United States v. Moore

916 F.3d 231

UNITED STATES of America, Appellee,

v.Calvin Stephon MOORE, Defendant-Appellant.

No. 16-1604 (L)

No. 16-1624 (con)

August Term, 2017

United States Court of Appeals, Second Circuit.

Submitted: March 27, 2018

Decided: February 25, 2019

Grant C. Jaquith, United States Attorney for the Northern District of New York (Michael S. Barnett and Steven D. Clymer, Assistant United States Attorneys, on the brief ), Syracuse, NY, for Appellee.

Lisa A. Pebbles, Federal Public Defender for the Northern District of New York (Molly Corbett and James P. Egan, Assistant Federal Public Defenders, on the brief ), Albany, NY, for Defendant-Appellant.

Before: Katzmann, Chief Judge, Walker and Pooler, Circuit Judges.

John M. Walker, Jr., Circuit Judge:

Defendant-Appellant Calvin Stephon Moore appeals his sentence following a guilty plea to three counts of federal bank robbery in the United States District Court for Northern District of New York (Thomas J. McAvoy, Judge ). Moore received three concurrent 135-month terms of imprisonment.

On appeal, Moore argues that the district court erred in determining that he was subject to a sentencing enhancement as a career offender under the 2015 version of the Career Offender Guidelines of the United States Sentencing Guidelines, §§ 4B1.1 –2. He argues that neither federal bank robbery nor New York robbery in the third degree are crimes of violence under U.S.S.G. § 4B1.2.

Rejecting Moore’s arguments, we AFFIRM.

BACKGROUND

In October 2015, Moore pled guilty to committing the following three counts of robbery of federally insured banks in late 2014. On November 17, 2014, Moore and an accomplice robbed a branch of KeyBank in Schenectady, New York. During the robbery, Moore said, "[T]his is a hold up give me money." App’x at 37. Moore’s accomplice was arrested and told the police that Moore threatened the teller by stating he had a gun. On November 18, 2014, Moore robbed a branch of Adirondack Bank in Utica, New York. According to a teller, Moore said, "I have a gun, I will start shooting, give me all bundles 100’s and 50’s." Id. at 38. He also presented a note stating that he had a gun and would shoot if necessary. The final offense occurred on December 30, 2014, when Moore robbed a branch of First Citizens Bank in Columbia, South Carolina. Moore told a teller that he had a gun and presented a note demanding money. Later that evening, South Carolina police officers received a report of a person at a Motel 6 tossing a suspicious item over a fence and into a parking lot. The item was a dye pack and several $20 bills. Officers began stopping people near the Motel 6 and asking for identification. At some point, they stopped Moore and discovered that he was wanted for federal bank robberies in New York. The officers searched his motel room pursuant to a warrant and found currency stolen earlier in the day from the Columbia branch of First Citizens Bank.

In January 2015, a federal grand jury in the Northern District of New York returned an indictment charging Moore with two counts of bank robbery "by intimidation" in violation of 18 U.S.C. § 2113(a). Id. at 11. In February 2015, a federal grand jury in the District of South Carolina returned an indictment charging Moore with one count of bank robbery "by force and violence and by intimidation" in violation of 18 U.S.C. § 2113(a). Id. at 13. Subsequently, the South Carolina case was transferred to the Northern District of New York.

In October 2015, Moore pled guilty to all three counts of federal bank robbery. The Probation Office recommended that Moore be sentenced under the Career Offender Guidelines. See U.S. Sentencing Guidelines Manual § 4B1.1(a) (U.S. Sentencing Comm’n 2015).¹ Specifically, the Probation Office determined that: (1) Moore was at least 18 years old when he committed the crimes; (2) federal bank robbery is a crime of violence; and (3) Moore had two prior felony convictions for New York robbery in the third degree, New York Penal Law § 160.05, which the Probation Office considered to be crimes of violence. With adjustments for Moore’s acceptance of responsibility, his offense level of 29 and criminal history category of VI yielded a Guidelines range of 151 to 188 months.

Moore objected to the Probation Office’s conclusion that he was a career offender, arguing that the Supreme Court’s decisions in Johnson v. United States , 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (" Johnson I "), and Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (" Johnson II "), narrowed the definition of a crime of violence under U.S.S.G. § 4B1.2(b) in such a way that he should not be considered a career offender because neither federal bank robbery nor New York robbery in the third degree are crimes of violence. Johnson I clarified that the term "physical force" in the definition of the term "violent felony" under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(i), means "violent" force, or "force capable of causing physical pain or injury to another person." 559 U.S. at 140, 130 S.Ct. 1265. Johnson II held that the residual clause of the ACCA—which is worded identically to the 2015 version of the Career Offender Guidelines under which Moore was sentenced—was unconstitutionally void for vagueness. 135 S.Ct. at 2557.

