United States v. Rabb ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-1678
UNITED STATES OF AMERICA,
Appellee,
v.
DEJUAN RABB, a/k/a SLIM,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Barron, Selya, and Boudin,
Circuit Judges.
Syrie Davis Fried, with whom Good Schneider Cormier & Fried
was on brief, for appellant.
Julia M. Lipez, Assistant United States Attorney, with whom
Halsey B. Frank, United States Attorney, was on brief, for
appellee.
October 30, 2019
BARRON, Circuit Judge. DeJuan Rabb brings this appeal
to challenge the 2018 sentence that he received after pleading
guilty in the United States District Court for the District of
Maine to possession with intent to distribute furanyl fentanyl and
cocaine base in violation of 21 U.S.C. § 841(a)(1) and for the
distribution of furanyl fentanyl, also in violation of 21 U.S.C.
§ 841(a)(1). Rabb contends that the District Court erred in
concluding that he was a "career offender" under the 2016 version
of the United States Sentencing Guidelines Manual ("Guidelines"),
see U.S.S.G. §§ 4B1.1, 4B1.2(a)(2), based on his 2000 New York
state law robbery conviction. We agree with Rabb and thus vacate
and remand for resentencing.
I.
The Guidelines define a "career offender" to be an
individual over eighteen years of age at the time of the offense
of conviction whose offense of conviction is at least their third
felony conviction -- whether state or federal -- for either a
"crime of violence" or a "controlled substance offense" or a
combination thereof. U.S.S.G. § 4B1.1(a) (U.S. Sentencing Comm'n
2016). The Guidelines define a "crime of violence," in turn, as
a felony that:
(1) has as an element the use, attempted use, or
threatened use of physical force against the person of
another, or
(2) is murder, voluntary manslaughter, kidnapping,
aggravated assault, a forcible sex offense, robbery,
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arson, extortion, or the use or unlawful possession of
a firearm described in 26 U.S.C. § 5845(a) or explosive
material as defined in 18 U.S.C. § 841(c).
U.S.S.G § 4B1.2(a) (emphasis added).
The first clause in the "crime of violence" definition
is known as the "elements clause," or the "force clause." The
second clause is commonly referred to as the "enumerated offenses
clause," as it lists a series of crimes, "robbery" among them.
U.S.S.G §§ 4B1.2, 4B1.1(a) (2016).
The United States Probation Office's Second Revised
Presentence Investigation Report ("PSR") in Rabb's case found that
he had the requisite number of prior felony convictions to be a
"career offender" under the Guidelines. The PSR found that he had
committed a "controlled substance offense" based on his 2014
conviction under New York state law for criminal possession of a
controlled substance in the third degree. The PSR also found that
he had committed a "crime of violence" based on his 2000 conviction
for second-degree robbery in violation of New York Penal Law
§160.10(1).1
The PSR specifically determined that his 2000 New York
state law robbery conviction was for a "crime of violence" because
the enumerated offenses clause of the "crime of violence"
definition in the Guidelines included "robbery." The PSR relied
1Rabb was arrested in 1999 and convicted in 2000 for second-
degree New York robbery.
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on that clause after concluding that the force clause did not apply
in light of our ruling in United States v. Steed, 879 F.3d 440(1st Cir. 2018). There, we held that it was reasonably probable
that, as of 2000, a robbery of the type for which Rabb was convicted
encompassed even a purse snatching committed by means so sudden
that the victim was merely made aware of the perpetrator's
presence. We further held that such means did not amount to a use
of force or threatened force within the meaning of the force
clause. See Steed, 879 F.3d at 451.
The PSR followed the Guidelines' instruction to group
related counts of conviction -- which Rabb's two counts are --
pursuant to U.S.S.G. § 3D1.2, and then determine a combined offense
level for the group, id. § 3D1.3. Based on the application of the
"career offender" sentencing enhancement and other calculations
not at issue here, the PSR determined that Rabb's total offense
level under the Guidelines for his grouped 2018 convictions was
31. The PSR further noted that, given the "career offender"
determination, Rabb was subject to U.S.S.G. § 4B1.1(b), which
increases the criminal history category for all career offenders
to VI. The PSR thus found that Rabb's sentencing range for the
grouped convictions under the Guidelines was for a prison sentence
of 188 to 235 months.
At his sentencing hearing, Rabb argued that his 2000 New
York state law robbery conviction did not qualify as a "crime of
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violence" even under the enumerated offenses clause of the "crime
of violence" definition in the Guidelines. He relied for that
argument, in substantial part, on our reasoning in Steed. But,
the District Court concluded that Steed "at most forecloses a
finding that a New York second degree robbery conviction falls
under the force clause." The District Court ruled, however, that
Rabb's 2000 conviction was for a variant of robbery in New York
that "substantially corresponds to generic robbery" and thus that
is encompassed by the enumerated offenses clause of the Guidelines'
"crime of violence" definition.
