United States v. Steed , 879 F.3d 440 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1011
UNITED STATES OF AMERICA,
Appellant,
v.
VINCENT STEED,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Nancy Torresen, U.S. District Judge]
Before
Kayatta, Selya, and Barron,
Circuit Judges.
Richard W. Murphy, Acting United States Attorney, and Julia
M. Lipez, Assistant United States Attorney, on brief for appellant.
Molly Butler Bailey and Strike, Gonzalez & Butler Bailey on
brief for appellee.
January 12, 2018
BARRON, Circuit Judge. In this appeal, the government
challenges the 2016 sentence that Vincent Steed received for his
conviction -- following his guilty plea -- for possession with
intent to distribute Cocaine Base and Heroin in violation of
21 U.S.C. § 841(a)(1), (b)(1)(C). The District Court, in
sentencing Steed, concluded that he did not qualify as a "career
offender" under the United States Sentencing Guidelines and thus
was not subject to the sentencing enhancement that otherwise would
apply. The District Court then calculated Steed's guidelines
sentencing range on that basis, and sentenced Steed to a prison
term of 63 months, which was at the high end of the resulting
guidelines sentencing range.
The government now contends that the District Court
erred in concluding that Steed did not qualify as a "career
offender" under the Sentencing Guidelines and thus that the
District Court sentenced him based on an unduly low guidelines
sentencing range. Accordingly, the government argues that Steed's
sentence must be vacated so that Steed may be re-sentenced.
As has become common in cases of this type, we must
address a number of complexities regarding the particularities of
state law to resolve the issues on appeal. And, as has also become
common in cases of this type, such complexities of state law in
turn raise additional questions -- knotty in themselves -- about
the requirements of the federal provision that seeks to identify
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those offenders whose past violence warrants the imposition of an
enhanced sentence. After working our way through these questions,
we conclude that the government has not identified a sufficient
basis for vacating the sentence. Accordingly, we affirm the
judgment below.
I.
On June 27, 2016, in the United States District Court
for the District of Maine, Steed pleaded guilty to violating
21 U.S.C. § 841(a)(1), (b)(1)(C). The Presentence Investigation
Report ("PSR") prepared by the Probation Office recommended that
Steed be classified as a "career offender" under § 4B1.1 of the
United States Sentencing Guidelines, as set forth in the 2015
version of the United States Sentencing Guidelines Manual.
That guideline defines a "career offender" to include
those defendants who have two prior convictions, whether for a
"controlled substance offense," U.S. Sentencing Guidelines Manual
§ 4B1.1(a) (U.S. Sentencing Comm'n 2015), any "crime of violence,"
id. § 4B1.1(a), or any combination thereof. A "crime of violence"
is defined as:
[A]ny offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that[] (l)
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.
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Id. § 4B1.2(a).
The first subpart of the language just quoted ("has as
an element the use, attempted use, or threatened use of physical
force against the person of another") is commonly referred to as
the "force clause" of the "crime of violence" definition. See
United States v. Ball, 870 F.3d 1, 3 (1st Cir. 2017). The final
clause of the second subpart ("otherwise involves conduct that
presents a serious potential risk of physical injury to another")
is known as the "residual clause" of that definition. Id.
The PSR based the conclusion that Steed was a career
offender under the guideline on his conviction in 2012 for two
counts of drug trafficking under Maine law and his conviction in
2000 for attempted robbery in the second degree under New York
law. Having determined that the drug trafficking and robbery
convictions each qualified as predicate offenses under the career
offender guideline, the PSR applied the career offender sentencing
enhancement, which resulted in the PSR identifying Steed's total
offense level under the guidelines to be 29. The PSR also
determined Steed's criminal history category to be VI. In
consequence, the PSR calculated Steed's sentencing range under the
guidelines to be 151 to 188 months of imprisonment.
The District Court thereafter held a sentencing hearing.
The District Court determined at the hearing that the variant of
second-degree robbery under New York law that Steed had been
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convicted of attempting to commit did not have as an element the
use of "violent force" under Johnson v. United States, 559 U.S.
