Buie v. United States of America
Filing
15
OPINION AND ORDER. For the foregoing reasons, it is hereby ORDERED: 1. Buie's Petition to Vacate, Set Aside, or Correct Sentence is GRANTED. 2. Buie's sentence of fifteen years imprisonment, imposed pursuant to the Armed Career Criminal Act , 18 U.S.C. § 924(e), is VACATED. 3. Buie is hereby resentenced to a term of ten years' imprisonment, which he has already served. 4. Buie shall be released from the custody of the Bureau of Prisons forthwith. 5. All other aspects of Buie 039;s original sentence, imposed on December 12, 2006, remain in effect, including the term of three years' supervised release, which shall begin upon his release and shall include the conditions set forth in his original sentence. 6. Buie shall report to the nearest Probation Office within 30 days of his release. 7. The Bureau of Prisons is ordered to allow Buie immediate telephone access in order to contact his counsel. SO ORDERED. (Signed by Judge J. Paul Oetken on 9/8/2017) (rjm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DAVID BUIE,
Petitioner,
05-CR-664 (RCC)
15-CV-3945 (JPO)
-vUNITED STATES OF AMERICA,
OPINION AND ORDER
Respondent.
J. PAUL OETKEN, United States District Judge:
Pursuant to 28 U.S.C. § 2255, Petitioner David Arthur Buie seeks relief from a sentence
imposed under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). Buie is currently
serving a fifteen-year sentence under ACCA’s sentencing enhancement provision, which
imposes a fifteen-year mandatory minimum sentence on defendants who have committed three
prior predicate offenses. The applicability of ACCA’s fifteen-year minimum turns on whether
two of Buie’s three prior convictions―both for robbery in the first degree under New York
law―constitute “violent felonies” under ACCA. Because this Court concludes that at least one
of Buie’s prior convictions does not, the petition is granted.
I.
Background
ACCA mandates imposition of a fifteen-year minimum sentence on any defendant who
“has three previous convictions . . . for a violent felony or a serious drug offense, or both,
committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). The statute defines
“violent felony” as “any crime punishable by imprisonment for a term exceeding one year” that
either (1) “has as an element the use, attempted use, or threatened use of physical force against
the person of another,” id. § 924(e)(2)(B)(i) (the “force clause”); (2) “is burglary, arson, or
extortion, [or] involves use of explosives,” id. § 924(e)(2)(B)(ii); or (3) “otherwise involves
1
conduct that presents a serious potential risk of physical injury to another,” id. (the “residual
clause”).
In September 2006, Buie pleaded guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). On December 12, 2006, he was sentenced by Judge Richard
C. Casey to a term of imprisonment of 180 months (fifteen years). (Dkt. No. 79 at 2; Dkt. No.
50.) In the typical case, the statutory maximum for violation of § 922(g) is 120 months (ten
years), see 18 U.S.C. § 924(a)(2), but Buie’s sentence was enhanced under ACCA. Buie’s
ACCA enhancement was based on three predicate prior offenses: (1) a May 22, 1995, New
Jersey conviction for manufacturing, distributing, or dispensing heroin in the second degree
(“1995 Drug Conviction”); (2) a July 26, 1982, conviction for first-degree robbery under New
York Penal Law § 160.15 (“1982 Robbery Conviction”); and (3) a January 9, 1979, conviction
for first-degree robbery, also under § 160.15 (“1979 Robbery Conviction”).
Buie filed three habeas petitions before filing the one currently before the Court. He filed
his first § 2255 habeas petition on March 5, 2007, arguing that his 1995 Drug Conviction should
not have been considered a serious drug offense under ACCA. Judge Alvin K. Hellerstein
denied the petition on July 24, 2009, Buie v. United States, No. 07 Civ. 1865 (S.D.N.Y. July 24,
2009), aff’d, No. 09-4293 (2d Cir. Mar. 10, 2010), and subsequently denied Buie’s motion for
reconsideration, Buie v. United States, No. 07 Civ. 1865 (S.D.N.Y. Sept. 18, 2013). Buie filed a
second § 2255 petition on August 25, 2015, in the United States District Court for the Western
District of Missouri. Buie v. Sanders, 15 Civ. 03391 (W.D. Mo. Aug. 25, 2015). The court
dismissed Buie’s petition for lack of jurisdiction, and the United States Court of Appeals for the
Eighth Circuit affirmed. Buie v. Sanders, 16 Civ. 1185 (8th Cir. May 31, 2016). On April 28,
2015, Buie filed a third petition in which he argued that his conviction was invalid because it was
2
obtained in violation of his right to effective assistance of counsel. The Second Circuit denied
that petition on November 17, 2015. Buie v. United States, 15 Civ. 2114 (2d Cir. Nov. 17,
2016).
