which Rabb was convicted and not on the

"particular facts underlying the conviction." United States v.

Dávila-Félix,

(1st Cir. 2011) (quoting United

States v. Piper,

(1st Cir. 1994)). In doing so,

however, we must focus on whether there is "a realistic

probability, not a theoretical possibility," that the least of the

conduct that offense criminalizes is greater than the conduct

encompassed by "robbery" as it is used in the enumerated offenses

clause of the Guidelines' definition of a "crime of violence."

Gonzales v. Duenas-Alvarez,

(2007).

In undertaking this categorical inquiry, "we apply an

historical approach." Steed,

. Thus, we look to

"the state of New York law as it stood at the time that [Rabb] was

convicted of attempting to commit that crime." Id.; see also

United States v. Faust,

(1st Cir. 2017), reh'g

denied,

(1st Cir. 2017). Moreover, we must determine

whether the underlying criminal offense is "divisible," in the

sense that the statute defining the offense "sets out one or more

- 6 - elements of the offense in the alternative." Descamps v. United

States,

(2013); see also United States v.

Tavares,

(1st Cir. 2016). For, if the statute

defining the offense does so, then we must apply what is known as

the modified categorical approach, which requires that we focus

this categorical inquiry on the specific variant of the divisible

offense for which the defendant was convicted. See Descamps,

.

The parties agree that New York law, as of the time of

Rabb's conviction, defined a number of distinct variants of the

offense of robbery. The parties further agree that Rabb was

convicted of a specific, divisible variant of second-degree

robbery under New York law, namely, the variant that is set forth

in New York Penal Law § 160.10(1). That variant requires the

government to prove that the defendant, in committing "robbery,"

as defined in New York Penal Law § 160.00, was "aided by another

person actually present."

(1).

Neither party contends, however, that the additional

element set forth in § 160.10(1) is relevant to the categorical

inquiry that we must undertake. Rather, they agree that inquiry

turns solely on the scope of § 160.00 itself.2 We thus follow the

2 Steed was convicted under a different statutory section of second-degree New York robbery,

(2)(a), which, unlike the section Rabb was convicted under, does include

- 7 - parties in training our focus on the scope of § 160.00 as it was

defined at the time of Rabb's conviction in 2000.

As of that time, just as now, § 160.00 stated:

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.

. The record does not specify the prong

of New York Penal Law § 160.00 that defines the offense for which

Rabb was convicted. For that reason, we look to the least of the

conduct that § 160.00 encompassed. See Duenas-Alvarez,

.

additional language related to the amount of force required. Steed,

. New York Penal Law § 160.10(2)(a) adds an additional requirement that the robbery defendant or their accomplice "[c]auses physical injury to any person who is not a participant in the crime." The Steed court found that "this injury requirement would not in and of itself have ruled out" a crime of larceny involving the use of de minimis force from "qualifying as a robbery."

. Nevertheless, the fact that Rabb and Steed were convicted under different subsections of second- degree robbery does not affect the application of Steed's holding to this case. If anything, it only means that the subsection that Rabb was convicted under requires even less force than Steed's because Rabb's conviction did not include the requirement of "[c]aus[ing] physical injury."

- 8 - That determination is easily made here. Steed held that

"there is a realistic probability that . . . the least of the acts"

that this provision encompassed as of 2000 -- and thus as of the

time of Rabb's conviction -- "included 'purse snatching, per se.'"

(quoting People v. Santiago,

(N.Y. App. Div. 1978), aff'd,

(N.Y. 1980))

(discussing People v. Lawrence,

(N.Y. App. Div.

1994)). Steed further explained that there was a realistic

probability, as of that time, that a perpetrator needed to use

only enough force in committing such a snatching to "produce

awareness, although the action may be so swift as to leave the

victim momentarily in a dazed condition."

at 449 (quoting

United States v. Mulkern,

(1st Cir. 2017)).

The critical question, then, is whether "robbery" as

listed in the enumerated offenses clause of the Guidelines'

definition of "crime of violence" encompasses even the kind of

purse snatching per se that Steed held that § 160.00 encompassed

in 2000, when Rabb was convicted of his New York state law robbery

offense.3 The answer to that question depends on whether the least

3 Rabb argues that there are three elements that "robbery," as defined in the enumerated offenses clause, requires but that a 2000 New York robbery conviction did not. Rabb's argument about the first of these three elements -- the use of force greater than de minimis force -- is based on our holding in Steed. But, because we agree with him that his robbery conviction does not qualify as a crime of violence under the enumerated offenses clause based on

- 9 - of the conduct encompassed by "generic robbery" in 2016, which is

when the Guidelines that Rabb was sentenced under in 2018 went

into effect, see Taylor, 495 U.S. at 593–94 (determining the

generic elements of burglary under the Armed Career Criminal Act

(ACCA), which was enacted in 1984, by looking to the "generic 1984

definition of burglary"),4 encompasses even such a sudden purse

snatching.

"The Government bears the burden of establishing that a

prior conviction qualifies as a predicate offense for sentencing

enhancement purposes." Dávila-Félix,

; see also

United States v. Bryant,

(1st Cir. 2009).

The government identifies no authority, however, that indicates

that generic robbery, as of 2016, encompassed such snatchings.

In fact, the government has set forth substantial

authority to indicate that generic robbery requires a type of force

the first element, we need not address the other two elements that he discusses. 4 Although the enumerated offense of robbery was moved into the main text of § 4B1.2(a)(2) of the Guidelines in 2016, "robbery" was previously enumerated in the Application Note. See, e.g., U.S.S.G. § 4B1.2 cmt. n.1 (U.S. Sentencing Comm'n 2015). Nevertheless, as the government has not suggested any reason -- nor do we see any -- for why the generic definition of robbery would be any less likely to require more than de minimis force at the time of prior iterations of the guidelines, we look to the "contemporary" meaning of robbery as of 2016.

