United States v. Pereira-Gomez

903 F.3d 155

UNITED STATES of America, Appellee,

v.Manuel PEREIRA-GOMEZ, aka Manuel Jesus Pereira, aka Manuel Pereiro, aka Manny Pereira, Defendant-Appellant.

No. 17-952-cr

August Term 2017

United States Court of Appeals, Second Circuit.

Submitted: March 9, 2018

Decided: September 7, 2018

Raymond A. Tierney, Assistant United States Attorney (Susan Corkery, Assistant United States Attorney, on the brief), for Bridget M. Rohde, Acting United States Attorney for the Eastern District of New York, Brooklyn, NY, Appellee.

Barry D. Leiwant, Federal Defenders of New York, Inc., New York, NY, for Appellant-Defendant.

Before: Cabranes and Carney, Circuit Judges, and Caproni, District Judge.^*

José A. Cabranes, Circuit Judge:

Defendant-appellant Manuel Pereira-Gomez ("Pereira") appeals from a March 29, 2017 judgment of the United States District Court for the Eastern District of New York (Joan M. Azrack, Judge ). The District Court convicted Pereira, following his plea of guilty, of illegal reentry into the United States after previously having been deported after the commission of an aggravated felony, in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2), and sentenced him principally to 46 months’ incarceration to be followed by three years of supervised release. On appeal, Pereira argues that the District Court erred when it concluded that his prior New York conviction for attempted robbery in the second degree, in violation of N.Y. Penal Law §§ 110.00¹ and 160.10,² qualified as a "crime of violence" for enhancement purposes under Section 2L1.2 of the November 1, 2014 United States Sentencing Guidelines ("2014 Guidelines").³

This case presents two questions:

(1) Whether attempted robbery in the second degree under New York law is a "crime of violence" under the "enumerated offenses" of application note 1(B)(iii) to Section 2L1.2 of the November 1, 2014 edition of the Sentencing Guidelines; and, if not,

(2) Whether attempted robbery in the second degree under New York law is a "crime of violence" under the "force clause" of application note 1(B)(iii) to Section 2L1.2 of the November 1, 2014 edition of the Sentencing Guidelines.

We conclude that attempted robbery in the second degree, in violation of N.Y. Penal Law §§ 110.00 and 160.10, is not a "crime of violence" under the "enumerated offenses," but is a "crime of violence" under the "force clause."⁴

Accordingly, we AFFIRM the District Court’s judgment.

I. BACKGROUND

In 1997, Pereira pleaded guilty in New York state court to attempted robbery in the second degree. He was subsequently deported from the United States on three occasions. After reentering the United States a fourth time, he was arrested for, inter alia , felony offenses of driving while intoxicated and aggravated unlicensed operation of a motor vehicle. On October 21, 2015, Pereira was indicted for having been found in the United States, on or about September 5, 2015, after having been previously deported from the United States following a conviction for an aggravated felony.⁵

On March 23, 2016, Pereira pleaded guilty to the charges against him. He and the government, however, were unable to reach a plea agreement because they disputed the applicable advisory Guidelines range.

At the time of sentence, Pereira argued that the District Court should apply the 2014 Guidelines, which were in place when he violated 8 U.S.C. §§ 1326(a) and 1326(b)(2), because the 2014 Guidelines set forth a lower advisory range than the November 1, 2016 Guidelines Manual ("2016 Guidelines") in effect at the time of Pereira’s sentencing.⁶ He further contended that under the 2014 Guidelines, his 1997 conviction for attempted robbery in the second degree was not a "crime of violence" that triggered a 16-level prior offense enhancement under Guidelines Section 2L1.2(b)(1)(A).⁷ Finally, Pereira argued that, absent the 16-level enhancement, his total adjusted offense level was 10, yielding an advisory Guidelines range of 15 to 21 months’ imprisonment.

The government calculated Pereira’s advisory Guidelines range under both the 2014 and the 2016 Guidelines. Under the 2014 Guidelines, the government argued, Pereira’s 1997 conviction qualified as a "crime of violence"—thus resulting in a 16-level enhancement and a total adjusted offense level of 21. Based on Pereira’s criminal history category of IV, the government arrived at a 2014 Guidelines advisory range of 57 to 71 months’ imprisonment. Under the 2016 Guidelines, by contrast, the government argued that Pereira’s total offense level fell to 19 with a corresponding advisory range of 46 to 57 months’ imprisonment.⁸

The District Court sentenced Pereira on March 29, 2017. It determined that Pereira’s prior conviction was a "crime of violence" under the 2014 Guidelines. The District Court then applied the 2016 Guidelines, which produced a lower range, and sentenced Pereira principally to 46 months’ imprisonment to be followed by three years of supervised release.⁹

This appeal followed.