133, 140 (2010) (Johnson I). Thus, the District Court reasoned
that Steed had been convicted of an offense that did not fall
within the force clause of the career offender guideline's
definition of a "crime of violence." The District Court then
bypassed the question whether that offense fell within the residual
clause of that guideline's definition of a "crime of violence"
because the government conceded that, after Johnson v. United
States, 135 S. Ct. 2551 (2015) (Johnson II), the residual clause
was unconstitutionally vague. Accordingly, the District Court
concluded that the career offender enhancement did not apply to
Steed, as he had only one prior conviction that qualified as a
conviction for a predicate offense under the career offender
guideline -- namely, his conviction under Maine law for two counts
of drug trafficking, which was a qualifying "controlled substance"
offense.
Partly in consequence of this ruling, the District Court
determined that Steed's total offense level was 19, rather than
29, as the PSR had stated. The District Court also determined
that, as the PSR had stated, Steed's criminal history category was
VI. The District Court then accepted the government's recommended
two-level reduction of Steed's total offense level. The District
Court thus calculated Steed's guidelines sentencing range to be 51
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to 63 months of imprisonment. The District Court then sentenced
Steed to a sentence at the high end of that range -- 63 months of
imprisonment.
The parties do not dispute that Steed's conviction for
two counts of drug trafficking under Maine law qualifies as a
conviction for a "controlled substance" offense under the career
offender guideline. See U.S.S.G. § 4B1.2(b). The dispute before
us therefore concerns only whether the government is right in
contending that, contrary to the District Court's ruling, Steed's
conviction for attempted second-degree robbery under New York law
qualifies as a predicate conviction under the career offender
guideline as a "crime of violence." For, if the government is
right on that point, then Steed is subject to the career offender
enhancement under that guideline.
II.
We begin with the government's contention that Steed's
2000 conviction for attempted second-degree robbery under New York
law is for an offense that "has as an element the use, attempted
use, or threatened use of physical force against the person of
another" and thus is for an offense that the force clause of the
career offender guideline's definition of a "crime of violence"
encompasses. U.S.S.G. § 4B1.2(a)(1). Our review is de novo.
United States v. Almenas, 553 F.3d 27, 31 (1st Cir. 2009).
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A.
In assessing whether a conviction qualifies as a
predicate conviction under the force clause of the career offender
guideline's definition of a "crime of violence," we apply what is
known as the "categorical approach." United States v. Dávila-
Félix, 667 F.3d 47, 55-56 (1st Cir. 2011) (internal quotation marks
omitted). Under that approach, we consider "the statutory
definition of the offense in question, as opposed to the particular
facts underlying the conviction." Id. at 56 (quoting United States
v. Piper, 35 F.3d 611, 619 (1st Cir. 1994)); see also Taylor v.
United States, 495 U.S. 575, 602 (1990). We undertake this
analysis by focusing on the elements of the offense. Dávila-
Félix, 667 F.3d at 57. If the elements of the state statute of
conviction "encompass[] only conduct that constitutes a predicate
offense," then the conviction qualifies as a predicate conviction
under the force clause of the career offender guideline's "crime
of violence" definition. Id. at 56.
In cases where the state criminal statute at issue "sets
out one or more elements of the offense in the alternative[,]"
such that the offense is divisible into more than one offense, we
must first identify the specific offense for which the defendant
was convicted. Descamps v. United States, 133 S. Ct. 2276, 2281
(2013); United States v. Tavares, 843 F.3d 1, 10 (1st Cir. 2016),
reh'g denied, 849 F.3d 529 (1st Cir. 2017). The parties agree
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that Steed's conviction was for attempting the type of second-
degree robbery that § 160.10(2)(a) of the New York Penal Law sets
forth. Accordingly, we must determine whether Steed's conviction
for that offense categorically qualifies as a conviction for a
"crime of violence" under the force clause of the career offender
guideline's definition of that term.
B.
New York Penal Law § 160.00 sets forth the general
definition of the offense of robbery by providing that:
A person forcibly steals property and commits robbery
when, in the course of committing a larceny, he uses or
threatens the immediate use of physical force upon
another person for the purpose of . . . [p]reventing or
overcoming resistance to the taking of the property or
to the retention thereof immediately after the taking;
or . . . [c]ompelling the owner of such property or
another person to deliver up the property or to engage
in other conduct which aids in the commission of the
larceny.
