United States v. Zimmian Tabb

18‐338‐cr
United States of America v. Zimmian Tabb
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_____________________
AUGUST TERM, 2019
(ARGUED: NOVEMBER 4, 2019 DECIDED: FEBRUARY 6, 2020)
No. 18‐338
_____________________
UNITED STATES OF AMERICA,
Appellee,
‐v.‐
ZIMMIAN TABB,
Defendant‐Appellant.
Before: SACK and HALL, Circuit Judges, and RAKOFF, District Judge.1
_______________________
At issue in this case is whether defendant‐appellant Zimmian Tabb’s prior
convictions for attempted assault in the second degree under N.Y. Penal Law
(“N.Y.P.L.”) § 120.05(2) and federal narcotics conspiracy under 21 U.S.C. § 846
constitute predicate offenses for purposes of the career offender sentencing
enhancement of the United States Sentencing Guidelines § 4B1.1. The district
court (Hellerstein, J.) applied the enhancement because it found that Tabb’s
conviction under N.Y.P.L. § 120.05(2) constituted a predicate “crime of violence”
1Jed S. Rakoff, of the United States District Court for the Southern District of
New York, sitting by designation.
1
and that Tabb’s conviction under 21 U.S.C. § 846 constituted a predicate
“controlled substance offense.” The Court agrees with both findings.
Accordingly, application of the career offender sentencing enhancement was
appropriate and the judgment of the district court is AFFIRMED.
_______________________
FOR APPELLEE: WON S. SHIN, Assistant United States
Attorney (Geoffrey S. Berman,
United States Attorney for the Southern
District of New York, David W. Denton, Jr.,
Rebekah Donaleski, Assistant United States
Attorneys, on the brief), New York, NY
FOR DEFENDANT‐APPELLANT: RICHARD E. SIGNORELLI, Law Office of
Richard E. Signorelli, New York, NY
_______________________
RAKOFF, District Judge:
Zimmian Tabb appeals from a judgment of conviction entered on January 25,
2018 and a Sentencing Order entered on January 26, 2018 in the United States
District Court for the Southern District of New York (Hellerstein, J.). Tabb
contends that he was improperly classified as a career offender based on his
prior convictions for attempted assault in the second degree under N.Y. Penal
Law (“N.Y.P.L.”) § 120.05(2) and federal narcotics conspiracy under 21 U.S.C.
§ 846. Because we agree that both crimes constitute predicate offenses for
purposes of the career offender sentencing enhancement of the United States
2
Sentencing Guidelines (“U.S.S.G.”) § 4B1.1, we affirm the judgment of the district
court.
I. Facts
On May 5, 2017, Tabb pled guilty to aiding and abetting the distribution of
3.75 grams of crack cocaine, in violation of 21 U.S.C. § 841(b)(1)(C) and 18 U.S.C.
§ 2. The plea agreement did not stipulate whether Tabb’s prior convictions
qualified him for the career offender enhancement of U.S.S.G. § 4B1.1. Under
U.S.S.G. § 4B1.1, a defendant is a career offender if (1) he is over 18; (2) the
present offense is a felony crime of violence or a controlled substance offense;
and (3) he “has at least two prior felony convictions of either a crime of violence
or a controlled substance offense.” U.S.S.G. § 4B1.2 sets out the definitions of
both a “crime of violence” and a “controlled substance offense.”
At sentencing, the district court concluded that Tabb had two prior felony
convictions for purposes of the sentencing enhancement. First, Tabb’s 2014
conviction for conspiracy to distribute and possess with intent to distribute crack
cocaine in violation of 21 U.S.C. § 846 constituted a predicate controlled
substance offense. Second, Tabb’s 2010 conviction for attempted assault in the
3
second degree in violation of N.Y. Penal Law (“N.Y.P.L.”) § 120.05(2) constituted
a predicate crime of violence.
Based on these prior convictions, the district court concluded that Tabb
qualified for the career offender enhancement and calculated his Guidelines
range to be 151 to 188 months’ imprisonment. Without the career offender
enhancement, Tabb’s Guidelines range would have been 33 to 41 months.2
Ultimately, the district court imposed a below‐guidelines sentence of 120
months. Tabb appeals the judgment and sentencing order on the ground that he
should not have been classified as a career offender. This Court reviews de novo a
district court’s interpretation of the Guidelines. United States v. Matthews, 205
F.3d 544, 545 (2d Cir. 2000).
