United States v. Evans

924 F.3d 21

UNITED STATES of America Appellee,

v.Ronald EVANS, Defendant-Appellant,Tashine Knighter, Defendant.

No. 17-2245-cr

August Term 2018

United States Court of Appeals, Second Circuit.

Argued: September 24, 2018

Decided: May 8, 2019

For Appellee: Monica J. Richards, Assistant United States Attorney, for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Buffalo, New York.

For Defendant-appellant: Reetuparna Dutta, Hodgson Russ LLP, Buffalo, New York.

Before: Wesley, Livingston, Circuit Judges, and Crawford, District Judge.^*

Debra Ann Livingston, Circuit Judge:

The Armed Career Criminal Act of 1984 ("ACCA"), 18 U.S.C. § 924(e)(2)(B), imposes a 15-year mandatory minimum sentence if a defendant is convicted of being a felon in possession of a firearm following three prior convictions for a "violent felony." This appeal presents the latest entry in a series of cases defining offenses that qualify as "violent felonies" for an enhanced sentence under ACCA. Specifically, this case calls upon us to answer two questions of first impression in this Circuit: (1) whether second-degree burglary in violation of North Carolina General Statute § 14-51 qualifies as a "violent felony" under ACCA’s "enumerated clause"; and (2) whether federal bank robbery in violation of 18 U.S.C. § 2113(a) qualifies as a "violent felony" under ACCA’s "elements clause." For the reasons outlined below, we answer these two questions in the affirmative and hold that both statutes are "violent felonies" within the ambit of ACCA. We therefore AFFIRM the July 14, 2017 judgment of the district court sentencing Defendant-Appellant Ronald Evans pursuant to ACCA (Richard J. Arcara, Judge ).¹

BACKGROUND

I. Factual Background²

Defendant-Appellant Ronald Evans ("Evans") was charged by way of a seven-count indictment with manufacturing and uttering counterfeit currency and conspiracy to manufacture and utter counterfeit currency, in violation of 18 U.S.C. §§ 471, 472, 473 and 2, and unlawful possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). On July 26, 2011 Evans pled guilty to the count of the indictment charging him with being a felon in possession of a firearm. ACCA provides that a person who violates § 922(g) and who has three previous convictions for a "violent felony" shall be imprisoned for a minimum of 15 years. 18 U.S.C. § 924(e). ACCA defines "violent felony" as "any crime punishable by imprisonment for a term exceeding one year" that

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

Id. at § 924(e)(2)(B). The first clause is referred to as ACCA’s "elements clause," Stokeling v. United States , ––– U.S. ––––, 139 S.Ct. 544, 549, 202 L.Ed.2d 512 (2019), the first portion of the second clause—"is burglary, arson, or extortion"—as ACCA’s "enumerated clause," id. at 556, and the remainder as ACCA’s "residual clause," Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 2556, 192 L.Ed.2d 569 (2015). Evans acknowledged in his written plea agreement that he qualified as an armed career criminal based on three prior violent felony convictions, subjecting him to a 15-year mandatory minimum sentence. The district court accordingly sentenced Evans to 180 months’ imprisonment on September 25, 2012.

On May 3, 2016 Evans filed a motion in conjunction with a previously filed habeas petition, asserting that his ACCA status had been rendered retroactively invalid under Johnson , 135 S.Ct. at 2557, which struck down ACCA’s residual clause under the void-for-vagueness doctrine. The district court granted Evans’s motion, concluding that his prior sentence had indeed been rendered retroactively invalid under Johnson because one of his three ACCA predicate convictions (for attempted burglary in the third-degree in violation of N.Y. Penal Law § 140.20 ) had qualified as a violent felony only under ACCA’s voided residual clause. The district court, however, transferred the matter to the original sentencing judge for resentencing, directing the court to consider whether any of Evans’s other prior convictions could be substituted as ACCA predicates.

