United States v. Davis
| Decision Date | 22 June 2018 |
| Docket Number | 14–CR–567 (MKB) |
| Citation | 319 F.Supp.3d 608 |
| Parties | UNITED STATES of America, v. Clive DAVIS, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Craig R. Heeren, United States Attorney's Office, Brooklyn, NY, for United States of America.
Michael K. Schneider, Federal Defenders of New York, Inc., Brooklyn, NY, for Defendant.
Defendant Clive Davis pleaded guilty to a one-count indictment charging him with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). (Indictment dated October 23, 2014, Docket Entry No. 6.) According to the addendum to the Pre-sentence Investigation Report and the Government, Davis is subject to a mandatory minimum sentence of fifteen years pursuant to 18 U.S.C. § 924(e)(1) of the Armed Career Criminal Act of 1984 ("ACCA")1 because of his prior state felonies for (1) conspiracy to possess with intent to distribute a controlled substance, (2) attempted robbery in the third-degree under New York state law,2 and (3) conspiracy and attempt to commit robbery in the first-degree under Connecticut state law.3 (PSR Addendum, Docket Entry No. 39; Gov. Letter dated June 15, 2018, ("Gov. Letter"), Docket Entry No. 40.) Davis asserts that section 924(e)(1) is inapplicable, arguing that his robbery offenses are not violent felonies within the meaning of the ACCA. (Def. Letter dated June 7, 2018, ("Def. Letter"), Docket Entry No. 38.) For the reasons stated on the record on June 19, 2018,4 and below, the Court determines that third-degree robberies under New York Penal Law § 160.05 are not violent felonies within the meaning of the ACCA.
Defendant challenges the applicability of section 924(e)(1) by asserting that his (1) 1998 conviction for attempted third-degree robbery under New York law, and (2) 2004 convictions for conspiracy and attempt to commit robbery in the first-degree under Connecticut law are not violent felonies within the meaning of the ACCA.5 (Def. Letter 1.) Because the Connecticut conspiracy and attempt offenses were committed on the same occasion, those convictions are treated as one for purposes of section 924(e)(1). See United States v. Bordeaux , 886 F.3d 189, 195 (2d Cir. 2018) ; 18 U.S.C. § 924(e)(1) ().
Defendant thus correctly argues that the mandatory minimum imposed by section 924(e)(1) would not apply if either set of convictions do not qualify as a violent felony. (Def. Letter 13.) Consequently, for section 924(e)(1) to be applicable, both the 1998 New York conviction and at least one of the 2004 Connecticut convictions must be violent felonies.6
Section 924(e)(1) applies to a conviction under 18 U.S.C. § 922(g)(1)"if the defendant has three previous convictions in state or federal court for ‘serious drug offense[s]’ or ‘violent felon[ies].’ " Stuckey v. United States , 878 F.3d 62, 64 (2d Cir. 2017) (quoting 18 U.S.C. § 924(e)(1) ). A violent felony is defined as:
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 [one of several enumerated offenses], or otherwise involves conduct that presents a serious potential risk of physical injury to another ....
18 U.S.C. § 924(e)(2)(B). This case only concerns 18 U.S.C. § 924(e)(2)(B)(i), known as the "force" or "elements" clause. See Stuckey , 878 F.3d at 68 ; Villanueva v. United States , 893 F.3d 123, 124–25, 2018 WL 3077064, at *1 (2d Cir. June 22, 2018). As to that clause, "the phrase ‘physical force’ 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) (" 2010 Johnson ").
b. New York Penal Law §§ 160.00, 160.05
Defendant challenges the characterization of his third-degree robbery conviction, defined as "forcibly steal[ing] property," pursuant to New York Penal Law § 160.05. A person forcibly steals property when:
N.Y. Penal Law § 160.00.7 Convictions for third-degree robberies are also categorized as class D felonies. Id. Accordingly, the relevant inquiry is whether "forcibly steal[ing]" requires violent force as defined by 2010 Johnson .
