United States v. Ojeda

951 F.3d 66

UNITED STATES of America, Appellee,

v.David OJEDA, Defendant-Appellant,Timothy Canty, Defendant.

No. 18-1770-cr

August Term 2019

United States Court of Appeals, Second Circuit.

Submitted: October 30, 2019

Decided: February 24, 2020

Devin McLaughlin, Langrock Sperry & Wool, LLP, Middlebury, Vermont, for Defendant-Appellant.

Eli J. Mark, Daniel B. Tehrani, Assistant United States Attorneys, for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, New York, for Appellee.

Before: Cabranes and Raggi, Circuit Judges, and Korman, District Judge.^*

Reena Raggi, Circuit Judge:

Defendant David Ojeda appeals from a judgment of conviction entered on June 7, 2018, in the United States District Court for the Southern District of New York (Andrew L. Carter, Jr., Judge ), following his guilty plea to being a felon in possession of a firearm, see 18 U.S.C. § 922(g)(1) ; and to obstructing justice, see id. § 1512(c)(1). Ojeda challenges only that part of the judgment sentencing him to 15 years’ incarceration on the felon-in-possession count. That sentence is the minimum mandated by the Armed Career Criminal Act ("ACCA") for § 922(g) violators who have three or more convictions for a "violent felony" and/or "serious drug offense." Id. § 924(e)(1). The district court determined that ACCA applied in Ojeda’s case based on three prior New York State convictions: in 2007, for first-degree robbery, see N.Y. Penal Law § 160.15 ; in 1998, for attempted sale of a controlled substance in the third degree, see id. § 220.39; and again in 1998, for attempted possession of a controlled substance with intent to sell in the third degree, see id. § 220.16(1). On appeal, Ojeda submits that none of these convictions qualifies as an ACCA predicate. He argues here, as he did before the district court, that Samuel Johnson v. United States , ––– U.S. ––––, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015), compels the conclusion that ACCA’s definition of a state "serious drug offense," see 18 U.S.C. § 924(e)(2)(A)(ii), is too vague to be applied constitutionally to his New York attempted drug crimes. For the first time on appeal, Ojeda further argues that Curtis Johnson v. United States , 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), compels the conclusion that New York first-degree robbery is not a categorical "violent felony" under 18 U.S.C. § 924(e)(2)(B)(i).

For reasons explained herein, we conclude that Ojeda’s reliance on the cited Supreme Court precedents is misplaced, and that his arguments are, in fact, defeated by this court’s recent decisions in United States v. Thrower , 914 F.3d 770 (2d Cir.), cert. denied , ––– U.S. ––––, 140 S. Ct. 305, 205 L.Ed.2d 200 (2019), and United States v. Wallace , 937 F.3d 130 (2d Cir. 2019). Identifying no error in Ojeda’s felon-in-possession sentence, we affirm the judgment of conviction in all respects.

BACKGROUND

I. The Crimes of Conviction

The facts pertaining to Ojeda’s felon-in-possession and obstruction crimes are quickly stated.

On November 25, 2014, in the vicinity of Madison Avenue and East 111th Street in Manhattan, Ojeda brandished a 9-millimeter pistol while threatening a person with whom he was having an argument. The pistol was stolen, but Ojeda was prohibited from possessing it in any event by 18 U.S.C. § 922(g)(1) because he had previously been convicted of multiple felony crimes. Indeed, the Indictment charging Ojeda with violating § 922(g)(1) advised him that any sentence for that crime would be subject to the 15-year mandatory minimum stated in ACCA because his prior New York first-degree robbery conviction was for a "violent felony," and his two prior attempted controlled substance convictions were for "serious drug offense[s]."

Following Ojeda’s federal arrest for being a felon in possession of a firearm, he enlisted his mother to obstruct justice by having her use false pretenses to retrieve his cellular phone from police custody and then delete potentially incriminating evidence from that phone.

II. Sentencing

On October 22, 2015, Ojeda pleaded guilty to both the felon-in-possession and obstruction charges. The Probation Department’s Presentence Report calculated Ojeda’s Sentencing Guidelines offense level as 30, which, with a criminal history category of VI, yielded an advisory sentencing range of 168–210 months’ imprisonment. The Department reported that if, based on Ojeda’s prior record of convictions, the district court were to identify him as an Armed Career Criminal, ACCA mandated a minimum sentence of 180 months, or 15 years, for the felon-in-possession crime. ACCA states in pertinent part that,

a person who violates section 922(g) ... and has three previous convictions ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another, ... shall be ... imprisoned not less than fifteen years.

