Austin v. United States of America
OPINION AND ORDER. Before the Court is the motion of petitioner Joel Austin to vacate his sentence and order his release. The motion is granted....[See this Opinion And Order]... Because none of his three prior convictions were violent felonies under ACCA, Austin's motion to vacate his prior sentence is GRANTED. The Bureau of Prisons is directed to release him from custody forthwith. SO ORDERED. (Signed by Judge Jed S. Rakoff on 12/4/17) (yv)
-vOPINION AND ORDER
UNITED STATES OF AMERICA,
JED S. RAKOFF, U.S.D.J.
Before the Court is the motion of petitioner Joel Austin to
vacate his sentence and order his release. The motion is granted.
The pertinent facts are as follows:
On September 19,
police found an unloaded gun in Austin's pocket during a search
incident to arrest for jumping a turnstile. He pleaded guilty to
possessing a firearm after having previously been convicted of a
felony in violation of 18 U.S.C. § 922 (g) (1).
The statutory maximum for a§ 922(g)
10 years. 18 U.S.C.
violation is typically
924 (a) (2). However, the Court found that it
was bound by the sentencing provision of the Armed Career Criminal
requires a 15-year mandatory minimum sentence
for defendants who have three previous convictions for a "violent
felony." 18 U.S.C.
924(e) (1). In Austin's case, those convictions
(1) an October 21, 1987 conviction for second-degree robbery
October 21, 1987 conviction for attempted second-degree robbery in
violation of New York Penal Law§§ 110.00, 160.10; and (3) a July
9, 1997 conviction for attempted third-degree robbery in violation
of New York Penal
Law §§ 110. 0 0,
Pursuant to ACCA,
imprisonment of 180 months to be followed by a three-year term of
Austin now argues that subsequent Supreme Court cases have
made clear that none of the three offenses on which his enhanced
sentence was predicated are in fact "violent felonies" under ACCA.
On November 6, 2017, Magistrate Judge Netburn provided this Court
See Report and Recommendation,
agreement with Judge Netburn' s
wel 1-reasoned recommendation and
holds that neither third- nor second-degree robbery in New York is
a categorically violent felony under ACCA.
All citations to the docket are to Docket Number 06-cr-991.
The government objected only to Judge Netburn' s conclusions
regarding the substantive merits of Austin's motion, not to her
conclusions that Austin's claim is timely and properly based on a
new rule of constitutional law under 28 U.S.C. § 2255 (h) (2). See
R&R at 6-8. The Court agrees with and adopts these latter,
New York defines "robbery" as "forcible stealing." N.Y. Penal
A person forcibly steals property and commits
robbery when, in the course of committing a
1 arceny, he uses or threatens the immediate
use of physical force upon another person for
the purpose of:
Preventing or overcoming resistance to the
taking of the property or to the retention
thereof immediately after the taking; or
Compe 11 ing 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.
Forcible stealing alone is robbery in the third degree, N.Y.
additionally require the presence of certain aggravating factors.
clauses defining what
qualify as "violent felonies." The "force clause" covers any crime
that "has as an element the use, attempted use, or threatened use
of physical force against the person of another."3 The "enumerated
any crime that
3 Several other statutes define "crime of violence" using similar
force c 1 au s es . See 1 8 U . S . C . § 9 2 4 ( c ) ( 3 ) (A) ( f i re a rm sentencing
enhancement); U.S.S.G. § 4Bl .2 (a) (1) (Career Offender Guidelines);
Interpretation of these clauses is persuasive authority regarding
the correct interpretation of ACCA' s force clause. See United
States v. Walker, 595 F. 3d 441, 443 n.1 (2d Cir. 2010).
[or] involves the use of explosives." And the "residual
presents a serious potential risk of physical injury to another."
924 (e) (2) (B).
approach," assessing "whether a crime qualifies as a violent felony
'in terms of how the law defines the offense and not in terms of
how an individual offender might have committed it on a particular
occasion.'" Johnson v. United States, 135 S. Ct. 2551, 2557 (2015)
(quoting Begay v. United States, 553 U.S. 137, 141
At the time of Austin's sentencing,
the Second Circuit had
felony under the force clause of ACCA. See United States v. Brown,
F. 3d 415
The Brown court
relied on the fact
that New York's definition of "robbery" closely tracks the language
in the force clause -
"uses or threatens the immediate use
of physical force upon another person" in the robbery statute is
very similar to "use, attempted use, or threatened use of physical
force against the person of another" in ACCA. Based on this textual
the Court of Appeals held that "the statutory
definition of [third-degree robbery] plainly reveals that it is a
924 (e) (2) (B) (i)."
first- and second-degree robbery also require "forcible stealing,"
they are also violent felonies under Brown. See also United States
955 F.2d 814, 820 (2d Cir. 1992)
robbery is a
(holding that third-
"crime of violence" under U.S.S.G.
because both require the use of "physical force").
