15‐1518‐cr United States v. Jones

In the United States Court of Appeals For the Second Circuit ________

AUGUST TERM, 2015

ARGUED: APRIL 27, 2016 DECIDED: JULY 21, 2016

No. 15‐1518‐cr

UNITED STATES OF AMERICA, Appellee,

v.

COREY JONES, Defendant‐Appellant. ________

Appeal from the United States District Court for the Eastern District of New York. No. 13 Cr. 00438 – Nicholas G. Garaufis, Judge. ________

Before: WALKER, CALABRESI, and HALL, Circuit Judges. ________

Defendant Corey Jones appeals from a sentence entered in the

United States District Court for the Eastern District of New York

(Garaufis, J.) following a jury trial convicting him of assaulting a 2 15‐1518‐cr

federal officer in violation of

. He was sentenced as a

career offender principally to 180 months in prison to be followed by

three years of supervised release. He argues on appeal that, in light

of the Supreme Court’s holding in Johnson v. United States,

(2010), New York robbery is no longer necessarily a “crime of

violence” within the meaning of U.S.S.G. §§ 4B1.1(a) and 4B1.2(a)

and that the district court therefore erred in concluding that his prior

conviction for first‐degree robbery could automatically serve as one

of the predicate offenses for a career offender designation. He also

argues that his sentence is substantively unreasonable. We conclude

that, after Johnson, a conviction for first‐degree robbery in New York

is not in every instance a conviction for a “crime of violence” and

therefore VACATE his sentence and REMAND for resentencing.

________

MARGARET LEE, Assistant United States Attorney (Amy Busa, Assistant United States Attorney, on the brief), for Robert L. Capers, United States Attorney for the Eastern District of New York, for Appellee.

MATTHEW B. LARSEN, Assistant Federal Defender, Federal Public Defenders of New York, for Defendant‐Appellant.

________

3 15‐1518‐cr

JOHN M. WALKER, JR., Circuit Judge:

Defendant Corey Jones appeals from a sentence entered in the

United States District Court for the Eastern District of New York

(Garaufis, J.) following a jury trial convicting him of assaulting a

federal officer in violation of

. He was sentenced as a

career offender principally to 180 months in prison to be followed by

three years of supervised release. He argues on appeal that, in light

of the Supreme Court’s holding in Johnson v. United States,

(2010), New York robbery is no longer necessarily a “crime of

violence” within the meaning of U.S.S.G. §§ 4B1.1(a) and 4B1.2(a)

and that the district court therefore erred in concluding that his prior

conviction for first‐degree robbery could automatically serve as one

of the predicate offenses for a career offender designation. He also

argues that his sentence is substantively unreasonable. We conclude

that, after Johnson, a conviction for first‐degree robbery in New York

is not in every instance a conviction for a “crime of violence” and

therefore VACATE his sentence and REMAND for resentencing.

BACKGROUND

On June 21, 2013, Corey Jones was in a halfway house,

finishing a 92‐month federal sentence for unlawful gun possession.

After Jones allegedly verbally threatened a staff member, two

Deputy U.S. Marshals came to take Jones to prison. Jones resisted

the Marshals’ efforts to take him into custody and, during the 4 15‐1518‐cr

ensuing altercation, Jones bit the finger of one of the Marshals, who

suffered puncture wounds and received antibiotics and a tetanus

vaccine at a hospital.

A jury convicted Jones of assaulting a federal officer in

violation of

. In the pre‐sentence report, the probation

officer calculated an offense level of 15 for the assault. However, the

probation officer determined that Jones was a career offender

pursuant to U.S.S.G §§ 4B1.1(a) and 4B1.2(a) (the “Career Offender

Guideline”) because, in addition to (1) being over 18 years of age

when he had committed the assault and (2) the instant offense being

a crime of violence, (3) he “[had] at least two prior felony

convictions of . . . a crime of violence.” The probation officer

concluded that Jones’s previous convictions in New York for first‐

degree robbery and second‐degree assault satisfied the third element

of the test. As a result of the career offender designation, the

probation officer increased the offense level to 32, which, combined

with Jones’s criminal history category of VI, resulted in a Guidelines

range of 210 to 262 months in prison. Because the statutory

maximum for assault is 20 years, the probation officer adjusted the

top of the range down to 240 months.