On June 21, 2016, Buie sought leave to file his current petition. The Second Circuit
granted that motion and transferred the proceeding to this Court. (Dkt. No. 76.)
Whether Buie is subject to a fifteen-year statutory minimum sentence or a ten-year
statutory maximum sentence hinges on an interpretation of § 924(e) of ACCA. Buie argues that
based on the Supreme Court’s decisions in Johnson v. United States, 135 S. Ct. 2551 (2015)
(“2015 Johnson”), and Johnson v. United States, 130 S. Ct. 1265 (2010) (“2010 Johnson”), his
convictions for robbery in the first degree no longer qualify as predicate violent felonies.
Buie, who is now 63 years old, has been in custody since May 2005. (Dkt. No. 80 at 1.)
He has already served over twelve years of his sentence. (Id.) The stakes are high: If Buie is
right, then his sentence should not have been enhanced under § 924(e), and he has already served
time in excess of § 922(g)’s statutory ten-year maximum.
II.
Discussion
A.
Availability of Judicial Review
The Government raises three procedural challenges to Buie’s motion.
First, the Government argues that Buie’s motion is barred by 28 U.S.C. § 2244(a), which
mandates dismissal “if it appears that the legality of such detention has been determined . . . on a
prior application for a writ of habeas corpus.” However, Buie’s current claim is not
encompassed by his prior habeas petitions. Although his third petition filed with the Second
Circuit referenced 2015 Johnson, it did not include information about his prior convictions
except for a reference to his 1995 Drug Conviction in New Jersey. On November 17, 2015, the
Second Circuit denied Buie’s request to file a successive petition, stating “[2015] Johnson does
3
not apply because Petitioner was not sentenced under ACCA’s ‘residual clause.’” However,
particularly in light of the fact that Buie’s petition referenced only his prior drug conviction,
there is no indication that the Second Circuit panel considered whether Buie’s other convictions
were properly considered predicates under ACCA.
Moreover, on July 19, 2016, the Second Circuit granted Buie leave to file the instant
motion, finding that he “has made a prima facie showing that he has satisfied the successive
motion requirements.” (Dkt. No. 76 at 1.) In transferring the proceeding to this Court, the
Second Circuit directed this Court to address “whether the Supreme Court’s decision in [2015]
Johnson entities Petitioner to relief.” (Id.) The Second Circuit’s July 2016 ruling indicates that
its 2015 ruling on Buie’s prior motion did not constitute a “determin[ation]” on “the legality of
[Buie’s] detention” with respect to this issue. 28 U.S.C. § 2244(a). The former ruling overrides
the latter and constitutes law of the case.
Second, the Government contends that Buie’s motion is barred by 28 U.S.C.
§ 2255(h)(2), which requires that a successive habeas petition address “a new rule of
constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable.” Of course, the Supreme Court’s decision in 2015 Johnson―which
invalidated ACCA’s “residual clause” as unconstitutionally vague―announced a new rule of
constitutional law, as the Supreme Court held in Welch v. United States, 136 S. Ct. 1257, 1265
(2016). The Government argues, however, that Buie is actually relying not on 2015 Johnson, but
rather on 2010 Johnson―a case involving statutory interpretation rather than constitutional law.
The Government’s premise is that “Buie was not sentenced under ACCA’s residual clause, and
thus 2015 Johnson has no applicability to his case.” (Dkt. No. 79 at 9.)