II. Analysis
Tabb argues that he should not have been classified as a career offender under
U.S.S.G. § 4B1.1 because he did not have two predicate convictions. First, he
argues that attempted assault in the second degree under N.Y. Penal Law
§ 120.05(2) is not a predicate conviction because it is not crime of violence within
2As this illustrates, the career offender enhancement often dwarfs all other
Guidelines calculations and recommends the imposition of severe, even
Draconian, penalties.
4
the relevant provision of U.S.S.G. § 4B1.2 (known as the “Force Clause”). Second,
he argues that his narcotics conspiracy conviction under 21 U.S.C. § 846 is not a
predicate conviction because it does not qualify as a controlled substance offense.
Neither argument is persuasive.
A. Tabb’s Conviction for Attempted Assault in the Second Degree (N.Y.P.L §
120.05(2))
Tabb first argues that attempted assault in the second degree under N.Y.P.L
§ 120.05(2) is not a crime of violence under the Force Clause of § 4B1.2. A person
is guilty of second‐degree assault under N.Y.P.L. § 120.05(2) when, “[w]ith intent
to cause physical injury to another person, he causes such injury to such person
or to a third person by means of a deadly weapon or a dangerous instrument.”
This qualifies as a “crime of violence” under the Force Clause (also sometimes
referred to as the “Elements Clause”) if it “has as an element the use, attempted
use, or threatened use of physical force against the person of another.” U.S.S.G.
§ 4B1.2.3
3A crime can also qualify as a “crime of violence” if it meets the sentencing
guidelines’ “enumerated offenses clause,” or “is a murder, voluntary
manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery,
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).” Because
attempted assault in the second degree under N.Y.P.L. § 120.05(2) qualifies as a
5
U.S.S.G. § 4B1.2’s Force Clause is identical to language in two other statutes:
the definition of “violent felony” under the Armed Career Criminal Act
(“ACCA”), and the definition of “crime of violence” under 18 U.S.C. § 16(a).
“[T]he identical language of the elements clauses of 18 U.S.C. § 16(a) and [ACCA]
means that cases interpreting the clause in one statute are highly persuasive in
interpreting the other statute,” as well as in interpreting U.S.S.G. § 4B1.2. Stuckey
v. United States, 878 F.3d 62, 68 n.9 (2d Cir. 2017), cert. denied, 139 S. Ct. 161 (2018).
Thus, in evaluating Tabb’s claim, this Court is guided by its ACCA and § 16(a)
jurisprudence.
Tabb first argues that attempted assault in the second degree under N.Y.
Penal Law § 120.05(2) cannot be a crime of violence because the substantive
crime of second‐degree assault is not itself a crime of violence. To determine
whether a state crime falls under the Sentencing Guidelines, the Second Circuit
generally uses the “categorical approach” prescribed by the Supreme Court.
Taylor v. United States, 495 U.S. 575, 600 (1990). Under this abstract approach, a
court considers the “generic, contemporary meaning” of the crime in the
guidelines, id. at 598, and then determines whether the crime committed by the
crime of violence under the Force Clause, we need not determine whether it
would also meet the enumerated offenses clause definition of a crime of violence.
6
defendant falls under this “generic offense.” The Court “ignores the
circumstances of the particular defendant’s crime and asks instead what is the
minimum criminal conduct necessary to sustain a conviction under the relevant
statute.” Singh v. Barr, 939 F.3d 457, 462 (2d Cir. 2019) (internal quotation marks
and citation omitted). “[O]nly if the statute’s elements are the same as, or
narrower than, those of the generic offense does the prior conviction serve as a
predicate offense for a sentencing enhancement.” United States v. Castillo, 896
F.3d 141, 149‐50 (2d Cir. 2018) (internal quotation marks and citation omitted).