- 10 - that creates "an immediate danger to the person."5 See, e.g.,

United States v. Santiesteban-Hernandez,

(5th

Cir. 2006) ("[T]he majority of states focus on an act of force in

articulating the requisite level of immediate danger."), abrogated

on other grounds by United States v. Rodriguez,

(5th

Cir. 2013).6 This understanding of robbery accords, moreover, with

the Model Penal Code. See Model Penal Code § 222.1 cmt. 3 at 108

(1980) ("[I]t is force or threat of force directed at placing the

victim in serious fear for his safety that justifies the escalated

5 The government cited a number of other decisions to support this point. The government quoted United States v. Lockley,

(11th Cir. 2011), United States v. Walker,

(2d Cir. 2010), and United States v. Ball,

(1st Cir. 2017), which defines generic robbery as larceny by force or intimidation. The government also quoted another definition of generic robbery -- the "misappropriation of property under circumstances involving [immediate] danger to the person.” United States v. Santiesteban-Hernandez,

(5th Cir. 2006) (alteration in original) (quoting 2 Wayne R. LaFave, Substantive Criminal Law § 20.3 intro., (d)(2) (2d ed. 2003)), abrogated on other grounds by United States v. Rodriguez,

(5th Cir. 2013). 6 Rabb cites precedent to the same effect. See, e.g., United States v. Becerril-Lopez,

(9th Cir. 2008) (defining generic robbery as "aggravated larceny, containing at least the elements of misappropriation of property under circumstances involving immediate danger to the person" (quoting Santiesteban-Hernandez,

)); United States v. Mulkern, No. 1:15-cr-00054-JAW,

, at *13 (D. Me. Nov. 20, 2017) (defining generic robbery as a taking "by violence, intimidation, or by threatening the imminent use of force").

- 11 - penalties of the robbery offense."). The government does not

explain how a snatching that occurs in such a sudden manner as to

merely make the victim "aware" of the perpetrator's presence

constitutes the type of conduct that suffices to engender serious

fear for safety in the victim or to place the victim in immediate

danger. Indeed, substantial authority indicates that generic

robbery does not encompass conduct of that kind. See, e.g., 3

Wayne R. LaFave, Substantive Criminal Law § 20.3(d)(1) (3d ed.)

("The great weight of authority, however, supports the view that

there is not sufficient force to constitute robbery when the thief

snatches property from the owner's grasp so suddenly that the owner

cannot offer any resistance to the taking.").

Moreover, the government appears to have accepted as

much in the course of responding to Rabb's invocation at sentencing

of United States v. Fluker,

(4th Cir. 2018), in which

the Fourth Circuit held that Georgia robbery was construed "more

broadly than generic robbery" because it included "sudden

snatching[s]," which only require the force "necessary for the

robber to transfer the property taken from the owner to his

possession."

. The government contended in response

that Fluker was distinguishable from Rabb's case precisely because

the offense of conviction under the Georgia robbery statute at

issue in Fluker could be committed "by sudden snatching, so there

wasn't any force involved in their statute by definition," thereby

- 12 - rendering the Georgia robbery statute "broader than generic

robbery."7

The Supreme Court's recent decision in Stokeling v.

United States,

(2019), also points against the

government's position. There, in the course of holding that a

state robbery offense that requires the defendant to overcome the

victim's resistance qualifies as a predicate violent felony under

the ACCA's elements clause, the Court explained that

"Congress . . . defined robbery as requiring the use of 'force or

violence' -- a clear reference to the common law of robbery. And

the level of 'force' or 'violence' needed at common law was by

this time well established: 'Sufficient force must be used to

overcome resistance.'"

(internal citations omitted).

The Stokeling Court then looked to the states' definitions of

robbery and found that "[i]n 1986, a significant majority of the

States defined nonaggravated robbery as requiring force that

overcomes a victim's resistance."

. There is no

indication that a robbery of that kind includes one committed in

7Even New York, as of 2015, appears to require more force for a robbery conviction than the de minimis amount needed to effectuate a purse snatching. See People v. Jurgins,

(N.Y. 2015) (noting that "the parties agree that a taking 'by sudden or stealthy seizure or snatching' would not be considered a robbery or other felony in New York").

- 13 - a way that need merely make the victim aware of the perpetrator's

presence.

The government at oral argument contended for the first

time that "robbery" in the enumerated offenses clause must be

construed to encompass even the kind of sudden purse snatchings

described in Steed for a different reason. The government

contended that "robbery" must be construed that way because, if

the level of force required by "robbery" under the enumerated

offenses clause is the same as that required by the force clause,

then the listing of the enumerated offense of "robbery" would not

be adding any additional type of crime to the definition of a

"crime of violence" in the Guidelines and so would be superfluous.

The government identifies no authority, however, that

indicates that an offense that a state labels "robbery" qualifies

as a "robbery" under the enumerated offenses clause without regard

to how much of an outlier such an expansive definition of "robbery"

turns out to be. Yet, the logic of this late-breaking argument by

the government would appear to require that even such an outlier

definition of "robbery" would qualify. In any event, the

government has waived this argument both by raising it only at

this late juncture, see United States v. DeMasi,

,

1320 n.14 (1st Cir. 1994), and by failing adequately to develop

it, see United States v. Zannino,

(1st Cir. 1990).

- 14 - III. Accordingly, we vacate the sentence and remand for

resentencing consistent with this opinion.

- 15 -