Austin v. United States of America

Filing 9

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)

JOEL AUSTIN,
16-cv-4446 (JSR)
Petitioner,
06-cr-991

(JSR)

-vOPINION AND ORDER
UNITED STATES OF AMERICA,
Respondent.

-----------------------------------------x
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,

2006,

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
Act

("ACCA")

that

requires a 15-year mandatory minimum sentence

for defendants who have three previous convictions for a "violent
felony." 18 U.S.C.
were:
in

§

924(e) (1). In Austin's case, those convictions

(1) an October 21, 1987 conviction for second-degree robbery

violation

of

New

York

Penal

Law

§

160.10;

(2)

a

different

October 21, 1987 conviction for attempted second-degree robbery in
1

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
Court,

on

Law §§ 110. 0 0,

August

16,

2007,

160. 05.

sentenced

Pursuant to ACCA,
Austin

to

a

term

the
of

imprisonment of 180 months to be followed by a three-year term of
supervised release.
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
with

an

granted.

excellent

recommending

See Report and Recommendation,

government

timely objected.

November

6,

Mem.")

For

.2

report

2017
the

Report

that

ECF No.

See Government's

and Recommendation,

following

reasons,

agreement with Judge Netburn' s

Austin's

the

39

motion be

("R&R")

Ob] ections
ECF No.

Court

finds

40

.1

The

to

the

("Gov't

itself

in

wel 1-reasoned recommendation and

holds that neither third- nor second-degree robbery in New York is
a categorically violent felony under ACCA.

1

All citations to the docket are to Docket Number 06-cr-991.

2

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,
unopposed conclusions.
2

New York defines "robbery" as "forcible stealing." N.Y. Penal
Law§ 160.00.
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:
1.

2.

Id.

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.

Penal

Law

§

160.05,

while

second-

and

first-degree

robbery

additionally require the presence of certain aggravating factors.
See

N.Y.

Penal

Law

§§

160.15

(first-degree),

160.10

(second-

degree).
ACCA provides

three

clauses defining what

types

of

crimes

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
offenses"

clause covers

any crime that

"is burglary,

arson,

or

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);
18
U.S.C.
§
16(a)
(general
criminal
law
definition).
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).
3

extortion,
clause"

[or] involves the use of explosives." And the "residual

covers

any crime

that

"otherwise

involves

conduct

that

presents a serious potential risk of physical injury to another."
18 U.S.C
To
"violent

§

924 (e) (2) (B).

determine

whether

felony"

under

a

particular

ACCA,

offense

courts

apply

qualifies
a

as

a

"categorical

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,
squarely held

that

New

York

(2008)).

the Second Circuit had

third-degree

robbery

is

a

violent

felony under the force clause of ACCA. See United States v. Brown,
52

F. 3d 415

(2d Cir.

1995).

The Brown court

relied on the fact

that New York's definition of "robbery" closely tracks the language
in the force clause -

i.e.,

"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
similarity alone,

the Court of Appeals held that "the statutory

definition of [third-degree robbery] plainly reveals that it is a
'violent

felony'

under

§

924 (e) (2) (B) (i)."

Id.

at

426.

Because

first- and second-degree robbery also require "forcible stealing,"
4

they are also violent felonies under Brown. See also United States
v. Spencer,
degree

955 F.2d 814, 820 (2d Cir. 1992)

robbery is a

(holding that third-

"crime of violence" under U.S.S.G.

§

4Bl.2

because both require the use of "physical force").
The
However,
Court

of

Second

C1 rcui t

has

yet

to

overturn

these

decisions.

in a decision post-dating Brown and Spencer, the Supreme
the

United

States

clarified that

"physical

ACCA's force clause means "violent force - that is,

force"

in

force capable

of causing physical pain or injury to another person." Johnson v.
United States, 559 U.S. 133, 140 (2010). Moreover, a mere potential
for

some

small

pain or minor

injury will

not

suffice.

Rather,

"violent" force must be "substantial" and "strong." Id. at 140.
The Supreme Court in Johnson favorably quoted the definition
of "violent felony"
Black's
physical

Law

(which ACCA links to "physical force")

Dictionary:

force,

"[a]

crime

such as murder,

characterized

forcible

rape,

by

from

extreme

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.