Tabb’s argument that N.Y.P.L. § 120.05(2) is not a crime of violence under the
categorical approach is severely undercut by this Court’s holdings from the
ACCA and § 16(a) contexts. In United States v. Walker, 442 F.3d 787 (2d Cir. 2006)
(per curiam), this Court held that attempted assault in the second degree
N.Y.P.L. § 120.05(2) is “categorically” a violent felony under ACCA because “[t]o
(attempt to) cause physical injury by means of a deadly weapon or dangerous
instrument is necessarily to (attempt to) use ‘physical force,’ on any reasonable
interpretation of that term.” Id. at 788. More recently, in Singh v. Barr, 939 F.3d
457 (2d Cir. 2019) (per curiam), the Court reaffirmed Walker’s holding and held
that the substantive crime of second‐degree assault under N.Y.P.L. § 120.05(2) is
7
also categorically a crime of violence under § 16(a)’s Force Clause. Thus, this
Court has found that the substantive crime of N.Y.P.L. § 120.05(2) categorically
“has as an element the use, attempted use or threatened use of physical force
against the person of another” under both ACCA and § 16(a).
Tabb provides no reason why the result should be different under U.S.S.G.
§ 4B1.2. Indeed, Tabb largely relies on cases from both the ACCA and § 16(a)
context to argue that second‐degree assault under N.Y.P.L. § 120.05(2) is not a
crime of violence. For example, Tabb relies on an earlier § 16(a) case, Chrzanoski v.
Ashcroft, 327 F.3d 188 (2d Cir. 2003), to argue that second‐degree assault does not
qualify as a crime of violence because it may be accomplished by indirect force.
Singh, however, necessarily, and explicitly, rejected this argument when it found
that second‐degree assault under N.Y.P.L. § 120.05(2) was a crime of violence
under § 16(a). 939 F.3d at 463 (“[I]ndirect methods of inflicting serious physical
injury still meet the physical force requirement of § 16(a).”). Moreover, the view
of “force” set forth in Chrzanoski was subsequently modified by our Court in light
of the Supreme Court decision in United States v. Castleman, which held that
physical force in the context of a misdemeanor crime of domestic violence
“encompasses even its indirect application.” Villanueva v. United States, 893 F.3d
8
123, 130 (2d Cir. 2018) (quoting Castleman, 572 U.S. 157, 170 (2014)); see also United
States v. Hill, 890 F.3d 51, 60 (2d Cir. 2018) (recognizing the Chrzanoski court “did
not have the benefit of the Supreme Court’s reasoning in Castleman”).
Tabb’s alternative Chrzanoski‐based argument ‐‐ that second‐degree assault
under N.Y.P.L. § 120.05(2) is not categorically a crime of violence because it can
be committed by omission ‐‐ is no more successful. In Singh, the Court requested
supplemental briefing on “whether NYPL § 120.05(2) allows for the imposition of
liability based on a defendant’s omission to act.” Singh, 939 F.3d at 463. Neither
the parties nor the panel were able to find a single example of such liability being
imposed. Id. Indeed, the panel explained that “it is nearly impossible to conceive
of a scenario in which a person could knowingly or intentionally injure, or
attempt to injure, another person with a deadly weapon without engaging in at
least some affirmative, forceful conduct.” Id. at 463‐64 (quoting United States v.
Ramos, 892 F.3d 599, 612 (3d Cir. 2018)). Thus, notwithstanding Tabb’s objections,
we find that the substantive crime of second degree assault under N.Y.P.L.
§ 120.05(2) “has as an element the use, attempted use or threatened use of
physical force against the person of another” and is categorically a crime of
violence under U.S.S.G. § 4B1.2.
9
We next examine whether attempted second degree assault under N.Y.P.L.
§ 120.05(2) may nonetheless not categorically be a crime of violence. We reject
this possibility. Walker, although an ACCA case, squarely held that attempted
second‐degree assault under N.Y.P.L. § 120.05(2) requires the attempted use of
physical force “on any reasonable interpretation of that term.” 442 F.3d at 788.
This essentially precludes finding that New York attempted second‐degree
assault does not have “as an element the . . . attempted use . . . of physical force
against the person of another” under U.S.S.G. § 4B1.2.
