15‐1518‐cr United States v. Jones

1

2 In the 3 United States Court of Appeals 4 For the Second Circuit 5 ________ 6 7 AUGUST TERM, 2015 8 9 ARGUED: APRIL 27, 2016 10 DECIDED: SEPTEMBER 11, 2017 11 AMENDED: OCTOBER 5, 2017 12 13 No. 15‐1518‐cr 14 15 UNITED STATES OF AMERICA, 16 Appellee, 17 18 v. 19 20 COREY JONES, 21 Defendant‐Appellant. 22 ________ 23 24 Appeal from the United States District Court 25 for the Eastern District of New York. 26 No. 13 Cr. 00438 – Nicholas G. Garaufis, District Judge. 27 ________ 28 29 Before: WALKER, CALABRESI, and HALL, Circuit Judges. 30 ________ 31 32 Defendant Corey Jones appeals from a sentence entered in the

33 United States District Court for the Eastern District of New York 2 15‐1518‐cr

1 (Garaufis, J.) following a jury‐trial conviction for assaulting a federal

2 officer in violation of

. He was sentenced as a career

3 offender principally to 180 months in prison to be followed by three

4 years of supervised release. The primary basis for Jones’ appeal is

5 that, in light of the Supreme Court’s holding in Johnson v. United

6 States,

(2010) (Johnson I), New York first‐degree robbery

7 is no longer categorically a crime of violence under the force clause

8 of the Career Offender Guideline, U.S.S.G. §§ 4B1.1 and 4B1.2, and

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

10 conviction for first‐degree robbery would automatically serve as one

11 of the predicate offenses for a career offender designation.

12 After oral argument in this matter, the Supreme Court

13 decided Beckles v. United States,

(2017), which held that

14 the residual clause of the Career Offender Guideline—a second basis

15 for finding a crime of violence—was not unconstitutional. The Court

16 reached this conclusion notwithstanding the government’s

17 concession to the contrary in cases around the country that the

18 residual clause, like the identically worded provision of the Armed

19 Career Criminal Act (“ACCA”), was void for vagueness. In light of

20 Beckles, we find that New York first‐degree robbery categorically

21 qualifies as a crime of violence under the residual clause and

22 therefore need not address Jones’ argument based on the force

23 clause. We also find that his sentence is substantively reasonable and 3 15‐1518‐cr

1 therefore AFFIRM the sentence imposed by the district court and

2 REMAND for further consideration as may be just under the

3 circumstances.

4 Judge CALABRESI and Judge HALL concur in the opinion of the

5 Court. Judge CALABRESI files a separate concurring opinion, which

6 Judge HALL joins.

7 ________

8 BRIDGET M. ROHDE, Acting Assistant United 9 States Attorney (Amy Busa, Assistant United 10 States Attorney, on the brief), for Acting United 11 States Attorney for the Eastern District of New 12 York, for Appellee. 13 MATTHEW B. LARSEN, Assistant Federal Defender, 14 Federal Public Defenders of New York, New 15 York, NY, for Defendant‐Appellant. 16 ________

17 JOHN M. WALKER, JR., Circuit Judge:

18 Defendant Corey Jones appeals from a sentence entered in the

19 United States District Court for the Eastern District of New York

20 (Garaufis, J.) following a jury trial conviction for assaulting a federal

21 officer in violation of

. He was sentenced as a career

22 offender principally to 180 months in prison to be followed by three

23 years of supervised release. The primary basis for Jones’ appeal is

24 that, in light of the Supreme Court’s holding in Johnson v. United

25 States,

(2010) (Johnson I), New York first‐degree robbery

26 is no longer categorically a crime of violence under the force clause 4 15‐1518‐cr

1 of the Career Offender Guideline, U.S.S.G. §§ 4B1.1 and 4B1.2, and

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

3 conviction for first‐degree robbery would automatically serve as one

4 of the predicate offenses for a career offender designation.

5 After oral argument in this matter, the Supreme Court

6 decided Beckles v. United States,

(2017), which held that

7 the residual clause of the Career Offender Guideline—a second basis

8 for finding a crime of violence—was not unconstitutional. The Court

9 reached this conclusion notwithstanding the government’s

10 concession to the contrary in cases around the country that the

11 residual clause, like the identically worded provision of the Armed

12 Career Criminal Act (“ACCA”), was void for vagueness. In light of

13 Beckles, we find that New York first‐degree robbery categorically

14 qualifies as a crime of violence under the residual clause and

15 therefore need not address Jones’ argument based on the force

16 clause. We also find that his sentence is substantively reasonable and

17 therefore AFFIRM the sentence imposed by the district court and

18 REMAND for further consideration as may be just under the

19 circumstances.

20 Judge CALABRESI and Judge HALL concur in the opinion of the

21 Court. Judge CALABRESI files a separate concurring opinion, which

22 Judge HALL joins. 5 15‐1518‐cr

1 BACKGROUND

2 On June 21, 2013, Corey Jones was finishing a ninety‐two

3 month federal sentence for unlawful gun possession in a halfway

4 house. Jones verbally threatened a staff member, a violation of the

5 rules of the halfway house, and thereby was remanded to the

6 custody of the Bureau of Prisons. Two Deputy U.S. Marshals arrived

7 to take Jones to prison, but Jones resisted the Marshals’ efforts to

8 take him into custody. During the ensuing altercation, Jones bit the

9 finger of one of the Marshals, who suffered puncture wounds,

10 necessitating antibiotics and a tetanus vaccine at a hospital. This

11 assault, it turned out, had grave consequences for Jones who was

12 now in all likelihood a “career offender” subject to a greatly

13 enhanced sentence.