Having made that determination, the District Court
adopted the PSR's determination that Rabb's offense level for the
group of convictions was 31 and thus that his sentencing range
under the Guidelines was for a prison sentence of 188 to 235
months. The District Court varied downwards, however, and imposed
a 140-month prison sentence for each conviction to be served
concurrently, to be followed by six years of supervised release.
Rabb now appeals.
II.
The only issue that we must resolve on appeal is whether
"robbery" in the enumerated offenses clause of the "crime of
violence" definition in the Guidelines encompasses the variant of
robbery under New York law that Rabb was convicted of in 2000.
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That issue is one of law, and so our review is de novo. United
States v. Almenas, 553 F.3d 27, 31 (1st Cir. 2009).
The parties agree that we must apply what is known as
the "categorical approach" to resolve this issue. Taylor v. United
States, 495 U.S. 575, 600-02 (1990). Under that approach, we focus
on the least of the conduct encompassed by the assertedly
qualifying offense for which Rabb was convicted and not on the
"particular facts underlying the conviction." United States v.
Dávila-Félix, 667 F.3d 47, 56 (1st Cir. 2011) (quoting United
States v. Piper, 35 F.3d 611, 619 (1st Cir. 1994)). In doing so,
however, we must focus on whether there is "a realistic
probability, not a theoretical possibility," that the least of the
conduct that offense criminalizes is greater than the conduct
encompassed by "robbery" as it is used in the enumerated offenses
clause of the Guidelines' definition of a "crime of violence."
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007).
In undertaking this categorical inquiry, "we apply an
historical approach." Steed, 879 F.3d at 447. Thus, we look to
"the state of New York law as it stood at the time that [Rabb] was
convicted of attempting to commit that crime." Id.; see also
United States v. Faust, 853 F.3d 39, 57 (1st Cir. 2017), reh'g
denied, 869 F.3d 11 (1st Cir. 2017). Moreover, we must determine
whether the underlying criminal offense is "divisible," in the
sense that the statute defining the offense "sets out one or more
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elements of the offense in the alternative." Descamps v. United
States, 570 U.S. 254, 257 (2013); see also United States v.
Tavares, 843 F.3d 1, 10 (1st Cir. 2016). For, if the statute
defining the offense does so, then we must apply what is known as
the modified categorical approach, which requires that we focus
this categorical inquiry on the specific variant of the divisible
offense for which the defendant was convicted. See Descamps, 570
U.S. at 257.
The parties agree that New York law, as of the time of
Rabb's conviction, defined a number of distinct variants of the
offense of robbery. The parties further agree that Rabb was
convicted of a specific, divisible variant of second-degree
robbery under New York law, namely, the variant that is set forth
in New York Penal Law § 160.10(1). That variant requires the
government to prove that the defendant, in committing "robbery,"
as defined in New York Penal Law § 160.00, was "aided by another
person actually present." N.Y. Penal Law § 160.10(1).
Neither party contends, however, that the additional
element set forth in § 160.10(1) is relevant to the categorical
inquiry that we must undertake. Rather, they agree that inquiry
turns solely on the scope of § 160.00 itself.2 We thus follow the
2 Steed was convicted under a different statutory section of
second-degree New York robbery, N.Y. Penal Law § 160.10(2)(a),
which, unlike the section Rabb was convicted under, does include
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parties in training our focus on the scope of § 160.00 as it was
defined at the time of Rabb's conviction in 2000.
As of that time, just as now, § 160.00 stated:
A person forcibly steals property and commits robbery
when, in the course of committing a larceny, he uses or
threatens the immediate use of physical force upon
another person for the purpose of:
1. Preventing or overcoming resistance to the taking of
the property or to the retention thereof immediately
after the taking; or
2. Compelling the owner of such property or another
person to deliver up the property or to engage in other
conduct which aids in the commission of the larceny.
N.Y. Penal Law § 160.00. The record does not specify the prong
of New York Penal Law § 160.00 that defines the offense for which
Rabb was convicted. For that reason, we look to the least of the
conduct that § 160.00 encompassed. See Duenas-Alvarez, 549 U.S.
at 193.
additional language related to the amount of force required.