The district court adopted the findings contained in the pre‐

sentence report and sentenced Jones to 180 months in prison to be

followed by three years of supervised release. 5 15‐1518‐cr

Jones now appeals his sentence, arguing first that the district

court erred in sentencing him as a career offender and second that

his sentence was substantively unreasonable.

DISCUSSION

We must resolve the question of whether a first‐degree

robbery conviction in New York is necessarily a conviction for a

“crime of violence” such that it will always be a predicate offense for

a sentencing enhancement under the Career Offender Guideline. At

first glance the answer to this question might appear to be a

straightforward “yes,” as we held in United States v. Spencer,

(2d Cir. 1992). However, Jones argues that our holding in

Spencer cannot survive the Supreme Court’s analysis in Johnson v.

United States,

(2010). We conclude that he is correct.

The Supreme Court’s analysis in Johnson compels us to overrule our

holding in Spencer and to hold that a first‐degree robbery conviction

in New York is no longer necessarily a conviction for a “crime of

violence” as that term is used in the Career Offender Guideline.

Because Jones did not raise his argument about Johnson’s

applicability to New York’s first‐degree robbery statute before the

district court, we review for plain error. United States v. Gamez,

(2d Cir. 2009) (per curiam). To meet this standard,

Jones must establish the existence of (1) an error; (2) “that is plain”;

(3) “that affects substantial rights”; (4) and that “seriously affects the 6 15‐1518‐cr

fairness, integrity or public reputation of judicial proceedings.”

(internal quotation marks and alterations omitted). We apply this

standard less “stringently in the sentencing context, where the cost

of correcting an unpreserved error is not as great as in the trial

context.”

We first turn to whether the district court committed

error before addressing the remaining plain error requirements.

I. The Legal Provisions at Issue in this Appeal

This appeal involves the interplay between three legal

provisions: the Armed Career Criminal Act (“ACCA”), the Career

Offender Guideline, and New York’s robbery statute. We must

determine whether first‐degree robbery in New York, defined in

New York Penal Law §§ 160.00 and 160.15, is necessarily a “crime of

violence” under the Career Offender Guideline. To do so, we must

address the relationship between the term “crime of violence” in the

Guideline and the term “violent felony” in the ACCA, as explicated

in Johnson.

The ACCA requires sentencing judges to impose a sentence of

at least 15 years’ imprisonment on offenders who are convicted of

illegally possessing a firearm or ammunition and who have “three

previous convictions . . . for a violent felony or a serious drug

offense.”

(e)(1). The ACCA defines “violent felony”

as a felony “that has as an element the use, attempted use, or 7 15‐1518‐cr

threatened use of physical force against the person of another.”

§

924(e)(2)(B)(i).

The Career Offender Guideline enhances sentences for

defendants who are career offenders. U.S.S.G §§ 4B1.1(a). A

defendant is a career offender if (1) he is “at least eighteen years old

at the time [he] committed the instant offense of conviction”; (2) his

“instant offense of conviction is a felony that is . . . a crime of

violence”; and (3) he “has at least two prior felony convictions of . . .

a crime of violence.” U.S.S.G §§ 4B1.1(a). In defining “crime of

violence,” U.S.S.G. § 4B1.2(a)(1) uses language identical to that in the

ACCA’s definition of “violent felony.” A crime of violence is a

felony “that 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(a)(1).

A defendant commits robbery in New York when he “forcibly

steals property,” which the statute defines as “a larceny” involving

the use or threatened “immediate use of physical force upon another

person.”1

. The various degrees of robbery,

That statute provides, “Robbery is forcible stealing. A person forcibly 1

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 8 15‐1518‐cr

which carry differing penalties, turn on the presence or absence of

particular aggravating factors. Compare

§ 160.05 (defining third‐

degree robbery), with id. § 160.10 (defining second‐degree robbery),

and with id. § 160.15 (defining first‐degree robbery). A defendant

commits first‐degree robbery in New York when he commits

robbery and during the course of the crime or his immediate flight

either “(1) [c]auses serious physical injury to any other person who

is not a participant in the crime; or (2) [i]s armed with a deadly

weapon; or (3) [u]ses or threatens the immediate use of a dangerous

instrument; or (4) [d]isplays what appears to be a . . . firearm.” Id. §

160.15.

II. The Interpretation of “Violent Felony” under the ACCA in Johnson In Johnson, the Supreme Court held that “the Florida felony

offense of battery by actually and intentionally touching another

person” does not have “as an element the use of physical force

against the person of another,” and thus does not “constitute[] a

‘violent felony’ under the [ACCA].”

