885 F.3d 984 (6th Cir. 2018), 17-3419, Perez v. United States

Docket Nº:17-3419
Citation:885 F.3d 984
Party Name:Moises PEREZ, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
Attorney:Claire C. Curtis, FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant. Brian M. McDonough, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee. Claire C. Curtis, FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant. Brian M. McDonough, UNITED STATES ATTORNEY’S OFFICE, Cleveland,...
Judge Panel:Before: MERRITT, SUTTON, Circuit Judges, and CLELAND, District Judge. SUTTON, J., delivered the opinion of the court in which CLELAND, D.J., joined. MERRITT, J. (pg. 992), delivered a separate dissenting opinion. MERRITT, Circuit Judge, dissenting.
Case Date:March 26, 2018
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
SUMMARY

In January 2015, Perez pleaded guilty to being a felon in possession of firearms and ammunition, 18 U.S.C. 922(g)(1). The Armed Career Criminal Act, 18 U.S.C. 924(e)(2)(B)(i), imposes a mandatory minimum sentence for defendants convicted of violating section 922(g) who have three prior convictions for violent felonies or serious drug offenses. The presentence report identified: a 1987 New York... (see full summary)

 
FREE EXCERPT

Page 984

885 F.3d 984 (6th Cir. 2018)

Moises PEREZ, Petitioner-Appellant,

v.

UNITED STATES of America, Respondent-Appellee.

No. 17-3419

United States Court of Appeals, Sixth Circuit

March 26, 2018

Page 985

Argued: March 15, 2018

Page 986

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. Nos. 1:14-cr-00312; 1:16-cv-02434— Patricia A. Gaughan, District Judge.

ARGUED:

Claire C. Curtis, FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant.

Brian M. McDonough, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.

ON BRIEF:

Claire C. Curtis, FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant.

Brian M. McDonough, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.

Before: MERRITT, SUTTON, Circuit Judges, and CLELAND, District Judge.[*]

SUTTON, J., delivered the opinion of the court in which CLELAND, D.J., joined. MERRITT, J. (pg. 992), delivered a separate dissenting opinion.

OPINION

Moises Perez pleaded guilty to being a felon in possession of a firearm. The court deemed Perez an armed career criminal and sentenced him to 210 months. Our court affirmed the sentence. Perez filed this § 2255 motion, claiming his prior conviction for New York second degree robbery should not have qualified as a predicate violent felony under the Armed Career Criminal Act. The district court denied relief. Because the state robbery offense requires the defendant to " use[ ] or threaten[ ] the immediate use of physical force upon another person," N.Y. Penal Law § § 160.00, 160.10, and because that offense includes " as an element the use, attempted use, or threatened use of physical force against the person of another" under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), we affirm.

I.

On January 27, 2015, Moises Perez pleaded guilty to being a felon in possession of firearms and ammunition. See 18 U.S.C. § 922(g)(1). The Armed Career Criminal Act imposes a mandatory minimum sentence for defendants convicted of violating § 922(g) who have three prior convictions for violent felonies or serious drug offenses. Id. § 924(e)(1). The presentence report identified five predicate offenses: (1) a 1987 New York conviction for second degree robbery, (2) a 2003-Ohio-conviction for attempted intimidation, (3) a 2003-Ohio-conviction for attempted felonious assault, (4) a 2011-Ohio-conviction for burglary, and (5) a 2011-Ohio-conviction for attempted felonious assault. The district court agreed that the five prior convictions qualified and sentenced Perez to 210 months. We affirmed. United States v. Perez, 667 Fed.Appx. 543 (6th Cir. 2016) (per curiam).

Perez seeks post-conviction relief on the ground that the district court imposed a sentence " in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255. He claims that three of his predicate offenses (Ohio attempted intimidation, Ohio burglary, and New York second degree robbery) do not qualify because they turned on the residual clause of ACCA, which the Supreme Court invalidated on vagueness grounds.

Page 987

Johnson v. United States, __ U.S. __, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). The government concedes that the two Ohio convictions no longer qualify but maintains that the New York robbery conviction remains a violent felony under ACCA’s elements clause. The district court agreed, concluding that the New York robbery conviction amounted to a crime of violence. Perez appealed.

II.

Any " violent felony" trek requires some preparation for the climb.

What part of the Armed Career Criminal Act applies? If a defendant has " three previous convictions ... for a violent felony or a serious drug offense," ACCA imposes a mandatory minimum 15-year sentence. 18 U.S.C. § 924(e)(1). A felony qualifies as " violent," among other ways, if it " has as an element the use, attempted use, or threatened use of physical force against the person of another." Id. § 924(e)(2)(B)(i). Check.

How do we determine whether the elements of a crime satisfy the violence requirement? To figure out whether a crime meets the elements clause, we look to the statutory definition of the state offense rather than the underlying facts of the conviction, what has come to be known as the categorical approach. Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). That means we care only whether each predicate crime requires the government to prove that the defendant used, attempted to use, or threatened to use physical force against another— not what actually happened on that day. If a State convicts a person of criminal trespass, it would not matter whether he dug a hole or punched a security guard to commit the offense. Because our touchstone is whether the crime requires physical force, not whether the criminal conduct involves physical force, our test case becomes the least forceful conduct generally criminalized under the statute. The predicate conviction qualifies if that conduct involves violent physical force. Check.

Relevant state law to put under this microscope? Here is the language of New York’s second degree robbery statute:

160.10 Robbery in the second degree

A person is guilty of robbery in the second degree when he forcibly steals property and when:

1. He is aided by another person actually present; or

2. In the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime:

(a) Causes physical injury to any person who is not a participant in the crime; or

(b) Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; or

3. The property consists of a motor vehicle, as defined in section one hundred twenty-five of the vehicle and traffic law.

N.Y. Penal Law § 160.10. Check.

Divisible or indivisible law? The statute identifies four possible crimes: (1) robbery aided by another person, (2)(a) robbery causing physical injury, (2)(b) robbery with a firearm, or (3) robbery of a car. Because these options describe different crimes with different elements, the statute is divisible. Mathis v. United States, __ U.S. __, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016). Check.

Application of the modified categorical approach with a divisible law? When a statute identifies separate crimes with separate elements, we may look at the record of the prior conviction, including the indictment, jury instructions, plea agreement, and colloquy, to determine what crime the

Page 988

defendant committed. Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). The indictment confirms that Perez committed New York second degree robbery aided by another person (§ 160.10(1) ). Check.

With this information in hand, we can proceed to the track and the question in front of us: Does this form of New York second degree robbery— defined as " forcibly steal[ing] property" while " aided by another person actually present," N.Y. Penal Law § 160.10(1)— have " as an element the use, attempted use, or threatened use of physical force against the person of another," 18 U.S.C. § 924(e)(2)(B)(i)? Yes.

Text. The parties agree that Perez’s petition turns on what it means to " forcibly steal property" under New York law, an element common to New York robbery of all degrees. (The aggravating factor of being aided by another person does not impose an independent physical force requirement. Help can take a number of different forms, some forceful and some not.) Here is how the New York legislature defines " forcibly stealing property" :

160.00 Robbery; defined.

Robbery is forcible stealing. 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.

As a matter of statutory text, the elements requirement of ACCA and the elements of the New York offense line up perfectly. Section 160.10 criminalizes " forcibly steal[ing] property," which involves " us[ing] or threaten[ing] the immediate use of physical force upon another person." And ACCA treats a state crime as a predicate violent felony if it " has as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i). Put another way: A (" forcibly steal[ing] property" under § 160.10) =...

To continue reading

FREE SIGN UP