United States v. Steed

• Decision Date: 12 January 2018
• Docket Number: No. 17-1011,17-1011
• Citation: 879 F.3d 440
• Parties: UNITED STATES of America, Appellant, v. Vincent STEED, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

879 F.3d 440

UNITED STATES of America, Appellant,

v.Vincent STEED, Defendant, Appellee.

No. 17-1011

United States Court of Appeals, First Circuit.

January 12, 2018

Richard W. Murphy, Acting United States Attorney, and Julia M. Lipez, Assistant United States Attorney, on brief for appellant.

Molly Butler Bailey, Portland, ME, and Strike, Gonzalez & Butler Bailey on brief for appellee.

Before Kayatta, Selya, and Barron, Circuit Judges.

BARRON, Circuit Judge.

In this appeal, the government challenges the 2016 sentence that Vincent Steed received for his conviction—following his guilty plea—for possession with intent to distribute Cocaine Base and Heroin in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). The District Court, in sentencing Steed, concluded that he did not qualify as a "career offender" under the United States Sentencing Guidelines and thus was not subject to the sentencing enhancement that otherwise would apply. The District Court then calculated Steed's guidelines sentencing range on that basis, and sentenced Steed to a prison term of 63 months, which was at the high end of the resulting guidelines sentencing range.

The government now contends that the District Court erred in concluding that Steed did not qualify as a "career offender" under the Sentencing Guidelines and thus that the District Court sentenced him based on an unduly low guidelines sentencing range. Accordingly, the government argues that Steed's sentence must be vacated so that Steed may be re-sentenced.

As has become common in cases of this type, we must address a number of complexities regarding the particularities of state law to resolve the issues on appeal. And, as has also become common in cases of this type, such complexities of state law in turn raise additional questions—knotty in themselves—about the requirements of the federal provision that seeks to identify those offenders whose past violence warrants the imposition of an enhanced sentence. After working our way through these questions, we conclude that the government has not identified a sufficient basis for vacating the sentence. Accordingly, we affirm the judgment below.

I.

On June 27, 2016, in the United States District Court for the District of Maine, Steed pleaded guilty to violating 21 U.S.C. § 841(a)(1), (b)(1)(C). The Presentence Investigation Report ("PSR") prepared by the Probation Office recommended that Steed be classified as a "career offender" under § 4B1.1 of the United States Sentencing Guidelines, as set forth in the 2015 version of the United States Sentencing Guidelines Manual.

That guideline defines a "career offender" to include those defendants who have two prior convictions, whether for a "controlled substance offense," U.S. Sentencing Guidelines Manual § 4B1.1(a) (U.S. Sentencing Comm'n 2015), any "crime of violence," id. § 4B1.1(a), or any combination thereof. A "crime of violence" is defined as:

[A]ny offense under federal or state law, punishable by imprisonment for a term exceeding one year, that[ ] (l) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

Id. § 4B1.2(a).

The first subpart of the language just quoted ("has as an element the use, attempted use, or threatened use of physical force against the person of another") is commonly referred to as the "force clause" of the "crime of violence" definition. See United States v. Ball, 870 F.3d 1, 3 (1st Cir. 2017). The final clause of the second subpart ("otherwise involves conduct that presents a serious potential risk of physical injury to another") is known as the "residual clause" of that definition. Id.

The PSR based the conclusion that Steed was a career offender under the guideline on his conviction in 2012 for two counts of drug trafficking under Maine law and his conviction in 2000 for attempted robbery in the second degree under New York law. Having determined that the drug trafficking and robbery convictions each qualified as predicate offenses under the career offender guideline, the PSR applied the career offender sentencing enhancement, which resulted in the PSR identifying Steed's total offense level under the guidelines to be 29. The PSR also determined Steed's criminal history category to be VI. In consequence, the PSR calculated Steed's sentencing range under the guidelines to be 151 to 188 months of imprisonment.