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The Court disagrees. It was only the confluence of 2010 Johnson and 2015 Johnson that
allowed Buie to make the argument he makes here. Indeed, as Buie’s counsel points out, a
§ 2255 motion filed immediately after 2010 Johnson would have been pointless, if not frivolous.
(Dkt. No. 80 at 24.) That is because before 2015 Johnson, courts had held―and lawyers had
reasonably believed―that substantive crimes such as robbery and larceny were swept into
ACCA’s predicate offenses by the extremely broad (and vague) residual clause. See, e.g., United
States v. Carmichael, 408 F. App’x 769, 770‒71 (4th Cir. 2011) (North Carolina robbery under
ACCA’s residual clause); United States v. Davis, 487 F.3d 282, 285‒87 (5th Cir. 2007) (Texas
robbery under ACCA’s residual clause); United States v. Mitchell, 743 F.3d 1054, 1060‒63 (6th
Cir. 2014) (Tennessee robbery under ACCA’s residual clause); United States v. Prince, 772 F.3d
1173, 1176‒78 (9th Cir. 2014) (California robbery under ACCA’s residual clause); see also
United States v. Thrower, 584 F.3d 70, 72 (2d Cir. 2009) (New York larceny under ACCA’s
residual clause).
The Government’s assertion that Buie “was not sentenced under ACCA’s residual
clause” is neither obviously true nor necessarily dispositive. At Buie’s sentencing in 2006,
neither the parties nor Judge Casey expressed a view as to which clause rendered Buie’s two
prior robbery convictions “violent felonies” under ACCA; they appear to have simply assumed
that those convictions qualified as violent felonies, whether under the force clause or the residual
clause. (See Dkt. No. 80-1.) Until its invalidation in 2015, the residual clause always served as
an alternative basis for treating robbery and other offenses as violent felonies, in particular cases
if not categorically.
This Court agrees with those courts that have rejected similar procedural arguments and
have concluded that the type of hybrid 2010/2015 Johnson habeas claim made by Buie relies, at
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least in part, on the new constitutional rule announced in 2015 Johnson. See United States v.
Winston, 850 F.3d 677, 681‒82 & n.4 (4th Cir. 2017); In re Chance, 831 F.3d 1335, 1338‒40
(11th Cir. 2016); Massey v. United States, 2017 WL 2242971, *3 (S.D.N.Y. 2017); Diaz v.
United States, 2016 WL 4524785, *5 (W.D.N.Y. 2016); United States v. Ladwig, 192 F. Supp.
3d 1153, 1158‒61 (E.D. Wash. 2016).
The Government’s final procedural argument is that Buie’s motion is untimely. This
argument fails for the same reasons as the previous argument. Under 28 U.S.C. § 2255(f)(3), the
motion must be made within one year of the “date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court
and made retroactive to cases on collateral review.” As explained above, Buie’s claim for relief
is based at least in part on 2015 Johnson, which was decided on June 26, 2015. Buie filed his
pro se motion to bring a successive habeas petition on June 21, 2016, within one year of that
decision. (Dkt. No. 80-3.) Accordingly, his § 2255 motion is timely.
B.
Buie’s Prior Convictions for First-Degree Robbery
Because ACCA’s residual clause was held unconstitutional by 2015 Johnson, and
because robbery is not one of the offenses enumerated in § 924(e)(2)(B)(ii), Buie’s 1982 and
1979 Robbery Convictions are predicate offenses under ACCA only if they fall under the force
clause. If either of those convictions is not a violent felony under § 924(e)(2)(B)(i), then Buie
does not have the requisite three predicate convictions to justify an ACCA sentence
enhancement.
1.
The Categorical and Modified Categorical Approaches
To qualify as a predicate offense under ACCA’s force clause, the crime in question must
include violent force as a necessary element. In 2010 Johnson, the Supreme Court held that “the
phrase ‘physical force’ means violent force—that is, force capable of causing physical pain or
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injury to another person.” 2010 Johnson, 559 U.S. at 140. In so holding, the Court refused to
treat the Florida felony offense of battery, which requires as an element only “actually and
intentionally touching,” as a crime of violence under ACCA because the common-law definition
of battery could be satisfied with less than violent force. Id. at 138.
