United States v. Rabb

Decision Date30 October 2019
Docket NumberNo. 18-1678,18-1678
Citation942 F.3d 1
Parties UNITED STATES of America, Appellee, v. DeJuan RABB, a/k/a Slim, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

Syrie Davis Fried, Boston, MA, with whom Good Schneider Cormier & Fried was on brief, for appellant.

Julia M. Lipez, Assistant United States Attorney, with whom Halsey B. Frank, United States Attorney, was on brief, for appellee.

Before Barron, Selya, and Boudin, Circuit Judges.

BARRON, Circuit Judge.

DeJuan Rabb brings this appeal to challenge the 2018 sentence that he received after pleading guilty in the United States District Court for the District of Maine to possession with intent to distribute furanyl fentanyl and cocaine base in violation of 21 U.S.C. § 841(a)(1) and for the distribution of furanyl fentanyl, also in violation of 21 U.S.C. § 841(a)(1). Rabb contends that the District Court erred in concluding that he was a "career offender" under the 2016 version of the United States Sentencing Guidelines Manual ("Guidelines"), see U.S.S.G. §§ 4B1.1, 4B1.2(a)(2), based on his 2000 New York state law robbery conviction. We agree with Rabb and thus vacate and remand for resentencing.

I.

The Guidelines define a "career offender" to be an individual over eighteen years of age at the time of the offense of conviction whose offense of conviction is at least their third felony conviction -- whether state or federal -- for either a "crime of violence" or a "controlled substance offense" or a combination thereof. U.S.S.G. § 4B1.1(a) (U.S. Sentencing Comm'n 2016). The Guidelines define a "crime of violence," in turn, as a felony that:

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, 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 described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).

U.S.S.G § 4B1.2(a) (emphasis added).

The first clause in the "crime of violence" definition is known as the "elements clause," or the "force clause." The second clause is commonly referred to as the "enumerated offenses clause," as it lists a series of crimes, "robbery" among them. U.S.S.G §§ 4B1.2, 4B1.1(a) (2016).

The United States Probation Office's Second Revised Presentence Investigation Report ("PSR") in Rabb's case found that he had the requisite number of prior felony convictions to be a "career offender" under the Guidelines. The PSR found that he had committed a "controlled substance offense" based on his 2014 conviction under New York state law for criminal possession of a controlled substance in the third degree. The PSR also found that he had committed a "crime of violence" based on his 2000 conviction for second-degree robbery in violation of New York Penal Law § 160.10(1).1

The PSR specifically determined that his 2000 New York state law robbery conviction was for a "crime of violence" because the enumerated offenses clause of the "crime of violence" definition in the Guidelines included "robbery." The PSR relied on that clause after concluding that the force clause did not apply in light of our ruling in United States v. Steed, 879 F.3d 440 (1st Cir. 2018). There, we held that it was reasonably probable that, as of 2000, a robbery of the type for which Rabb was convicted encompassed even a purse snatching committed by means so sudden that the victim was merely made aware of the perpetrator's presence. We further held that such means did not amount to a use of force or threatened force within the meaning of the force clause. See Steed, 879 F.3d at 451.

The PSR followed the Guidelines' instruction to group related counts of conviction -- which Rabb's two counts are -- pursuant to U.S.S.G. § 3D1.2, and then determine a combined offense level for the group, id. § 3D1.3. Based on the application of the "career offender" sentencing enhancement and other calculations not at issue here, the PSR determined that Rabb's total offense level under the Guidelines for his grouped 2018 convictions was 31. The PSR further noted that, given the "career offender" determination, Rabb was subject to U.S.S.G. § 4B1.1(b), which increases the criminal history category for all career offenders to VI. The PSR thus found that Rabb's sentencing range for the grouped convictions under the Guidelines was for a prison sentence of 188 to 235 months.

At his sentencing hearing, Rabb argued that his 2000 New York state law robbery conviction did not qualify as a "crime of violence" even under the enumerated offenses clause of the "crime of violence" definition in the Guidelines. He relied for that argument, in substantial part, on our reasoning in Steed. But, the District Court concluded that Steed "at most forecloses a finding that a New York second degree robbery conviction falls under the force clause." The District Court ruled, however, that Rabb's 2000 conviction was for a variant of robbery in New York that "substantially corresponds to generic robbery" and thus that is encompassed by the enumerated offenses clause of the Guidelines' "crime of violence" definition.

Having made that determination, the District Court adopted the PSR's determination that Rabb's offense level for the group of convictions was 31 and thus that his sentencing range under the Guidelines was for a prison sentence of 188 to 235 months. The District Court varied downwards, however, and imposed a 140-month prison sentence for each conviction to be served concurrently, to be followed by six years of supervised release. Rabb now appeals.