Ashcroft,

350

F. 3d 666,

670

(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
5

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)

(internal quotation

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
cases

subsequent

to

Johnson,

it

has

done

so

only

in

"non-

precedential summary orders" and decisions that "do not undertake
an analysis of robbery in New York pursuant to the Supreme Court's
definition of
F.

Supp.

'force'

3d 264,

271

in Johnson." United States v.
(E.D.N.Y.

2016).

Indeed,

a

Johnson,

220

review of

the

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.
4

6

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
[Second

Circuit

overruled,"

the

precedent]

that

District Court

it

will

almost

inevitably

is bound by the Supreme Court's

ruling and not by the Second Circuit's prior decisions.
States v. Emmenegger,

be

329 F. Supp. 2d 416, 429

United

(S.D.N.Y. 2004).

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
under §

4Bl. 2 of the Sentencing Guidelines.

5

See Opinion,

United

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.
7

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
that case,

Beckles v.

Second Circuit

United States,

137 S.

886

(2017),

from ACCA' s

residual

§

4Bl.2's residual clause

clause,

which,

as noted,

held void by the Supreme Court in 2015). United States v.
No. 15-1518-CR, 2017 WL 4456719, at *l
so doing,

the

returned to Jones and held that New York first-

degree robbery qualifies under U.S.S.G.
(as distinct

Ct.

was

Jones,

(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,

at

categorially

involve violent

See Diaz v. United States, No.
*4

(W.D.N.Y.

Aug.

30,

2016),

force

as

1:11-cr-0381,
adhered to on

denial of reconsideration, 2017 WL 1855895 (W.D.N.Y. May 9, 2017);
Thrower v.

United States,

234 F.

2017); Buje v. United States, No.
*6-7

(S.D.N.Y.

Sept.

8,

2017);

Supp.

3d 372,

05-cr-664,

383-85

(E.D.N.Y.

2017 WL 3995597, at

United States v.

Lassend,

No.

CR

10-40019, 2017 WL 2960518, at *14 (D. Mass. July 11, 2017); United
States v.
Va.

Batista, No.

June 30,

5: 09CR00037,

2017 WL 2841681, at *7

2017); United States v. Moncrieffe,
8

(W. D.

167 F. Supp.

3d

383,

404-06

(E.D.N.Y.

2016)

(under 18 U.S.C.

220 F. Supp. 3d at 270-72 (E.D.N.Y. 2016)
This Court agrees,

§ 16(a));

Johnson,

(under U.S.S.G. § 481.2)

.6

and concludes that the Second Circuit's 1995

decision in Brown and 1992 decision in Spencer are irreconcilable
with

the

Supreme

Court's

2010

decision

in

Johnson

and

will

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
the

New

York

Court

of

Appeals

to

determine

whether

forcible

stealing requires violent force under Johnson. The Court of Appeals
has

clarified that

a

tak:ng by "sudden or

snatching" is not sufficient,
614

People v.

steal thy seizure or

Jurgins,

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
are :lot

strictly bound by state

"Although we

intermediate appellate

rulings from such courts are a basis for
which is not

force.

to be disregarded by a

courts,

'ascertaining state law

federal

court unless it

is

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.
6

9

convinced by other persuasive data that the highest court of the
state would decide otherwise.'" DiBella v. Hopkins,
112

(2d Cir. 2005)

223, 237

(1940)).

403 F.3d 102,

(quoting West v. Am. Tel. & Tel. Co.,

311 U.S.

7

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
pocket,

allowing the robber to get away." 631 N.Y.S.2d 834,

834

(N.Y. App. Div. 1995). The Court also upheld the robbery conviction
of Bennett's pickpocket accomplice,
victim,
138

took money,

(N.Y. App.

Div.

who "bumped his unidentified

and fled." People v.
1993).

In People v.