In determining whether a crime constitutes a violent felony under ACCA, courts apply
either the “categorical approach” or the “modified categorical approach.” See United States v.
Beardsley, 691 F.3d 252, 259 (2d Cir. 2012). “Both approaches require the sentencing court to
consider the minimum elements that must be proven beyond a reasonable doubt to secure a
conviction for that offense.” United States v. Genao, No. 16-924, 2017 WL 3687881, at *4 (2d
Cir. Aug. 28, 2017).
Under the categorical approach, a court must “identify ‘the minimum criminal conduct
necessary for conviction under a particular statute’” and then determine “whether such conduct
amounts to” a violent felony under ACCA. United States v. Hill, 832 F.3d 135, 139 (2d Cir.
2016) (quoting United States v. Acosta, 470 F.3d 132, 135 (2d Cir. 2006)). Importantly, a court
must examine the statute in a vacuum. “Sentencing courts may ‘look only to the statutory
definitions’—i.e., the elements—of a defendant’s prior offenses, and not ‘to the particular facts
underlying those convictions.’” Descamps v. United States, 133 S. Ct. 2276, 2283 (2013)
(quoting Taylor v. United States, 495 U.S. 575, 600 (1990)). As the Second Circuit recently
explained:
One of the justifications for the categorical approach’s “elementsonly inquiry” is a concern for fairness to defendants. Even when a
defendant goes to trial, reliance on the “non-elemental fact[s]” of a
prior conviction “are prone to error” because “a defendant may
have no incentive to contest [at trial] what does not matter under
the law” and may “even be precluded from doing so.” In such a
circumstance, “inaccuracies should not come back to haunt the
defendant many years down the road by triggering a lengthy
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mandatory sentence.” Similarly, when a defendant pleads guilty,
he need only admit to the specific elements of the charged offense,
and has no reason either to admit or contest prior governmental
accounts of his alleged conduct.
Genao, 2017 WL 3687881, at *4 (citations omitted) (alterations in original) (quoting Mathis v.
United States, 136 S. Ct. 2253, 2245 (2016)). Thus, if the minimum conduct necessary for
conviction is not sufficiently violent, the crime cannot be deemed a violent felony, regardless of
the facts underlying any particular defendant’s conviction.
The modified categorical approach conducts the same “elements-only” analysis, but it
performs the operation at a higher level of statutory specificity. The modified approach applies
when a defendant was previously convicted under a “divisible” statute. “[A] statute is
‘divisible,’ and thus subject to the modified categorical approach, when it ‘lists multiple,
alternative elements, and so effectively creates several different . . . crimes.’” Flores v. Holder,
779 F.3d 159, 165 (2d Cir. 2015) (alterations in original) (quoting Descamps, 133 S. Ct. at
2285). If the statute is divisible, “a sentencing court must discern which of the alternative
elements was integral to the defendant’s conviction.” Mathis, 136 S. Ct. at 2245. “The court can
then compare that crime, as the categorical approach commands, with the relevant” ACCA
offense. Id. at 2249; see also Genao, 2017 WL 3687881, at *5 (summarizing the “two-step
process” for applying the modified approach). In sum, “the modified approach merely helps
implement the categorical approach when a defendant was convicted of violating a divisible
statute. The modified approach thus acts not as an exception, but instead as a tool.” Descamps,
133 S. Ct. at 2285.
Crucially, the modified categorical approach is not an exception to the Supreme Court’s
“mantra in . . . ACCA decisions” that courts may look only to statutory elements of the offense,
and not to the facts of an individual defendant’s conviction. Mathis, 136 S. Ct. at 2251. “[S]uch
8
facts [are] irrelevant: Find them or not, by examining the record or anything else, a court still
may not use them to enhance a sentence.” Id. at 2253. Instead, under the modified approach,
courts may consult only “a limited class of documents to determine which of a statute’s
alternative elements formed the basis of the defendant’s prior conviction.” Descamps, 133 S. Ct.
at 2284. These so-called Shepard documents are “the indictment, jury instructions, or plea
agreement and colloquy,” Mathis, 136 S. Ct. at 2249, and only plea colloquies “in which the
factual basis for the plea was confirmed by the defendant,” Shepard v. United States, 544 U.S.
