Second Circuit Strikes Down Residual Clause of Career Offender Guideline
In United States v. Jones, 15-1518-cr (Walker, Calabresi, Hall), the Second Circuit, applying the Supreme Court’s holdings in Johnson v. United States, 559 U.S. 133 (2010) and Johnson v. United States, 134 S. Ct. 2551 (2015) (Johnson 2015), struck down the “residual clause” of the Career Offender Guideline as void for vagueness and held that a conviction for robbery in New York no longer constitutes a “crime of violence” in all circumstances. This case reaffirms Second Circuit precedent recognizing the application of Johnson and Johnson 2015 to the sentencing guidelines, an issue that will be taken up by the Supreme Court this fall.
After a jury trial, appellant Corey Jones was convicted of assaulting a federal officer. In Jones’s pre-sentence report, the probation officer determined that his prior convictions in New York for first-degree robbery and second-degree assault constituted “crimes of violence” within the meaning of the Career Offender Guideline. As a result of Jones’s career offender designation, his offense level was increased from 15 to 32. The district court agreed with the probation officer’s findings and sentenced Jones as a career offender. On appeal, Jones argued that his conviction for first-degree robbery in New York did not constitute a “crime of violence” and that therefore his guidelines ranges should not have been enhanced.
The Court’s Analysis
Applying plain error review, the Court held that first-degree robbery in New York does not constitute a crime of violence in all cases. The Court noted its previous ruling to the contrary— United States v. Spencer, 955 F.3d 814, 820 (2d Cir. 1992)—but concluded that the Supreme Court’s reasoning in Johnson required that this precedent be overturned.
In Johnson, the Supreme Court interpreted the term “violent felony” in the Armed Career Criminal Act (ACCA). It held that in order to qualify as a “violent felony,” the crime in question must have “as an element the use of force against the person of another,” and that the force required must be “capable of causing physical pain or injury to another.” As the Circuit has previously recognized, in light of the substantial similarity between the statutory definitions of “violent felony” and “crime of violence,” the analysis in Johnson is applicable to determine what constitutes a “crime of violence” within the meaning of the guidelines. United States v. Reyes, 691 F.3d 453 (2d Cir. 2012); United States v. Walker, 595 F.3d 441 (2d Cir. 2010).
The Court went on to explain the two approaches to determining whether a state crime qualifies as a predicate offense under the ACCA or the guidelines: (1) the categorical approach, which examines the text of the state statute, and (2) the modified categorical approach, which permits a court to look at a limited class of documents, such as the indictment or plea agreement, to determine for which elements of which crime the defendant was convicted.
Although the Court determined that the modified categorical approach should be used because the first-degree robbery statue in New York has four prongs, the record on appeal was silent as to which of the four subparts formed the basis for Jones’s conviction. The Court was therefore required to evaluate whether the least violent branch of the statute—forcibly stealing property while armed with a deadly weapon—qualified as a “crime of violence.” The Court found that several intermediary appellate courts had upheld convictions for “forcible stealing” where the force involved was not capable of causing physical pain or injury to another and thus concluded that a New York conviction for robbery, absent other aggravating circumstances, no longer constitutes a “crime of violence” within the meaning of the guidelines.
The Court then evaluated whether the less-than-violent force required to commit forcible stealing becomes violent force when the perpetrator is armed with a deadly weapon, ultimately concluding that it does not. This is because the statute permits conviction even if the defendant never brandishes, uses, or threatens to use the weapon. The Court noted that the presence of a weapon might satisfy the requirements of the residual clause of the Career Offender Guideline, which defines a “crime of violence” as a crime involving “conduct that presents a serious potential risk of physical injury to another.” The Court reasoned, however, that Johnson 2015, which struck down an identical clause in the ACCA as void for vagueness, indicates that the residual clause in the guidelines is also void. The Court thus held that it was plain error to sentence Jones as a career offender and remanded the case for resentencing, instructing that Jones may only be sentenced as a career offender if the government can prove that he was convicted under one of the other three prongs of New York’s first-degree robbery statute.
Jones is significant in that it overturns longstanding Circuit precedent recognizing that New York robbery is always a “crime of violence” for purposes of the guidelines. Practitioners should take note of this development in future sentencings and in the context of potential appellate or habeas relief. There is a potential that the very harsh Career Offender Guideline will be applied less often in the future. In this regard, the Court’s decision seems to accord with the public sentiment that criminal sentences became overly long during the past two decades.
The case is further noteworthy for its holding that the residual clause of the Career Offender Guideline is void for vagueness in light of Johnson 2015, a conclusion that the Second Circuit had previously reached via non-precedential summary order. United States v. Welch, 12-4402-cr, 2016 U.S. App. Lexis 2536, at *10-11 (2d Cir. Feb. 11, 2016). The Supreme Court has recently granted certiorari to resolve the question of whether Johnson 2015 applies to the sentencing guidelines, and whether it applies retroactively for purposes of collateral relief. See Beckles v. United States, 15-8544, 2016 U.S. 4142 (June 27, 2016). Undoubtedly, sentencing practitioners will be following Beckles closely in light of its potential to provide relief for scores of defendants whose sentences were enhanced under the Career Offender Guideline. See SCOTUS Grants Cert on Johnson Application to Career Offender Guidelines, Sentencing Law and Policy (Jun. 27, 2016 at 09:57 AM),
-By Jacqueline L. Bonneau and Harry Sandick