II. DISCUSSION

On appeal, Pereira argues that the District Court erred in finding that his prior New York state conviction for attempted robbery in the second degree is a "crime of violence" under Section 2L1.2 of the 2014 Guidelines. Specifically, he contends that his prior conviction does not qualify as a "crime of violence" under either the "enumerated offenses" or the "force clause" of application note 1(B)(iii) of Section 2L1.2.

We agree with Pereira that his prior conviction is not a "crime of violence" under the "enumerated offenses" in application note 1(B)(iii). We conclude, however, that his prior conviction is a crime of violence under the application note’s "force clause." Accordingly, we affirm the judgment of the District Court.

A. Standard of Review

When reviewing Guidelines calculations, we ordinarily "apply a de novo standard to legal conclusions and we accept the sentencing court’s factual findings unless they are clearly erroneous."¹⁰ But where a defendant raises arguments for the first time on appeal, "we review his claims for plain error."¹¹ We apply the plain error standard "less stringently in the sentencing context, where the cost of correcting an unpreserved error is not as great as in the trial context."¹²

B. The "Enumerated Offenses" Analysis

We first consider whether Pereira’s prior conviction is a "crime of violence" under the "enumerated offenses" in application note 1(B)(iii) to Section 2L1.2 of the 2014 Guidelines. We conclude that it is not.

* * *

Where the Guidelines enumerate an offense as a "crime of violence," we undertake what is known as the "categorical approach."¹³ We "look only to the statutory definitions—i.e. , the elements—of a defendant’s prior offenses, and not to the particular facts underlying those convictions."¹⁴ We then compare the elements of the statutory offense to "the generic, contemporary" definition of the offense.¹⁵ A prior conviction will constitute a "crime of violence" for a sentencing enhancement "only if the statute’s elements are the same as, or narrower than, those of the generic offense."¹⁶

In some cases, however, the defendant is convicted under a more complicated statute that criminalizes multiple acts in the alternative—thereby requiring a sentencing court to deduce which of these elements "was integral to the defendant’s conviction."¹⁷ In these circumstances, we apply what is known as the "modified categorical approach." This requires us to "look[ ] to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of."¹⁸

Here, because Pereira was convicted under a statute that criminalizes multiple acts in the alternative, we adopt the modified categorical approach. The government concedes that Pereira’s certificate of disposition "does not specify which subsection of N.Y. Penal Law § 160.10 was charged."¹⁹ Ordinarily, we would therefore be required to determine "the least of the acts proscribed by the statute."²⁰ We need not do so here, however, because the outcome of that analysis does not affect our conclusion.

* * *

Regardless of which particular aggravating factor set forth in N.Y. Penal Law § 160.10 applies, we must consider whether the statute under which Pereira was convicted is the same as, or narrower than, the generic offense of robbery.²¹ His crime of conviction will not qualify as a "crime of violence" under the "enumerated offenses" if the statute he was convicted of violating "sweeps more broadly than the generic crime."²²

The generic definition of an offense "is the ‘contemporary understanding’ of the term."²³ This understanding will often be the "sense in which the term is now used in the criminal codes of most States."²⁴ In some cases, however, "courts also consult other sources, including federal criminal statutes, the Model Penal Code, scholarly treatises, and legal dictionaries."²⁵

Surveying these sources, we conclude that the generic definition of robbery includes, as an element, that the stolen property be taken "from the person or in the presence of" the owner or victim. The statutes and decisions of the highest courts in at least twenty-seven states and the District of Columbia include the presence element in their definitions of robbery.²⁶ The presence element is also found in law treatises²⁷ and legal dictionaries.²⁸ And the United States Code includes a presence element in its definition of robbery.²⁹

New York, however, deliberately revised its robbery statute to eliminate the presence element.³⁰ In 1961, the New York Legislature "created a Temporary State Commission whose purpose was to revise and simplify the existing Penal Law."³¹ The Commission proposed eliminating the " ‘from the person or in the presence of’ limitation [because it] would exclude a variety of forcible thefts that were ‘robberies in spirit.’ "³² The New York Legislature subsequently adopted the proposal, expanding the definition of...