14 A jury convicted Jones of assaulting a federal officer in

15 violation of

. In the pre‐sentence report, the probation

16 officer calculated a relatively modest base offense level of fifteen for

17 the assault. But the probation officer then determined that Jones was

18 a career offender pursuant to the Career Offender Guideline

19 because, in addition to (1) being over eighteen years of age when he

20 committed the assault and (2) the assault being a crime of violence,

21 (3) he had at least two prior felony convictions of a crime of violence.

22 According to the report, Jones’ previous two convictions in New

23 York for first‐degree robbery and second‐degree assault satisfied the 6 15‐1518‐cr

1 third element of the test. The probation officer, following U.S.S.G.

2 § 4B1.1, increased the offense level to thirty‐two, which, when

3 combined with Jones’ criminal history category of VI, resulted in a

4 Guidelines range of 210 to 262 months of incarceration. Because the

5 statutory maximum for assault is twenty years, the effective

6 Guidelines range was 210 to 240 months.

7 The district court adopted the findings of the pre‐sentence

8 report and sentenced Jones to 180 months, or fifteen years, in prison

9 for the assault, to be followed by three years of supervised release.

10 Jones now appeals his sentence, arguing, first, that the district court

11 erred in designating him a career offender and, second, that his

12 sentence is substantively unreasonable.

13 After oral argument, we published an opinion that resolved

14 Jones’ appeal in his favor. The government had conceded that the

15 residual clause was void for vagueness, and we concluded that the

16 force clause could not be applied to Jones for reasons not relevant

17 here. Shortly after our decision was issued, however, we vacated the

18 opinion in order to await the Supreme Court’s decision in Beckles.

19 See United States v. Jones,

(2d Cir. 2016) (mem.).

20 Beckles addressed the constitutionality of the Career Offender

21 Guideline’s residual clause, which was in effect at the time of Jones’

22 sentencing but has since been removed and replaced with new 7 15‐1518‐cr

1 language.1 Following Johnson v. United States,

, 2557

2 (2015) (Johnson II), which held that the residual clause of the ACCA

3 was unconstitutionally void for vagueness, there existed a general

4 belief that the identically worded residual clause of the Career

5 Offender Guideline was similarly unconstitutional, as the

6 government had consistently maintained. In Beckles, however, the

7 Court held that the residual clause of the Career Offender Guideline

8 is immune from void‐for‐vagueness challenges, as are the

9 Guidelines generally. Beckles,

. After Beckles, we

10 invited the parties in this case to provide supplemental briefing as to

11 whether first‐degree robbery, as defined in New York, categorically

12 qualifies as a crime of violence under the previously codified

13 residual clause of the Career Offender Guideline.2 We now address

14 that question.

1 After Johnson v. United States,

(2015) (Johnson II), the Sentencing Commission amended the Guidelines, effective August 1, 2016, to remove the residual clause. The Sentencing Commission noted disagreements among courts of appeals regarding whether the clause was unconstitutionally vague in light of Johnson II and whether the Guidelines were susceptible to a vagueness challenge. U.S. Sentencing Comm’n, Amendments to the Sentencing Guidelines 4–5 (Jan. 21, 2016), https://www.ussc.gov/sites/default/files/pdf/amendment‐process/official‐text‐ amendments/20160121_Amendments_0.pdf. The Commission, without taking a position on the constitutionality of the residual clause, “determined that the residual clause . . . implicates many of the same concerns cited by the Supreme Court in [Johnson II]” and removed it “as a matter of policy.” Id. at 5. The Commission suggested that the amendment would alleviate application difficulties associated with the clause and some of the ongoing litigation and uncertainty resulting from Johnson II. Id. The alternative basis for the career offender enhancement—the commission of a 2

“controlled substance offense”—is not relevant here. See U.S.S.G. § 4B1.1(a). 8 15‐1518‐cr

1 DISCUSSION

2 As noted, prior to Beckles, Jones’ argument centered upon the

3 force clause of the Career Offender Guideline. Aided now by the

4 Supreme Court’s holding that the residual clause of the Career

5 Offender Guideline is not void for vagueness, we find that first‐

6 degree robbery as defined in New York is categorically a crime of

7 violence under the residual clause and thus we need not address

8 Jones’ argument based on the force clause.

9 In the district court, Jones contested his career offender

10 designation solely on the basis that his first‐degree robbery

11 conviction occurred when he was a juvenile. He raised no argument

12 that robbery in New York was not a crime of violence. We

13 accordingly review his present challenge on that ground for plain

14 error. See United States v. Gamez,

(2d Cir. 2009) (per

15 curiam). To meet this standard, Jones must establish the existence of

16 (1) an error; (2) “that is plain”; (3) “that affects substantial rights”; (4)

17 and that “seriously affects the fairness, integrity, or public

18 reputation of judicial proceedings.”

(alterations and citation

19 omitted). We apply this standard less “stringently in the sentencing

20 context, where the cost of correcting an unpreserved error is not as

21 great as in the trial context.”

We first address point (1): whether

22 the district court committed error of any kind in designating Jones a

23 career offender. 9 15‐1518‐cr

1 I. The Legal Provisions at Issue in This Appeal

2 This appeal involves the interplay between substantive state

3 criminal law and the federal Sentencing Guidelines (“Guidelines”).