Steed, 879 F.3d at 445-46. New York Penal Law § 160.10(2)(a) adds
an additional requirement that the robbery defendant or their
accomplice "[c]auses physical injury to any person who is not a
participant in the crime." The Steed court found that "this injury
requirement would not in and of itself have ruled out" a crime of
larceny involving the use of de minimis force from "qualifying as
a robbery." 879 F.3d at 450. Nevertheless, the fact that Rabb
and Steed were convicted under different subsections of second-
degree robbery does not affect the application of Steed's holding
to this case. If anything, it only means that the subsection that
Rabb was convicted under requires even less force than Steed's
because Rabb's conviction did not include the requirement of
"[c]aus[ing] physical injury."
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That determination is easily made here. Steed held that
"there is a realistic probability that . . . the least of the acts"
that this provision encompassed as of 2000 -- and thus as of the
time of Rabb's conviction -- "included 'purse snatching, per se.'"
879 F.3d at 450 (quoting People v. Santiago, 405 N.Y.S.2d 752, 757
(N.Y. App. Div. 1978), aff'd, 402 N.E.2d 121 (N.Y. 1980))
(discussing People v. Lawrence, 617 N.Y.S.2d 769 (N.Y. App. Div.
1994)). Steed further explained that there was a realistic
probability, as of that time, that a perpetrator needed to use
only enough force in committing such a snatching to "produce
awareness, although the action may be so swift as to leave the
victim momentarily in a dazed condition." Id. at 449 (quoting
United States v. Mulkern, 854 F.3d 87, 92-93 (1st Cir. 2017)).
The critical question, then, is whether "robbery" as
listed in the enumerated offenses clause of the Guidelines'
definition of "crime of violence" encompasses even the kind of
purse snatching per se that Steed held that § 160.00 encompassed
in 2000, when Rabb was convicted of his New York state law robbery
offense.3 The answer to that question depends on whether the least
3
Rabb argues that there are three elements that "robbery,"
as defined in the enumerated offenses clause, requires but that a
2000 New York robbery conviction did not. Rabb's argument about
the first of these three elements -- the use of force greater than
de minimis force -- is based on our holding in Steed. But, because
we agree with him that his robbery conviction does not qualify as
a crime of violence under the enumerated offenses clause based on
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of the conduct encompassed by "generic robbery" in 2016, which is
when the Guidelines that Rabb was sentenced under in 2018 went
into effect, see Taylor, 495 U.S. at 593–94 (determining the
generic elements of burglary under the Armed Career Criminal Act
(ACCA), which was enacted in 1984, by looking to the "generic 1984
definition of burglary"),4 encompasses even such a sudden purse
snatching.
"The Government bears the burden of establishing that a
prior conviction qualifies as a predicate offense for sentencing
enhancement purposes." Dávila-Félix, 667 F.3d at 55; see also
United States v. Bryant, 571 F.3d 147, 157-58 (1st Cir. 2009).
The government identifies no authority, however, that indicates
that generic robbery, as of 2016, encompassed such snatchings.
In fact, the government has set forth substantial
authority to indicate that generic robbery requires a type of force
the first element, we need not address the other two elements that
he discusses.
4 Although the enumerated offense of robbery was moved into
the main text of § 4B1.2(a)(2) of the Guidelines in 2016, "robbery"
was previously enumerated in the Application Note. See, e.g.,
U.S.S.G. § 4B1.2 cmt. n.1 (U.S. Sentencing Comm'n 2015).
Nevertheless, as the government has not suggested any reason --
nor do we see any -- for why the generic definition of robbery
would be any less likely to require more than de minimis force at
the time of prior iterations of the guidelines, we look to the
"contemporary" meaning of robbery as of 2016.
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that creates "an immediate danger to the person."5 See, e.g.,
United States v. Santiesteban-Hernandez, 469 F.3d 376, 380-81 (5th
Cir. 2006) ("[T]he majority of states focus on an act of force in
articulating the requisite level of immediate danger."), abrogated
on other grounds by United States v. Rodriguez, 711 F.3d 541 (5th
Cir. 2013).6 This understanding of robbery accords, moreover, with
the Model Penal Code. See Model Penal Code § 222.1 cmt. 3 at 108
(1980) ("[I]t is force or threat of force directed at placing the
victim in serious fear for his safety that justifies the escalated
5 The government cited a number of other decisions to support
this point. The government quoted United States v. Lockley, 632
F.3d 1238, 1244 (11th Cir. 2011), United States v. Walker, 595
F.3d 441, 446 (2d Cir. 2010), and United States v. Ball, 870 F.3d
1, 6 (1st Cir. 2017), which defines generic robbery as larceny by
force or intimidation. The government also quoted another
definition of generic robbery -- the "misappropriation of property
under circumstances involving [immediate] danger to the person.”