Section 160.10 then sets forth four variants of robbery
in the second degree. N.Y. Penal Law § 160.10. Section
160.10(2)(a), which is the variant that the parties agree is
relevant here, defines that offense to occur when "when [someone]
forcibly steals property," and "[i]n the course of the commission
of the crime or of immediate flight therefrom, he or another
participant in the crime: . . . [c]auses physical injury to any
person who is not a participant in the crime." N.Y. Penal Law
§ 160.10(2)(a). Finally, New York defines an "attempt" as
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occurring when someone, "with intent to commit a crime . . .
engages in conduct which tends to effect the commission of such
crime[.]" N.Y. Penal Law § 110.00.
We set to one side the fact that Steed was convicted of
attempting to commit second-degree robbery under § 160.10(2)(a).
Doing so allows us to focus on whether this variant of second-
degree robbery is an offense that falls under the force clause.
For, if that offense does not fall under that clause, then the
offense of attempting to commit that offense does not either.
We begin our review by following the lead of the parties
and considering our recent precedent in United States v. Mulkern,
854 F.3d 87 (1st Cir. 2017). The parties recognize that Mulkern
considered a similar issue to the one that we confront here, even
though that case did not concern a potential application of the
career offender guideline.
Mulkern concerned a defendant's contention that his
prior state law conviction under Maine law for a robbery offense
did not qualify as a predicate conviction under the Armed Career
Criminal Act (ACCA). Id. at 92. Mulkern's analysis of ACCA is
relevant here because of that statute's similarities with the
career offender guideline.
ACCA penalizes those who possess firearms if they have
three or more prior convictions for a "violent felony." 18 U.S.C.
§ 924(e)(1). Moreover, ACCA's definition of a "violent felony,"
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id. § 924(e)(2)(B), contains a force clause that is worded nearly
identically to the force clause of the career offender guideline's
definition of a "crime of violence." Thus, as we have explained
before, precedents that, like Mulkern, construe the force clause
in the definition of a "violent felony" under ACCA are directly
relevant to the analysis that we must undertake in construing the
force clause of the career offender guideline's definition of a
"crime of violence." See United States v. Hart, 674 F.3d 33, 41
n.5 (1st Cir. 2012) (explaining that, because ACCA's definition of
a "violent felony" is "almost identical[]" to the Sentencing
Guidelines' definition of a "crime of violence," we have held that
"'decisions construing one term inform the construction of the
other'") (quoting United States v. Holloway, 630 F.3d 252, 254 n.1
(1st Cir. 2011)).
We explained in Mulkern that the robbery offense under
Maine law for which the defendant had been convicted in that case
required that the defendant had "use[d] physical force on another
with the intent . . . (1) to prevent or overcome resistance to the
taking of the property, or to the retention of the property" or
"(2) to compel the person in control of the property to give it up
or to engage in other conduct which aids in the taking or carrying
away of the property." 854 F.3d at 91 (quoting Me. Stat. tit.
17-A, § 651(1)). We then held that neither variant of this robbery
offense under Maine law qualified under the force clause of ACCA's
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definition of a "violent felony" because of the way that Maine
defined the robbery offense. Id. at 93-94.
In so holding, we relied on the decision of Maine's
highest court in Raymond v. State, 467 A.2d 161, 165 (Me. 1983).
There, the Maine Law Court explained that the drafters of Maine's
robbery statute, Me. Stat. tit. 17-A, § 651, "made a conscious
decision that any physical force with the intent specified in" the
relevant portion of the statute that defined that offense sufficed
to satisfy the force element of that offense. Raymond, 467 A.2d
at 165 (emphasis in original). The Maine Law Court concluded that,
in light of this statutory definition of the offense of robbery,
"a case where the victim was at the time unaware of a stealthy
taking of her purse" did not constitute a robbery, but that a purse
"snatching" effected with the requisite intent did. Id. at 164.
Raymond explained that "the mere act of snatching a purse from the
hand of a victim is a sufficient act of physical force required
for robbery," because of the amount of physical force that the act
of "snatching" necessarily requires the perpetrator to use. Id.
Raymond relied for this conclusion on the reasoning of
Commonwealth v. Jones, 283 N.E.2d 840 (Mass. 1972). In that case,
the Massachusetts Supreme Judicial Court had explained, in holding
that a purse snatching constituted a robbery under Massachusetts
law, that "where, as here, the actual force used is sufficient to
produce awareness, although the action may be so swift as to leave
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the victim momentarily in a dazed condition, the requisite degree
of force is present to make the crime robbery." Id. at 845.
