United States v. Tabb

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: RAKOFF, District Judge
• Citation: United States v. Tabb, 949 F.3d 81 (2nd Cir. 2020)
• Decision Date: 06 February 2020
• Docket Number: August Term, 2019,No. 18-338,18-338
• Parties: UNITED STATES of America, Appellee, v. Zimmian TABB, Defendant-Appellant.

949 F.3d 81

UNITED STATES of America, Appellee,

v.Zimmian TABB, Defendant-Appellant.

No. 18-338

August Term, 2019

United States Court of Appeals, Second Circuit.

Argued: November 4, 2019

Decided: February 6, 2020

Won S. Shin, Assistant United States Attorney (Geoffrey S. Berman, United States Attorney for the Southern District of New York, David W. Denton, Jr., Rebekah Donaleski, Assistant United States Attorneys, on the brief), New York, NY, for Appellee.

Richard E. Signorelli, Law Office of Richard E. Signorelli, New York, NY, for Defendant - Appellant.

Before: Sack and Hall, Circuit Judges, and Rakoff, District Judge.¹

RAKOFF, District Judge:

Zimmian Tabb appeals from a judgment of conviction entered on January 25, 2018 and a Sentencing Order entered on January 26, 2018 in the United States District Court for the Southern District of New York (Hellerstein, J. ). Tabb contends that he was improperly classified as a career offender based on his prior convictions for attempted assault in the second degree under N.Y. Penal Law ("N.Y.P.L.") § 120.05(2) and federal narcotics conspiracy under 21 U.S.C. § 846. Because we agree that both crimes constitute predicate offenses for purposes of the career offender sentencing enhancement of the United States Sentencing Guidelines ("U.S.S.G.") § 4B1.1, we affirm the judgment of the district court.

I. Facts

On May 5, 2017, Tabb pled guilty to aiding and abetting the distribution of 3.75 grams of crack cocaine, in violation of 21 U.S.C. § 841(b)(1)(C) and 18 U.S.C. § 2. The plea agreement did not stipulate whether Tabb’s prior convictions qualified him for the career offender enhancement of U.S.S.G. § 4B1.1. Under U.S.S.G. § 4B1.1, a defendant is a career offender if (1) he is over 18; (2) the present offense is a felony crime of violence or a controlled substance offense; and (3) he "has at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.2 sets out the definitions of both a "crime of violence" and a "controlled substance offense."

At sentencing, the district court concluded that Tabb had two prior felony convictions for purposes of the sentencing enhancement. First, Tabb’s 2014 conviction for conspiracy to distribute and possess with intent to distribute crack cocaine in violation of 21 U.S.C. § 846 constituted a predicate controlled substance offense. Second, Tabb’s 2010 conviction for attempted assault in the second degree in violation of N.Y. Penal Law ("N.Y.P.L.") § 120.05(2) constituted a predicate crime of violence.

Based on these prior convictions, the district court concluded that Tabb qualified for the career offender enhancement and calculated his Guidelines range to be 151 to 188 months’ imprisonment. Without the career offender enhancement, Tabb’s Guidelines range would have been 33 to 41 months.² Ultimately, the district court imposed a below-guidelines sentence of 120 months. Tabb appeals the judgment and sentencing order on the ground that he should not have been classified as a career offender. This Court reviews de novo a district court’s interpretation of the Guidelines. United States v. Matthews , 205 F.3d 544, 545 (2d Cir. 2000).

II. Analysis

Tabb argues that he should not have been classified as a career offender under U.S.S.G. § 4B1.1 because he did not have two predicate convictions. First, he argues that attempted assault in the second degree under N.Y. Penal Law § 120.05(2) is not a predicate conviction because it is not crime of violence within the relevant provision of U.S.S.G. § 4B1.2 (known as the "Force Clause"). Second, he argues that his narcotics conspiracy conviction under 21 U.S.C. § 846 is not a predicate conviction because it does not qualify as a controlled substance offense. Neither argument is persuasive.

A. Tabb’s Conviction for Attempted Assault in the Second Degree ( N.Y.P.L. § 120.05(2) )

Tabb first argues that attempted assault in the second degree under N.Y.P.L § 120.05(2) is not a crime of violence under the Force Clause of § 4B1.2. A person is guilty of second-degree assault under N.Y.P.L. § 120.05(2) when, "[w]ith intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument." This qualifies as a "crime of violence" under the Force Clause (also sometimes referred to as the "Elements Clause") if it "has as an element the use, attempted use, or threatened use of physical force against the person of another." U.S.S.G. § 4B1.2.³ U.S.S.G. § 4B1.2 ’s Force Clause is identical to language in two other statutes: the definition of "violent felony" under the Armed Career Criminal Act ("ACCA"), and the definition of "crime of violence" under 18 U.S.C. § 16(a). "[T]he identical language of the elements clauses of 18 U.S.C. § 16(a) and [ACCA] means that cases interpreting the clause in one statute are highly persuasive in interpreting the other statute," as well as in interpreting U.S.S.G. § 4B1.2. Stuckey v. United States , 878 F.3d 62, 68 n.9 (2d Cir. 2017), cert. denied , ––– U.S. ––––, 139 S. Ct. 161, 202 L.Ed.2d 200 (2018). Thus, in evaluating Tabb’s claim, this Court is guided by its ACCA and § 16(a) jurisprudence.