4 The question we face is straightforward: is first‐degree robbery in

5 New York, defined in New York Penal Law §§ 160.00 and 160.15,

6 however it may be committed, categorically a crime of violence

7 under the Career Offender Guideline?

8 A defendant commits robbery in New York when he “forcibly

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

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

11 person.”

. The various degrees of robbery,

12 which carry different penalties, turn upon the presence of particular

13 aggravating factors. Compare § 160.05 (defining third‐degree

14 robbery), with § 160.10 (defining second‐degree robbery), and with

15 § 160.15 (defining first‐degree robbery). First‐degree robbery occurs

16 when a defendant commits robbery and during the course of the

17 crime or his immediate flight either “(1) [c]auses serious physical

18 injury to any person who is not a participant in the crime; or (2) [i]s

19 armed with a deadly weapon; or (3) [u]ses or threatens the

20 immediate use of a dangerous instrument; or (4) [d]isplays what

21 appears to be a . . . firearm.” § 160.15.

22 The Career Offender Guideline enhances sentences for

23 defendants in federal court who satisfy certain criteria. See U. S. 10 15‐1518‐cr

1 Sentencing Guidelines Manual § 4B1.1(a) (U.S. Sentencing Comm’n

2 Nov. 2014) (U.S.S.G.). A defendant is a career offender if (1) he is “at

3 least eighteen years old at the time [he] committed the instant

4 offense of conviction”; (2) his “instant offense of conviction is a

5 felony that is . . . a crime of violence”; and (3) he “has at least two

6 prior felony convictions of . . . a crime of violence.” Id.

7 At the time of Jones’ sentencing in 2015,3 as mentioned earlier,

8 there were two separate clauses defining “crime of violence.” See

9 § 4B1.2(a). The first definition, the “force clause,” specifies that a

10 crime of violence is a felony “that has as an element the use,

11 attempted use, or threatened use of physical force against the person

12 of another.” § 4B1.2(a)(1). The second clause enumerates several

13 offenses that qualify as crimes of violence—“burglary of a dwelling,

14 arson, [] extortion[, or] involves use of explosives”—before ending

15 with the “residual clause,” which specifies that a crime of violence

16 also includes any offense that “otherwise involves conduct that

17 presents a serious potential risk of physical injury to another.”

18 § 4B1.2(a)(2) (2015).

3 With only one exception not relevant here, district courts are to sentence defendants pursuant to the version of the Guidelines in effect on the date of sentencing. See

(a)(4)(A); see also Beckles,

& n.1. Accordingly, all references to the Guidelines are to the November 2014 version, which was in effect when Jones was sentenced on April 24, 2015. 11 15‐1518‐cr

1 II. The Categorical and Modified Categorical Approaches

2 The Supreme Court has set forth the methodology for

3 determining whether a state conviction qualifies as a predicate

4 offense for a federal sentence enhancement. There are two possible

5 methods: the categorical approach and the modified categorical

6 approach. See Descamps v. United States,

(2013).

7 The categorical approach is confined to an examination of the

8 legal elements of the state criminal statute to determine whether

9 they are identical to or narrower than the relevant federal statute.

10 See

If so, a conviction under the state statute categorically

11 qualifies as a predicate offense. See

However, if the state statute

12 criminalizes any conduct that would not fall within the scope of

13 either the force clause or the residual clause, a conviction under the

14 state statute is not categorically a crime of violence and cannot serve

15 as a predicate offense. See

16 Under the categorical approach we must confine our inquiry

17 to the legal elements of the state statute without at all considering

18 the facts of the underlying crime. The Supreme Court has set forth

19 two reasons for this. First, the text of the Career Offender Guideline,

20 like that of the ACCA, explicitly refers to convictions rather than

21 conduct. See Mathis v. United States,

(2016). The

22 Career Offender Guideline directs the sentencing court to consider

23 whether the offender “has at least two prior felony convictions of . . . 12 15‐1518‐cr

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

2 sentencer should ask only about whether the defendant had been

3 convicted of crimes falling within certain categories, and not about

4 what the defendant had actually done,” Mathis,

5 (internal quotation marks and citation omitted).

6 Second, by focusing upon the legal elements, rather than the

7 facts of the offense, the sentencing court “avoids unfairness to

8 defendants.”

. “Statements of ‘non‐elemental fact’ in the

9 records of prior convictions [such as the precise manner in which the

10 crime was committed] are prone to error precisely because their

11 proof is unnecessary.”

(citation omitted). Defendants therefore

12 may have little incentive to ensure the correctness of those details of

13 earlier convictions that could later trigger the unforeseen career

14 offender enhancement.

15 Occasionally, however, a state statute will criminalize

16 multiple acts in the alternative. Where this occurs, courts may

17 employ what is known as the modified categorical approach. But the

18 Supreme Court has emphasized that the modified categorical

19 approach is available only where the state statute is “divisible” into

20 separate crimes. Descamps, 122 S. Ct. at 2281‐82; see also Flores v.

21 Holder,

, 165‐66 (2d Cir. 2015). A statute is divisible if it

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

23 crimes” but is not divisible if it instead lists “various factual means of 13 15‐1518‐cr

1 committing a single element.” Mathis,

(emphases

2 added).

3 When a statute is divisible, a court employing the modified

4 categorical approach can then peer into the record to see which of

5 the multiple crimes was implicated. But the court may discern this

6 only from “a limited class of documents (for example, the

7 indictment, jury instructions, or plea agreement and colloquy) to

8 determine what crime, with what elements, a defendant was

9 convicted of.”