In light of Raymond, we concluded in Mulkern that
"Maine's highest court recognizes that 'any physical force'
suffices to satisfy the 'physical force' element" of the offense
of robbery, because Maine defines that offense's physical force
requirement to be satisfied by a use of physical force that
suffices to produce mere awareness in the victim. Mulkern, 854
F.3d at 93 (quoting Raymond, 467 A.2d at 165) (emphasis omitted).
We thus concluded that the robbery offense at issue could, under
Maine law, be satisfied by proof of "'the mere act of snatching a
purse from the hand of a victim' . . . even if the robber never
made 'direct bodily contact' with the victim." Id. (quoting
Raymond, 467 A.2d at 164, 165).
On that basis, we then concluded that the force clause
of ACCA's definition of a "violent felony" did not encompass the
offense of robbery in Maine that was at issue. Id. at 93-94. We
reasoned that such a minimal use of force as would be required
merely to snatch a purse was too slight a use of force to constitute
force "'capable of causing physical pain or injury'" under
Johnson I. Id. at 93-94 (quoting Johnson I, 559 U.S. at 140); see
also Johnson I, 559 U.S. at 140-41 ("We think it clear that in the
context of a statutory definition of 'violent felony,' the phrase
'physical force' means violent force -- that is, force capable of
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causing physical pain or injury to another person. . . . When the
adjective 'violent' is attached to the noun 'felony,' its
connotation of strong physical force is even clearer."); accord
United States v. Ramos–González, 775 F.3d 483, 504 (1st Cir. 2015).
Against this precedential background, we turn back,
then, to the question at issue here: whether the type of robbery
that Steed was convicted of attempting to commit -- a variant of
second-degree robbery under New York law -- falls within the force
clause of the career offender guideline's definition of a "crime
of violence." The answer to this key question is one that concerns
the state of New York law as it stood at the time that Steed was
convicted of attempting to commit that crime, which was in 2000.
That is so because we apply an historical approach to determine
whether an offense categorically matches the elements of the force
clause of the definition of a "crime of violence" under the career
offender guideline. After all, that is the approach that we use
in construing the force clause of the definition of a "violent
felony" under ACCA, United States v. Faust, 853 F.3d 39, 57 (1st
Cir. 2017) (holding that categorical analysis under ACCA must be
conducted as to the state of the law at the time of the defendant's
conviction), and, as we have explained, our precedents concerning
the proper construction of ACCA's force clause inform our
construction of the career offender guideline's force clause as
well, see Hart, 674 F.3d at 41 n.5.
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C.
The government contends that a review of the relevant
New York state court precedent shows that § 160.10(2)(a) falls
within the force clause of the career offender guideline's
definition of a "crime of violence" because that offense requires
more than the use or threatened use of "any physical force."
Mulkern, 854 F.3d at 93. And, the government contends, that
conclusion is supported by the precedent that shows that New York
law -- unlike Maine law, as Mulkern had held -- does not make a
mere purse snatching a robbery in the second degree under
§ 160.10(2)(a), and that this was the case, presumably, even as of
2000, when Steed was convicted.
The government relies for this assertion chiefly on a
relatively recent New York Court of Appeals case, People v.
Jurgins, 46 N.E.3d 1048 (N.Y. 2015). We are, of course, bound by
how a state's highest court defines a crime in that state. See
Tavares, 843 F.3d at 14. But, even setting aside the fact that
Jurgins was decided long after Steed's conviction, we do not find
Jurgins to support the government's contention about the state of
New York law at the time of that conviction. Jurgins simply
assumed, based on the representations of the parties in that case,
that a purse snatching would not qualify as a robbery under New
York law. 46 N.E.3d at 1053. For that reason, Jurgins makes no
holding with respect to the issue that we must resolve.
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The government does also point to several New York
intermediate appellate court precedents that pre-date Steed's
conviction. These cases address the conduct that may qualify as
either second-degree or third-degree robbery under New York law.