Lee,
Patton,

602 N.Y.S.2d 138,
the court upheld

a conviction of robbery where, when "the victim tried to walk after

7

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.
10

codefendant,

defendant stepped in front of him and persistently

shoved him back." 585 N.Y.S.2d 431,
This

force

sufficed,

as

the

431

(N.Y.

defendant

App.

"acted

Div.

as

a

1992).

blocker,

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
that

the

holding

store
the

clerk

money

grabbed

and

the

the
two

hand

in

tugged

which

at

defendant

each

other

was

until

defendant's hand slipped out of the glove holding the money was
sufficient

to prove that

defendant

used physical

force

for

the

purpose of overcoming the victim's resistance to the taking." 560
N.Y.S.2d

552,

552

(N.Y.

App.

Div.

1990).

In another

case,

the

victim "resisted" when the defendant grabbed her purse, "resulting
in a

brief

Rupert,
People

struggle"

98./
v.

N.Y.S.2d

Brown,

that

left

678,

680

663

N.Y.S.2d

her
(N.Y.

App.

539,

540

("struggle" over cassette tapes);
591,

593

(N.Y. App.

Div.

2010)

shoulder

"sore."

Div.
(N.Y.

People v.

People

2014);
App.

Jones,

see

Div.

v.

also
1997)

895 N.Y.S.2d

(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
11

as pushing without even causing the victim to fall.
Chatman,

833 N.Y.S.2d 794,

795

(N.Y. App.

Div.

See People v.

2007)

("defendant

pushed [the victim) with such force that she stepped backward");
People v. Woodridge,
(defendant

817 N.Y.S.2d 748,

"physically

pushed

[the

751

(N.Y. App.

victim]

aside");

Horton, 964 N.Y.S.2d 757, 758 (N.Y. App. Div. 2013)

Div.

2006)

People

v.

(defendant hit

security guard with her purse); People v. Green, 716 N.Y.S.2d 22,
23

(N.Y.

App.

People v.

Div.

Syphrett,

2000)

("defendant pushed a security guard");

869 N.Y.S.2d 422,

423

(N.Y.

App.

Div.

2008)

(defendant "bumped a store employee with such 'severe force'

that

she nearly landed on her manager who was walking a half step behind
her") .
Further

still,

the

Appellate

Division

has

upheld

robbery

convictions where the physical force used, while it did cause an
injury,
cause

was analogous to squeezing someone's arm hard enough to
a

bruise.

In

People

defendant who had "Jerked

v.
[a)

Simmons,
wallet

the

from a

court

held

that

a

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).

12

The government here argues that these cases actually involve
the use of physical force within the meaning of ACCA.
Mem.

at

8.

This

argument

is

unpersuasive.

Merely

See Gov't

standing

in

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,
Horton,
to

step

964 N.Y.S.2d at 758, nor a shove that only causes someone
backward,

"substantial"
Castleman.

or

Chatman,
"strong"

833

N.Y.S.2d

physical

These acts are wrong,

at

force

795,

under

amounts
Johnson

and they are illegal.

to
and

But they

are not violent.
It

is also

important

courts,

such as

the

other states'

to note

that

several

Fourth and Eighth Circuits,

federal

circuit

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

violent

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,
13

':.apped her on the

shoulder,

and "Jerked" her around by pulling her shoulder,'

her purse,

and ran." 850 F.3d 677,

685

(4th Cir.

2017)

took

(quoting

Jones v. Com., 496 S.E.2d 668, 669 (Va. Ct. App. 1998)). The panel
overturned a prior decision holding that
felony,

United States

v.

Presley,

52

robbery was a

F.3d

64

violent

(4th Cir.

1995),

"because it has been undermined by later Supreme Court precedent"
in Johnson.

See also United States v. Gardner,

(4th Cir. 2016)

823 F.3d 793,

804

(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.

Eldridge,

677 S.E.2d 14

(N.C.

Ct. App.

June 2,

2009)) .
The

Eighth

Circuit

similarly

recognized

that

Arkansas

robbery, although it could not be committed by "mere snatching of
money

or

goods,"

was

not

a

violent

felony

where

it

had

been

committed by "Jerking the door from [a victim], cornering [her] in
the back hallway and grabbing her dress [lightly]." United States
v.