Once that determination is made, the modified

10 categorical approach is at an end and the court must apply the

11 categorical approach to the legal elements of the appropriate

12 criminal offense.

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

14 therefore subject to the modified categorical approach. New York

15 defines robbery as “forcibly stea[ling] property.”

160.00–.15. There are four categories of first‐degree robbery,

17 depending on whether: the perpetrator “(1) [c]auses serious physical

18 injury to any person who is not a participant in the crime; or (2) [i]s

19 armed with a deadly weapon; or (3) [u]ses or threatens the

20 immediate use of a dangerous instrument; or (4) [d]isplays what

21 appears to be a . . . firearm.” § 160.15; see also Flores,

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

23 statute). 14 15‐1518‐cr

1 In the typical case under the modified categorical approach

2 we would examine certain documents in the record to ascertain

3 which of the four crimes Jones committed. In this instance, however,

4 we are stymied and unable to employ the modified categorical

5 approach because no one has produced the record. Where this

6 occurs, however, we are not at a complete loss. We instead look to

7 “the least of [the] acts” proscribed by the statute to see if it qualifies

8 as a predicate offense for the career offender enhancement. See

9 Johnson I,

. If so, Jones’s first‐degree robbery

10 conviction can serve as a predicate offense for the enhancement

11 regardless of which first‐degree robbery subpart provided the basis

12 for his conviction. See

13 Jones identifies the act of “forcibly stealing property” while

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

15 statute, and we agree. See

(2). The question

16 we must answer, therefore, is whether a defendant who perpetrates

17 such an act commits a crime of violence within the meaning of the

18 residual clause of the Career Offender Guideline.

19 In the opinion we issued and then withdrew, prior to Beckles,

20 we addressed only the force clause. We did not concern ourselves

21 with whether Jones’ first‐degree robbery conviction qualified as a

22 crime of violence under the Career Offender Guideline’s residual

23 clause because, consistent with the government’s concession on that 15 15‐1518‐cr

1 point, we had previously held that the residual clause was

2 unconstitutional in light of Johnson II. See United States v. Welch, 641

, 42‐43 (2d Cir. 2016) (summary order). Now that the

4 Supreme Court has held in Beckles that the Guidelines, regardless of

5 whatever other defects they may have, cannot be void for

6 vagueness,

, we are free to assess whether New York

7 first‐degree robbery categorically qualifies as a crime of violence

8 under the residual clause.

9 III. Whether Jones’ Conviction Qualifies as a Crime of

10 Violence Under the Residual Clause

11 We have little difficulty concluding that the “least of the acts”

12 of first‐degree robbery satisfies the definition of the Guidelines’

13 residual clause. The least of the acts, both sides agree, is “forcibly

14 stealing property” while “armed with a deadly weapon.” The

15 residual clause provides that a crime of violence includes any

16 offense that “ involves conduct that presents a serious potential risk

17 of physical injury to another.” U.S.S.G. § 4B1.2(a)(2). Plainly, a

18 robber who forcibly steals property from a person or from his

19 immediate vicinity, while armed with a deadly weapon, engages in

20 “conduct that presents a serious potential risk of physical injury to

21 another.” See id.

22 If there were any misgiving on this score, it is removed by the

23 commentary provision to the Guidelines in effect at the time of 16 15‐1518‐cr

1 Jones’ sentencing, which specifically enumerated robbery as a crime

2 of violence.4 § 4B1.2 cmt. n.1.

3 Commentary provisions must be given “controlling weight”

4 unless they: (1) conflict with a federal statute, (2) violate the

5 Constitution, or (3) are plainly erroneous or inconsistent with the

6 Guidelines provisions they purport to interpret. Stinson v. United

7 States,

(1993). Jones has not identified any such flaws

8 nor do we discern any. Where the basis for categorizing a prior

9 conviction as a crime of violence is that the offense is specifically

10 enumerated as such in the Career Offender Guideline or its

11 commentary, we undertake the categorical approach by comparing

12 the state statute to the generic definition of the offense. See United

13 States v. Walker,

, 445‐46 (2d Cir. 2010).

14 That there is consensus in the criminal law as to what

15 constitutes robbery thus further convinces us that the least of the

16 acts constituting New York first‐degree robbery, i.e., “forcibly

The relevant commentary provision specified in full: 4

“Crime of violence” includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included as ‘crimes of violence’ if (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2 cmt. n.1 (2015). 17 15‐1518‐cr

1 stealing property” while “armed with a deadly weapon,” is a crime

2 of violence under the residual clause. As we have noted, “all fifty

3 states define robbery, essentially, as the taking of property from

4 another person or from the immediate presence of another person

5 by force or by intimidation.” Id. (emphasis in original). Indeed, it

6 would seem that, pursuant to the commentary to the former residual

7 clause, robbery of any degree in New York qualifies as a crime of

8 violence.

9 Jones contends nonetheless that New York’s robbery statute is

10 broader than the generic definition. He argues, specifically, that the

11 generic definition of robbery requires the use or threat of force in the

12 process of asserting dominion over the property that is the subject of

13 the offense, whereas the New York statute would be violated by a

14 robber who uses or threatens force after assuming dominion of the

15 property. We disagree.

16 The specific language of the New York robbery statute that

17 Jones points to is that “forcible stealing” consists of (1) the “use[] or

18 threat[] [of] immediate use of physical force upon another person”

19 (2) “in the course of committing a larceny” (3) for the purpose of

20 either “preventing or overcoming resistance to the taking of the

21 property or to the retention thereof immediately after the taking” or

22 “[c]ompelling the owner of such property or another person to

23 deliver up the property or to engage in other conduct which aids in 18 15‐1518‐cr

1 the commission of the larceny.”