United States v. Santiesteban-Hernandez, 469 F.3d 376, 380 (5th
Cir. 2006) (alteration in original) (quoting 2 Wayne R. LaFave,
Substantive Criminal Law § 20.3 intro., (d)(2) (2d ed. 2003)),
abrogated on other grounds by United States v. Rodriguez, 711 F.3d
541 (5th Cir. 2013).
6 Rabb cites precedent to the same effect. See, e.g., United
States v. Becerril-Lopez, 541 F.3d 881, 891 (9th Cir. 2008)
(defining generic robbery as "aggravated larceny, containing at
least the elements of misappropriation of property under
circumstances involving immediate danger to the person" (quoting
Santiesteban-Hernandez, 469 F.3d at 380)); United States v.
Mulkern, No. 1:15-cr-00054-JAW, 2017 U.S. Dist. LEXIS 191486, at
*13 (D. Me. Nov. 20, 2017) (defining generic robbery as a taking
"by violence, intimidation, or by threatening the imminent use of
force").
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penalties of the robbery offense."). The government does not
explain how a snatching that occurs in such a sudden manner as to
merely make the victim "aware" of the perpetrator's presence
constitutes the type of conduct that suffices to engender serious
fear for safety in the victim or to place the victim in immediate
danger. Indeed, substantial authority indicates that generic
robbery does not encompass conduct of that kind. See, e.g., 3
Wayne R. LaFave, Substantive Criminal Law § 20.3(d)(1) (3d ed.)
("The great weight of authority, however, supports the view that
there is not sufficient force to constitute robbery when the thief
snatches property from the owner's grasp so suddenly that the owner
cannot offer any resistance to the taking.").
Moreover, the government appears to have accepted as
much in the course of responding to Rabb's invocation at sentencing
of United States v. Fluker, 891 F.3d 541 (4th Cir. 2018), in which
the Fourth Circuit held that Georgia robbery was construed "more
broadly than generic robbery" because it included "sudden
snatching[s]," which only require the force "necessary for the
robber to transfer the property taken from the owner to his
possession." Id. at 547-49. The government contended in response
that Fluker was distinguishable from Rabb's case precisely because
the offense of conviction under the Georgia robbery statute at
issue in Fluker could be committed "by sudden snatching, so there
wasn't any force involved in their statute by definition," thereby
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rendering the Georgia robbery statute "broader than generic
robbery."7
The Supreme Court's recent decision in Stokeling v.
United States, 139 S. Ct. 544 (2019), also points against the
government's position. There, in the course of holding that a
state robbery offense that requires the defendant to overcome the
victim's resistance qualifies as a predicate violent felony under
the ACCA's elements clause, the Court explained that
"Congress . . . defined robbery as requiring the use of 'force or
violence' -- a clear reference to the common law of robbery. And
the level of 'force' or 'violence' needed at common law was by
this time well established: 'Sufficient force must be used to
overcome resistance.'" Id. at 551 (internal citations omitted).
The Stokeling Court then looked to the states' definitions of
robbery and found that "[i]n 1986, a significant majority of the
States defined nonaggravated robbery as requiring force that
overcomes a victim's resistance." Id. at 552. There is no
indication that a robbery of that kind includes one committed in
7Even New York, as of 2015, appears to require more force
for a robbery conviction than the de minimis amount needed to
effectuate a purse snatching. See People v. Jurgins, 46 N.E.3d
1048, 1053 (N.Y. 2015) (noting that "the parties agree that a
taking 'by sudden or stealthy seizure or snatching' would not be
considered a robbery or other felony in New York").
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a way that need merely make the victim aware of the perpetrator's
presence.
The government at oral argument contended for the first
time that "robbery" in the enumerated offenses clause must be
construed to encompass even the kind of sudden purse snatchings
described in Steed for a different reason. The government
contended that "robbery" must be construed that way because, if
the level of force required by "robbery" under the enumerated
offenses clause is the same as that required by the force clause,
then the listing of the enumerated offense of "robbery" would not
be adding any additional type of crime to the definition of a
"crime of violence" in the Guidelines and so would be superfluous.
The government identifies no authority, however, that
indicates that an offense that a state labels "robbery" qualifies
as a "robbery" under the enumerated offenses clause without regard
to how much of an outlier such an expansive definition of "robbery"
turns out to be. Yet, the logic of this late-breaking argument by
the government would appear to require that even such an outlier
definition of "robbery" would qualify. In any event, the
government has waived this argument both by raising it only at
this late juncture, see United States v. DeMasi, 40 F.3d 1306,
1320 n.14 (1st Cir. 1994), and by failing adequately to develop
it, see United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
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III.
Accordingly, we vacate the sentence and remand for
resentencing consistent with this opinion.
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