State intermediate appellate court precedents are
certainly potentially relevant to our present inquiry. But the
precedents on which the government relies do not suffice to support
its contention. Those cases find there to have been a robbery
under New York law based on the use of seemingly greater force
than was necessary to prove robbery under the Maine robbery statute
considered in Mulkern. See, e.g., People v. Bennett, 631 N.Y.S.2d
834, 834 (N.Y. App. Div. 1995) (creation of a "human wall" was
sufficient force for second-degree robbery); People v. Lee, 602
N.Y.S.2d 138, 139 (N.Y. App. Div. 1993) (a "bump" and "forcibly
block[ing]" the victim's pursuit was sufficient force for second-
degree robbery); see also People v. Safon, 560 N.Y.S.2d 552, 552
(N.Y. App. Div. 1990) (tugging money was sufficient force for
third-degree robbery); cf. United States v. Moncrieffe, 167 F.
Supp. 3d 383, 404-05 (E.D.N.Y.), appeal withdrawn, No. 16-965 (July
31, 2016) (discussing cases). But, even if the government is right
that bumping, tugging, and forming a wall constitute conduct that
falls within the force clause of the provision of the career
offender guideline that defines a "crime of violence," but see
United States v. Childers, 2017 WL 2559858 at 10 (D. Me. June 6,
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2017); Moncrieffe, 167 F. Supp. 3d at 406; United States v.
Johnson, 220 F. Supp. 2d 264, 272 (E.D.N.Y. 2016), these precedents
do not rule out the possibility that less significant uses or
threatened uses of force, including purse snatching, could have
been used to commit a robbery under § 160.10(2)(a) as of the time
of Steed's 2000 conviction. Thus, these precedents, in and of
themselves, do not suffice to support the government's cause.
As it happens, there are precedents that the government
does not reference but that pre-date Steed's 2000 conviction and
that directly address whether the act of snatching property falls
within New York's definition of robbery either in the second or
the third degree. We thus must consider these precedents. If
they indicate that, as of 2000, a snatching may have constituted
a second-degree robbery under § 160.10(2)(a), then Steed's
conviction would not be one for an offense that falls within the
force clause. For there need be only "'a realistic probability
. . . that the [state] would apply its statute . . .'" to include
that minimal conduct in order for the state statutory offense to
fall outside the force clause. United States v. Ellison, 866 F.3d
32, 38 (1st Cir. 2017) (quoting Gonzales v. Duenas-Alvarez, 549
U.S. 183, 193 (2007)) (alteration in original).
A number of these precedents do favor the government's
position that snatching does not constitute robbery in the second
degree under § 160.10(2)(a) and did not do so prior to Steed's
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conviction. See People v. Middleton, 623 N.Y.S.2d 298 (N.Y. App.
Div. 1995) (holding that a purse snatching where the victim was
not "intimidated, knocked down, struck, or injured" did not
constitute third-degree robbery); People v. Chessman, 429 N.Y.S.2d
224, 227 (N.Y. App. Div. 1980) (concluding that a purse snatching
where the victim "did not feel anything on her body" would not
constitute third-degree robbery); People v. Davis, 418 N.Y.S.2d
127, 128 (N.Y. App. Div. 1979) (modifying judgment of third-degree
robbery where there was no evidence the victim was in danger or
saw the defendant approach her). But, not all of them do. In
particular, People v. Lawrence, 617 N.Y.S.2d 769 (N.Y. App. Div.
1994), suggests that, at least as of 1994, New York third-degree
robbery included purse snatching.
Lawrence held that the defendant committed a robbery in
the third degree in "snatching" a purse because the court was "'not
persuaded that [the] defendant engaged in a nonphysical,
unobtrusive snatching' of the victim's purse." Id. at 770 (quoting
People v. Rivera, 554 N.Y.S.2d 115, 116 (N.Y. App. Div. 1990))
(emphasis added). Lawrence indicates that a snatching not unlike
one that would qualify as a robbery under the statute considered
in Mulkern, 854 F.3d at 93, could be considered physical and
obtrusive enough to constitute a robbery in New York, at least in
the third degree, even if a mere "stealthy taking," see Raymond,
467 A.2d at 164, can never be a robbery. After all, although such
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a snatching would involve no bodily contact with the victim, it
could involve the use of just enough force to "produce awareness,
although the action may be so swift as to leave the victim
momentarily in a dazed condition." Mulkern, 854 F.3d at 92–93
(citing Jones, 283 N.E.2d at 845).