Recognizing that application of Walker’s holding would negate his argument,
Tabb offers a number of reasons why it is not controlling here. None is
persuasive. Tabb first argues that Walker is not controlling because the Walker
Court did not discuss the statutory definition of “dangerous instrument,” which
can include substances that can cause death or physical injury without the use of
any force. As discussed above, however, the Supreme Court has rejected the
notion that the use of poison or another indirect application of force does not
involve the use of physical force, see Castleman, 134 S. Ct. at 1414, and the Second
Circuit has recognized and adopted this holding in multiple statutory contexts.
10
See Villanueva, 893 F.3d at 128‐29 (ACCA); Hill, 890 F.3d at 59‐60 (18 U.S.C. §
924(c)(3)(A)).
Tabb next argues that an intervening Supreme Court case, Johnson v. United
States, 559 U.S. 133 (2010), effectively abrogated Walker. In Johnson, the Supreme
Court clarified that “physical force” means “violent force ‐‐ that is, force capable
of causing physical pain or injury to another person.” Id. at 140. However, Walker
held that attempted assault in the second degree necessarily involves an attempt
to use such physical force “on any reasonable interpretation of that term.”
Walker, 442 F.3d at 788. For this reason, this Court has already rejected, albeit in
an unpublished opinion, the notion that Johnson abrogated Walker. See Brunstorff
v. United States, 754 F. App’x 48, 50 (2d Cir.), cert. denied, 140 S. Ct. 254 (2019). We
agree.
Finally, Tabb argues that Walker is not controlling because “attempt” under
New York law is broader than the generic “attempt” described in the guidelines.
Thus, Tabb argues, a defendant could be convicted of attempted assault in the
second degree in New York without ever “attempt[ing]” to use physical force in
the sense defined in the sentencing guidelines.4
4Although this argument is essentially a veiled request to overrule Walker, we
nonetheless address and thereby reaffirm Walker’s holding and clarify its scope.
11
The elements of New York attempt, however, are no broader than generic
attempt. The Second Circuit has found that generic attempt is “the presence of
criminal intent and the completion of a substantial step toward committing the
crime.” Sui v. INS, 250 F.3d 105, 115 (2d Cir. 2001). New York attempt requires
intent to commit the crime and an “action taken by an accused [] ‘so near [the
crime’s] accomplishment that in all reasonable probability the crime itself would
have been committed.’” United States v. Pereira‐Gomez, 903 F.3d 155, 166 (2d Cir.
2018) (quoting People v. Mahboubian, 74 NY.2d 174, 196 (1989)). The Second
Circuit has held that this latter element of New York attempt “categorically
requires that a person take a ‘substantial step’ toward the use of physical force.”
United States v. Thrower, 914 F.3d 770, 777 (2d Cir. 2019) (per curiam).5 Thus, the
elements of New York attempt are the same as or narrower than generic attempt,
5Tabb’s citation to People v. Naradzay, 11 N.Y.3d 460 (2008), in which an
individual was convicted of attempted murder without ever having been in the
presence of his victims, does not change this outcome. Someone can take a
“substantial step” towards using force against a victim even if that victim is not
physically present at that moment, for example by “load[ing] a firearm and then
start[ing] towards the person to be assailed.” People v. Sullivan, 173 N.Y. 122, 136
(1903).
12
and attempted assault in the second degree under New York law categorically
involves the “attempted use . . . of physical force” under U.S.S.G. § 4B1.2.
For the foregoing reasons, we find that attempted assault in the second degree
under N.Y.P.L. § 120.05(2) is categorically a crime of violence under the Force
Clause of U.S.S.G. § 4B1.2. Tabb’s conviction under this statute thus properly
served as a predicate for his sentencing enhancement.
B. Tabb’s Conviction for Narcotics Conspiracy Under 21 U.S.C. § 846
Tabb also argues that his conviction for conspiracy to distribute and possess
with intent to distribute crack cocaine in violation of 21 U.S.C. § 846 (“Section
846”) cannot qualify as a predicate “controlled substance offense” under U.S.S.G.