C1 rcui t
in a decision post-dating Brown and Spencer, the Supreme
ACCA's force clause means "violent force - that is,
of causing physical pain or injury to another person." Johnson v.
United States, 559 U.S. 133, 140 (2010). Moreover, a mere potential
pain or minor
"violent" force must be "substantial" and "strong." Id. at 140.
The Supreme Court in Johnson favorably quoted the definition
of "violent felony"
(which ACCA links to "physical force")
such as murder,
and assault and
battery with a dangerous weapon." Id. at 140-41. Similarly, in the
Seventh Circuit case that the Supreme Court cited to support its
definition of "physical force," id. at 140, Judge Easterbrook noted
that it was "hard to describe" a "squeeze of the arm [that] causes
a bruise" as "violence." Flores v.
F. 3d 666,
(7th Cir. 2003).
The Supreme Court also explicitly reinforced this position in
a later case,
di st ingu1 shing "minor uses of force" that suffice
for a "misdemeanor crime of domestic violence," such as squeezing
an arm hard enough to leave a bruise, from the "substantial degree
of force" required for violent felonies under ACCA. United States
v. Castleman, 134 S. Ct. 1405, 1411-12 (2014)
marks omitted) .
The Second Circuit plainly did not share this understanding
when it decided Brown and Spencer, as it relied in both cases only
on the parallel language in the New York robbery statute and the
federal statutes at issue. But Johnson greatly narrowed the meaning
of "physical force" in ACCA, while the meaning of "physical force"
in the New York robbery statute remains as broad as ever. 4 And even
though the Second Circuit has favorably cited Brown and Spencer in
precedential summary orders" and decisions that "do not undertake
an analysis of robbery in New York pursuant to the Supreme Court's
in Johnson." United States v.
briefs in these subsequent, non-precedential cases shows that the
In 2015, the Supreme Court returned to ACCA in another case
that also bears the title Johnson v. United States, holding that
the residual clause of ACCA was unconstitutionally vague because
it leaves too much uncertainty about "how to estimate the risk
posed by a crime" and "how much risk it takes for a crime to
qualify as a violent felony." 135 S. Ct. at 2557-58.
defendants in these cases did not even make the argument based on
Johnson now made by Austin.5
When "a subsequent decision of the Supreme Court so undermines
is bound by the Supreme Court's
ruling and not by the Second Circuit's prior decisions.
States v. Emmenegger,
329 F. Supp. 2d 416, 429
It should also be noted that the Second Circuit, in a sincevacated opinion, did overrule Spencer and held that, after Johnson,
New York robbery even in the first degree is not a crime of violence
4Bl. 2 of the Sentencing Guidelines.
In United States v. Miles, the defendant argued that his
conviction was not a "felony" under ACCA because the state court
invoked an alternative sentencing statute with a maximum sentence
of only one year. 748 F. 3d 485, 490 (2d Cir. 2014). As the Court
of Appeals noted, "Miles acknowledges that robbery in the thirddegree 'has as an element the use, attempted use, or threatened
use of physical force,' and so has this Court." Id. In United
States v. Bennett, 604 F. App'x 11, 15-16 (2d Cir. 2015) and United
States v. Bogle, 522 F. App'x 15, 19-20 (2d Cir. 2013), the
defendants argued that the district courts erred by relying on the
certificates of disposition instead of looking to the facts
underlying the conviction. In United States v. Kornegay, the
defendant argued that the district court erred by not clarifying
whether his prior convictions qualified under the residual or force
clause of the guidelines, relying only on the 2015 Johnson decision
holding the residual clause unconstitutional. 641 F. App'x 79, 85
(2d Cir. 2016). In United States v. Williams, the pro se defendant
argued that his attempted assault conviction was not a violent
felony after Johnson. Brief and Appendix for Appellant-Defendant
at 59-62, 526 F. App'x 29 (2d Cir. 2013) (No. 12-1418), Dkt. No.