II.

The only issue that we must resolve on appeal is whether "robbery" in the enumerated offenses clause of the "crime of violence" definition in the Guidelines encompasses the variant of robbery under New York law that Rabb was convicted of in 2000. That issue is one of law, and so our review is de novo. United States v. Almenas, 553 F.3d 27, 31 (1st Cir. 2009).

The parties agree that we must apply what is known as the "categorical approach" to resolve this issue. Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Under that approach, we focus on the least of the conduct encompassed by the assertedly qualifying offense for which Rabb was convicted and not on the "particular facts underlying the conviction." United States v. Dávila-Félix, 667 F.3d 47, 56 (1st Cir. 2011) (quoting United States v. Piper, 35 F.3d 611, 619 (1st Cir. 1994) ). In doing so, however, we must focus on whether there is "a realistic probability, not a theoretical possibility," that the least of the conduct that offense criminalizes is greater than the conduct encompassed by "robbery" as it is used in the enumerated offenses clause of the Guidelines' definition of a "crime of violence." Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007).

In undertaking this categorical inquiry, "we apply an historical approach."

Steed, 879 F.3d at 447. Thus, we look to "the state of New York law as it stood at the time that [Rabb] was convicted of attempting to commit that crime." Id.; see also United States v. Faust, 853 F.3d 39, 57 (1st Cir. 2017), reh'g denied , 869 F.3d 11 (1st Cir. 2017). Moreover, we must determine whether the underlying criminal offense is "divisible," in the sense that the statute defining the offense "sets out one or more elements of the offense in the alternative." Descamps v. United States, 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) ; see also United States v. Tavares, 843 F.3d 1, 10 (1st Cir. 2016). For, if the statute defining the offense does so, then we must apply what is known as the modified categorical approach, which requires that we focus this categorical inquiry on the specific variant of the divisible offense for which the defendant was convicted. See Descamps, 570 U.S. at 257, 133 S.Ct. 2276.

The parties agree that New York law, as of the time of Rabb's conviction, defined a number of distinct variants of the offense of robbery. The parties further agree that Rabb was convicted of a specific, divisible variant of second-degree robbery under New York law, namely, the variant that is set forth in New York Penal Law § 160.10(1). That variant requires the government to prove that the defendant, in committing "robbery," as defined in New York Penal Law § 160.00, was "aided by another person actually present." N.Y. Penal Law § 160.10(1).

Neither party contends, however, that the additional element set forth in § 160.10(1) is relevant to the categorical inquiry that we must undertake. Rather, they agree that inquiry turns solely on the scope of § 160.00 itself.2 We thus follow the parties in training our focus on the scope of § 160.00 as it was defined at the time of Rabb's conviction in 2000.

As of that time, just as now, § 160.00 stated:

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.

N.Y. Penal Law § 160.00. The record does not specify the prong of New York Penal Law § 160.00 that defines the offense for which Rabb was convicted. For that reason, we look to the least of the conduct that § 160.00 encompassed. See Duenas-Alvarez, 549 U.S. at 193, 127 S.Ct. 815.

That determination is easily made here. Steed held that "there is a realistic probability that ... the least of the acts" that this provision encompassed as of 2000 -- and thus as of the time of Rabb's conviction -- "included ‘purse snatching, per se.’ " 879 F.3d at 450 (quoting People v. Santiago, 62 A.D.2d...

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2 cases
  • United States v. Rabb
    • United States
    • U.S. Court of Appeals — First Circuit
    • July 16, 2021
    ...appeal, we vacated a sentence imposed on defendant-appellant Dejuan Rabb and remanded for resentencing. See United States v. Rabb (Rabb I ), 942 F.3d 1, 7 (1st Cir. 2019). On remand, the district court sentenced the defendant to serve, inter alia, a mandatory minimum six-year term of superv......
  • United States v. Rabb
    • United States
    • U.S. Court of Appeals — First Circuit
    • July 16, 2021
    ...appeal, we vacated a sentence imposed on defendant-appellant Dejuan Rabb and remanded for resentencing. See United States v. Rabb (Rabb I), 942 F.3d 1, 7 (1st Cir. 2019). On remand, the district court sentenced the defendant to serve, inter alia, a mandatory minimum six-year term of supervi......
1 books & journal articles
  • Sentencing
    • United States
    • Georgetown Law Journal No. 110-Annual Review, August 2022
    • August 1, 2022
    ...is divisible because it states no fewer than four separate offenses in subsections (a) through (d). See id. ; see, e.g. , U.S. v. Rabb, 942 F.3d 1, 4 (1st Cir. 2019) (modif‌ied categorical approach applicable for conviction under divisible robbery statute); U.S. v. Scott, 954 F.3d 74, 80 (2......

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