§ 4B1.1. As defined in U.S.S.G. § 4B1.2, a controlled substance offense is:
an offense under federal or state law, punishable by imprisonment for a term
exceeding one year, that prohibits the manufacture, import, export,
distribution, or dispensing of a controlled substance (or a counterfeit
substance) or the possession of a controlled substance (or a counterfeit
substance) with intent to manufacture, import, export, distribute, or dispense.
Application Note 1 of the commentary clarifies that controlled substance offenses
“include the offenses of aiding and abetting, conspiring, and attempting to
commit such offenses.” U.S.S.G. § 4B1.2 cmt. n.1. The plain text of U.S.S.G.
§ 4B1.2 as interpreted by Application Note 1 thus appears to include narcotics
13
conspiracies such as 21 U.S.C. § 846. Tabb nonetheless argues that narcotics
conspiracy under Section 846 is not encompassed by this definition, and is thus
not a proper predicate for a sentencing enhancement.
Tabb first argues that narcotics conspiracy under 21 U.S.C. § 846 is not a
proper predicate conviction because Application Note 1 conflicts with the
Guidelines text by improperly expanding it. See Stinson v. United States, 508 U.S.
36, 45 (1993) (holding that Guidelines commentary is valid and binding on the
judiciary unless it is “plainly erroneous or inconsistent with” the Guidelines
text). This argument, however, is foreclosed in this Circuit by United States v.
Jackson, 60 F.3d 128 (2d Cir. 1995). In Jackson, this Court directly addressed and
dismissed the argument that “the Sentencing Commission exceeded its statutory
mandate . . . by including drug conspiracies as controlled substance offenses.” Id.
at 131.
Although Tabb attempts to argue that Jackson only addressed the Sentencing
Commission’s authority, not Tabb’s specific argument that Application Note 1
improperly conflicts with the guideline text, this purported distinction is without
substance. In our view, there is no way to reconcile Jackson’s holding that the
Commission had the “authority to expand the definition of ‘controlled substance
14
offense’ to include aiding and abetting, conspiring, and attempting to commit
such offenses” through Application Note 1, id. at 133, with Tabb’s proposed
holding that the Guideline text forbids expanding the definition of a controlled
substance offense to include conspiracies.
To be sure, Jackson only applies in the Second Circuit. Tabb correctly notes
that the Sixth and D.C. Circuits have recently agreed with Tabb’s argument that
Application Note 1 conflicts with the text of U.S.S.G. § 4B1.2(b) by including
crimes that the Guideline text excludes. See United States v. Havis, 927 F.3d 382,
385‐87 (6th Cir. 2019) (en banc) (per curiam); United States v. Winstead, 890 F.3d
1082, 1090‐92 (D.C. Cir. 2018); see also United States v. Crum, 934 F.3d 963, 966 (9th
Cir. 2019) (per curiam) (“If we were free to do so, we would follow the Sixth and
D.C. Circuits’ lead.”). But these decisions are of no moment here, because we,
acting as a three judge panel, are not at liberty to revisit Jackson. See Doscher v. Sea
Port Grp. Sec., LLC, 832 F.3d 372, 378 (2d Cir. 2016) (finding that this Court is
“bound by a prior panel’s decision until it is overruled either by this Court
sitting en banc or by the Supreme Court”). Accordingly, we find that Jackson
precludes Tabb’s argument that Application Note 1 is invalid.
15
Tabb next argues that even if Application Note 1 is valid, the word
“conspiracy” does not encompass his conviction for federal narcotics conspiracy
under Section 846.6 Specifically, he argues that narcotics conspiracy under 21
U.S.C. § 846 is not a predicate “controlled substance offense” under U.S.S.G. §
4B1.1 because the term conspiracy in Application Note 1 encompasses only
“generic” conspiracy. To do so, Tabb relies on United States v. Norman, 935 F.3d
232 (4th Cir. 2019), in which the Fourth Circuit held that Application Note 1
incorporates a generic definition of conspiracy, that generic conspiracy requires
an overt act, and that federal narcotics conspiracy under 21 U.S.C. § 846 is not a
generic conspiracy because it does not require an overt act. Id. at 237‐38.7
We respectfully disagree. The essence of a conspiracy is an agreement by two
or more persons to commit an unlawful act. See United States v. Praddy, 725 F.3d
6The Government argues that Jackson forecloses this argument because it
affirmed the application of a sentencing enhancement based on a conviction for
Section 846 conspiracy. In Jackson, however, the defendant “d[id] not challenge
the application of the Sentencing Guidelines,” Jackson, 60 F.3d at 131, but instead
focused on whether Applied Note 1 was a proper exercise of the Sentencing
Commission’s authority. Thus, Jackson does not control the specific question of
whether the district court erred in finding that Application Note 1’s language
includes Section 846 narcotics conspiracy.