29; Reply Brief and Appendix for Appellant at 32-34, Dkt. No. 105.
The Second Circuit (with no more discussion than a citation to
Brown) addressed his robbery conviction sua sponte. Williams, 526
F. App'x at 37.
States v. Jones, No. 15-1518-cr (2d Cir. July 21, 2016), Dkt. No.
97. However, that decision was vacated and the case stayed pending
resolution of a related Supreme Court case. United States v. Jones,
838 F.3d 296, 296 (2d Cir. 2016). After the Supreme Court decided
from ACCA' s
4Bl.2's residual clause
held void by the Supreme Court in 2015). United States v.
No. 15-1518-CR, 2017 WL 4456719, at *l
returned to Jones and held that New York first-
degree robbery qualifies under U.S.S.G.
(2d Cir. Oct. 5, 2017). In
the Second Circuit did not address the force clause or
second- or third-degree robbery.
The majority of district courts that have addressed the issue
since Johnson have concluded that "forcible stealing" in New York's
robbery statute does not
defined by Johnson.
2 0 1 6 WL
4 5 2 4 7 8 5,
See Diaz v. United States, No.
adhered to on
denial of reconsideration, 2017 WL 1855895 (W.D.N.Y. May 9, 2017);
2017); Buje v. United States, No.
2017 WL 3995597, at
United States v.
10-40019, 2017 WL 2960518, at *14 (D. Mass. July 11, 2017); United
2017 WL 2841681, at *7
2017); United States v. Moncrieffe,
167 F. Supp.
(under 18 U.S.C.
220 F. Supp. 3d at 270-72 (E.D.N.Y. 2016)
This Court agrees,
(under U.S.S.G. § 481.2)
and concludes that the Second Circuit's 1995
decision in Brown and 1992 decision in Spencer are irreconcilable
therefore almost certainly be overruled.
Turning to the case at hand, under New York law, "[a] person
is guilty of robbery in the third degree when he forcibly steals
property." N.Y. Penal Law§ 160.05. The Court looks to rulings of
stealing requires violent force under Johnson. The Court of Appeals
tak:ng by "sudden or
snatching" is not sufficient,
steal thy seizure or
26 N.Y.3d 607,
(2015), but it has shed no light on whether force that exceeds
this mere touching but is less than violent may suffice. However,
numerous New York Appellate Division courts have affirmed robbery
convictions involving far less than violent
strictly bound by state
rulings from such courts are a basis for
which is not
to be disregarded by a
'ascertaining state law
court unless it
The courts in Laster v. United States, No. 06-cr-1064, 2016 WL
4094910(S.D.N.Y. Aug. 2, 2016) and Murray v. United States, No.
03-cr-1332, 2016 WL 5793365 (E.D.N.Y. Oct. 3, 2016) reached the
same conclusion, but did so with little analysis and without
opposition from the government, as they relied on the Jones
decision before it was vacated.
convinced by other persuasive data that the highest court of the
state would decide otherwise.'" DiBella v. Hopkins,
(2d Cir. 2005)
403 F.3d 102,
(quoting West v. Am. Tel. & Tel. Co.,
Several of these cases involved defendants who were convicted
of robbery simply because they impeded the path of victims trying
to pursue a thief.
In People v. Bennett, the court found that the
defendant's guilt was "proven by legally sufficient evidence that
he and three others formed a human wall that blocked the victim's
path as the victim attempted to pursue someone who had picked his
allowing the robber to get away." 631 N.Y.S.2d 834,
(N.Y. App. Div. 1995). The Court also upheld the robbery conviction
of Bennett's pickpocket accomplice,
who "bumped his unidentified
and fled." People v.
In People v.
602 N.Y.S.2d 138,
the court upheld
a conviction of robbery where, when "the victim tried to walk after
The government's contention that the Second Circuit's ruling in
United States v. Hill, 832 F.3d 135 (2d Cir. 2016), controls this
case, Gov't Mem. at 7, is not persuasive. In Hill, the Second
Circuit held that Hobbs Act robbery is a crime of violence under
the force clause of 18 U.S.C. § 924 (c). Although Hobbs Act robbery
has facially similar elements to New York robbery, the Second
Circuit was not bound to look to New York cases to determine how
that law is actually applied, whereas this Court is obliged to do
so to determine the scope of New York second- and third-degree
robbery. Indeed, looking to the decisions of New York courts
affirming robbery convictions is particularly appropriate here,
where those very convictions may be used in federal court if the
government seeks a sentencing enhancement under ACCA.
defendant stepped in front of him and persistently
shoved him back." 585 N.Y.S.2d 431,
overcoming the victim's resistance to the robbery." Id.