(internal

quotation marks and alterations omitted). The Court reached this

conclusion after considering the ordinary definition of “force,”

which “suggest[s] a degree of power that would not be satisfied by

the merest touching,” and its common law definition, which

to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

. 9 15‐1518‐cr

encompasses “even the slightest offensive touching.”

. The

Court determined that the term’s ordinary meaning made more

sense in the context of the definition of a “violent felony” because

“by itself, the word ‘violent’ . . . connotes a substantial degree of

force . . . [but] [w]hen the adjective ‘violent’ is attached to the noun

‘felony,’ its connotation of strong physical force is even clearer.”

. Therefore, “in the context of a statutory definition of ‘violent

felony,’ the phrase ‘physical force’ means violent force—that is, force

capable of causing physical pain or injury to another.”

(emphasis

in original). Correspondingly, force that is not “capable of causing

physical pain or injury to another,”

i.e. less‐than‐“violent,”

cannot qualify a crime as a violent felony for use as an ACCA

predicate.

In Johnson the Supreme Court interpreted the ACCA’s use of

“violent felony,” whereas here we are called on to interpret the

Career Offender Guideline’s use of “crime of violence.” However,

we have previously applied the Supreme Court’s analysis in Johnson

to determine what constitutes a “crime of violence” within the

meaning of the Career Offender Guideline, United States v. Reyes,

, 458 n.1 (2d Cir. 2012) (per curiam), and for good reason.

Because of “the substantial similarity between the ACCA’s

definition of ‘violent felony’ and the [Career Offender] Guidelines’

definition of ‘crime of violence,’ authority interpreting one phrase 10 15‐1518‐cr

frequently is found to be persuasive in interpreting the other

phrase.” United States v. Walker,

, 443 n.1 (2d Cir. 2010)

(internal quotation marks and alterations omitted). We see no

reason to depart from our previous approach and we therefore

apply Johnson’s analysis of “violent felony” to the Career Offender

Guideline’s use of “crime of violence.”

III. The Categorical and Modified Categorical Approaches

The Supreme Court has recognized two approaches to

determining whether a state crime qualifies as a predicate crime

under the ACCA: the categorical approach and the modified

categorical approach. Descamps v. United States,

(2013). The categorical approach is confined to an examination of

the text of the state’s criminal prohibition to determine whether it is

identical to or narrower than the generic crime under the ACCA.

If so, a conviction under the state statute qualifies as an ACCA

predicate.

The modified categorical approach permits a court to

“look[] to a limited class of documents (for example, the indictment,

jury instructions, or plea agreement and colloquy) to determine

what crime, with what elements, a defendant was convicted of.”

Mathis v. United States,

(2016).

The Supreme Court has made clear in Descamps and Mathis

that the modified categorical approach is only available in a very

limited circumstance to achieve a very limited purpose. Where the 11 15‐1518‐cr

state statute is divisible—i.e. it proscribes multiple crimes with

different elements—the modified categorical approach can be

employed to determine which crime pertains to the defendant’s

actual conduct. Mathis,

. Once that determination

is made, the purpose of the modified categorical approach is at an

end.

The court must then use the categorical approach to

determine whether the statutory elements of the crime of conviction

so determined are equal to or narrower than the ACCA generic

crime.

If the statutory elements permit a conviction for a crime

that is not within the scope of the ACCA generic crime then it

cannot be used as an ACCA predicate and that is true even if the

modified categorical approach would demonstrate that in fact the

actual conduct of the defendant was fully consistent with the generic

crime.

.

When analyzing statutes using the categorical approach, we

focus on the elements of the crime of conviction and not the facts

underlying the crime for two reasons. First, the text of the Career

Offender Guideline, like the text of the ACCA, explicitly refers to

convictions and not conduct.

. The Career Offender

Guideline directs the sentencing court to consider whether the

offender “has at least two prior felony convictions of . . . a crime of

violence,” U.S.S.G §§ 4B1.1(a), which indicates that “the sentencer

should ask only about whether the defendant had been convicted of 12 15‐1518‐cr

crimes falling within certain categories, and not about what the

defendant had actually done.” See Mathis,

(internal

quotation marks omitted).