The District Court thereafter held a sentencing hearing. The District Court determined at the hearing that the variant of second-degree robbery under New York law that Steed had been convicted of attempting to commit did not have as an element the use of "violent force" under Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ( Johnson I ). Thus, the District Court reasoned that Steed had been convicted of an offense that did not fall within the force clause of the career offender guideline's definition of a "crime of violence." The District Court then bypassed the question whether that offense fell within the residual clause of that guideline's definition of a "crime of violence" because the government conceded that, after Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) ( Johnson II ), the residual clause was unconstitutionally vague. Accordingly, the District Court concluded that the career offender enhancement did not apply to Steed, as he had only one prior conviction that qualified as a conviction for a predicate offense under the career offender guideline—namely, his conviction under Maine law for two counts of drug trafficking, which was a qualifying "controlled substance" offense.

Partly in consequence of this ruling, the District Court determined that Steed's total offense level was 19, rather than 29, as the PSR had stated. The District Court also determined that, as the PSR had stated, Steed's criminal history category was VI. The District Court then accepted the government's recommended two-level reduction of Steed's total offense level. The District Court thus calculated Steed's guidelines sentencing range to be 51 to 63 months of imprisonment. The District Court then sentenced Steed to a sentence at the high end of that range—63 months of imprisonment.

The parties do not dispute that Steed's conviction for two counts of drug trafficking under Maine law qualifies as a conviction for a "controlled substance" offense under the career offender guideline. See U.S.S.G. § 4B1.2(b). The dispute before us therefore concerns only whether the government is right in contending that, contrary to the District Court's ruling, Steed's conviction for attempted second-degree robbery under New York law qualifies as a predicate conviction under the career offender guideline as a "crime of violence." For, if the government is right on that point, then Steed is subject to the career offender enhancement under that guideline.

II.

We begin with the government's contention that Steed's 2000 conviction for attempted second-degree robbery under New York law is for an offense that "has as an element the use, attempted use, or threatened use of physical force against the person of another" and thus is for an offense that the force clause of the career offender guideline's definition of a "crime of violence" encompasses. U.S.S.G. § 4B1.2(a)(1). Our review is de novo. United States v. Almenas, 553 F.3d 27, 31 (1st Cir. 2009).

A.

In assessing whether a conviction qualifies as a predicate conviction under the force clause of the career offender guideline's definition of a "crime of violence," we apply what is known as the "categorical approach." United States v. Dávila-Félix, 667 F.3d 47, 55-56 (1st Cir. 2011) (internal quotation marks omitted). Under that approach, we consider "the statutory definition of the offense in question, as opposed to the particular facts underlying the conviction." Id. at 56 (quoting United States v. Piper, 35 F.3d 611, 619 (1st Cir. 1994) ); see also Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). We undertake this analysis by focusing on the elements of the offense. Dávila-Félix, 667 F.3d at 57. If the elements of the state statute of conviction "encompass[ ] only conduct that constitutes a predicate offense," then the conviction qualifies as a predicate conviction under the force clause of the career offender guideline's "crime of violence" definition. Id. at 56.

In cases where the state criminal statute at issue "sets out one or more elements of the offense in the alternative[,]" such that the offense is divisible into more than one offense, we must first identify the specific offense for which the defendant was convicted. Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013) ; United States v. Tavares, 843 F.3d 1, 10 (1st Cir. 2016), reh'g denied, 849 F.3d 529 (1st Cir. 2017). The parties agree that Steed's conviction was for attempting the type of second-degree robbery that § 160.10(2)(a) of the New York Penal Law sets forth. Accordingly, we must determine whether Steed's conviction for that offense categorically qualifies as a conviction for a "crime of violence" under the force clause of the career offender guideline's definition of that term.

B.

New York Penal Law § 160.00 sets forth the general definition of the offense of robbery by providing that:

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 ... [p]reventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or ... [c]ompelling the owner of such property or another person to deliver up the property or to engage in other conduct which

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