In another set of second- and third-degree New York robbery
cases, the only use of physical force was in a tug-of-war over the
victim's property. In People v. Safon, the court held that "[p]roof
defendant's hand slipped out of the glove holding the money was
to prove that
purpose of overcoming the victim's resistance to the taking." 560
victim "resisted" when the defendant grabbed her purse, "resulting
("struggle" over cassette tapes);
(defendant attempted to "grab the
money" from the victim's hand and the victim "tripped" during "the
struggle that ensued").
The Appellate Division has also upheld several other robbery
convictions that involved more substantial uses of force but did
not rise to the level of violent force as defined in Johnson, such
as pushing without even causing the victim to fall.
833 N.Y.S.2d 794,
See People v.
pushed [the victim) with such force that she stepped backward");
People v. Woodridge,
817 N.Y.S.2d 748,
Horton, 964 N.Y.S.2d 757, 758 (N.Y. App. Div. 2013)
security guard with her purse); People v. Green, 716 N.Y.S.2d 22,
("defendant pushed a security guard");
869 N.Y.S.2d 422,
(defendant "bumped a store employee with such 'severe force'
she nearly landed on her manager who was walking a half step behind
convictions where the physical force used, while it did cause an
was analogous to squeezing someone's arm hard enough to
defendant who had "Jerked
lanyard around the
victim's neck" had used sufficient force where the snatching had
left "swelling and red, burn-like marks on the victim's neck." 818
N.Y.S.2d 859, 861
(N.Y. App. Div. 2006). The force requirement was
met in another case where, when the "defendant grabbed [the victim]
and demanded money, she suffered scratches on her neck." People v.
Reyes, 790 N.Y.S.2d 492, 492
(N.Y. App. Div. 2005).
The government here argues that these cases actually involve
the use of physical force within the meaning of ACCA.
someone's way, see Bennett, 631 N.Y.S.2d at 834, does not involve
the use of physical force capable of causing substantial physical
pain or injury. And neither pulling away when someone grabs your
hand, Safon, 60 N.Y.S.2d at 552, nor hitting someone with a purse,
964 N.Y.S.2d at 758, nor a shove that only causes someone
These acts are wrong,
and they are illegal.
are not violent.
Fourth and Eighth Circuits,
have held that
robbery statutes are not "violent felonies" under
ACCA because those states' courts had upheld convictions involving
similarly minimal levels of force. Many of these circuit decisions,
even though not en bane,
overturned prior circuit precedent that
would have been b1nd1ng absent Johnson.
For example, in United States v. Winston, a three-judge panel
held that Virginia robbery was not a
felony under ACCA
because a state intermediate court had found sufficient force where
"the victim was carrying her purse 'tucked' under her arm when the
defendant approached the victim from behind,
':.apped her on the
and "Jerked" her around by pulling her shoulder,'
and ran." 850 F.3d 677,
Jones v. Com., 496 S.E.2d 668, 669 (Va. Ct. App. 1998)). The panel
overturned a prior decision holding that
robbery was a
"because it has been undermined by later Supreme Court precedent"
See also United States v. Gardner,
(4th Cir. 2016)
823 F.3d 793,
(North Carolina robbery not a violent crime because
intermediate court upheld a conviction "when a defendant pushed
the shoulder of an electronics store clerk,
causing her to fall
onto shelves while the defendant took possession of a television")
(citing State v.
677 S.E.2d 14
robbery, although it could not be committed by "mere snatching of
committed by "Jerking the door from [a victim], cornering [her] in
the back hallway and grabbing her dress [lightly]." United States
(quoting Fairchild v.
1980)). The panel explicitly overturned its pre-Johnson decision
to the contrary. See Eason, 829 F.3d at 641
588 F.3d 548
840 F.3d 963,
(8th Cir. 2009)).
(citing United States
See also United States
(Missouri robbery not
a violent crime where it had been committed by a
"bumped" the v1ct1m's shoulder and "yanked" her purse away after
only a "slight struggle") .s
involves the "threatened use" of physical
See 18 U.S.C § 924(e) (2) (B) (i)
(any crime that "has as an element
threatened use of physical force against another" is a
convictions in New York require not just force, but force applied
"[c]ompelling" someone "to deliver up the property or to engage in
other conduct which aids in the commission of the larceny." N.Y.