Second, a focus on the elements of the crime of conviction,

rather than the facts of what the defendant did “avoids unfairness to

defendants.” See

. “Statements of ‘non‐elemental fact’ in

the records of prior convictions are prone to error precisely because

their proof is unnecessary,” see

so defendants may have little

incentive to ensure the correctness of records of earlier convictions

that could later trigger the career offender enhancement.

Whether we apply the categorical or modified categorical

approach to a state statute depends on whether the statute is

indivisible or divisible. See Flores v. Holder,

(2d Cir.

2015). A statute is indivisible if it “sets out a single . . . set of

elements to define a single crime,” while a statute is divisible if it

“list[s] elements in the alternative, and thereby define[s] multiple

crimes.” Mathis,

.

New York’s first‐degree robbery statute is divisible, and thus

eligible for the modified categorical approach, because it lists four

categories of first‐degree robbery: “forcibly stea[ling] property”

while either “(1) [causing] serious physical injury to any person who

is not a participant in the crime; or (2) [armed] with a deadly

weapon; or (3) [using or threatening] the immediate use of a 13 15‐1518‐cr

dangerous instrument; or (4) [displaying] what appears to be a . . .

firearm.”

; see Flores,

(analyzing the divisibility of New York’s first‐degree sexual abuse

statute).

In this case, however, we are unable to employ the modified

categorical approach to determine which of the four subparts of the

statute provided the basis for Jones’s first‐degree robbery conviction

because the facts underlying his conviction are not in the record

before us. Where this occurs we must determine whether “the least

of [the] acts” described in the first‐degree robbery statute can serve

as a predicate offense for the career offender enhancement. See

Johnson,

. If so, then Jones’s first‐degree robbery

conviction can serve as a predicate offense for the enhancement,

regardless of which subpart provided the basis for his conviction. If

not, then his conviction cannot serve as a predicate offense unless

the district court later determines under the modified categorical

approach, with the benefit of further evidence and argument, that

Jones was convicted under a subpart of the first‐degree robbery

statute that constitutes a violent felony.

Jones identifies the act of “forcibly stealing property” while

“armed with a deadly weapon” as being the “least of [the] acts” in

the statute, and we agree.

(2). Therefore,

the question we must answer in this appeal is whether a defendant 14 15‐1518‐cr

who “forcibly steals property” while “armed with a deadly weapon”

necessarily commits a “crime of violence” within the meaning of the

Career Offender Guideline. See Johnson,

.

IV. Applying Johnson to New York’s First‐Degree Robbery Statute

In applying Johnson’s definition of physical force to New York

Penal Law § 160.15(2), we would normally be bound by how the

New York Court of Appeals has interpreted § 160.00 and § 160.15.

See Johnson,

. If the New York Court of Appeals has

not ruled on a particular question, however, “the decisions of [New

York Stateʹs Appellate Division] are helpful indicators” for

ascertaining how the Court would rule, and we cannot disregard

such decisions “unless [we are] convinced by other persuasive data

that the [New York Court of Appeals] would decide otherwise.”

Michalski v. Home Depot, Inc.,

(2d Cir. 2000).

The New York Court of Appeals has not ruled on whether the

force supporting a robbery conviction can be less than violent.

Decisions of the lower courts, however, have made clear that

“forcible stealing” alone does not necessarily involve the use of

“violent force.” Appellate Division decisions have held that the

requisite force can be established by “evidence that [the defendant]

and three others formed a human wall that blocked the victim’s path

as the victim attempted to pursue someone who had picked his

pocket, allowing the robber to get away,” People v. Bennett, 219 15 15‐1518‐cr

A.D.2d 570, 570,

(N.Y. App. Div. 1st Dep’t

1995); evidence that the “defendant bumped his unidentified victim,

took money, and fled while another forcibly blocked the victimʹs

pursuit,” People v. Lee,

,

(N.Y. App. Div. 1st Dep’t 1993); or evidence that “the store clerk

grabbed the hand in which defendant was holding the money and

the two tugged at each other until defendant’s hand slipped out of

the glove holding the money,” People v. Safon,

,

(N.Y. App. Div. 4th Dep’t 1990).

It is immaterial that the defendants in Bennett, Lee, and Safon

were convicted of second‐ and third‐degree robbery rather than

first‐degree robbery. In New York, all degrees of robbery involve

“forcible stealing” and are distinguished by the presence of other

aggravating factors. Compare

(describing

the force required for robbery in general), with

§ 160.15 (listing

the elements that make forcible stealing first‐degree robbery).