(emphasis

2 added).

3 The generic definition of robbery, however, is broader than

4 Jones acknowledges. It is true that the common law definition

5 confines robbery to the use or threat of force before, or simultaneous

6 to, the assertion of dominion over property and therefore comports

7 with Jones’ argument. See, e.g., Wayne LaFave, 3 Substantive Criminal

8 Law § 20.3(e) (2d ed. Supp. 2016); Charles E. Torcia, 4 Wharton’s

9 Criminal Law § 463 (15th ed. Supp. 2016). But a majority of states

10 have departed from the common law definition of robbery,

11 broadening it, either statutorily or by judicial fiat, to also prohibit

12 the peaceful assertion of dominion followed by the use or threat of

13 force. See, e.g., LaFave § 20.3(e); Torcia § 463; State v. Moore,

, 480‐81 (S.C. Ct. App. 2007) (collecting state statutes and judicial

15 decisions that have departed from the common law definition of

16 robbery). Indeed, the Model Penal Code, which we relied upon in

17 United States v. Walker,

, is often cited as the authority

18 for expanding the definition of robbery in this manner, see LaFave

19 § 20.3(e), because it specifies that robbery includes conduct where

20 the initial use or threat of force occurs “in flight after the attempt or

21 commission [of the theft],” Model Penal Code § 222.1. As a result,

22 this broader definition has supplanted the common law meaning as

23 the generic definition of robbery. See Taylor v. United States,

15‐1518‐cr

1 575, 598 (1990) (specifying that the “generic” definition of a crime is

2 the “sense in which the term is now used in the criminal codes of

3 most states”).

4 Moreover, New York places two restrictions on the temporal

5 relationship between the underlying theft and the use or threat of

6 force that buttress the conclusion that its definition of robbery falls

7 within the generic definition of the offense: (1) force must be “in the

8 course of committing a larceny,” i.e., a theft, and (2) force must occur

9 during “immediate flight” after the taking for purposes of retaining

10 the property. See

. Jones does not provide,

11 and we are not aware of, any authority that the New York statute

12 criminalizes the use of force after the robber has successfully carried

13 the property away and reached a place of temporary safety.

14 For all of the foregoing reasons, we easily conclude that New

15 York’s definition of robbery necessarily falls within the scope of

16 generic robbery as set forth in the commentary to U.S.S.G. § 4B1.2(a).

17 Because Jones’ argument that first‐degree robbery is not necessarily

18 a crime of violence within the meaning of U.S.S.G. § 4B1.2(a) under

19 the categorical approach is without merit, the district court did not

20 commit error, much less plain error, in sentencing Jones as a career

21 offender. 20 15‐1518‐cr

1 IV. The Substantive Reasonableness of Jones’ Sentence

2 Finally, we reject Jones’ argument that his sentence of 180

3 months is substantively unreasonable. In assessing the substantive

4 reasonableness of a sentence for abuse of discretion, we review

5 questions of law de novo and questions of fact for clear error. United

6 States v. Bonilla,

(2d Cir. 2010) (citation omitted).

7 We may not substitute our own judgment for that of the district

8 court and can find substantively unreasonable only those sentences

9 that are so “shockingly high, shockingly low, or otherwise

10 unsupportable as a matter of law” that affirming them would

11 “damage the administration of justice.” United States v. Rigas, 583

(2d Cir. 2009). In the “overwhelming majority of

13 cases,” a sentence within the Guidelines range will “fall comfortably

14 within the broad range of sentences that would be reasonable.”

15 United States v. Perez‐Frias,

(2d Cir. 2011) (citation

16 omitted).

17 Jones’ Guidelines range was 210 months to 262 months, the

18 top of which was lowered to 240 months, the statutory maximum for

19 assault of a federal officer. The court imposed a sentence of 180

20 months, or fifteen years, which, while substantial, was considerably

21 below the Guidelines range.

22 The primary thrust of Jonesʹ argument is that a fifteen‐year

23 sentence is substantively unreasonable for an assault of a federal 21 15‐1518‐cr

1 officer that consists solely of biting the victimʹs finger and in which

2 the injury was not permanent. Jonesʹ argument, however, misses the

3 mark. The district court specified a combination of reasons for the

4 fifteen‐year sentence, including: (1) the need to encourage respect

5 for the law and cooperation with law enforcement officials who are

6 attempting to carry out their lawful duties; (2) Jonesʹ substantial

7 prior criminal history, consisting of seven prior convictions, two of

8 which, in addition to the assault of the officer, resulted in him being

9 designated a career offender; and (3) Jonesʹ substantial history of

10 misconduct while incarcerated, including twenty‐seven occasions

11 upon which he was disciplined.

12 Jones attempts to compare his case to instances where

13 defendants were convicted of violating the same statute, received

14 lower sentences, and arguably committed more egregious conduct.

15 That defendants convicted of similar or even more serious conduct

16 received lower sentences, however, does not render Jonesʹ sentence

17 substantively unreasonable. Plainly, the district court also relied

18 upon Jones’ criminal and prison history, including his career

19 offender status, which distinguishes this case from those to which he

20 refers. Under these circumstances, we cannot say that Jones’

21 sentence was substantively unreasonable. 22 15‐1518‐cr

1 CONCLUSION

2 For the reasons stated above, we AFFIRM the sentence

3 imposed by the district court and REMAND for further

4 consideration as may be just under the circumstances.

