Shabazz v. United States, 010419 FED2, 17-167

Docket Nº:17-167
Opinion Judge:LEVAL, Circuit Judge.
Party Name:AL-MALIK FRUITKWAN SHABAZZ, fka Edward Levi Singer, Petitioner-Appellee, v. UNITED STATES OF AMERICA, Respondent-Appellant.
Attorney:Charles F. Willson, Federal Defender's Office, Hartford, CT, for Petitioner-Appellee. Jocelyn Courtney Kaoutzanis (Marc H. Silverman, on the brief), on behalf of Deirdre M. Daly, United States Attorney, District of Connecticut, New Haven, CT, for Respondent-Appellant.
Judge Panel:Before: KATZMANN, Chief Judge, LEVAL, Circuit Judge, and BERMAN, District Judge.
Case Date:January 04, 2019
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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AL-MALIK FRUITKWAN SHABAZZ, fka Edward Levi Singer, Petitioner-Appellee,

v.

UNITED STATES OF AMERICA, Respondent-Appellant.

No. 17-167

United States Court of Appeals, Second Circuit

January 4, 2019

Argued: February 26, 2018

The government appeals from the judgment of the United States District Court for Connecticut (Stefan R. Underhill, J.) granting petitioner Al- Malik Fruitkwan Shabazz's motion under 28 U.S.C. § 2255 to set aside his sentence imposed under the Armed Career Criminal Act of 1984 ("ACCA"), 18 U.S.C. § 924(e), on the ground that his prior convictions for robbery under Con. Gen. Stat. § 53a-133 did not qualify as ACCA predicates under ACCA's Force Clause, mandating a sentence of at least fifteen years imprisonment. Held, any offense that satisfies the essential elements of robbery under § 53a- 133 involves use or threat of force capable of causing pain or injury and thus qualifies as an ACCA predicate. REVERSED.

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

Jocelyn Courtney Kaoutzanis (Marc H. Silverman, on the brief), on behalf of Deirdre M. Daly, United States Attorney, District of Connecticut, New Haven, CT, for Respondent-Appellant.

Before: KATZMANN, Chief Judge, LEVAL, Circuit Judge, and BERMAN, District Judge. [*]

LEVAL, Circuit Judge.

This is an appeal by the United States from a grant of habeas corpus under 28 U.S.C. § 2255 by the United States District Court for the District of Connecticut (Stefan R. Underhill, J.) in favor of petitioner Al-Malik Fruitkwan Shabazz, requiring reduction of Shabazz's sentence. The question presented by the appeal is whether the offense of robbery, as defined by Connecticut's basic robbery statute, Conn. Gen. Stat. § 53a-133, is a "violent felony" as that term is used in the Armed Career Criminal Act of 1984 ("ACCA"), 18 U.S.C. § 924(e). That issue turns on whether robbery, as specified in § 53a-133, has as an essential element the use or threatened use of force that is capable of causing pain or injury. See Johnson v. United States, 559 U.S. 133 (2010) ("2010 Johnson").

Shabazz was convicted in 2004 in the United States District Court for Connecticut on one count of unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). At the time, Shabazz had, among other convictions, four prior Connecticut state-court robbery convictions under § 53a-133. If at least three of those prior convictions were for violent felonies as that term has been defined by the Supreme Court for purposes of the ACCA statute, ACCA mandated a sentence of at least fifteen years imprisonment. In sentencing Shabazz for the firearm violation, the district court concluded that a mandatory fifteen-year sentence was required by ACCA and sentenced Shabazz to 235 months imprisonment. 1

Since that time, decisions of the United States Supreme Court and our court have substantially altered the meaning of ACCA. Shabazz brought this petition for habeas corpus contending that ACCA, as currently understood, no longer applies to his robbery convictions because, he argues, one can be convicted of robbery in Connecticut for a theft that does not employ force capable of causing pain or injury. The district court, in a thoughtful, scholarly opinion, agreed with Shabazz and granted his petition. The court vacated his prior sentence, sentenced him to 120 months imprisonment, and released him from custody because he had completed service of the new sentence. The cornerstone of the district court's ruling was that robbery under § 53a-133 does not necessarily involve use of force that is capable of causing pain or injury.

The government brought this appeal, arguing that Connecticut's core robbery statute does require force (or threat of force) that is capable of causing pain or injury. If the government is correct, Shabazz had at least three prior violent felonies, and therefore faced a mandatory sentence of at least fifteen years under ACCA.

We respectfully disagree with the district court's view that Connecticut's robbery statute does not require at a minimum force that would satisfy the ACCA standard. We think that the threat of force capable of causing pain or injury is inherent in the crime of robbery. Accordingly, we VACATE the judgment.

BACKGROUND

In 2005, Shabazz was convicted of one count of unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1). See United States v. Singer, No. 3:04-cr-210-1 (SRU) (doc. 1, 71). In addition to other convictions, Shabazz had four prior Connecticut convictions for various degrees of robbery, each of which included a conviction under § 53a-133.

Robbery in Connecticut is defined under a statutory scheme that includes a basic robbery offense under § 53a-133...

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