United States v. Jones

• Decision Date: 11 September 2017
• Docket Number: No. 15-1518-cr,August Term, 2015,15-1518-cr
• Parties: UNITED STATES of America, Appellee, v. Corey JONES, Defendant–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

878 F.3d 10

UNITED STATES of America, Appellee,

v.Corey JONES, Defendant–Appellant.

No. 15-1518-cr

August Term, 2015

United States Court of Appeals, Second Circuit.

Argued: April 27, 2016

Decided: September 11, 2017

Amended: October 5, 2017

Bridget M. Rohde, Acting Assistant United States Attorney (Amy Busa, Assistant United States Attorney, on the brief), for Acting United States Attorney for the Eastern District of New York, for Appellee.

Matthew B. Larsen, Assistant Federal Defender, Federal Public Defenders of New York, New York, NY, for Defendant–Appellant.

Before: Walker, Calabresi, and Hall, Circuit Judges.

Judge CALABRESI and Judge HALL concur in the opinion of the Court. Judge CALABRESI files a separate concurring opinion, which Judge HALL joins.

John M. Walker, Jr., Circuit Judge:

Defendant Corey Jones appeals from a sentence entered in the United States District Court for the Eastern District of New York (Garaufis, J .) following a jury trial conviction for assaulting a federal officer in violation of 18 U.S.C. § 111. He was sentenced as a career offender principally to 180 months in prison to be followed by three years of supervised release. The primary basis for Jones' appeal is that, in light of the Supreme Court's holding in Johnson v. United States , 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ( Johnson I ), New York first-degree robbery is no longer categorically a crime of violence under the force clause of the Career Offender Guideline, U.S.S.G. §§ 4B1.1 and 4B1.2, and that the district court therefore erred in concluding that his prior conviction for first-degree robbery would automatically serve as one of the predicate offenses for a career offender designation.

After oral argument in this matter, the Supreme Court decided Beckles v. United States , ––– U.S. ––––, 137 S.Ct. 886, 197 L.Ed.2d 145 (2017), which held that the residual clause of the Career Offender Guideline—a second basis for finding a crime of violence—was not unconstitutional. The Court reached this conclusion notwithstanding the government's concession to the contrary in cases around the country that the residual clause, like the identically worded provision of the Armed Career Criminal Act ("ACCA"), was void for vagueness. In light of Beckles , we find that New York first-degree robbery categorically qualifies as a crime of violence under the residual clause and therefore need not address Jones' argument based on the force clause. We also find that his sentence is substantively reasonable and therefore AFFIRM the sentence imposed by the district court and REMAND for further consideration as may be just under the circumstances.

BACKGROUND

On June 21, 2013, Corey Jones was finishing a ninety-two month federal sentence for unlawful gun possession in a halfway house. Jones verbally threatened a staff member, a violation of the rules of the halfway house, and thereby was remanded to the custody of the Bureau of Prisons. Two Deputy U.S. Marshals arrived to take Jones to prison, but Jones resisted the Marshals' efforts to take him into custody. During the ensuing altercation, Jones bit the finger of one of the Marshals, who suffered puncture wounds, necessitating antibiotics and a tetanus vaccine at a hospital. This assault, it turned out, had grave consequences for Jones who was now in all likelihood a "career offender" subject to a greatly enhanced sentence.

A jury convicted Jones of assaulting a federal officer in violation of 18 U.S.C. § 111. In the pre-sentence report, the probation officer calculated a relatively modest base offense level of fifteen for the assault. But the probation officer then determined that Jones was a career offender pursuant to the Career Offender Guideline because, in addition to (1) being over eighteen years of age when he committed the assault and (2) the assault being a crime of violence, (3) he had at least two prior felony convictions of a crime of violence. According to the report, Jones' previous two convictions in New York for first-degree robbery and second-degree assault satisfied the third element of the test. The probation officer, following U.S.S.G. § 4B1.1, increased the offense level to thirty-two, which, when combined with Jones' criminal history category of VI, resulted in a Guidelines range of 210 to 262 months of incarceration. Because the statutory maximum for assault is twenty years, the effective Guidelines range was 210 to 240 months.

The district court adopted the findings of the pre-sentence report and sentenced Jones to 180 months, or fifteen years, in prison for the assault, to be followed by three years of supervised release. Jones now appeals his sentence, arguing, first, that the district court erred in designating him a career offender and, second, that his sentence is substantively unreasonable.