Tabb first argues that attempted assault in the second degree under N.Y. Penal Law § 120.05(2) cannot be a crime of violence because the substantive crime of second-degree assault is not itself a crime of violence. To determine whether a state crime falls under the Sentencing Guidelines, the Second Circuit generally uses the "categorical approach" prescribed by the Supreme Court. Taylor v. United States , 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Under this abstract approach, a court considers the "generic, contemporary meaning" of the crime in the guidelines, id. at 598, 110 S.Ct. 2143, and then determines whether the crime committed by the defendant falls under this "generic offense." The Court "ignores the circumstances of the particular defendant’s crime and asks instead what is the minimum criminal conduct necessary to sustain a conviction under the relevant statute." Singh v. Barr , 939 F.3d 457, 462 (2d Cir. 2019) (internal quotation marks and citation omitted). "[O]nly if the statute’s elements are the same as, or narrower than, those of the generic offense does the prior conviction serve as a predicate offense for a sentencing enhancement." United States v. Castillo , 896 F.3d 141, 149-50 (2d Cir. 2018) (internal quotation marks and citation omitted).

Tabb’s argument that N.Y.P.L. § 120.05(2) is not a crime of violence under the categorical approach is severely undercut by this Court’s holdings from the ACCA and § 16(a) contexts. In United States v. Walker , 442 F.3d 787 (2d Cir. 2006) (per curiam), this Court held that attempted assault in the second degree N.Y.P.L. § 120.05(2) is "categorically" a violent felony under ACCA because "[t]o (attempt to) cause physical injury by means of a deadly weapon or dangerous instrument is necessarily to (attempt to) use ‘physical force,’ on any reasonable interpretation of that term." Id. at 788. More recently, in Singh v. Barr , 939 F.3d 457 (2d Cir. 2019) (per curiam), the Court reaffirmed Walker ’s holding and held that the substantive crime of second-degree assault under N.Y.P.L. § 120.05(2) is also categorically a crime of violence under § 16(a) ’s Force Clause. Thus, this Court has found that the substantive crime of N.Y.P.L. § 120.05(2) categorically "has as an element the use, attempted use or threatened use of physical force against the person of another" under both ACCA and § 16(a).

Tabb provides no reason why the result should be different under U.S.S.G. § 4B1.2. Indeed, Tabb largely relies on cases from both the ACCA and § 16(a) context to argue that second-degree assault under N.Y.P.L. § 120.05(2) is not a crime of violence. For example, Tabb relies on an earlier § 16(a) case, Chrzanoski v. Ashcroft , 327 F.3d 188 (2d Cir. 2003), to argue that second-degree assault does not qualify as a crime of violence because it may be accomplished by indirect force. Singh , however, necessarily, and explicitly, rejected this argument when it found that second-degree assault under N.Y.P.L. § 120.05(2) was a crime of violence under § 16(a). 939 F.3d at 463 ("[I]ndirect methods of inflicting serious physical injury still meet the physical force requirement of § 16(a)."). Moreover, the view of "force" set forth in Chrzanoski was subsequently modified by our Court in light of the Supreme Court decision in United States v. Castleman , which held that physical force in the context of a misdemeanor crime of domestic violence "encompasses even its indirect application." Villanueva v. United States , 893 F.3d 123, 130 (2d Cir. 2018) (quoting Castleman , 572 U.S. 157, 170, 134 S.Ct. 1405, 188 L.Ed.2d 426 (2014) ); see also United States v. Hill , 890 F.3d 51, 60 (2d Cir. 2018) (recognizing the Chrzanoski court "did not have the benefit of the Supreme Court’s reasoning in Castleman ").

Tabb’s alternative Chrzanoski -based argument -- that second-degree assault under N.Y.P.L. § 120.05(2) is not categorically a crime of violence because it can be committed by omission -- is no more successful. In Singh , the Court requested supplemental briefing on "whether NYPL § 120.05(2) allows for the imposition of liability based on a defendant’s omission to act." Singh , 939 F.3d at 463. Neither the parties nor the panel were able to find a single example of such liability being imposed. Id. Indeed, the panel explained that "it is nearly impossible to conceive of a scenario in which a person could knowingly or intentionally injure, or attempt to injure, another person with a deadly weapon without engaging in at least some affirmative, forceful conduct." Id. at 463-64 (quoting United States v. Ramos , 892 F.3d 599, 612 (3d Cir. 2018) ). Thus, notwithstanding Tabb’s objections, we find that the substantive crime of second...