893 F.3d 123 (2nd Cir. 2018), 16-2528, Villanueva v. United States

Docket Nº:16-2528
Citation:893 F.3d 123
Opinion Judge:JON O. NEWMAN, Circuit Judge:
Party Name:Richard VILLANUEVA, Petitioner-Appellee, v. UNITED STATES of America, Respondent-Appellant.
Attorney:Robert M. Spector, Asst. U.S. Atty., New Haven, CT (Deirdre M. Daly, U.S. Atty., Marc H. Silverman, Asst. U.S. Atty., New Haven, CT, on the brief), for Respondent-Appellant. Charles F. Willson, Federal Defender’s Office, Hartford, CT, for Petitioner-Appellee.
Judge Panel:Before: NEWMAN, LEVAL, and POOLER, Circuit Judges. POOLER, Circuit Judge:
Case Date:June 22, 2018
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 123

893 F.3d 123 (2nd Cir. 2018)

Richard VILLANUEVA, Petitioner-Appellee,

v.

UNITED STATES of America, Respondent-Appellant.

No. 16-2528

United States Court of Appeals, Second Circuit

June 22, 2018

Argued: August 22, 2017

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Robert M. Spector, Asst. U.S. Atty., New Haven, CT (Deirdre M. Daly, U.S. Atty., Marc H. Silverman, Asst. U.S. Atty., New Haven, CT, on the brief), for Respondent-Appellant.

Charles F. Willson, Federal Defender’s Office, Hartford, CT, for Petitioner-Appellee.

Before: NEWMAN, LEVAL, and POOLER, Circuit Judges.

OPINION

JON O. NEWMAN, Circuit Judge:

This appeal by the United States presents the narrow issue of whether the offense of violating Connecticut’s statute punishing first degree assault, Conn. Gen. Stat. § 53a-59(a)(1), qualifies as a "violent felony" for purposes of enhanced sentencing under the federal Armed Career Criminal Act of 1984 ("ACCA"), 18 U.S.C. § 924(e). That issue turns on whether the

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Connecticut statute, analyzed under the so-called "modified categorical approach," Mathis v. United States, __ U.S. __, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016), has as an element what federal law means by defining "violent felony" to require the use of "physical force." 18 U.S.C. § 924(e)(2)(B)(i). This issue arises on an appeal from the June 14, 2016, amended judgment of the District Court for the District of Connecticut (Janet C. Hall, Chief Judge), modifying the sentence of Appellee Richard Villanueva. That judgment brings up for review the District Court’s June 10, 2016, ruling that Villanueva’s assault offense was not a "violent felony" for purposes of the ACCA.

Because we conclude that Villanueva’s assault conviction qualified as an ACCA predicate, we remand for resentencing.

Background

The ACCA authorizes a punishment of up to ten years’ imprisonment for any person who possesses a firearm after being convicted of a felony. See 18 U.S.C. § § 922(g)(1), 924(a)(2). The ACCA also requires a minimum fifteen year term of imprisonment for any person who violates subsection 922(g) and has three previous convictions for a "violent felony" or a "serious drug offense." See id. § 924(e)(1). "Violent felony" is defined, as relevant to this case, as any crime punishable by imprisonment for a term exceeding one year that "has as an element the use ... of physical force against the person of another," id. § 924(e)(2)(B)(i), or "involves conduct that presents a serious potential risk of physical injury to another," id. § 924(e)(2)(B)(ii). Subsection 924(e)(2)(B)(i) is known as the "elements clause," and the quoted portion of subsection 924(e)(2)(B)(ii) is known as the "residual clause." See

Welch v. United States, __ U.S. __, 136 S.Ct. 1257, 1261, 194 L.Ed.2d 387 (2016). The "elements clause" is sometimes called the "force clause." See, e.g., United States v. Jones, No. 15-1518-cr, 2017 WL 3974269, at *1 (2d Cir. Sept. 11, 2017).

In June 1999, Villanueva, then using the name Richard Zebrowski, was indicted for unlawful possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). The indictment alleged four prior convictions, two for narcotics violations, a third for first degree assault in violation of Conn. Gen. Stat. 53a-59(a), and a fourth for assault on an officer in violation of Conn. Gen. Stat. 53a-167(c). After a jury found Villanueva guilty, a presentence report ("PSR") recommended sentencing under the ACCA’s minimum fifteen year sentence provision. The PSR reflected that the first degree assault conviction resulted from Villanueva’s firing a gun three or four times and hitting his victim in the shoulder. The PSR calculated a Guidelines range of 262-327 months.