After oral argument, we published an opinion that resolved Jones' appeal in his favor. The government had conceded that the residual clause was void for vagueness, and we concluded that the force clause could not be applied to Jones for reasons not relevant here. Shortly after our decision was issued, however, we vacated the opinion in order to await the Supreme Court's decision in Beckles . See United States v. Jones , 838 F.3d 296 (2d Cir. 2016) (mem.).

Beckles addressed the constitutionality of the Career Offender Guideline's residual clause, which was in effect at the time of Jones' sentencing but has since been removed and replaced with new language.¹ Following Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 2557, 192 L.Ed.2d 569 (2015) ( Johnson II ), which held that the residual clause of the ACCA was unconstitutionally void for vagueness, there existed a general belief that the identically worded residual clause of the Career Offender Guideline was similarly unconstitutional, as the government had consistently maintained. In Beckles , however, the Court held that the residual clause of the Career Offender Guideline is immune from void-for-vagueness challenges, as are the Guidelines generally. Beckles , 137 S.Ct. at 892. After Beckles , we invited the parties in this case to provide supplemental briefing as to whether first-degree robbery, as defined in New York, categorically qualifies as a crime of violence under the previously codified residual clause of the Career Offender Guideline.² We now address that question.

DISCUSSION

As noted, prior to Beckles , Jones' argument centered upon the force clause of the Career Offender Guideline. Aided now by the Supreme Court's holding that the residual clause of the Career Offender Guideline is not void for vagueness, we find that first-degree robbery as defined in New York is categorically a crime of violence under the residual clause and thus we need not address Jones' argument based on the force clause.

In the district court, Jones contested his career offender designation solely on the basis that his first-degree robbery conviction occurred when he was a juvenile. He raised no argument that robbery in New York was not a crime of violence. We accordingly review his present challenge on that ground for plain error. See United States v. Gamez , 577 F.3d 394, 397 (2d Cir. 2009) (per curiam).

To meet this standard, Jones must establish the existence of (1) an error; (2) "that is plain"; (3) "that affects substantial rights"; (4) and that "seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id . (alterations and citation omitted). We apply this standard less "stringently in the sentencing context, where the cost of correcting an unpreserved error is not as great as in the trial context." Id. We first address point (1): whether the district court committed error of any kind in designating Jones a career offender.

I. The Legal Provisions at Issue in This Appeal

This appeal involves the interplay between substantive state criminal law and the federal Sentencing Guidelines ("Guidelines"). The question we face is straightforward: is first-degree robbery in New York, defined in New York Penal Law §§ 160.00 and 160.15, however it may be committed, categorically a crime of violence under the Career Offender Guideline?

A defendant commits robbery in New York when he "forcibly steals property," which the statute defines as "a larceny" involving the use or threatened "immediate use of physical force upon another person." N.Y. Penal Law § 160.00. The various degrees of robbery, which carry different penalties, turn upon the presence of particular aggravating factors. Compare § 160.05 (defining third-degree robbery), with § 160.10 (defining second-degree robbery), and with § 160.15 (defining first-degree robbery). First-degree robbery occurs when a defendant commits robbery and during the course of the crime or his immediate flight either "(1) [c]auses serious physical injury to any person who is not a participant in the crime; or (2) [i]s armed with a deadly weapon; or (3) [u]ses or threatens the immediate use of a dangerous instrument; or (4) [d]isplays what appears to be a ... firearm." § 160.15.

The Career Offender Guideline enhances sentences for defendants in federal court who satisfy certain criteria. See U. S. Sentencing Guidelines Manual § 4B1.1(a) (U.S. Sentencing Comm'n Nov. 2014) (U.S.S.G.). A defendant is a career offender if (1) he is "at least eighteen years old at the time [he] committed the instant offense of conviction"; (2) his "instant offense of conviction is a felony that is ... a crime of violence"; and (3) he "has at least two prior felony convictions of ... a crime of violence." Id.

At the time of Jones' sentencing in 2015,³ as mentioned earlier, there were two separate clauses defining "crime of violence." See § 4B1.2(a). The first definition, the "force clause," specifies that a crime of violence is a felony "that has as an element the use, attempted use, or threatened use of physical force against the person of another." § 4B1.2(a)(1). The second clause enumerates several...