At a resentencing hearing held on June 16, 2017, the district court determined that among Evans’s criminal history at least three offenses qualified as "violent felonies" under ACCA, such that Evans continued to face a mandatory minimum sentence of 15 years. Appendix ("A.") 477–505. First, Evans was convicted in 1982 of federal bank robbery in violation of 18 U.S.C. § 2213(a). According to his presentencing report, this conviction occurred after he approached a teller window at a bank branch in Buffalo, New York, and then handed the teller a blue tote bag and a demand note that read, "I have a gun fill bag." Next, in 1983, Evans was convicted of federal armed bank robbery in violation of 18 U.S.C. § 2113(d). The conduct underlying this conviction involved Evans and two co-conspirators entering a bank in Buffalo wearing ski masks and armed with a pistol and a shotgun, yelling "Everyone get down, this is a hold up!" Finally, Evans was convicted in 2001 in North Carolina of second-degree burglary in violation of N.C. Gen Stat. § 14-51. According to his presentencing report, this conviction occurred after he and an accomplice broke into a home, confined and restrained the victims therein, hit one victim with a hand gun and proceeded to steal property with a combined value of $ 30,000. The district court determined that the first two offenses qualified categorically as violent felonies under ACCA’s elements clause, and that the final offense qualified categorically as a violent felony under ACCA’s enumerated clause. Accordingly, the district court re-sentenced Evans to 180 months’ imprisonment, the same sentence as was originally imposed. This appeal followed.

DISCUSSION

Having laid out the facts surrounding Evans’s appeal, we now set them aside in order to ascertain whether his predicate convictions qualify as crimes of violence under ACCA. See Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2248, 195 L.Ed.2d 604 (2016) ("Facts ... are mere real-word things .... ACCA ... cares not a whit about them." (internal citation omitted)). On appeal we consider Evans’s claim that two of his ACCA predicates—second-degree burglary under North Carolina law and federal bank robbery—do not categorically qualify as crimes of violence within the meaning of 18 U.S.C. § 924(e).³ We conclude that they do.

I

We first consider whether Evans’s conviction for second-degree burglary under North Carolina law qualifies as a "crime of violence" under ACCA’s so-called "enumerated clause." By way of reminder, ACCA imposes a 15-year mandatory minimum sentence on defendants, such as Evans, who are convicted of violating § 924(g) and have already accrued three prior convictions for the commission of violent felonies. The enumerated clause defines "violent felony" to include any crime punishable by imprisonment for more than a single year, that, in relevant part, "is burglary, arson, or extortion." See 18 U.S.C. § 924(e)(2)(B)(ii).

To determine whether a past conviction is for an enumerated offense under ACCA, courts employ a "categorical approach." Descamps v. United States , 570 U.S. 254, 261, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) (quoting Taylor v. United States , 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ); see also Mathis , 136 S.Ct. at 2248–51 (outlining the categorical approach and applying it to a state burglary conviction). This approach requires us to evaluate a prior conviction "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." Begay v. United States , 553 U.S. 137, 141, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). To do so, we "compare the elements of the statute forming the basis of the defendant’s conviction with the elements of the ‘generic’ crime—i.e. , the offense as commonly understood." Descamps , 570 U.S. at 257, 133 S.Ct. 2276.

In other words, we identify "the minimum criminal conduct necessary for conviction under a particular statute," United States v. Acosta , 470 F.3d 132, 135 (2d Cir. 2006) (per curiam), and determine whether that conduct falls within the scope of the "generic" definition of the crime. To show a predicate conviction is not a violent felony, there must be " ‘a realistic probability, not a theoretical possibility,’ that the statute at issue could be applied to conduct that does not constitute" a violent felony. United States v. Hill , 890 F.3d 51, 56 (2d Cir. 2018) (quoting Gonzales v. Duenas–Alvarez , 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) ).

As noted above, Evans was convicted in 1982 of second-degree burglary under North Carolina law. Although ACCA enumerates "burglary" as a "violent felony," pursuant to the categorical approach not every offense labeled as "burglary" under state law qualifies as a violent felony under ACCA. Taylor , 495 U.S. at 602, 110 S.Ct. 2143 ; Mathis , 136 S.Ct. at 2250–51 (holding that where the parties agreed that Iowa’s burglary statute "cover[ed] more conduct than generic burglary does" the statute did not qualify as a violent felony under ACCA); see also Descamps , 570 U.S. at 282, 133 S.Ct. 2276 (Alito J. , dissenting) ("While the concept of a conviction for burglary might seem simple, things have not worked out that way ...."). To determine whether a past conviction for burglary qualifies as a violent felony under ACCA, courts employing the categorical approach accordingly "compare the elements of the crime of conviction with the elements of the ‘generic’ version" of burglary. Mathis , 136 S.Ct. at 2247. Thus, we focus here on whether the elements of North Carolina...