Because Appellate Division decisions have interpreted

“forcible stealing,” id., so that it does not always involve “force

capable of causing physical pain or injury to another,” Johnson,

, and because we have no “persuasive data that the [New

York Court of Appeals] would decide otherwise,” Michalski,

, we are compelled to conclude in the wake of Johnson that a

New York robbery conviction involving forcible stealing, absent 16 15‐1518‐cr

other aggravating factors, is no longer necessarily a conviction for a

“crime of violence” within the meaning of the Career Offender

Guideline.

The question remains whether the less‐than‐violent force that

is required for “forcible stealing” inevitably becomes “violent force”

within the meaning of Johnson when the perpetrator is “armed with

a deadly weapon” as specified in New York Penal Law § 160.15(2).

The New York Court of Appeals, whose interpretations of state

statutes bind us, see Johnson,

, has stated that a

defendant can be convicted under Subsection Two based simply on

his possession of a deadly weapon during the robbery, even if he

never brandishes, uses, or threatens to use such a weapon, see People

v. Pena,

, 407 n.2,

(1980). We must

therefore decide whether a robber’s use of less‐than‐violent force

while carrying on his person but not using or threatening the use of

a deadly weapon constitutes “force capable of causing physical pain

or injury to another.” Johnson,

.

The presence of a deadly weapon on the person of a robber

does increase the likelihood that the robber will seriously injure the

victim or a third party during or after the crime, but Johnson directs

our inquiry not to the risk of injury but to the nature of the force

employed. See

(“[T]he phrase ‘physical force’ means violent

force—that is, force capable of causing physical pain or injury to 17 15‐1518‐cr

another person.” (emphasis omitted)). The Career Offender

Guideline’s residual clause, which defines “crime of violence” as a

crime involving “conduct that presents a serious potential risk of

physical injury to another,” U.S.S.G. § 4B1.2(a)(2), focuses on the risk

of harm created by a defendant’s conduct, but this clause is likely

void for vagueness in light of the Supreme Court’s analysis of the

ACCA’s identical phrase in Johnson v. United States,

(2015) (“Johnson 2015”).2 See United States v. Welch, No. 12‐4402‐CR

(L),

, at *4 (2d Cir. Feb. 11, 2016) (summary order);

see also Beckles v. United States, No. 15‐8544,

(U.S. June 27, 2016) (granting certiorari to resolve the question of

whether Johnson 2015 applies to the Career Offender Guideline’s

residual clause). If we were to hold that a robbery committed by a

robber who uses less‐than‐violent force while carrying a deadly

weapon on his person—but not displaying, using or threatening the

use of that weapon— constitutes a “crime of violence” based on the

elevated likelihood that the robber would injure someone else, we

would be ignoring the victim‐centric inquiry required by Johnson,

Since Johnson 2015, moreover, the Sentencing Commission has 22

amended the Career Offender Guidelines, effective August 1, 2016, to remove the residual clause from the “crime of violence” definition. See U.S. Sentencing Comm’n, Amendments to the Sentencing Guidelines 1‐3 (Jan. 21, 2016), http://www.ussc.gov/sites/default/files/pdf/amendment‐ process/official‐text‐amendments/20160121_Amendments_0.pdf. 18 15‐1518‐cr

, and employing the risk‐centric inquiry that the

Supreme Court rejected in Johnson 2015,

When we conduct the inquiry Johnson,

,

requires, we cannot conclude that the presence of a gun that a robber

does not display, use, or threaten to use during a robbery has any

effect on the nature of the force that the robber exerts on his victim.

Put another way, a robber’s possession of a concealed and

unmentioned weapon while he commits a robbery can support a

first‐degree robbery conviction under § 160.15(2) but such

possession cannot turn what is otherwise less‐than‐violent force into

violent force. It is therefore possible to commit first‐degree robbery

in New York in a way that does not fall within the Career Offender

Guideline’s definition of “crime of violence.”

The government’s arguments to the contrary do not persuade

us. The cases it cites from our Circuit, in which we affirmed that

robbery in New York is a crime of violence, either predate Johnson

and are thus irrelevant to the question on appeal or are summary

orders that do not engage with the applicability of Johnson to New

York’s first‐degree robbery statute. The government’s recounting of

the state of the law in other circuits is unavailing. Two of the cases,

United States v. Johnson,

(11th Cir. 2015) (per

curiam), petition for cert. filed, No. 15‐8448 (U.S. Mar. 8, 2016), and

United States v. Dobbin,

(3d Cir. 2015), cert. 19 15‐1518‐cr

denied, No. 15‐9101,

(May 31, 2016), do not address

the effect of Johnson at all. The other cases involve state statutes that

are materially distinguishable from New York’s first‐degree robbery

statute and are thus of limited relevance to our analysis.