By the Government's account,
threatening to use whatever force is necessary - including violent
Various federal courts of appeal have reached the same conclusion
with regard to other statutes that were violated by s im1lar1 y
minimal physical force. See, e.g., United States v. Lee, No. 166288, 2017 WL 2829372, at *4 (10th Cir. June 30, 2017) (Florida
resisting arrest offense not a violent felony where it had been
violated by "wiggling and struggling" and "scuffling"); United
States v. Flores-Cordero, 723 F. 3d 1085, 1087-88 (9th Cir. 2013),
as amended on denial of reh'g (Oct. 4, 2013) (Arizona resisting
arrest conviction not a violent felony where it had been violated
by a defendant who instigated a "minor scuffle," kicking the
force - to obtain the desired property. One district court in this
circuit has adopted this view, arguing that other decisions "ignore
the implicit threat of physical harm that is inherent in blocking
robbery victim with a human wall." Belk v.
(emphasis in original).
ACCA does not define "threatened," so the Court imports the
common meaning of the word. When describing the affirmative acts
of one person "against another," as in ACCA,
a "threat" means a
"communicated intent to inflict harm or loss on another," or "a
express or implied,
of an intent to inflict loss or
pain on another." Black's Law Dictionary (10th ed. 2014). See Tolan
134 S. Ct. 1861, 1867 (2014)
(statement from one person
to another is not a threat where it "did not amount to a statement
of intent to inflict harm"); United States v. White, 258 F.3d 374,
(5th Cir. 2001)
"threatened use" of a
(a crime did not categorically involve the
deadly weapon where
it could be violated
without communicating such an intent); United States v.
507 F. 3d 581, 589 (7th Cir. 2007)
'threat' is 'an expression
or damage on another.'")
(quoting Webster's Third International Dictionary 2382
There is, to be sure, a different sense of "threat" in which
one speaks of "threats" that are not communications at all,
as the threat of rain posed by storm clouds on the horizon.
suggestion of an
impending detriment" and "[a]
that might well cause harm").
person or thing
The government argues that this is
"threatened use of physical
another" means under ACCA.
communication, explicit or implicit, by the defendant. See United
willingness to use violent force is not the same as a threat to do
so. The latter requires some outward expression or indication of
an intention to inflict pain, harm or punishment."); United States
979 F.2d 801, 803 (10th Cir. 1992)
communication of that
(the "'threatened use
when Congress wanted to
"threatened," but the term "risk." Thus, the residual clause covers
that presents a
risk of physical injury to another." 18 U.S.C.
924(e) (2) (B) (ii)
(emphasis added). The presentation of a serious potential risk of
harm is exactly the definition of "threaten" that the government
now advances. But Congress used different, more specific phrasing
for that sort of "threat," suggesting that "threaten" in the force
clause carries the distinct meaning of a communicated intent to do
"threatened use" prong of ACCA's force clause, the minimum outlawed
harm on another.
It is not enough, as the government argues, that
"instinctively" that if he resists,
"physical force will be used
against him." Gov't Mem. at 9.
As a textual matter, the communication of an intent to cause
harm is entirely distinct
[ p] re venting
Penal Law§ 160.00. And as a practical matter, one
from the "use of physical
offenders likely both view the defendant's use of force as nothing
more than an attempt to obtain or keep their property, not as the
expression of an intent to use substantial or serious violence if
the victim resists.
the Second Circuit interpreted
Safon to hold that "[i]n and of itself,
the act of pulling away
robbery conviction." Read v. New York State, No. 98-2799, 1999 WL
If a thief is caught attempting a
stealthy snatching and "tugs" when the victim grabs his hand,
reasonable victim would interpret "the act of pulling away" as an
to escape w1 th the purloined goods,
violence. And the longer the tugging lasts without escalation, the
N.Y.S.2d at 860,
is simply using the force necessary to obtain the
property. It does not communicate a threat of substantial violence,
particularly if the defendant were to immediately sprint away.
threat is to qualify as a violent felony
under ACCA, it cannot have been made negligently. Though ACCA does
that "used" in 18 U.S.C. § 16(a) "most naturally suggests a higher
is much less natural
say that a
employs physical force against another person by accident." Leocal
negligent use of that same violence, which would be a more culpable
The Supreme Court's reasoning in Elonis v. United States, 135
supports this conclusion.
