Austin v. United States

• Decision Date: 04 December 2017
• Docket Number: 06–cr–991 (JSR),16–cv–4446 (JSR)
• Citation: 280 F.Supp.3d 567
• Parties: Joel AUSTIN, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Southern District of New York

280 F.Supp.3d 567

Joel AUSTIN, Petitioner,

v.UNITED STATES of America, Respondent.

16–cv–4446 (JSR)

06–cr–991 (JSR)

United States District Court, S.D. New York.

Signed December 4, 2017

Allegra Glashausser, Federal Defenders of New York(Brooklyn), Brooklyn, NY, Attorney for Plaintiff.

Nicolas Tyler Landsman–Roos, United States Attorney's Office, SDNY, New York, NY, Attorney for Defendant.

OPINION AND ORDER

JED S. RAKOFF, U.S.D.J.

Before the Court is the motion of petitioner Joel Austin to vacate his sentence and order his release. The motion is granted.

The pertinent facts are as follows: On September 19, 2006, police found an unloaded gun in Austin's pocket during a search incident to arrest for jumping a turnstile. He pleaded guilty to possessing a firearm after having previously been convicted of a felony in violation of 18 U.S.C. § 922(g)(1).

The statutory maximum for a § 922(g) violation is typically 10 years. 18 U.S.C. § 924(a)(2). However, the Court found that it was bound by the sentencing provision of the Armed Career Criminal Act ("ACCA") that requires a 15–year mandatory minimum sentence for defendants who have three previous convictions for a "violent felony." 18 U.S.C. § 924(e)(1). In Austin's case, those convictions were: (1) an October 21, 1987 conviction for second-degree robbery in violation of New York Penal Law § 160.10 ; (2) a different October 21, 1987 conviction for attempted second-degree robbery in violation of New York Penal Law §§ 110.00, 160.10 ; and (3) a July 9, 1997 conviction for attempted third-degree robbery in violation of New York Penal Law §§ 110.00, 160.05. Pursuant to ACCA, the Court, on August 16, 2007, sentenced Austin to a term of imprisonment of 180 months to be followed by a three-year term of supervised release.

Austin now argues that subsequent Supreme Court cases have made clear that none of the three offenses on which his enhanced sentence was predicated are in fact "violent felonies" under ACCA. On November 6, 2017, Magistrate Judge Netburn provided this Court with an excellent report recommending that Austin's motion be granted. See Report and Recommendation, ECF No. 39 ("R&R").¹ The government timely objected. See Government's Objections to the November 6, 2017 Report and Recommendation, ECF No. 40 ("Gov't Mem.").² For the following reasons, the Court finds itself in agreement with Judge Netburn's well-reasoned recommendation and holds that neither third- nor second-degree robbery in New York is a categorically violent felony under ACCA.

New York defines "robbery" as "forcible stealing." N.Y. Penal Law § 160.00.

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.

Id. Forcible stealing alone is robbery in the third degree, N.Y. Penal Law § 160.05, while second- and first-degree robbery additionally require the presence of certain aggravating factors. See N.Y. Penal Law §§ 160.15 (first-degree), 160.10 (second-degree).

ACCA provides three clauses defining what types of crimes qualify as "violent felonies." The "force clause" covers any crime that "has as an element the use, attempted use, or threatened use of physical force against the person of another."³ The "enumerated offenses" clause covers any crime that "is burglary, arson, or extortion, [or] involves the use of explosives." And the "residual clause" covers any crime that "otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C § 924(e)(2)(B).

To determine whether a particular offense qualifies as a "violent felony" under ACCA, courts apply a "categorical approach," assessing "whether a crime qualifies as a violent felony ‘in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.’ " Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 2557, 192 L.Ed.2d 569 (2015) (quoting Begay v. United States, 553 U.S. 137, 141, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008) ).

At the time of Austin's sentencing, the Second Circuit had squarely held that New York third-degree robbery is a violent felony under the force clause of ACCA. See United States v. Brown, 52 F.3d 415 (2d Cir. 1995). The Brown court relied on the fact that New York's definition of "robbery" closely tracks the language in the force clause—i.e., "uses or threatens the immediate use of physical force upon another person" in the robbery statute is very similar to "use, attempted use, or threatened use of physical force against the person of another" in ACCA. Based on this textual similarity alone, the Court of Appeals held that "the statutory definition of [third-degree robbery] plainly reveals that it is a ‘violent felony’ under § 924(e)(2)(B)(i)." Id. at 426. Because first- and second-degree robbery also require "forcible stealing," they are also violent felonies under Brown . See also United States v. Spencer, 955 F.2d 814, 820 (2d Cir. 1992) (holding that third-degree robbery is a "crime of violence" under U.S.S.G. § 4B1.2 because both require the use of "physical force").

