U.S. v. Rodriguez

• Decision Date: 12 August 2008
• Docket Number: No. 07 Cr 749 (SHS).,07 Cr 749 (SHS).
• Parties: UNITED STATES of America, v. Raphael RODRIGUEZ, Defendant.
• Court: U.S. District Court — Southern District of New York

571 F.Supp.2d 580

UNITED STATES of America, v. Raphael RODRIGUEZ, Defendant.

No. 07 Cr 749 (SHS).

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

August 12, 2008.

Peter Nicholas Tsapatsaris, Federal Defenders of New York Inc., New York, NY, for Defendant.

Michael Douglas Maimin, U.S. Attorney's Office, New York, NY, for Plaintiff.

OPINION

SIDNEY H. STEIN, District Judge.

The issue for resolution, not yet decided by the United States Court of Appeals for the Second Circuit, is whether grand larceny from a person, in violation of New York Penal Law § 155.30(5) is a "violent felony" as that term is used in the Armed Career Criminal Act, 18 U.S.C. § 924(e). Because conduct in violation of New York Penal Law § 155.30(5) "presents a serious potential risk of physical injury to another," 18 U.S.C. § 924(e)(2)(B)(ii), and because theft from a person under New York law is an offense "roughly similar in kind" to burglary, Begay v. United States, ___ U.S. ___, ___, 128 S.Ct. 1581, 1585, 170 L.Ed.2d 490 (2008), the Court concludes that grand larceny from a person in violation of New York Penal Law § 155.30(5) is a violent felony for purposes of ACCA.

I. BACKGROUND

Following a three-day trial last December, Raphael Rodriguez was convicted by a jury of one count of unlawfully possessing a firearm after having previously been convicted of a felony in violation of 18 U.S.C. § 922(g). Section 924(e) of Title 18 of the United States Code, the Armed Career Criminal Act, commonly known by its acronym as "ACCA," provides for a mandatory minimum fifteen-year prison sentence for anyone convicted of violating section 922(g) who has at least three prior convictions, committed on occasions different from one another, "for ... violent felon[ies] or . . . serious drug offense[s]." 18 U.S.C. § 924(e)(1); Shepard v. United States, 544 U.S. 13, 15, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).¹ In addition section 4B1.4 of the United States Sentencing Guidelines ("U.S.S.G.") provides, inter alia, for a minimum offense level of 33 for defendants who are "subject to . . . enhanced sentence[s] under the provisions of 18 U.S.C. § 924(e)." U.S.S.G. §§ 4B1.4(a), (b)(3)(B). At issue is whether Rodriguez's criminal history includes three ACCA predicate convictions.

Rodriguez concedes that he has three prior felony convictions for offenses committed on occasions different from one another. Specifically, he has previously been convicted of attempted murder, grand larceny from a person, and attempted assault. Rodriguez further concedes that the attempted murder and attempted assault convictions are violent felonies and qualify as ACCA predicate offenses. He argues, however, that his conviction for grand larceny from a person pursuant to New York Penal Law § 155.30(5) is not an ACCA predicate violent felony.

II. DISCUSSION

A. Legal Standard

The Armed Career Criminal Act provides in relevant part that,

the term `violent felony' means any crime punishable by imprisonment for a term exceeding one year . . . that—

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B).

Rodriguez was convicted of violating New York Penal Law § 155.30(5), which provides that, "[a] person is guilty of larceny in the fourth degree when he steals property and when . . . [t]he property . . . is taken from the person of another." The government concedes, as it must, that section 155.30(5) does not require "the use, attempted use, or threatened use of physical force" as an element of the offense and therefore does not qualify as a violent felony under 18 U.S.C. § 924(e)(2)(B)(i). It is equally clear that New York Penal Law § 155.30(5) fails to qualify as a violent felony under the first clause of 18 U.S.C. § 924(e)(2)(B)(ii) because it does not criminalize burglary, arson, extortion, or the use of explosives. The only question presented here is whether a conviction pursuant to New York Penal Law § 155.30(5) qualifies as an ACCA predicate on the ground that it "otherwise involves conduct that presents a serious potential risk of physical injury to another" under the so-called "residual clause" of 18 U.S.C. § 924(e)(2)(B)(ii). See United States v. Gray, 535 F.3d 128, 130 n. 2 (2d Cir.2008).²