Eason,

829

or1g1nal)

F. 3d

633,

641

(8th

(quoting Fairchild v.

Cir.

State,

2016)
600

(alterations

S.W.2d 16,

16

in

(Ark.

1980)). The panel explicitly overturned its pre-Johnson decision
to the contrary. See Eason, 829 F.3d at 641
v.

Sawyer,

v.

Bell,

588 F.3d 548

840 F.3d 963,

(8th Cir. 2009)).
966

(8th Cir.
14

2016)

(citing United States
See also United States
(Missouri robbery not

a violent crime where it had been committed by a

defendant who

"bumped" the v1ct1m's shoulder and "yanked" her purse away after
only a "slight struggle") .s
The

government

nonetheless

a

next

violent

required still

contends

felony

under

New

ACCA

York

because

robbery
the

is

conduct

involves the "threatened use" of physical

See 18 U.S.C § 924(e) (2) (B) (i)
the

that

force.

(any crime that "has as an element

threatened use of physical force against another" is a

violent

felony

under

ACCA).

The

government

notes

that

robbery

convictions in New York require not just force, but force applied
for

the

purpose

of

"[p] reventing

or

overcoming

resistance"

or

"[c]ompelling" someone "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.

possible
violent

to

By the Government's account,

fulfill

force,

it

this
is

requirement

impossible

to

without
do

so

even if
actually

without

it

is

using

impliedly

threatening to use whatever force is necessary - including violent

8

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
arresting officers).
15

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
a

robbery victim with a human wall." Belk v.

01-CR-180-LTS,

2017 WL

3614446,

at

*6

United States,

(S.D.N.Y.

Aug.

22,

No.

2017)

(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
declaration,

express or implied,

of an intent to inflict loss or

pain on another." Black's Law Dictionary (10th ed. 2014). See Tolan
v.

Cotto~,

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,
383-84

(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)
of

intention to

inflict evil,

England,

("[A]

'threat' is 'an expression

inJury,

or damage on another.'")

(quoting Webster's Third International Dictionary 2382

(1981)).

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.
16

such
See

Black's

Law

"threat"

Dictionary

as

"[a]n

suggestion of an

(10th

indication

2014)

of

an

(alternatively defining
approaching

impending detriment" and "[a]

that might well cause harm").
what

ed.

the defendant's

menace;

the

person or thing

The government argues that this is

"threatened use of physical

force

against

another" means under ACCA.
But

other

concluded

that

courts

that

have

"threatened"

as

considered
used

this

in

ACCA

issue

have

requires

a

communication, explicit or implicit, by the defendant. See United
States

v.

Parnell,

818

F.3d

974,

980

(9th

Cir.

2016)

("A

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
v. King,
of

979 F.2d 801, 803 (10th Cir. 1992)

physical

force'

means

communication of that
indicate

merely

the

both

intent")
risk

of

an

intent

Indeed,
violence,

(the "'threatened use
to

use

force

and

a

when Congress wanted to
it

used,

not

the

term

"threatened," but the term "risk." Thus, the residual clause covers
crimes

that

involve

"conduct

that presents a

risk of physical injury to another." 18 U.S.C.

serious potential
§

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
17

clause carries the distinct meaning of a communicated intent to do
harm.
Therefore,

to

qualify

as

a

"violent

felony"

under

the

"threatened use" prong of ACCA's force clause, the minimum outlawed
conduct must

involve

a

communicated intent

to

inflict physical

harm on another.

It is not enough, as the government argues, that

the

actions

defendant's

happen

to

"instinctively" that if he resists,

cause

the

victim

to

know

"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
another

person

resistance

to

thereof." N.Y.
can

use

for
the

the

purpose

taking

of

of

the

[ p] re venting

property

or

to

force upon

or

overcoming

the

retention

Penal Law§ 160.00. And as a practical matter, one

physical

communicating

from the "use of physical

any

force
violent

to

overcome

intent.

In

many

resistance
cases,

without

victims

and

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.