18 U.S.C. § 924(e)(1).

ACCA defines "violent felony" to include any crime having a force element, as well as certain enumerated crimes:

"[V]iolent felony" means any crime [that, when committed by an adult, is] punishable by imprisonment for a term exceeding one year, [and] (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. § 924(e)(2)(B).

It defines "serious drug offense" by reference to both federal and state law as either,

(i) an offense under the Controlled Substances Act ( 21 U.S.C. 801 et seq. ), [and other specified provisions of federal law], for which a maximum term of imprisonment of ten years or more is prescribed by law, or

(ii) an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in ... 21 U.S.C. 802 ), for which a maximum term of imprisonment of ten years or more is prescribed by law ....

Id. § 924(e)(2)(A).

Preliminary to deciding whether Ojeda was subject to an ACCA sentence for his § 922(g)(1) crime, the district court ordered briefing as to whether attempted controlled substance crimes qualify as serious drug offenses under § 924(e)(2)(A)(ii), specifically, whether this court’s holding in United States v. King , 325 F.3d 110 (2d Cir. 2003), which supports that conclusion, remains good law after Samuel Johnson v. United States , 135 S. Ct. 2551 (holding ACCA’s § 924(e)(2)(B)(ii) residual clause definition of violent felony void for vagueness). Upon review of the parties’ filings, the district court concluded that Ojeda’s attempted controlled substance crimes do qualify as serious drug offenses. Based on that finding, and in the absence of any challenge to Ojeda’s first-degree robbery conviction being a violent felony, the district court sentenced Ojeda to the ACCA mandated minimum 15-year term on the felon-in-possession count, with a concurrent 60-month, or five-year, term on the obstruction count.

Ojeda timely filed this appeal.

DISCUSSION

Whether Ojeda’s prior New York State crimes of conviction qualify as ACCA predicates presents two questions of law that we review de novo : (1) whether first-degree robbery is a "violent felony" under 18 U.S.C. § 924(e)(2)(B)(i) ;¹ and (2) whether attempted drug sale in the third degree or attempted drug possession (with intent to sell) in the third degree is a "serious drug offense" under § 924(e)(2)(A)(ii). See United States v. Bordeaux , 886 F.3d 189, 192 (2d Cir. 2018). Because Ojeda did not raise the first question in the district court, however, our de novo review of that matter is limited to plain error. See United States v. Marcus , 560 U.S. 258, 262, 130 S.Ct. 2159, 176 L.Ed.2d 1012 (2010) (requiring "that (1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the appellant’s substantial rights ...; and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings" (brackets omitted) (internal quotation marks omitted)); United States v. Boyland , 862 F.3d 279, 288–89 (2d Cir. 2017). For the reasons explained herein, we conclude that the district court committed no error—plain or otherwise—in identifying Ojeda’s prior convictions, both for robbery and attempted controlled substance trafficking, as ACCA predicates.

I. New York First-Degree Robbery Is a Categorical "Violent Felony" as Defined in 18 U.S.C. § 924(e)(2)(B)(i)

A defendant’s prior conviction can be found to be for a "violent felony" under 18 U.S.C. § 924(e)(2)(B)(i) only if it "has as an element the use, attempted use, or threatened use of physical force against the person of another." In Curtis Johnson v. United States , the Supreme Court construed "physical force" to mean "violent force—that is, force capable of causing physical pain or injury to another." 559 U.S. at 140, 130 S.Ct. 1265 (emphasis in original). Last term, in Stokeling v. United States , the Court clarified that this force standard "does not require any particular degree of likelihood or probability that the force used will cause physical pain or injury; only potentiality." ––– U.S. ––––, 139 S. Ct. 544, 554, 202 L.Ed.2d 512 (2019). Applying that standard to the Florida robbery statute at issue in Stokeling , the Court concluded that the crime was a violent felony under ACCA’s elements clause. See id. at 554–55.

This court has long recognized New York robbery—in any degree—to be a violent crime under the elements clause of ACCA and other federal laws. See Stuckey v. United States , 878 F.3d 62, 72 (2d Cir. 2017) (holding New York first-degree robbery convictions to be for violent felonies under ACCA elements clause); see also United States v. Pereira-Gomez , 903 F.3d 155, 164–66 & n.45 (2d Cir. 2018) (holding New York "robbery in any degree is a crime of violence under the ‘force clause’ "...