Defendant asserts that convictions pursuant to New York Penal Law § 160.05 are not violent felonies within the meaning of the ACCA because the statute does not necessarily require the application of violent force. (Def. Letter 5.) Although the Second Circuit held otherwise in United States v. Brown , 52 F.3d 415 (2d Cir. 1995), Defendant argues that caselaw predating 2010 Johnson "is no longer good law." (Def. Letter 6.) Defendant contends that the Second Circuit "did not have the benefit of the Supreme Court's interpretation of the term ‘physical force’ " in holding third-degree robberies to be violent felonies in Brown . (Id. ) Moreover, Defendant argues that the Second Circuit has itself recognized the abrogation of its pre- 2010 Johnson decisions, including specifically as to third-degree robberies, albeit in the context of crimes of violence.8 (Id. at 7 (citing United States v. Jones , 878 F.3d 10, 21 (2d Cir. 2017) ) ). Relying on examples of convictions for forcible stealing based on the formation of a "human wall, bumping ... or a brief tug-of-war," Defendant contends that third-degree robberies, applying the reasoning of 2010 Johnson , are not violent felonies. (Id. at 5–6.)
The Government argues that convictions under New York Penal Law § 160.05 are categorically violent felonies because they necessarily entail the use of violent force. (Gov. Letter 4.) The Government contends that Brown remains binding authority, and has been reaffirmed post- 2010 Johnson by United States v. Miles , 748 F.3d 485, 490 (2d Cir. 2014). (Gov. Letter 5–6.) In addition, the Government argues that the Second Circuit has "repeatedly" held second-degree robberies to be violent felonies under New York law based on the same element of forcible stealing. (Id. ) The Government also contends that the examples Defendant provides are unpersuasive, arguing that they inherently involve either threatened use of violent force or sufficient quantum of force capable of causing physical pain or injury. (Id. at 8–10.)
Whether third-degree robbery under New York law has as an element the requisite violent force to satisfy 2010 Johnson remains an open question in the Second Circuit. See Stuckey , 878 F.3d at 67 n.6. Although some courts continue to apply Brown in the absence of contrary circuit authority,9 a district court is bound by a Supreme Court ruling that so undermines Second Circuit precedent that it will almost inevitably be overruled. See Austin v. United States , 280 F.Supp.3d 567, 572 (S.D.N.Y. 2017) . Post- 2010 Johnson , in a since-vacated opinion addressing the force clause as to crimes of violence, the Second Circuit determined that " ‘forcible stealing’ alone does not necessarily involve the use of ‘violent force.’ " United States v. Jones , 830 F.3d 142, 149 (2d Cir. 2016), withdrawn from bound volume, vacated , 838 F.3d 296 (2d Cir. 2016). Although Jones was vacated and later resolved on other grounds,10 the concurring panelists in the subsequent decision reaffirmed that decisions pre- 2010 Johnson , at least in the context of crimes of violence, have been abrogated. See United States v. Jones , 878 F.3d 10, 21 (2d Cir. 2017) (J. Calabresi, concurring) ( that prior circuit precedent in United States v. Spencer , 955 F.2d 814, 820 (2d Cir. 1992), that attempted third-degree robberies constitute "crime[s] of violence" for the purposes of the "force clause" of the Sentencing Guidelines, had been abrogated by 2010 Johnson ). Consistent with this understanding of the significance of 2010 Johnson , in Stuckey , the Second Circuit declined to address "whether ... ‘forcible stealing’ requires the degree of force mandated by the 2010Johnson decision," as applied to violent felonies. Stuckey , 878 F.3d at 67 n.6. The Second Circuit's statement in Stuckey indicates that Brown is no longer binding or has been abrogated by 2010 Johnson .11
The Government's reliance on Miles , 748 F.3d at 490, and non-precedential summary orders is misplaced. In Miles , the defendant "acknowledge[d] that robbery in the third-degree ‘has as an element the use, attempted use, or threatened use of physical force,’ " and instead argued that his conviction should not be considered a violent felony because he had been sentenced to less than one year. Miles , 748 F.3d at 490. Likewise, the summary orders, 12 while citing favorably to Brown or agreeing with its holding, do not analyze the element of "forcibly stealing" by applying the definition of violent force provided in 2010...
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