7Norman joined United States v. Martinez‐Cruz, 836 F.3d 1305 (10th Cir. 2016),
which reached the same conclusions with respect to U.S.S.G. 2L1.2. Id. at 1310‐14.
16
147, 153 (2d Cir. 2013). Although conspiracy at common law often required that
an overt act, however trivial, be taken in furtherance of the conspiracy, Congress
has chosen to eliminate this requirement in the case of several federal crimes,
most notably narcotics conspiracy. United States v. Shabani, 513 U.S. 10, 14‐15
(1994).
The text and structure of Application Note 1 demonstrate that it was intended
to include Section 846 narcotics conspiracy. Application Note 1 clarifies that
“controlled substance offenses” include “the offense[] of . . . conspiring . . . to
commit such offenses,” language that on its face encompasses federal narcotics
conspiracy. As the Ninth Circuit recognized in relation to a similar Guideline
provision, “To hold otherwise would be to conclude that the Sentencing
Commission intended to exclude federal drug . . . conspiracy offenses when it
used the word ‘conspiring’ to modify the phrase” controlled substance offenses.
United States v. Rivera‐Constantino, 798 F.3d 900, 904 (9th Cir. 2015). Such a
holding would also require finding that term “conspiracy” includes Section 846
narcotics conspiracy in some parts of the guidelines, see, e.g., U.S.S.G. § 2D1.1;
U.S.S.G. § 2X1.1, but not others. “A standard principle of statutory construction
provides that identical words and phrases within the same statute should
17
normally be given the same meaning.” Rivera‐Constantino, 798 F.3d at 905
(quoting Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 232 (2007)).
Moreover, as this Court noted in Jackson, interpreting “controlled substance
offense” conspiracies to include Section 846 conspiracies harmonizes the
Sentencing Commission’s intent with congressional intent. This Court upheld
Application Note 1 in Jackson in part because Section 846 manifested
congressional “intent that drug conspiracies and underlying offenses should not
be treated differently” by “impos[ing] the same penalty for a narcotics
conspiracy conviction as for the substantive offense.” 60 F.3d at 133. Reading
Application Note 1 as intended to exclude Section 846 conspiracy would place
the Sentencing Commission at odds with Congress itself by attaching sentencing
enhancements to substantive narcotics crimes but not to the very narcotics
conspiracies that Congress wanted treated the same.
To us, it is patently evident that Application Note 1 was intended to and does
encompass Section 846 narcotics conspiracy. Tabb’s conviction under this statute
thus properly served as a predicate for his sentencing enhancement.8
8As a final argument, Tabb urges that because it is at least arguably ambiguous
whether his prior offenses qualify as predicate offenses under U.S.S.G. § 4B1.1,
the rule of lenity requires us to interpret the sentencing guidelines in his favor.
The rule of lenity, however, is a tool of last resort “reserved for cases where,
18
III. Conclusion
For the foregoing reasons, the district court correctly concluded that Tabb’s
convictions for attempted assault in the second degree under N.Y.P.L. § 120.05(2)
and federal narcotics conspiracy under 21 U.S.C. § 846 constituted predicate
crimes for purposes of the career offender sentencing enhancement. The district
court’s judgment and sentence are AFFIRMED.
‘after seizing every thing from which aid can be derived, the Court is left with an
ambiguous statute.’” DePierre v. United States, 564 U.S. 70, 88 (2011) (quoting
Smith v. United States, 508 U.S. 223, 239 (1993)). As described above, this Court’s
prior precedent, along with traditional rules of statutory interpretation, resolve
any ambiguity in the sentencing guidelines decidedly against Tabb. Accordingly,
the rule of lenity has no application here. Id.
19