13, 26 (2005).
2.
Applying the Elements-Only Inquiry to New York First-Degree
Robbery
The question before this Court is whether first-degree robbery in New York constitutes a
violent felony under ACCA. The New York first-degree robbery statute states (and stated at the
time of Buie’s prior convictions):
A person is guilty of robbery in the first degree when he forcibly
steals property and when, in the course of the commission of the
crime or of immediate flight therefrom, he or another participant in
the crime:
1. Causes serious physical injury to any person who is not a
participant in the crime; or
2. Is armed with a deadly weapon; or
3. Uses or threatens the immediate use of a dangerous instrument;
or
4. Displays what appears to be a pistol, revolver, rifle, shotgun,
machine gun or other firearm . . . .
N.Y. Penal Law § 160.15.
Because “it ‘lists multiple, alternative elements, and so effectively creates several
different . . . crimes,’” Flores v. Holder, 779 F.3d 159, 165 (2d Cir. 2015) (alterations in
9
original) (quoting Descamps, 133 S. Ct. at 2285), New York Penal Law § 160.15 is a divisible
statute. In effect, New York has defined four crimes titled first-degree robbery:
(1) “forcibly steal[ing] property” and “[causing] serious physical
injury to any person who is not a participant in the crime”;
(2) “forcibly steal[ing] property” and “[being] armed with a deadly
weapon”;
(3) “forcibly steal[ing] property” and “[using] or threaten[ing] the
immediate use of a dangerous instrument”; and
(4) “forcibly steal[ing] property” and “[displaying] what appears to
be a pistol, revolver, rifle, shotgun, machine gun or other firearm.”
N.Y. Penal Law § 160.15; accord United States v. Batista, No. 09 Cr. 37, 2017 WL 2841681, at
*5 (W.D. Va. June 30, 2017) (concluding “that subsections (1)–(4) of N.Y. Penal Code § 160.15
list alternative elements”).
Applying the modified categorical approach, the Court next asks which of the four types
of first-degree robbery Buie was convicted of committing in his 1979 and 1982 Robbery
Convictions. Here, however, the Court encounters a problem: None of the Shepard documents
supporting the 1979 Robbery Conviction are available. 1 (See Dkt. No. 79 at 3‒4.) The
Government’s brief states that “all the records from the 1979 Robbery Conviction were
destroyed in a fire,” including the indictment. (Id. at 3.) Most of the documents supplied by the
Government instead—namely, a certificate of disposition (id. Ex. B), an arrest report (id. Ex. D),
and two sentencing transcripts (id. Exs. E, F)—are not Shepard-approved documents and
therefore cannot help the Court “to determine what crime, with what elements, [the] defendant
1
Buie also questions the validity of the Shepard documents proffered by the
Government regarding his 1982 Robbery Conviction. (See Dkt. No. 80 at 16.) Because the
Court concludes that Buie’s 1979 Robbery Conviction does not qualify as a predicate violent
felony, the Court does not reach Buie’s arguments regarding his 1982 Robbery Conviction.
10
was convicted of.” Mathis, 136 S. Ct. at 2249. And although the Government has proffered a
plea transcript (id. Ex. C), the colloquy does not demonstrate a “factual basis for the plea [which]
was confirmed by the defendant,” as required by Shepard. Shepard, 544 U.S. at 26.
As a result, the Court is left without the tools necessary to conduct an analysis under the
modified categorical approach. Although the Government has offered documents that “shed . . .
light on the underlying facts from the 1979 Robbery Conviction” (Dkt. No. 79 at 3), the Supreme
Court has squarely and repeatedly foreclosed consideration of such documents. “The
requirement, from the Court’s earliest decisions, was that a judge could impose a 15–year
sentence based only on a legal ‘certainty,’ not on his inference (however reasonable in a given
case) about what a prior factfinder had thought.” Mathis, 136 S. Ct. at 2255 n.6. 2 “Since
nothing in the record of [Buie’s 1979 Robbery Conviction] permit[s] the . . . Court to conclude
that it rested upon anything more than the least of [the] acts” criminalized, the Court must
determine whether “the least of [the] acts” described in the first-degree robbery statute can serve
2
Counsel for the Government candidly acknowledged during a telephone
conference on August 30, 2017, that there are no Shepard-approved documents with respect to
the 1979 Robbery Conviction. Buie and the Government disagree, however, over which party
has the “burden” to produce Shepard documents. (See Dkt No. 79 at 12‒13; Dkt. No. 80 at 12.)