Moreover, in People v. Santiago, 402 N.E.2d 121 (N.Y.
1980), which was decided more than a decade before Lawrence, an
intermediate appellate court considered whether a defendant who
was on a moving train and had snatched a purse from a victim
standing on a subway platform had thereby committed a robbery in
the second degree under § 160.10(2)(a). People v. Santiago, 405
N.Y.S.2d 752, 753 (N.Y. App. Div. 1978) aff'd, 402 N.E.2d at 121.
In the course of addressing that issue, the intermediate appellate
court canvassed the relevant precedents in New York and other
states -- including the decision by the Massachusetts Supreme
Judicial Court in Jones on which the Maine Law Court in Raymond
had relied in finding a purse snatching to constitute a robbery.
Santiago, 405 N.Y.S.2d at 757; see Raymond, 467 A.2d at 164 (citing
Jones, 283 N.E.2d at 845). That court concluded from this review
that it appeared to be an open question under New York law whether
"purse snatching, per se, constitutes a robbery" under New York
law. Santiago, 405 N.Y.S.2d at 757.
That court ultimately determined that there was no need
to resolve that issue definitively because "there was sufficient
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evidence to support a jury finding that the victim resisted by
clinging to her purse and that the overcoming of this resistance,
through the use of the overwhelming momentum of the train,
constituted a robbery by any definition of that term." Id. And,
on appeal, the New York Court of Appeals affirmed the intermediate
appellate court's ruling in a one paragraph decision that also did
not resolve the issue of whether purse snatching per se constitutes
a robbery. Santiago, 402 N.E.2d at 121. But, in light of the
intermediate appellate court's opinion, it appears that, as of the
time of Santiago, it was an open question under New York law as to
whether second-degree robbery under § 160.10(2)(a) encompassed
purse snatchings like those that Maine counts as robberies.
To be sure, neither the third-degree robbery offense at
issue in Lawrence nor the robbery offense at issue in Mulkern
required, as second-degree robbery under § 160.10(2)(a) does, that
the defendant or another participant in the crime "[i]n the course
of the commission of the crime or of immediate flight therefrom
. . . [c]ause[] physical injury to any person who is not a
participant in the crime." N.Y. Penal Law § 160.10(2)(a). And
the government contends that this injury requirement means that
this variant of second-degree robbery in New York on its face
requires the use of more force (or threatened force) than a robbery
offense like the one at issue in Mulkern, which could be committed
by a mere snatching.
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But, it appears that, at least prior to Steed's 2000
conviction, this injury requirement would not in and of itself
have ruled out a snatching from qualifying as a robbery in the
second degree under § 160.10(2)(a). A 1997 intermediate appellate
court precedent from New York had ruled that an injury that
occurred when the victim of the offense fell while chasing the
perpetrator satisfied the injury requirement under § 160.10(2)(a),
as long as such injury could be "foreseen as being reasonably
related to the acts of the accused." People v. Brown, 653 N.Y.S.2d
301, 303 (N.Y. App. Div. 1997). That is significant because
Lawrence indicated that, as of 2000, a snatching that engendered
awareness of the theft in the victim constituted a robbery in the
third degree. See Lawrence, 617 N.Y.S.2d at 770. It thus would
appear that such a snatching, by producing awareness, would have
made it reasonably foreseeable that the victim would have given
chase and thus that any resulting injury that victim suffered while
doing so would have been reasonably foreseeable. As a result, the
injury requirement would not appear to have precluded snatchings
from constituting robberies under § 160.10(2)(a), at least as of
the time of Steed's conviction, if, as Lawrence indicates, such
snatchings would otherwise have constituted robberies under that
provision. And that conclusion would be consistent with, though
not required by, the intermediate appellate court decision in
Santiago. 405 N.Y.S.2d at 757.