reJected a negligence standard for the interstate transmission of
communications containing threats to injure other people under 18
Such a "reasonable person" standard is a
familiar feature of ci vi 1 liability in tort
law, but is inconsistent with the conventional
requirement for criminal conduct - awareness
of some wrongdoing. Having liability turn on
whether a "reasonable person" regards the
communication as a threat - regardless of what
the defendant thinks - reduces culpability on
the all-important element of the crime to
negligence, and we have long been reluctant to
infer that a negligence standard was intended
in criminal statutes.
Id. at 2011 (emphasis in original, internal citations and quotation
qua 1 if y as a
logic applies equally to ACCA.
er ime of violence,
an offense must
re qui re either
specific intent or knowledge with respect to the use,
use, or attempted use of physical force.")
Even if a reasonable victim were to infer that a defendant's
intentional obstruction of their pursuit of a thief,
implied threat of violence,
defendants may well have neither the intent to communicate that
threat nor any idea that they are doing so.
The minimum conduct
necessary to violate New York's robbery statute therefore does not
involve the intentional or knowing "threatened use" of violence.
Because "forcible stealing" in New York does not require "the
or threatened use of physical
another," Austin's third-degree robbery conviction should not have
served as a predicate offense at his sentencing.
he should not have been subject to ACCA's 15-
year minimum sentence.
Judge Netburn also recommends finding that New York seconddegree
for Austin's other two predicate
Although defendant's motion would have to be granted even if that
were not so, the Court deems it appropriate to address the issue.
In New York,
a person is guilty of
robbery in the second-
degree when he forcibly steals property and when:
1. He is aided
2. In the course of the commission of the crime
or of immediate flight
another participant in the crime:
(a) Causes physical inJury to any person
who is not a participant in the crime; or
(b) Displays what appears to be a pistol,
revolver, rifle, shotgun, machine gun or
other firearm; or
3. The property consists of a motor vehicle,
as defined in section one hundred twenty-five
of the vehicle and traffic law.
N.Y. Penal Law§ 160.10.
that is, one that "sets out one or more elements of the offense in
the alternative" - courts apply a "modified categorical approach."
alternative formed the basis of the defendant's prior conviction,"
and then requires the court to apply the categorical approach to
the elements of the specific alternative under which the defendant
see also Shepard v.
a court determines whether the "least of
described in the statute can serve as a predicate offense. Johnson,
559 U.S. at 137.
underlying Austin's convictions are not available in a Shepherd
document, so the Court looks to the minimum conduct necessary for
a conviction. Before Judge Netburn, Austin identified§ 160.10(1),
the crime of "forcibly steal [ing] property" while "aided by another
person actually present," as the least of the acts in the statute,
agrees. As explained above,
forcible stealing does
not require the use of violent force on behalf of the principal
and the statute does not require that the other person use even
physical, much less violent, force; they need only provide aid and
be actually present.
See Shabazz v.
1083, 2017 WL 27394, at *15
a robbery with the aid of another says nothing about the level of
force that must be used."). Second-degree robbery in New York can
therefore be committed even where no "physical force," as defined
is used, attempted, or threatened.9 Thus, once again,
Austin's motion must be granted.
In addition to its objections,
the government moved in the
alternative for the Court to stay this case pending the outcome of
the Second Circuit.
outcome of those appeals is, in the Court's view, so likely to be
statutory maximum of 10 years,
922 (g) 's
and every day he remains is a new
inJustice. The Court will not delay his release any further.
felonies under ACCA, Austin's motion to vacate his prior sentence
is GRANTED. The Bureau of Prisons is directed to release him from
9 The government addresses an argument that was not raised in the
Report and Recommendation and about which the Court now
expresses no opinion. Section 160.10(1) permits conviction of a
defendant who never actually used, attempted to use, or
threatened to use violent force, or intended for his accomplices
to do so. See, e.g., People v. Pagan, 641 N.Y.S.2d 641, 642
(N.Y. App. Div. 1996). If crimes can only enhance a sentence
under ACCA if the defendant individually intended for someone to
use, attempt to use, or threaten to use violent force, then
second-degree robbery would not categorically qualify even if
"forcible stealing" were a violent felony after Johnson.
New York, NY
December _!f_, 2017
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