At least with respect to the 1979 Robbery Conviction, this dispute is a red herring. The Supreme
Court has unambiguously limited the types of documents that a court may rely upon when
conducting a modified categorical analysis. Regardless of which party has the “burden” to
produce such documents, it is undisputed that they do not in fact exist. Without the aid of
Shepard-approved documents, the court must conduct the elements-only inquiry with respect to
§ 160.15 as a whole. See Genao, 2017 WL 3687881, at *5‒6 (finding a sentence procedurally
unreasonable where “[n]one of the Shepard documents pertaining to [the defendant’s] conviction
. . . were before the sentencing court); accord United States v. Colson, 683 F.3d 507, 510 (4th
Cir. 2012) (“[A]ll of the court records of [the defendant’s] prior conviction had been destroyed
due to the age of the conviction, and thus the government presented no documents acceptable
under Shepard that would allow consideration of the specific conduct that led to the . . .
conviction. We therefore look in this case ‘only to the statutory definition of the state crime and
the fact of conviction to determine whether the conduct criminalized by the statute, including the
most innocent conduct, qualifies’ as an offense . . . .” (quoting United States v. Diaz–Ibarra, 522
F.3d 343, 348 (4th Cir. 2008)) (citations omitted)).
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as a predicate offense. 2010 Johnson, 559 U.S. at 137; see also Moncrieffe v. Holder, 133 S. Ct.
1678, 1684 (2013) (“Because we examine what the state conviction necessarily involved, not the
facts underlying the case, we must presume that the conviction ‘rested upon [nothing] more than
the least of th[e] acts’ criminalized, and then determine whether even those acts are encompassed
by the generic federal offense.” (alterations in original) (quoting 2010 Johnson, 559 U.S. at
137)).
Thus, unable to determine which subsection of § 160.15 provided the basis for Buie’s
1979 Robbery Conviction, the Court is forced to move up one level of granularity. Instead of
asking whether the minimum conduct necessary for a conviction under one of §§ 160.15(1), (2),
(3), or (4) amounts to a violent felony, the Court asks if the minimum conduct necessary for a
conviction under any of §§ 160.15(1), (2), (3), or (4) amounts to a violent felony. If “the
minimum conduct necessary for a conviction,” Hill, 832 F.3d at 139, under any of the
subsections does not require violent force, then the 1979 Robbery Conviction under § 160.15 is
not a valid predicate offense under ACCA.
The Court begins with § 160.15(2)—the crime of “forcibly steal[ing] property” while
“[being] armed with a deadly weapon”—and concludes that a defendant who commits that crime
does not necessarily commit a violent felony within the meaning of ACCA.
As to the first element, “forcibly stealing property” under New York law does not always
require violence. It does not appear that the New York Court of Appeals has ruled on whether
the force supporting a robbery conviction can be less than violent, but a variety of Appellate
Division decisions have held as much. For example:
•
People v. Bennett held that the “physical force” element of robbery was
sufficiently shown by “evidence that [the defendant] and three others formed a
human wall that blocked the victim’s path as the victim attempted to pursue
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someone who had picked his pocket, allowing the robber to get away.” 631
N.Y.S.2d 834, 834 (N.Y. App. Div. 1st Dep’t 1995).
•
People v. Lee held that force was present where the defendant “bumped his
unidentified victim, took money, and fled while another forcibly blocked the
victim’s pursuit.” 602 N.Y.S.2d 138, 139 (N.Y. App. Div. 1st Dep’t 1993).
