United States v. Smith
Opinion of the Court
This case, in which oral argument was heard in September 2016 but which was held in abeyance pending decision first in U n ited States v. Jones ,
I. BACKGROUND
Defendant-Appellant Edward Smith ("Smith") appeals from a District Court judgment entered on October 7, 2015 by Judge Failla. A jury convicted Smith of being a felon in possession of a firearm and ammunition, in violation of
Smith argues: (a) that the evidence introduced at trial was insufficient to prove possession of crack cocaine with intent to distribute; and (b) that the District Court miscalculated his base offense level under the Guidelines because second-degree robbery, in New York law, is not a "crime of violence" as the term is defined in the applicable version of the Guidelines.
II. DISCUSSION
A. Sufficiency of the Evidence
Smith argues that the evidence presented at trial was insufficient to prove possession of crack cocaine with intent to distribute. The officers' testimony that they recovered bags of crack cocaine from him at the police station could not have been true, he argues, because he "was bleeding from his hands on the night in question," whereas "the baggies allegedly recovered from [him] were bloodless." Br. Appellant 15-16. The bags thus could not have been *439"pried from his bleeding and tightly[ ]clenched hands."
A court reviewing a conviction entered pursuant to a jury verdict for sufficiency of the evidence must affirm the conviction if it determines that "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Musacchio v. United States , --- U.S. ----,
We conclude that there was sufficient evidence to convict Smith. The officers involved in Smith's arrest testified at trial that they did not search Smith until they were back at the police station because a hostile crowd had gathered at the scene of the arrest. They also testified that as they prepared to search Smith at the station, Smith removed something from his pocket and clenched it in his fist. When they pried Smith's fist open, they discovered a plastic bag containing fourteen smaller plastic bags of crack cocaine. Even if no blood was found on the fourteen smaller plastic bags, the jury might reasonably have inferred from the officers' testimony that Smith's hands were no longer bleeding by the time he arrived at the police station. The jury might also reasonably have inferred that Smith's hands were still bleeding but that no blood was on the smaller bags because they were enclosed within the larger plastic bag. The government's choice not to introduce the larger plastic bag into evidence did not require the jury to reject this second possible inference or to conclude that the officers' testimony was not credible.
B. Calculation of Base Offense Level
Smith also argues that the District Court miscalculated his base offense level under the Guidelines because robbery in the second degree, in violation of New York Penal Law section 160.10, is not a "crime of violence" as the term is defined in the applicable version of the Guidelines.
We review the District Court's calculation for plain error because Smith did not object to the calculation in the District Court. See United States v. Hargrett ,
At the time of Smith's sentencing, the Guidelines defined "crime of violence" as "any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that-(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." Guidelines Manual § 4B1.2(a) (U.S. Sentencing *440Comm'n 2014).
The District Court calculated Smith's base offense level as 20. To come to this result it first found, tacitly, that Smith's conviction in this federal proceeding for unlawful possession of a firearm and ammunition followed a conviction on March 30, 2005 for robbery in the second degree in violation of New York Penal Law section 160.10. It then implicitly concluded that second-degree robbery met the definition of a crime of violence in section 4B1.2(a) of the Guidelines. The applicable provision of the Guidelines, section 2K2.1(a)(4)(A), therefore fixed Smith's base offense level at 20.
We have not yet decided whether the New York offense of second-degree robbery is a crime of violence under either the force clause or the residual clause of section 4B1.2(a) of the Guidelines in effect when Smith was sentenced.
We have recently held, however, that the New York offense of first-degree robbery is a crime of violence under the then-applicable residual clause of section 4B1.2(a) of the Guidelines. Jones ,
The rationale of Jones is directly applicable to this case. In New York law, the first element of second-degree robbery is the same as the first element of first-degree robbery. Compare
For these reasons we hold that the New York offense of robbery in the second degree is within the meaning of "crime of violence" as defined in section 4B1.2(a) of the Guidelines that were in effect when Smith was sentenced.
III. CONCLUSION
In summary, we hold as follows:
(1) the evidence presented at Smith's trial was sufficient to prove possession of crack cocaine with intent to distribute; and
(2) because the New York offense of robbery in the second degree constitutes a crime of violence within the meaning of the United States Sentencing Guidelines in effect when Smith was sentenced on October 1, 2015, the District Court's calculation of Smith's base offense level was not erroneous.
We AFFIRM the District Court's judgment of October 7, 2015.
The applicable version of the Sentencing Guidelines is the version in effect on the day the defendant is sentenced. See
Smith argues that second-degree robbery cannot qualify as a crime of violence under the force clause of section 4B1.2(a)(1) of the Guidelines. See Br. Appellant 22-27. But because we concluded in Jones that first-degree robbery qualified as a crime of violence under the residual clause, and because we see no relevant difference between New York's first- and second-degree-robbery statutes, it is not necessary to address Smith's argument about the force clause.
As we noted above, the residual clause was replaced with different language as of August 1, 2016. Our holding thus applies only to sentencing decisions made under the Guidelines in effect before that date. See supra text following note 1. We note, however, that the replacement language expressly names "robbery" as one of the crimes of violence. See Guidelines Manual § 4B1.2(a)(2) (U.S. Sentencing Comm'n 2016).
Reference
- Full Case Name
- United States v. Edward SMITH
- Cited By
- 2 cases
- Status
- Published