The District Court concluded that each of the two narcotics convictions was a "serious drug offense" within the meaning of subsection 924(e)(2)(A)(ii) and at least one of the assault convictions was a "violent felony" within the meaning of subsection 924(e)(2)(B), without specifying whether the elements clause or the residual clause of that subsection applied. Because the District Court did not specify which of the two assault convictions qualified as a "violent felony" for purposes of the ACCA or whether it was using the elements clause or the residual clause, it left open the possibility that it was implicitly using the residual clause. The Court imposed a sentence pursuant to the ACCA of 262 months. This Court affirmed in part and dismissed in part. United States v. Zebrowski, 229 F.3d 1136 (2d Cir. 2000) (table).

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In 2007, this Court affirmed a denial of Villanueva’s first motion to vacate his sentence under 28 U.S.C. § 2255. That motion raised no issue relating to the ACCA.

On February 13, 2013, the District Court entered an amended judgment to reflect the fact that Villanueva’s name had been legally changed from Zebrowski. The sentence of 262 months remained unchanged.

In June 2015, the Supreme Court ruled that the "residual clause" of the ACCA was unconstitutionally vague. See Johnson v. United States, __ U.S. __, 135 S.Ct. 2551, 2557, 192 L.Ed.2d 569 (2015).

Villanueva then filed in this Court, pursuant to 28 U.S.C. § 2244(b)(3)(A), a motion for leave to file in the District Court a second motion under 28 U.S.C. § 2255, relying on Johnson . This Court granted the motion, concluding that Villanueva had made "a prima facie showing" that his two assault convictions are not violent felonies "under any provision of the ACCA that remains in effect after Johnson ." We instructed the District Court to "determine whether the assault convictions remain proper ACCA predicates after Johnson, and what evidence may be considered in making that determination."1

On June 10, 2016, the District Court granted Villanueva’s second section 2255 motion and vacated his sentence. See

Villanueva v. United States, 191 F.Supp.3d 178 (D. Conn. 2016). In a carefully considered opinion, the Court first said "that it is more likely than not that [Villanueva] was sentenced under ACCA’s Residual Clause," id. at 184, which led to the Court’s conclusion that he had "shown by a preponderance of the evidence that the court [had] sentenced him under the Residual Clause, and not the Elements Clause," see id. at 188.

The Court then rejected the Government’s contention that the error of using the residual clause was harmless because it was not a structural error.2 See id. at 190. The Court then stated that it need not rest on its structural error determination because, even on harmless error review, the error was not harmless. See id. This conclusion rested on the Court’s determination, which is at the heart of the pending appeal, that neither of Villanueva’s assault convictions qualified as ACCA predicates because neither was a "violent felony" for lack of a required element of the use of physical force. See id. at 191-98.

On June 14, 2016, the Court resentenced Villanueva. First, the Court recalculated his Sentencing Guidelines range to be 63-78 months.3 Then, recognizing that Villanueva had served more than the ten-year maximum term for a violation of subsection 922(g)(1) without an ACCA enhancement, the Court resentenced him to time served and placed him on supervised release.

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A second amended judgment was entered the same day.

The Government seeks review of the District Court’s June 10 ruling, made reviewable by entry of the second amended judgment on June 14.

Discussion

The Government contends that each of Villanueva’s two assault convictions was a "violent felony" within the meaning of the elements clause of ACCA, 18 U.S.C. § 924(e)(2)(B)(i). Villanueva contends that neither assault conviction was a "violent felony."

The elements clause defines a "violent felony," required for enhanced punishment, to include a crime that "has as an element the use, attempted use, or threatened use of physical force against the person of another." Id. The Supreme Court has stated that, for purposes of the elements clause, "the phrase ‘physical force’ means violent force— that is, force capable of causing physical pain or injury to another person." (Curtis) Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (emphasis in original).4 So the issue on this appeal is whether either of the statutes defining Villanueva’s two assault offenses includes, as an element, the use of violent force. We confine our consideration to the first degree assault conviction under Conn. Gen. Stat. § 53a-59(a)(1).

The Connecticut first degree assault provision has two subdivisions. The first states: A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by...

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