1 GUIDO O CALABR RESI, Circuit Judge, with w whom m Peter W. H Hall, Circu uit Judge, jo oins,

2 concurrring:

3 I believe Judge Walkeer’s opinio on states th he law corrrectly, and d I concur iin

4 its reaso oning and in its resu ult. I write separately y because tthat result,, while

5 mandatted by the law, seem ms to me to be highly unjust, an nd little sho ort of absu urd.

6 To expllain why I think so, let me givee the facts aand proced dural histo ory of this case

7 in a way y that is slightly diffferent from m the majorrity opinio on—which h, howeverr, is

8 also corrrect, and in i which, as a noted ab bove, I join n, fully.

9 A. Backgroun B nd

10 Corey C Jones is a now--39-year-old man wiith an I.Q. of 69.1 Wh hile at a

11 residential reentry y center (“ “RRC”), fin nishing a n nearly eigh ht-year sen ntence for

12 felony possession p n of a firearrm, (he wa as five mon nths’ shy o of his sched duled

13 release)), Jones alleegedly gru umbled a threat t and was insoleent to a staaff membeer.

14 The stafff memberrs called th he federal marshals m tto take custody of Jon nes, who

15 resisted d arrest. Th he marshalls conceded that, durring his reesistance, Jo ones neverr

16 stepped d towards, kicked, orr punched them. Non netheless, as they were trying to

17 lower his h head to the groun nd, the han nd of the m marshal wh ho was app prehending

1 This I.Q. sscore is con nsidered too be in thee “mentally y deficientt” range off intellecttual functiioning, bellow the gennerally acccepted ran nge for “inttellectual disability,” which h is an I.Q. score of approximattely 70‐75. See Dist. CCt. Dkt. 466–1 at 5, Jon nes Sentencing Mem morandum, Exhibit A A, “Sentenccing Memo o Letter of Dr. Sanford d L. Drob”,, at 5.

1

1 Jones slipped down Jones’ face, and Jones bit him, causing the finger to bleed.

2 Shortly thereafter, Jones said, “I give,” and was arrested and taken away. The

3 marshal provided a sworn affidavit indicating that he suffered no loss because of

4 the injury and that he did not request damages. At trial, the bite was described

5 by the prosecutor as “not the most serious wound you’ll ever see.”

6 Pursuant to a single-count indictment for assaulting a federal officer, Jones

7 was found guilty in violation of

(a)(1)–(b). Under the Guidelines

8 as they were then calculated, and as described in Judge Walker’s opinion, Jones

9 faced a sentence of between 210–240 months, (seventeen-and-one-half to twenty

10 years), with the high end being the statutory maximum. This calculation was

11 based on Jones’ designation as a career offender, a status that was triggered by

12 two earlier convictions: (i) an assault in which the then twenty-year-old Jones

13 shot a man in the leg, which later needed to be amputated, and (ii) a conviction

14 for first-degree robbery in New York, a crime Jones committed when he was

15 sixteen years old.2

16 The district court, applying what it believed was the law of this circuit as it

17 stood at that time, found that Jones’ robbery conviction constituted a “crime of

2 A defendant’s youthful offender adjudications are, for the purposes of the relevant Guidelines calculations, deemed “‘adult convictions’ [where the defendant] (1) pleaded guilty to both felony offenses in an adult forum and (2) received and served a sentence of over one year in an adult prison for each offense.” See United States v. Jones,

(2d Cir. 2005).

2

1 violence” under the categorical approach to the Sentencing Guidelines. See

2 United States v. Spencer,

(2d Cir. 1992) (holding that, under the

3 law of New York, the crime of attempted third-degree robbery constitutes a

4 “crime of violence” for the purposes of the “force clause” of the Sentencing

5 Guidelines), abrogated by Johnson v. United States,

(2010) (Johnson I);

6 see also United States v. Reyes,

(2d Cir. 2012) (per curiam).3 Given this

3 A crime of violence, along with other factors, serves as a predicate requiring a district court to sentence a defendant as a “career offender” subject to an increased sentencing spectrum. See U.S. Sentencing Guidelines Manual § 4B1.1(a) (U.S. Sentencing Comm’n Nov. 2014) (U.S.S.G.) (defining “career offender” as a defendant who is (1) “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.”) .

As described in Judge Walker’s opinion, there were, at the time of Jones’ sentencing, two clauses in the Sentencing Guidelines, either of which could define a “crime of violence.” These two clauses are referred to as the “force clause,” and the “residual clause.” The “force clause” specifies that 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). The “residual clause” comes at the end of a second set of enumerated offenses, and provides that a crime of violence also includes any offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. § 4B1.2(a)(2).

In Spencer, we had held that, under the force clause, third‐degree robbery, as defined by New York law, was a crime of violence. After the Supreme Court’s analysis of the force clause in Johnson I, however, we held that battery, as defined by the state of Florida, was not a crime of violence. Reyes,

. In Reyes, we noted Johnson I’s dictate that, to constitute a “crime of violence” under the

3

1 holding g, and beca ause Jones’’ prior con nviction forr assault ceertainly co onstituted a

2 crime of o violence,, the districct court deetermined that the caareer offen nder statuss

3 applied d. Absent Jo ones’ desig gnation ass a career o offender, h his Guidelin nes senten nce

4 range would w havee been betw ween 36 an nd 48 mon nths (or thrree to fourr years),

5 instead of the ran nge of 210-2 240 month hs, or the seeventeen-aand-one-h half years to o

6 twenty years thatt the court deemed ap pplicable.