•
People v. Safon held that “[p]roof that the store clerk grabbed the hand in which
defendant was holding the money and the two tugged at each other until
defendant’s hand slipped out of the glove holding the money was sufficient to
prove that defendant used physical force.” 560 N.Y.S.2d 552, 552 (N.Y. App.
Div. 4th Dep’t 1990). 3
“‘Although [this Court is] not strictly bound by state intermediate appellate courts,’ [courts] will
look to their decisions unless ‘convinced by other persuasive data that the highest court of the
state would decide otherwise.’” Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 739 F.3d
45, 48 (2d Cir. 2013) (quoting DiBella v. Hopkins, 403 F.3d 102, 112 (2d Cir. 2005)). As such,
this Court concludes that under New York law, the “force” in “forcibly steals” need not be—and,
as an empirical matter, is not always—“capable of causing physical pain or injury to another
person.” Johnson 2010, 559 U.S. at 140.
As to the second element, “[being] armed with a deadly weapon” does not automatically
convert “forcible stealing” into “violent force.” Initially, it is clear that a defendant can be
convicted of first-degree robbery in New York under § 160.15(2) without ever brandishing,
using, or threatening to use the deadly weapon in his possession. See People v. Pena, 406
N.E.2d 1347, 1350 n.2 (N.Y. 1980). The question, then, is whether the mere possession of a
3
Although Bennett, Lee, and Safon involved second- and third-degree robbery
convictions, the distinction is immaterial because all degrees of robbery under New York law
require the element of “forcible stealing.” See N.Y. Penal Law § 160.00 (“Robbery is forcible
stealing. 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 . . . .”); see also N.Y. Penal Law § 160.05 (“A person is guilty of robbery in the third
degree when he forcibly steals property.”); N.Y. Penal Law § 160.10 (“A person is guilty of
robbery in the second degree when he forcibly steals property and when” one of a list of other
aggravating factors is present.).
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deadly weapon, when added to less-than-violent force, constitutes “force capable of causing
physical pain or injury to another.” 2010 Johnson, 559 U.S. at 140.
The combination of 2010 Johnson and 2015 Johnson compels the conclusion that it does
not. First, 2010 Johnson teaches that “physical force” is defined not by the potential risk of
injury but rather by the degree of force employed or threatened by the defendant. See 2010
Johnson, 559 U.S. at 140–41 (“[T]he word ‘violent’ in § 924(e)(2)(B) connotes a substantial
degree of force. When the adjective ‘violent’ is attached to the noun ‘felony,’ its connotation of
strong physical force is even clearer.” (citations omitted)). Second, 2015 Johnson precludes, as a
constitutional matter, a court from imposing a sentence enhancement based on indeterminate
calculations about “whether the crime ‘involves conduct’ that presents too much risk of physical
injury” or whether the defendant “might engage in violence after” committing the enumerated
crime. 2015 Johnson, 135 S. Ct. at 2557. Together, 2010 Johnson and 2015 Johnson indicate
that the mere presence of a deadly weapon—one that is not used, displayed, or threatened—does
not transform less-than-violence force into violent force. 4
In coming to the conclusion that New York first-degree robbery is not categorically a
violent felony, this Court recognizes that it is not writing on a blank slate. In United States v.
Jones, 830 F.3d 142 (2d Cir. 2016), the Second Circuit decided a very similar question—whether
New York first-degree robbery categorically constitutes a “crime of violence” under the
4
To be sure, “the Supreme Court has made clear in employing the categorical
approach that to show a predicate conviction is not a crime of violence ‘requires more than the
application of legal imagination to [the] . . . statute’s language,’” and “there must be ‘a realistic
probability, not a theoretical possibility,’ that the statute at issue could be applied to conduct that
does not constitute a crime of violence.” Hill, 832 F.3d at 139‒40 (alterations in original)
(quoting Gonzales v. Duenas–Alvarez, 549 U.S. 183, 193 (2007)). That requirement is satisfied
in this case, where Buie has indeed “show[n] that a particular reading of the statute is realistic,”
id. at 140, by “point[ing] to . . . cases in which the state courts in fact did apply the statute in the
. . . manner for which he argues,” Gonzales, 549 U.S. at 193.
