United States v. Hammond, 010419 FED4, 17-4702

Docket Nº:17-4702
Opinion Judge:BARBARA MILANO KEENAN, Circuit Judge:
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. THOMAS ANTHONY HAMMOND, Defendant-Appellant.
Attorney:Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. Anthony Martinez, Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAR...
Judge Panel:Before AGEE, KEENAN, and RICHARDSON, Circuit Judges.
Case Date:January 04, 2019
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

THOMAS ANTHONY HAMMOND, Defendant-Appellant.

No. 17-4702

United States Court of Appeals, Fourth Circuit

January 4, 2019

Argued: November 1, 2018

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., District Judge. (3:17-cr-00044-RJC-DSC-1)

ARGUED:

Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant.

Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

ON BRIEF:

Anthony Martinez, Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant.

R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Before AGEE, KEENAN, and RICHARDSON, Circuit Judges.

BARBARA MILANO KEENAN, Circuit Judge:

In this appeal, we consider whether the offense of New York first-degree robbery, in violation of New York Penal Law § 160.15, qualifies as a "crime of violence" for purposes of the United States Sentencing Guidelines § 4B1.1 "career offender" enhancement. Thomas Anthony Hammond contends that the district court erred in sentencing him as a career offender, in part based on his prior conviction for that offense. Among other things, Hammond argues that the crime of first-degree robbery under New York law does not qualify as a crime of violence under the Guidelines' "force clause." We disagree and, upon our review, conclude that New York statutory robbery, irrespective of the degree of the offense, is a crime of violence, because it necessarily involves the "use, attempted use, or threatened use of physical force against the person of another." U.S.S.G. § 4B1.2(a)(1). Accordingly, we affirm the district court's judgment.

I.

In 2017, Hammond pleaded guilty to one count of attempted bank robbery and one count of bank robbery, both in violation of 18 U.S.C. § 2113(a). Before sentencing, the probation officer prepared a presentence report, which included a summary of Hammond's criminal history. The criminal history showed that Hammond previously had been convicted of North Carolina common law robbery, and of New York first-degree robbery, in violation of New York Penal Law § 160.15.

Based on these convictions, the probation officer recommended that the district court impose the career offender sentencing enhancement under Guidelines § 4B1.1(a). Applying this enhancement, the probation officer calculated a Guidelines range of between 151 and 188 months' imprisonment. Hammond contends that without the career offender enhancement, his advisory sentencing range would have been between 84 and 105 months' imprisonment.

Hammond objected to his classification as a career offender, arguing that his conviction for New York first-degree robbery did not qualify as a crime of violence under the Guidelines.1 The district court rejected Hammond's argument and imposed a sentence of 168 months' imprisonment, followed by three years of supervised release. Hammond now appeals.

II.

Hammond advances the same argument on appeal that he raised in the district court. Thus, we consider whether the offense of New York first-degree robbery, in violation of New York Penal Law § 160.15, qualifies as a crime of violence within the meaning of Guidelines § 4B1.1. This question presents an issue of law, which we review de novo. United States v. Jenkins, 631 F.3d 680, 682 (4th Cir. 2011).

A.

Before addressing Hammond's arguments, we begin with an overview of the Guidelines' career offender enhancement. Under Guidelines § 4B1.1, a defendant qualifies as a career offender if he has "at least two prior felony convictions for either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a)(3). A "crime of violence" is defined as any state or federal offense punishable by imprisonment for a term exceeding one year, that (1) has as an element the use, attempted use, or threatened use of physical force against the person of another [the force clause], or

(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion or the use or unlawful possession of a firearm . . . or explosive material [the enumerated offense clause].

Id. § 4B1.2(a).

We focus our analysis on the force clause of subparagraph (1) set forth above, because that clause provides the most direct route to answering the question before us. To determine whether a conviction for a state offense is a crime of violence under the force clause, we apply the "categorical approach." United States v. Gardner, 823 F.3d 793, 802 (4th Cir. 2016). Under that approach, the state crime necessarily must have as an element the "use, attempted use, or threatened use of physical force against the person of another" to qualify as a crime of violence under the force clause. U.S.S.G. § 4B1.2(a)(1). The Supreme Court has interpreted the term "physical force" as "violent force-that is, force capable of causing physical pain or injury to another person." Johnson v. United States, 559 U.S. 133, 140 (2010). If the...

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