Circuit Determines that Attempted Robbery Under New York Law Constitutes a “Crime of Violence” Pursuant to 2014 Federal Sentencing Guidelines

by Patterson Belknap Webb & Tyler LLP
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In United States v. Pereira-Gomez, a panel of the Second Circuit (Cabranes, Carney, Caproni, D.J.) issued an opinion analyzing whether attempted robbery under New York law qualifies as a “crime of violence” for enhancement purposes under Section 2L1.2 of the November 2014 United States Sentencing Guidelines.  Engaging in a meticulous exercise in statutory interpretation, the panel concluded that while the offense is not specifically enumerated in the Guidelines’ definition of “crime of violence,” it does fall within the residual “force clause” of the relevant Guidelines application note, thereby resulting in a substantial prior offense enhancement to the applicable sentencing range.  This case demonstrates the difficulties that courts and litigators experience in interpreting sentencing enhancement provisions that are based on the categorical nature of a prior conviction.

Background

In 1997, Defendant Manuel Pereira-Gomez pleaded guilty in New York state court to attempted robbery in the second degree; he was consequently deported from the United States.  Following a series of subsequent reentries and deportations, he was arrested in the U.S. for driving while intoxicated and for aggravated unlicensed operation of a motor vehicle.  In 2015, he was indicted once again, this time for illegal reentry into the U.S. after previously having been deported following the commission of an aggravated felony, in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2).  Pereira-Gomez pleaded guilty to that offense and, in March 2017, the U.S. District Court for the Eastern District of New York sentenced Pereira-Gomez to 46 months’ imprisonment, followed by three years of supervised release.

In calculating the applicable sentencing range under the United States Sentencing Guidelines, a sentencing court typically applies the Guidelines in place at the time of sentencing—here, the November 2016 Guidelines.  However, where those Guidelines yield a higher sentencing range than the version of the Guidelines in place at the time of the defendant’s offense—here, the November 2014 Sentencing Guidelines—the court must apply the earlier Guidelines to avoid an ex post facto violation.

In Pereira-Gomez’s case, the 2016 Guidelines provided for a sentencing range of 46 to 57 months’ imprisonment.  The parties disagreed, however, over the sentencing range dictated by the 2014 Guidelines.  The Government contended that Pereira-Gomez’s 1997 attempted robbery conviction constituted a “crime of violence” under the 2014 Guidelines, thereby triggering a 16-level prior offense enhancement and resulting in a Guidelines range of 57 to 71 months.  Pereira-Gomez, by contrast, insisted that his prior offense was not a crime of violence and that the applicable 2014 Guidelines range was instead only 15 to 21 months’ incarceration.  The district court ruled for the Government and applied the 2016 Guidelines, which provided a lower sentencing range than that set forth in the Government’s reading of the 2014 Guidelines.  Pereira-Gomez challenged that decision on appeal.

The Panel’s Decision

On appeal, the panel faced the narrow question of whether Pereira-Gomez’s 1997 attempted robbery conviction constitutes a “crime of violence” under the 2014 Sentencing Guidelines.[1]  That term is defined as:

[A]ny of the following offenses under federal, state, or local law: murder, manslaughter, kidnapping, aggravated assault, . . . robbery, arson, . . . burglary of a dwelling, or any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.

§ 2L1.2, Application note 1(B)(iii) (emphasis added).  A prior offense may qualify as a crime of violence if it is one of the offenses specifically enumerated in the application note, or if it involves “the use, attempted use, or threatened use of physical force” against another person.  (The section of the application note that refers to the use of physical force is known as the “force clause.”)

The panel first considered whether attempted robbery under New York law falls within the enumerated offenses in application note 1(B)(iii) and determined that it does not.  To reach this determination, the panel analyzed whether the state statute under which Pereira-Gomez was convicted sets forth a definition of the crime that is “the same as, or narrower than” the “generic” definition of the offense of robbery.

After surveying a range of state criminal statutes, court decisions, the Model Penal Code, scholarly treatises, and legal dictionaries, the panel concluded that the generic definition of “robbery” requires that the stolen property be taken “from the person or in the presence of the owner or victim.”  (Some 27 states and the District of Columbia include “presence” as an element in their definition of the crime.)  Robbery under New York law, however, no longer requires that property be taken in the presence of the victim—rather, robbery may be committed, for instance, through the use or threat of force to compel a victim “to deliver up” property not in his presence.  N.Y. Penal Law § 160.00(2).  Criminal attempt under New York law similarly lacks a presence requirement.  Because New York’s definition of attempted robbery omits an element contained in the generic definition and therefore “sweeps more broadly than the generic crime,” the panel concluded that Pereira-Gomez’s attempted robbery conviction does not qualify as one of the enumerated offenses set forth in application note 1(B)(iii).