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Accordingly, as we read the relevant New York
precedents, there is a realistic probability that Steed's
conviction was for attempting to commit an offense for which the
least of the acts that may have constituted that offense included
"purse snatching, per se." Santiago, 405 N.Y.S.2d at 757. As
Mulkern held that such conduct falls outside the scope of the
nearly identically-worded force cause at issue there, Mulkern, 854
F.3d at 93-94, we cannot say that, under the categorical approach,
Steed's conviction was for an offense that the force clause of the
career offender guideline's definition of a "crime of violence"
encompasses. We note in this regard that other courts have held
that the force clause fails to encompass second-degree robbery in
New York. Childers, 2017 WL 2559858 at 10; Moncrieffe, 167
F. Supp. 3d at 406; Johnson, 220 F. Supp. 3d at 272. We thus see
no error in the District Court's conclusion that Steed's conviction
was not for an offense that falls within the force clause of
§ 4B1.2(a) of the United States Sentencing Guidelines.
III.
We turn, then, to the government's alternative argument.
Here, the government contends that Steed's conviction was for an
offense that, even if not covered by the force clause of the career
offender guideline's definition of a "crime of violence," is
covered by that definition's residual clause. U.S.S.G.
§ 4B1.2(a)(2). But, we do not agree.
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A.
As an initial matter, Steed argues that the government
waived this argument when it conceded that the residual clause was
unconstitutional under Johnson II. As the government points out,
however, there has been a "significant change[] in the legal
landscape" since Steed's sentencing. Shortly after the District
Court sentenced Steed, the Supreme Court decided Beckles v. United
States, 137 S. Ct. 886 (2017). In that case, the Court held that
the residual clause of the career offender guideline's definition
of "crime of violence" -- at least insofar as the career offender
guideline was no longer mandatory -- was not unconstitutionally
vague. Id. at 892. And, in the wake of Beckles, as the government
also notes, we have repeatedly rejected the argument that the
government may not invoke the residual clause to argue that a
defendant's prior conviction qualifies as a "crime of violence"
under the career offender guideline merely because the government
conceded prior to Beckles that the residual clause was
unconstitutionally vague under Johnson II. See Ball, 870 F.3d at
3; United States v. Thompson, 851 F.3d 129, 131 (1st Cir. 2017)
(per curiam); United States v. Gonsalves, 859 F.3d 95, 114 n.9
(1st Cir. 2017) ("Although the government conceded in its brief
that the Guidelines' residual clause was unconstitutionally vague,
this court is not bound by the government's concession, which,
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while understandable before Beckles, turned out to be incorrect."
(internal citation omitted)).
There is a wrinkle, however. Each of the post-Beckles
cases in which we declined to hold the government to its earlier
concession concerned an appeal by the defendant who was challenging
his sentence for being too harsh. Here, by contrast, the
government brings the appeal, and the government does so in order
to subject the defendant to a more severe sentence than he had
received. But even if we assume that, notwithstanding this
wrinkle, the government is not bound by its concession below, the
government's argument still fails under the demanding standard of
review that the government concedes that we must apply. In that
regard, we note that, ordinarily, the question of whether a
conviction is for a "crime of violence" under the residual clause
is one of law, for which our review would be de novo when the issue
has been properly preserved below. See United States v. Soto-
Rivera, 811 F.3d 53, 56 (1st Cir. 2016). But, here, the government
asks us to review the question only for plain error because of its
pre-Beckles concession that the residual clause was
unconstitutionally vague.
Given the government's concession regarding the proper
standard of review and our general rule that "a party who neglects
to call a looming error to the trial court's attention" is subject
to plain error review, United States v. Sánchez–Berríos, 424 F.3d
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65, 73 (1st Cir. 2005), we apply the plain error standard of
review. Accordingly, the government faces the "onerous burden" of
showing "(1) that an error occurred (2) which was clear and obvious
and which not only (3) affected the [party's] substantial rights,
but also (4) seriously impaired the fairness, integrity, or public
reputation of judicial proceedings." United States v. Ríos-
Hernández, 645 F.3d 456, 458, 462 (1st Cir. 2011) (quoting United
States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).
Significantly, as the Court explained in United States
v. Olano, 507 U.S. 725 (1993), plain error review:
[I]s permissive, not mandatory. If the forfeited error
is plain and affects substantial rights, the court of
appeals has authority to order correction, but is not
required to do so . . . . a plain error affecting
substantial rights does not, without more, satisfy the
[fourth prong of the plain error test], for otherwise
the discretion afforded by [plain error review] would be
illusory.