For example,

the Second Circuit interpreted

Safon to hold that "[i]n and of itself,
can

represent

the

force

necessary

to

the act of pulling away
sustain

[a]

third-degree

robbery conviction." Read v. New York State, No. 98-2799, 1999 WL
980952 at

*2

(2d Cir.

1999)

If a thief is caught attempting a
18

stealthy snatching and "tugs" when the victim grabs his hand,

a

reasonable victim would interpret "the act of pulling away" as an
at tempt

to escape w1 th the purloined goods,

not

as

a

threat of

violence. And the longer the tugging lasts without escalation, the
less

1t

wallet

could be
off

a

interpreted as

lanyard

N.Y.S.2d at 860,

around

a

threat.

someone's

Similarly,

neck,

see

yanking a

Simmons,

818

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.
Furthermore,

if a

threat is to qualify as a violent felony

under ACCA, it cannot have been made negligently. Though ACCA does
not

contain a

mens

rea

requirement,

the

Supreme Court

has

held

that "used" in 18 U.S.C. § 16(a) "most naturally suggests a higher
degree

of

intent

because "it

than

negligent

or

merely

accidental

is much less natural

to

say that a

conduct"

person actively

employs physical force against another person by accident." Leocal
v.

Ashcroft,

negligent

543

threat

U.S.
of

1,

9

violence

(2004).
to

It

would be

suffice

under

strange
ACCA

for

where

a

the

negligent use of that same violence, which would be a more culpable
act,

is insufficient.
The Supreme Court's reasoning in Elonis v. United States, 135

S. Ct.

2001

(2015)

supports this conclusion.

In Elonis,

the Court

reJected a negligence standard for the interstate transmission of

19

communications containing threats to injure other people under 18

u.s.c.

§

875.
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
marks omitted).
States

v.

This

McNeal,

qua 1 if y as a

logic applies equally to ACCA.

818

F.3d 141,

er ime of violence,

155-56

(4th Cir.

an offense must

See United

2016)

("[T]o

re qui re either

specific intent or knowledge with respect to the use,

threatened

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,
in Bennett,

was

an

implied threat of violence,

as occurred

the obstructing

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
use,

attempted use,

or threatened use of physical

20

force against

another," Austin's third-degree robbery conviction should not have
served as a predicate offense at his sentencing.
had

only

two

other

violent felonies,

convictions

that

the

Court

Because Austin
believed

to

be

he should not have been subject to ACCA's 15-

year minimum sentence.
Judge Netburn also recommends finding that New York seconddegree

robbery,

convictions,

which accounts

is

not

for Austin's other two predicate

categorically a

violent

felony

under ACCA.

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
present; or

by

another

person

actually

2. In the course of the commission of the crime
or of immediate flight
therefrom,
he or
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.
Where a

prior conviction

is

under a

"divisible statute"

that is, one that "sets out one or more elements of the offense in

21

the alternative" - courts apply a "modified categorical approach."
Descamps

v.

approach

United States,

allows

documents,"

the

known

as

court

133

S.

to

"Shepard

Ct.

2276,

"consult

2281

a

documents,"

(2013).

limited
"to

This

class

determine

of

which

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
was convicted.
13,

26

Id.;

(2005).

documents,

see also Shepard v.

Where

the

government

United States,

fails

to

544 U.S.

produce

a court determines whether the "least of

Shepard

[the]

acts"

described in the statute can serve as a predicate offense. Johnson,
559 U.S. at 137.
Here,

the

government

does

not

contest

that

the

facts

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,
and the

Cou~t

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

(D. Conn.
22

United States,
Jan.

3, 2017)

No.

3:16-cv-

("Committing

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
in Johnson,

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
various

appeals

to

the Second Circuit.

As

explained above,

the

outcome of those appeals is, in the Court's view, so likely to be
in

favor

Meanwhile,

of

Austin's

Austin

has

approach
been

as

to

imprisoned

statutory maximum of 10 years,

be

virtually

longer

inevitable.

than

§

922 (g) 's

and every day he remains is a new

inJustice. The Court will not delay his release any further.
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.

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.
23

SO ORDERED.
Dated:

New York, NY
December _!f_, 2017

24