The panel next addressed whether attempted robbery under New York law includes, as an element of the crime, “the use, attempted use, or threatened use of physical force” against another.  Citing the Supreme Court’s decision in Johnson v. United States, 559 U.S. 133 (2010), which addressed the definition of “physical force” in the Armed Career Criminal Act, 18 U.S.C. § 924(b)(2)(B), the panel held that the phrase “physical force” under the force clause of application note 1(B)(iii) demands violent force.  More incidental physical contact is insufficient.

Once again, the panel applied the categorical approach, looking to the New York statutory requirements for attempted robbery, rather than concentrating on the specific facts underlying Pereira-Gomez’s crime.  New York defines robbery as “forcible stealing,” which requires “us[ing] or threaten[ing] the immediate use of physical force upon another person.”  N.Y. Penal Law § 160.00.  The level of physical force must be sufficient “to prevent resistance to the taking or to compel the owner to deliver up the property.”  People v. Jurgins, 26 N.Y.3d 607, 614 (2015). By its plain language, the panel explained, the New York Penal Law definition of “robbery” includes as an element the use of violent force.  The panel concluded that violent force is also an element of attempted robbery under New York law, which requires that the actions of a defendant charged with criminal attempt be “so near to [their] accomplishment that in all reasonable probability the crime itself would have been committed, but for timely interference.”  People v. Mahboubian, 74 N.Y.2d 174, 196 (1989).  As a result, Pereira-Gomez’s crime qualifies as a “crime of violence” under the force clause of application note 1(B)(iii).  Because the corresponding enhancement resulted in a 2014 Guidelines range that was higher than the 2016 Guidelines range, the district court was correct to apply the 2016 Guidelines in sentencing Pereira-Gomez.

Analysis

This opinion represents a painstaking exercise in statutory interpretation and the panel undoubtedly reached the correct conclusion that, based on the elements of attempted robbery under New York law, Pereira-Gomez’s 1997 offense constitutes a “crime of violence” as it is defined in the 2014 Sentencing Guidelines.  It is worth remembering that since the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005), the U.S. Sentencing Guidelines are merely advisory in nature and it was therefore within the district court’s discretion to impose a 46-month prison sentence regardless of whether Pereira-Gomez’s prior conviction amounted to a “crime of violence.”  But the panel nevertheless went to great lengths—including ostensibly conducting a 50-state survey of the relevant criminal statutes and court decisions—to offer a thorough analysis of the statutory question.  This careful approach is consistent with the courts’ post-Booker obligation to calculate correctly the Guidelines range.  See Molina-Martinez v. United States, 136 S. Ct. 1338, 1346 (2016) (holding that a district court commits significant procedural error when it improperly calculates the Guidelines range, because “the Guidelines are not only the starting point for most federal sentencing proceedings but also the lodestar”).

It may seem odd to one who has not been following the many decisions applying the categorical approach that the panel did not review, or even mention, the specific facts and circumstances of Pereira-Gomez’s attempted robbery offense.  After all, wouldn’t those facts be the best determinant of whether the defendant committed a crime of violence?  But the panel ensured fairness by confirming that the “minimum criminal conduct necessary for conviction” under N.Y. Penal Law §§ 110.00 and 160.10 involves the use of violent force.  Moreover, the categorical approach enabled the Court to create a bright-line rule that will offer clear guidance to future courts sentencing a defendant with a prior New York attempted robbery conviction.  Ultimately, because more recent iterations of the Sentencing Guidelines do not rely on the term “crime of violence” to calculate prior offense enhancements under Section 2L1.2, many sentencing courts may avoid the question presented here.  But any move by the Second Circuit that helps to avoid potentially inconsistent results in sentencing is to be commended and the Pereira-Gomez panel’s methodical analysis presents a model for future approaches to interpretation of the federal sentencing guidelines.


[1] The relevant section of the 2016 Guidelines does not include the term “crime of violence” and instead calculates the prior offense enhancement based on the length of the sentence imposed for that offense.  This avoids the complexity of assessing what is and is not a “crime of violence” under the categorical approach, and uses instead the more neutral standard of the length of the sentence imposed for the prior offense.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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