The Second Circuit has yet to overturn these decisions. However, in a decision post-dating Brown and Spencer, the Supreme Court of the United States clarified that "physical force" in ACCA's force clause means "violent force—that is, force capable of causing physical pain or injury to another person." Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). Moreover, a mere potential for some small pain or minor injury will not suffice. Rather, "violent" force must be "substantial" and "strong." Id. at 140, 130 S.Ct. 1265.

The Supreme Court in Johnson favorably quoted the definition of "violent felony" (which ACCA links to "physical force") from Black's Law Dictionary: "[a] crime characterized by extreme physical force, such as murder, forcible rape, and assault and battery with a dangerous weapon." Id. at 140–41, 130 S.Ct. 1265. Similarly, in the Seventh Circuit case that the Supreme Court cited to support its definition of "physical force," id. at 140, 130 S.Ct. 1265, Judge Easterbrook noted that it was "hard to describe" a "squeeze of the arm [that] causes a bruise" as "violence." Flores v. Ashcroft, 350 F.3d 666, 670 (7th Cir. 2003).

The Supreme Court also explicitly reinforced this position in a later case, distinguishing "minor uses of force" that suffice for a "misdemeanor crime of domestic violence," such as squeezing an arm hard enough to leave a bruise, from the "substantial degree of force" required for violent felonies under ACCA. United States v. Castleman, ––– U.S. ––––, 134 S.Ct. 1405, 1411–12, 188 L.Ed.2d 426 (2014) (internal quotation marks omitted).

The Second Circuit plainly did not share this understanding when it decided Brown and Spencer , as it relied in both cases only on the parallel language in the New York robbery statute and the federal statutes at issue. But Johnson greatly narrowed the meaning of "physical force" in ACCA, while the meaning of "physical force" in the New York robbery statute remains as broad as ever.⁴ And even though the Second Circuit has favorably cited Brown and Spencer in cases subsequent to Johnson , it has done so only in "non-precedential summary orders" and decisions that "do not undertake an analysis of robbery in New York pursuant to the Supreme Court's definition of ‘force’ in Johnson ." United States v. Johnson, 220 F.Supp.3d 264, 271 (E.D.N.Y. 2016). Indeed, a review of the briefs in these subsequent, non-precedential cases shows that the defendants in these cases did not even make the argument based on Johnson now made by Austin.⁵

When "a subsequent decision of the Supreme Court so undermines [Second Circuit precedent] that it will almost inevitably be overruled," the District Court is bound by the Supreme Court's ruling and not by the Second Circuit's prior decisions. United States v. Emmenegger, 329 F.Supp.2d 416, 429 (S.D.N.Y. 2004).

It should also be noted that the Second Circuit, in a since-vacated opinion, did overrule Spencer and held that, after Johnson , New York robbery even in the first degree is not a crime of violence under § 4B1.2 of the Sentencing Guidelines. See Opinion, United States v. Jones, No. 15–1518–cr, 2016 WL 3923838 (2d Cir. July 21, 2016), Dkt. No. 97. However, that decision was vacated and the case stayed pending resolution of a related Supreme Court case. United States v. Jones, 838 F.3d 296, 296 (2d Cir. 2016). After the Supreme Court decided that case, Beckles v. United States, ––– U.S. ––––, 137 S.Ct. 886, 197 L.Ed.2d 145 (2017), the Second Circuit returned to Jones and held that New York first-degree robbery qualifies under U.S.S.G. § 4B1.2's residual clause (as distinct from ACCA's residual clause, which, as noted, was held void by the Supreme Court in 2015). United States v. Jones, No. 15-1518-CR, 878 F.3d 10, 12–13, 2017 WL 4456719, at *1 (2d Cir. Oct. 5, 2017). In so doing, the Second Circuit did not address the force clause or second- or third-degree robbery.

The majority of district courts that have addressed the issue since Johnson have concluded that "forcible stealing" in New York's robbery statute does not categorically involve violent force as defined by Johnson . See Diaz v. United States, No. 1:11–cr–0381, 2016 WL 4524785, at *4 (W.D.N.Y. Aug. 30, 2016), adhered to on denial of reconsideration, 2017 WL 1855895 (W.D.N.Y. May 9, 2017) ; Thrower v. United States, 234 F.Supp.3d 372, 383–85 (E.D.N.Y. 2017) ; Buie v. United States, No. 05–cr–664, 2017 WL 3995597, at *6–7 (S.D.N.Y. Sept. 8, 2017) ; United...