7 Departing D downward significa antly from m the Guidelines, Ju udge Garaaufis

8 sentencced Jones to o fifteen yeears.

9 B. Doctrinal D D Developm ments and IImpact on Sentencin ng

10 Ju udge Gara aufis’ opiniion rested on his inteerpretation n of the ap pplication o of

11 the forcce clause to o New Yorrk State’s definition d o of robbery y. Because JJudge

12 Garaufiis was of th he view th hat first-deg gree robbeery was a ccrime of viiolence un nder

13 the forcce clause ev ven after Johnson J I, Ju udge Garaaufis did n not addresss the

categorical approach, a crim me must in nvolve the “use of ph hysical forcce,” and found that battery y did not mmeet that d definition.

. Even afterr Spencer, iit was an open quesstion whetther first‐degree robb bery was aa crime of v violence. A After Reyes, thhat questio on depend ded on wheether the u use of physsical force was, indeed, presentt in the New w York deefinition off that crimee.

Juudge Gara aufis held tthat the rea asoning off Spencer mmeant that first degreee robbery y was a crim me of violence. In ou ur former, withdraw wn opinion n, we held, for reasonss similar to o those given in Reyess, that firstt‐degree ro obbery waas not. Cf., United S States v. Yaates, No. 16 6‐3997, 201

(6thC Cir. Aug 9, 2017) (findingg in analog gous circum mstances tthat the forrce clause does not aapply). Alll of that ana alysis, howwever, wass with resp pect to the force clausse, not thee co‐extant – and herre essential – residua al clause.

4

1 additional possible determinant of a crime of violence now at issue before us: the

2 “residual clause.”

3 After Jones’ initial sentencing, but before we heard Jones’ appeal, the

4 Supreme Court found language in the Armed Career Criminal Act (“ACCA”)

5 which was identical to the language used in the residual clause of the

6 Guidelines—the lynchpin clause undergirding the authority of Jones’ current

7 sentence—to be unconstitutionally vague. Johnson v. United States,

,

8 2557 (2015) (Johnson II). Subsequent to Johnson II, most federal courts of appeals

9 to decide the issue found that, given the Supreme Court’s decision, the residual

10 clause was also unconstitutionally vague. See United States v. Pawlak,

(6th Cir. 2016); United States v. Hurlburt,

(7th Cir.

12 2016); United States v. Calabretta,

(3d Cir. 2016); United States v.

13 Madrid,

(10th Cir. 2015); but see United States v. Matchett, 802

(11th Cir. 2015).

15 As a result—with the application of the force clause to Jones in doubt as a

16 result of Johnson I, and with the residual clause struck down across several

17 circuits as a result of Johnson II—any number of defendants were found not to

18 have committed crimes of violence, either as a matter of first instance, or on

19 appeal, for purposes of determining their career offender status under the

20 Guidelines. Accordingly, they were resentenced (or sentenced in the first

5

1 instancee) to lowerr sentencess. We are told t the go overnmentt is not chaallenging th hese

2 lower seentences.

3 C. Removal o R f the Resid dual Clausse from th he Guideliines

4 The T Sentencing Comm mission, in n light of th he decision ns of severral courts o of

5 appealss grounded d on the Su upreme Co ourt’s deciision in Johhnson II, rev vised the

6 Guideliines and reemoved th he residual clause as a basis forr future sen ntencing. ((See

7 Majority Opinion n, n.1).

8 D. Procedural P l History in n this Cou urt

9 We W heard Jones’ appeeal after Johnson II, an nd we held d: (i) that, under John nson

10 I, the fo orce clause was not applicable a to t him; (ii)) (like seveeral of our sister circu uits)

11 that thee other posssible grou und for Jon nes’ career offender sstatus, the residual

12 clause, was uncon nstitutiona al, pursuan nt to Johnsoon II; and, (iii) that, aas a result,

13 Jones’ robbery r con nviction did not qua alify as a predicate viiolent offeense underr the

14 Guideliines. We th herefore orrdered Jon nes’ sentencce vacated d and sent the case baack

15 for reseentencing. We W expresssly instruccted the diistrict courrt that, in rresentencin ng

16 Jones, itt should no ot treat him m as a careeer offendeer.

17 Before B the district d cou urt resenteenced Jonees, howeveer, the Suprreme Courrt

18 granted d certiorari in Beckles v. v United States, S 137 SS. Ct. 886 ((2017), to cconsider

19 whether the langu uage that, in Johnson II it had d deemed un nconstitutio onally vag gue

20 in a statute, was allso void fo or vagueneess when th he identicaal languag ge was

6

1 employed in the Guidelines. In view of the Supreme Court’s action, we withdrew

2 our opinion, and suspended resentencing pending the Beckles decision.

3 Interestingly, at least one district court, in an independent case, had already

4 granted a motion for resentencing in light of our now-recalled decision. Miles v.

5 United States, No. 11-cr-581,

(S.D.N.Y. Aug 15, 2016).

6 In Beckles, the Supreme Court held the relevant clause of the Guidelines not

7 to be unconstitutionally vague.4 Hence, the clause remained applicable to cases

8 like the one before us.