Rejecting Moore’s arguments, the district court sentenced him to concurrent 135-month terms of imprisonment on each of the three counts of conviction, followed by three years of supervised release. App’x at 187–88. At the sentencing hearing, the district judge announced, "[F]or the record ... regardless of any potential difference in the guidelines calculations, including the fact that the criminal offender guideline application was not taken into account in the plea agreement, the Court would have imposed the same sentence based upon the [previously stated] factors and reasoning." Id. at 188. Moore now challenges his sentence on the grounds that neither federal bank robbery nor New York robbery in the third degree qualifies as a crime of violence under the Career Offender Guidelines.

Before we turn to the merits of Moore’s appeal, we note the somewhat unusual briefing schedule of this appeal. In November 2016, after Moore had already filed his opening brief, we vacated our opinion in United States v. Jones, 830 F.3d 142 (2d Cir. 2016) (" Jones I ") in light of the Supreme Court’s grant of certiorari in Beckles v. United States , ––– U.S. ––––, 137 S.Ct. 886, 197 L.Ed.2d 145 (2017). See United States v. Jones, 838 F.3d 296 (2d Cir. 2016) (order vacating Jones I ). Moore’s opening brief heavily relied on Jones I , so we stayed this appeal until Jones I could be reconsidered in the wake of Beckles . In Beckles , the Supreme Court held that because the Sentencing Guidelines are advisory and not mandatory, see United States v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), they are not subject to a void for vagueness challenge, and therefore, the residual clause of the Career Offender Guidelines was not unconstitutional. 137 S.Ct. at 894–95. In United States v. Jones , 878 F.3d 10, 17 (2d Cir. 2017) (" Jones II "), we held that New York first degree robbery qualified as a crime of violence under the residual clause of the 2014 version of the Career Offender Guidelines. The language of the 2014 version of the Career Offender Guidelines is substantively the same as the 2015 (pre-amendment) version that applies to Moore’s sentence here. Compare U.S.S.G. § 4B1.2 (2014), with U.S.S.G. § 4B1.2 (2015).

In September 2017, we lifted the stay, but Moore opted to rest on his originally filed opening brief, which relied substantially on our vacated and superseded opinion in Jones I . After the Government filed its brief in December 2017, Moore filed a reply brief relying on new arguments. At our request, the Government submitted additional briefing in response to Moore’s argument that, contrary to dictum in Jones II , New York’s definition of robbery lacks an element present in the generic definition of robbery.

DISCUSSION

The two issues in this appeal are whether the district court erred in determining that federal bank robbery by intimidation in violation of 18 U.S.C. § 2113(a) and New York third-degree robbery in violation of New York Penal Law § 160.05 are crimes of violence under the 2015 version of the Career Offender Guidelines, U.S.S.G. §§ 4B1.1 –2. We review de novo a district court’s determination of whether an offense is a crime of violence under the Guidelines. United States v. Van Mead , 773 F.3d 429, 432 (2d Cir. 2014).

I. The Career Offender Guidelines

The Career Offender Guidelines provide for an enhanced sentence when the defendant: (1) is at least 18 years old at the time she committed the instant offense of conviction; (2) has an instant offense of conviction that is a felony crime of violence; and (3) has at least two prior felony convictions constituting crimes of violence or controlled substance offenses. U.S.S.G. § 4B1.1(a).

When Moore was sentenced in May 2016, there were three separate provisions in the applicable U.S.S.G. § 4B1.2 Guideline defining "crime of violence." The first clause, commonly known as the "force clause" or the "elements clause," specifies that a crime of violence is a felony that "has as an element the use, attempted use, or threatened use of physical force against the person of another." Id. § 4B1.2(a)(1). The second clause, known as the "enumerated clause," enumerates four offenses that qualify as crimes of violence: "burglary of a dwelling, arson, or extortion, [or crimes] involv[ing the] use of explosives. ..." Id. § 4B1.2(a)(2). Finally, the residual clause specifies that a crime of violence also includes any felony that "otherwise involves conduct that presents a serious potential risk of physical injury to another."² Id.

In addition to these three clauses in the text of the § 4B1.2(a) Guideline, application note 1 in the commentary to the...