Id. at 735-37 (internal citations and alterations omitted). And,
we conclude, the government has failed to make the required showing
under the fourth prong of the plain error standard. Accordingly,
we conclude that the government's argument under the residual
clause fails.
B.
The parties start with the first two prongs of the plain
error standard and vigorously dispute whether it is a clear or
obvious error to conclude that the residual clause of the career
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offender guideline's definition of a "crime of violence" does not
encompass an attempt to commit this type of second-degree robbery
under New York law. The parties do so chiefly by contesting
whether the offense of robbery at issue in this case matches the
generic definition of robbery, as robbery is one of the offenses
listed in the Application Note to the career offender guideline.
U.S.S.G. § 4B1.2, comment. (n.1); see also Ball, 870 F.3d at 5
(holding that the offense listed in the Application Note may be
treated "as additional enumerated offenses").1
We do not need to resolve this dispute, however. In
order to meet the plain error standard, the government must show
that the error, in addition to being clear or obvious, affected
the government's substantial rights -- prong three -- and
"seriously impaired the fairness, integrity, or public reputation
of judicial proceedings" -- prong four. Ríos-Hernández, 645 F.3d
at 462. But, the government does not expressly address either the
third or fourth prongs of the plain error standard. And even if
we assume that the government has impliedly satisfied the third
prong by identifying the significant difference in the sentencing
range that it contends should have been applied relative to the
one that was applied, the government's failure to make any express
1The parties also dispute whether New York's definition of
attempt falls within the generic definition of attempt.
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argument as to the fourth prong of the plain error standard is
more problematic.
We are aware of no precedent in which we have addressed
whether a sentencing error that favors the defendant, if not
corrected so that a much harsher sentence may be imposed, would
impair the "fairness, integrity, or public reputation of judicial
proceedings." Id. Some courts of appeals have said that
"sentencing errors raised by the government on appeal require
correction because failure to correct such errors may damage the
reputation of the judicial system by allowing district courts to
sentence without regard to the law." United States v. Gordon, 291
F.3d 181, 194 (2d Cir. 2002) (citing United States v. Barajas–
Nunez, 91 F.3d 826, 833 (6th Cir. 1996)). Another has looked to
the difference in the length of the sentence imposed and the
correct sentence to determine whether that difference is
significant enough to create a "miscarriage of justice" if the
error is not corrected. United States v. Posters ‘N’ Things Ltd.,
969 F.2d 652, 663 (8th Cir. 1992), aff'd 511 U.S. 513 (1994). And
the Fifth Circuit has declined to correct even clear and obvious
errors when "refusal to remedy the error would provide a future
incentive to the government to raise all available arguments
below." Gordon, 291 F.3d at 194 (citing United States v. Garcia–
Pillado, 898 F.2d 36, 39–40 (5th Cir. 1990)); United States v.
Rodriguez, 15 F.3d 408, 416-17 (5th Cir. 1994).
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But, regarding which standard we should apply, the
government makes no argument at all. Nor does the government argue
why, under whichever test we might apply, a decision to let this
sentence stand -- following the government's express concession as
to its lawfulness below -- would impair the "fairness, integrity,
or public reputation of judicial proceedings," Ríos-Hernández, 645
F.3d at 462, such that remand so that a new and harsher sentence
may be imposed is required.
Given the defendant's interest in repose that is
implicated, and the fact that our refusal to permit resentencing
here appears unlikely to be the precipitating cause for the
government to decline to make concessions based on its own best
guess (wrong though it may turn out to be) as to what the
Constitution requires, we do not see how the government could be
said to have satisfied its burden under the fourth prong by not
even addressing it. Thus, we hold that the government has failed
to meet its burden of showing plain error by failing -- in a
situation in which the claimed sentencing error does not obviously
impair the fairness, integrity, or public reputation of the
underlying judicial proceeding -- to make any argument as to how
the fourth prong of that demanding standard is met. See United
States v. Savarese, 385 F.3d 15, 22-23 (1st Cir. 2004) (rejecting
defendant's sentencing challenge where defendant had not raised
the issue below and had not met the fourth prong of the plain error
- 27 -
test on appeal); see also United States v Zannino, 895 F.2d 1, 17
(1st Cir. 1990) (holding that undeveloped arguments are waived).
IV.
Accordingly, the sentence is affirmed.
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