9 As a result, we are bound to consider Jones’ earlier convictions on the basis

10 of the revived (but no longer extant, since it has been removed by the Sentencing

11 Commission) residual clause. Under that clause, we today correctly find that

12 Jones’ robbery conviction constituted a crime of violence and, as such, served as

13 a predicate offense which—together with his assault convictions—categorically

14 renders Jones a career offender. He was, therefore, correctly subject to the

4 The Supreme Court held as it did based on the history of discretion in sentencing before the Guidelines and the discretionary nature of the Guidelines themselves. My concern with our holding today does not dispute the correctness of the Court’s decision. That the Court’s decision was unexpected, however, cannot be doubted. Between Johnson II and Beckles, courts of appeals, prosecutors, and the Sentencing Commission took actions which assumed a different result. Indeed, the Justice Department had taken the position that Johnson II governed Beckles, and the Supreme Court had to appoint special counsel to present the opposite view. It is that unexpectedness and what happened between Johnson II and Beckles that is, in significant part, responsible for making today’s result so troubling to me.

7

1 sentenccing guidellines of 210 0–240 mon nths on thee basis of w which the d district

2 court— —albeit, perrhaps incorrrectly rely ying on thee force clau use rather than the

3 residua al clause— had impo osed his oriiginal senttence of fiffteen yearss.

4 Because B tha at sentencee was correectly based d on the G Guidelines as we now w

5 hold theey stood when w the district d court sentenceed Jones, w we now afffirm that

6 sentencce. We also o hold that, given thee applicablle Guidelin nes, the sen ntence

7 imposed—which departed significanttly downw ward from these appllicable

8 Guideliines—was not substa antively un nreasonable.

9 E. DISCUSSI D ION

10 I agree thatt the senten nce is not substantiv s vely unreassonable; bu ut I believee

11 the resu ult to be clo ose to absu urd.

12 Jo ones was about a to bee released when he ccommitted d a crime w whose full

13 nature and a signifiicance the district co ourt is betteer able to eevaluate th han we. Th he

14 district court deciided on a fifteen-yea f ar sentencee. Perhaps this senten nce was baased

15 on its view of Jones’ prior crriminal activity, and d on Jones’’ dangerou usness.

16 Perhapss the senteence, deparrting down nward nottably from m the Guideelines, wass,

17 howeveer, imposed d because the districct court bellieved thatt, given those

18 Guideliines, it had d gone dow wn as much as it felt it reasonaably could..

19 The T fact is that t we do o not know w what sen ntence the d district cou urt would

20 have deeemed app propriate iff Jones had d been sub bject to diffferent Guidelines. H Had

8

1 our opinion come down slightly earlier, as did those of most other circuits

2 dealing with similar issues, Jones would have been resentenced pursuant to a

3 substantively lower Guidelines range. We would, then, know what sentence

4 would have seemed appropriate to the district court in those circumstances. Had

5 that sentence been lower—as it apparently was in any number of other cases in

6 other circuits—the Government apparently would not have objected to it. Had

7 Jones committed his crime under the currently existing Guidelines, (i.e., in which

8 the residual clause has been removed by the Sentencing Commission), and

9 assuming that we would have read the force clause not to apply (as we did in

10 our earlier, now-retracted opinion), the district court would have had, again, the

11 opportunity to gauge Jones’ degree of dangerousness under a very different set

12 of Guidelines than those we, today, finally conclude it correctly applied at

13 sentencing.

14 Because we (advisedly) withdrew our earlier opinion in light of the

15 Supreme Court’s grant of certiorari in Beckles, and because of the Supreme Court’s

16 ultimate decision in Beckles, I agree that we now are bound to affirm Jones’

17 original sentence. This means that, as a result of timing quirks (his appeal to us

18 was slightly too late, leading to our decision to pull our earlier opinion), Jones

19 receives a very, very high sentence in contrast with almost every similarly

20 situated defendant.

9

1 What is more—and this may be the true source of my sense of absurdity—

2 there appears to be no way in which we can ask the district court to reconsider

3 the sentence it ordered in view of the happenstances that have worked against

4 Jones, and in view of its assessment of Jones’ crimes and of its downward

5 departure.

6 Were this a civil case, there would be any number of ways of letting the

7 lower court revisit matters.5 But, as far as I have been able to discern, there is no

8 way for us to send this back to the district court and ask it to tell us what I

9 believe should determine Jones’ sentence:

10 In the light of sentences that other similarly guilty defendants have

11 received, and in the light of Jones’ own situation, both of which you, as

12 a district judge, are best suited to determine, what is the sentence that

13 you deem appropriate in this case?

14 I find our inability to learn this to be both absurd and deeply troubling. I

15 believe our affirmance is correct, and that we can do no other. I hope, however,

5 For example: Federal Rule of Civil Procedure 60(b)(6) provides a court with the power to entertain a motion to relieve a party from a final judgment for “any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). To similar effect, Rule 60(d) states that a court has the power to “entertain an independent action to relieve a party from a judgment, order, or proceeding.”

(d)(1).

10

1 that somewhere, somehow, there exists a means of determining what would, in

2 fact, be an appropriate sentence for Jones. 6

6 After our opinion was issued, it was called to our attention that

permits affirmances and remands for further proceedings in the interest of justice, and has been applied in criminal situations, United States v. Guiliano,

(2d Cir. 1981); United States v. Robin,

(2d Cir. 1977) (en banc); see also United States v. Algahaim,

(2d Cir. 2016) (affirming a sentence but remanding for further consideration of that sentence, without making express reference to § 2106). We have now altered our disposition in this case to that effect. This altered disposition may permit the district court to reconsider the sentence imposed and thereby go a long way to avoid the absurdity, which this opinion has suggested.

11