14
Sentencing Guidelines, U.S.S.G. §§ 4B1.1(a), 4B1.2(a)—in the negative. However, Jones was
vacated in October 2016 “pending the Supreme Court’s disposition in Beckles v. United States,
No. 15–8544,” United States v. Jones, 838 F.3d 296 (2d Cir. 2016), and carries no precedential
weight. See Stuckey v. United States, 16 Civ. 1787, 2016 WL 7017419, at *4 (S.D.N.Y. Dec. 1,
2016).
Since the vacatur of Jones, at least one judge in this district has concluded that the
Second Circuit’s “pre-Jones precedent, now controlling once again, consistently holds that the
various degrees of New York robbery are predicate felonies under the ACCA.” Massey v.
United States, No. 03 Cr. 0938, 2017 WL 2242971, at *3 (S.D.N.Y. May 22, 2017). This Court
respectfully disagrees with that conclusion. The Second Circuit precedent deeming New York
robbery a violent felony under ACCA pre-dated 2010 Johnson, and therefore does not reflect the
Supreme Court’s narrowing interpretation of the phrase “physical force.” See United States v.
Brown, 52 F.3d 415, 426 (2d Cir. 1995). The one Second Circuit decision cited by the Massey
court that post-dated 2010 Johnson―United States v. Miles, 748 F.3d 485, 491 (2d Cir. 2014)
(per curiam)―did not address 2010 Johnson at all. That is not surprising, as this argument was
apparently not raised. See Miles, 748 F.3d at 490 (“[The defendant] acknowledges that robbery
in the third degree ‘has as an element the use, attempted use, or threatened use of physical force,’
and so has this Court.”) (quoting Brown, 52 F.3d at 425‒26).
As a result, this Court joins a variety of other judges in concluding that New York
robbery is not a categorically violent felony. See, e.g., United States v. Moncrieffe, 167 F. Supp.
3d 383, 401‒06 (E.D.N.Y. 2016), appeal withdrawn (July 31, 2016); Thrower v. United States,
234 F. Supp. 3d 372, 383‒85 (E.D.N.Y. 2017); United States v. Johnson, 220 F. Supp. 3d 264,
270‒72 (E.D.N.Y. 2016); Batista, 2017 WL 2841681, at *5‒7.
15
The bottom line is this: It is possible to commit first-degree robbery in New York
without committing a violent felony as defined by ACCA. And because the Court (1) may not,
under the law, look at the particular facts of Buie’s crime, and (2) lacks Shepard-approved
documents that could rule out the possibility that Buie was convicted under § 160.15(2), Buie’s
1979 Robbery Conviction did not necessarily include violent force as an element. As a result,
Buie’s 1979 Robbery Conviction was not a conviction for a violent felony, and cannot serve as a
predicate offense under ACCA.
Without three qualifying prior convictions, Buie is not subject to ACCA’s fifteen-year
minimum sentence, but rather to the statute’s ten-year maximum sentence. Because Buie has
already served longer than ten years in prison, he is entitled to immediate release.
16
III.
Conclusion
For the foregoing reasons, it is hereby ORDERED:
1.
Buie’s Petition to Vacate, Set Aside, or Correct Sentence is GRANTED.
2.
Buie’s sentence of fifteen years’ imprisonment, imposed pursuant to the Armed Career
Criminal Act, 18 U.S.C. § 924(e), is VACATED.
3.
Buie is hereby resentenced to a term of ten years’ imprisonment, which he has already
served.
4.
Buie shall be released from the custody of the Bureau of Prisons forthwith.
5.
All other aspects of Buie’s original sentence, imposed on December 12, 2006, remain in
effect, including the term of three years’ supervised release, which shall begin upon his
release and shall include the conditions set forth in his original sentence.
6.
Buie shall report to the nearest Probation Office within 30 days of his release.
7.
The Bureau of Prisons is ordered to allow Buie immediate telephone access in order to
contact his counsel.
SO ORDERED.
Dated: September 8, 2017
New York, New York
____________________________________
J. PAUL OETKEN
United States District Judge
17
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