United States v. Smith
The Second Circuit issued an amended opinion in United States v. Smith (Cabranes, Winter, Restani by designation). Both the original decision, which we covered on the blog earlier this year and the amended decision held that the defendant was subject to an enhanced Guidelines range as a result of having committed the New York offense of robbery in the second degree. This crime constituted a crime of violence within the meaning of the residual clause of Sentencing Guidelines Section 4B1.2(a)(2), which was in effect when Smith was sentenced on October 1, 2015.
The reasoning is slightly different in the amended opinion. In the original decision, the Court held that this specific crime was a crime of violence because of the Court’s prior ruling in United States v. Jones, 878 F.3d 10 (2d Cir. 2017), which held that the New York offense of robbery in the first degree was a crime of violence, and that the two types of robbery were analogous for purposes of the residual clause. However, the amended opinion did not need to draw this analogy. Instead, it relied on the Second Circuit’s decision in United States v. Dove, 884 F.3d 138, 152 (2d Cir. 2018), in which the Court held that every degree of New York robbery is a crime of violence under the residual clause.
Dove was decided on March 6, 2018, and the original Smith decision was rendered on March 8, 2018. As a technical matter, the Smith panel was bound to follow Dove. Is this the reason why the Court amended the Smith opinion? It is hard to say for sure, and the amended Smith decision does not state the reason for the amendment. Nonetheless, this amended opinion replaces the earlier Smith decision.
 The residual clause has since been removed from the Guidelines after the Supreme Court held that the phrase used in the residual clause was unconstitutionally vague in the context of the Armed Career Criminal Act. Somewhat surprisingly, the residual clause in the Guidelines was held constitutional in Beckles v. United States, 137 S. Ct. 886, 892 (2017).