In sum, we hold that, because a defendant can be convicted of

first‐degree robbery under New York Penal Law § 160.15(2) without

necessarily using violent force, a first‐degree robbery conviction

obtained pursuant to this subsection cannot serve as a predicate

conviction for a career offender enhancement. We must conclude

therefore that the district court erred in sentencing Jones as a career

offender based on his prior conviction for first‐degree robbery

without determining under the modified categorical approach

which subsection of § 160.15 provided the basis for his conviction.

V. The Remaining Elements of Plain Error Review

To obtain resentencing under a plain error standard of review,

Jones must demonstrate that the district judge’s error in sentencing

him as a career offender based on his first‐degree robbery conviction

“is plain[,] . . . affects [his] substantial rights[, and] seriously affects

the fairness, integrity, or public reputation of judicial proceedings.”

Gamez,

.

We turn to the question of whether the district court’s error

was plain when it enhanced Jones’s sentence as a career criminal

under the Career Offender Guideline. In Reyes, we applied Johnson’s 20 15‐1518‐cr

analysis to conclude that the Florida offense of battery of a law

enforcement officer was not necessarily a “crime of violence” as that

term is used in the Career Offender Guideline.

While Reyes

analyzed the similarity of the Florida statute at issue in that case to

the Florida statute at issue in Johnson, Reyes also established that

Johnson’s definition of “physical force” in the ACCA applies to the

determination of what constitutes a “crime of violence” within the

meaning of the Career Offender Guideline. See Reyes, 691 F.3d at

458‐60. Because Reyes is binding precedent and makes clear that

Johnson’s definition of “violent felony” is relevant to a determination

of what constitutes a “crime of violence” under the Career Offender

Guideline, any error that results from failing to apply Johnson to the

Career Offender Guideline’s definition of “crime of violence” is

plain.

The final two elements of the plain error test are

straightforward. Jones’s classification as a career offender raised his

Guidelines sentencing range from between 37 and 46 months to

between 210 and 240 months. This is sufficient to establish that the

error both “affected his substantial rights” and “seriously affected

the fairness and integrity of the judicial proceedings.” See Reyes,

(“The district courtʹs error in sentencing [the defendant]

as a career offender . . . affected his substantial rights because it

resulted in an elevated offense level under the Guidelines.”); Gamez, 21 15‐1518‐cr

(“[E]rror resulting in a significantly overstated

advisory Guidelines range seriously affected the fairness and

integrity of the proceedings.”). Jones therefore has satisfied the

elements of the plain error review and we must remand for

resentencing.

VI. The Proceedings on Remand

We hold here that using the categorical approach a first‐

degree robbery conviction for “forcible stealing” by a defendant

“armed with a deadly weapon,” § 160.15(2), cannot serve as a

predicate conviction for a career offender enhancement pursuant to

the Career Offender Guideline because it is possible that a

conviction under that particular subsection would be for conduct

that did not rise to the level of violent force required by Johnson.

Our holding does not apply to the other subdivisions of § 160.15.

Therefore, on remand, if the government can demonstrate under the

modified categorical approach, see Descamps, 133 S. Ct. at 2284‐85,

that Jones was convicted of first‐degree robbery under § 160.15(1),

(3), or (4), and the court finds that a conviction under the relevant

subsection is a conviction for a crime of violence within the meaning

of the Career Offender Guideline, Jones may still be sentenced as a

career offender based on his first‐degree robbery conviction. 22 15‐1518‐cr

VII. The Substantive Reasonableness of Jones’s Sentence

Because we hold that the district court plainly erred in

sentencing Jones as a career offender based on its conclusion that a

conviction for first‐degree robbery is necessarily a conviction for a

“crime of violence” within the Career Offender Guideline and

remand for resentencing on that basis, we need not address Jones’s

argument that his sentence was substantively unreasonable.

CONCLUSION

For the reasons stated above, we VACATE the sentence of the

district court and REMAND for resentencing in accordance with this

opinion.