In determining whether a conviction satisfies the definition of violent felony in the residual clause courts use a "`categorical approach' . . . [under which] the sentencing court must [generally] `look only to the fact of conviction and the statutory definition of the prior offense.'" United States v. Lynch, 518 F.3d 164, 168-69 (2d Cir.2008) (quoting United States v Rosa, 507 F.3d 142, 151 (2d Cir.2007) and Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)); see also Begay, 128 S.Ct. at 1584; United States v. Andrello, 9 F.3d 247, 249 (2d Cir.1993). "That is, [a court must generally] consider whether the elements of the offense are of the type that would justify its inclusion within the residual provision, without inquiring into the specific conduct of this particular offender." James v. United States, 550 U.S. 192, ___, 127 S.Ct. 1586, 1594, 167 L.Ed.2d 532 (2007) (internal emphasis omitted). In making this categorical determination, it is not the case "that every conceivable factual offense covered by a statute must necessarily present a serious potential risk of injury before the offense can be deemed a violent felony . . . [r]ather, the proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case" satisfies the definition of violent felony under the residual clause. Id. at 1597; see also Begay, 128 S.Ct. at 1584.

Whether a conviction qualifies as an ACCA predicate under the residual clause involves a two-part inquiry. Initially, only those crimes that "create significant risks of bodily injury or confrontation that might result in bodily injury" qualify as violent felonies under the residual clause. James, 127 S.Ct. at 1592. Second, assuming that the crime poses a "serious potential risk of physical injury," it will nevertheless fail to qualify as a violent felony unless it is "roughly similar in kind" to the offenses specifically enumerated by Congress in the first clause of 18 U.S.C. § 924(e)(2)(B)(ii) as examples of violent felonies —"burglary, arson, extortion, or crimes involving the use of explosives." Begay, 128 S.Ct. at 1584-85; Gray, 535 F.3d at 131-32.

B. Application

1. Grand Larceny From the Person of Another in Violation of New York Penal Law § 155.30(5) Presents a "Serious Potential Risk of Physical Injury to Another."

Pursuant to New York Penal Law § 155.30(5), "[a] person is guilty of grand larceny in the fourth degree when he steals property and . . . [t]he property . . . is taken from the person of another." Whether a crime presents a "serious potential risk of physical injury" to others within the meaning of 18 U.S.C. § 924(e)(2)(B)(ii) may be determined by comparing the degree of risk inherent in the crime with the degree of risk posed by its "closest analog" among the enumerated ACCA predicates of burglary, arson, extortion, and crimes involving the use of explosives. James, 127 S.Ct. at 1594; see also Gray, 535 F.3d at 131-32. In this case, the closest analog is burglary.

"The main risk of burglary arises not from the simple physical act of wrongfully entering onto another's property, but rather from the possibility of a face-to-face confrontation between the burglar and a third party—whether an occupant, a police officer, or a bystander—who comes to investigate." James, 127 S.Ct. at 1594; see also Andrello, 9 F.3d at 249. In such a confrontation, a significant risk of injury inheres not only because a victim or bystander may use violence in attempting to repel the attack, but also because the burglar may use violence to complete his criminal objective or to escape or both. See Taylor, 495 U.S. at 588, 110 S.Ct. 2143.

Clearly, the risks of bodily injury inherent in burglary are similar to the risks involved when one steals property from the person of another. As one court has stated, when a defendant takes property from the person of a victim, "the risk of ensuing struggle is omnipresent." United States v. De Jesus, 984 F.2d 21, 24 (1st Cir.1993). Indeed, whether a particular burglary involves a violent confrontation is often a function of whether the building that is burglarized happens to have an occupant inside, but when property is stolen from the person "the victim is always present at the crime scene" and the potential for a violent confrontation is "if anything, substantially greater," than in the case of burglary. United States v. Mobley, 818 F.Supp. 164, 166 (E.D.Va.1993), aff'd 40 F.3d 688 (4th Cir.1994). In determining that a statute with similar language to New York Penal Law § 155.30(5) described a violent felony within the meaning of the residual clause, the Ninth Circuit cogently noted that when a thief:

seizes property from the victim's person, [he] creates a serious risk of physical injury to another; the victim might resist, or a bystander intervene, and a struggle ensue. Even though the thief might sometimes, by stealth, avoid immediate detection by his victim, he risks such a confrontation at every encounter. Viewed ex ante, the thief s conduct presents a serious potential risk of physical injury to another.

To be sure, every grand theft from a person does not result in a struggle or in physical injury. It is possible that if physical injury did result, the perpetrator might be charged with a different crime having as an element the use of physical force. This is of no moment, however, since the conduct need not always result in physical injury. [Title 18, section 924(e)] does not direct our attention...