Moises Perez v. United States, 885 F.3d 984

Moises Perez pleaded guilty in 2015 to being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)) and was sentenced as an Armed Career Criminal to 210 months based on five prior convictions.
Perez filed a 28 U.S.C. § 2255 motion arguing three predicate convictions (two Ohio convictions and a 1987 New York second-degree robbery) no longer qualified after Johnson (2015) invalidated ACCA's residual clause.
The government conceded the two Ohio convictions no longer qualify but argued the New York second-degree robbery conviction still qualifies under ACCA’s elements clause (use, attempted use, or threatened use of physical force).
New York Penal Law § 160.10(1) criminalizes ‘‘forcibly steal[ing] property’’ when aided by another person; § 160.00 defines robbery as ‘‘forcible stealing’’ that involves ‘‘use or threaten[ed] the immediate use of physical force upon another person.’'
The statute is divisible into alternative means; Shepard documents established Perez’s conviction fell under § 160.10(1) (forcible stealing aided by another).
The district court denied relief; the Sixth Circuit affirmed, holding that New York second-degree robbery (as charged) satisfies ACCA’s elements clause.

Issue	Perez's Argument	Government's Argument	Held
Whether Perez’s New York second-degree robbery conviction qualifies as a "violent felony" under ACCA’s elements clause (18 U.S.C. § 924(e)(2)(B)(i)).	The NY statute can be applied to non-violent, minimal force conduct (per some NY appellate decisions), so it may not categorically require the use/threat of violent physical force.	§160.00 expressly requires use or threatened immediate use of physical force; the statutory text aligns with ACCA’s elements clause and New York precedent generally treats robbery as requiring violent force or intimidation.	The court held the NY conviction qualifies: the statutory definition of ‘‘forcibly stealing’’ requires use/threatened use of physical force and thus meets ACCA’s elements clause.
Whether the rule of lenity should resolve any residual ambiguity in favor of Perez.	Ambiguity in New York cases about the level of force makes application unclear; lenity favors the defendant and milder sentence.	The statute’s text plainly aligns with ACCA’s language; lenity is unnecessary where textual alignment and notice exist.	The court declined to apply lenity, finding no sufficient ambiguity given the statutory text and controlling New York authority.

Taylor v. United States, 495 U.S. 575 (categorical approach for prior offenses)
Shepard v. United States, 544 U.S. 13 (use of limited record documents to identify the statutory offense under the modified categorical approach)
Johnson v. United States, 576 U.S. 591 (invalidating ACCA residual clause on vagueness grounds)
Johnson v. United States, 559 U.S. 133 (defining "physical force" as violent force capable of causing pain or injury)
Mathis v. United States, 136 S. Ct. 2243 (divisible statutes and use of the modified categorical approach)
Moncrieffe v. Holder, 569 U.S. 184 (realistic probability standard limits imaginative readings of state statutes)
Gonzales v. Duenas-Alvarez, 549 U.S. 183 (realistic probability, not hypothetical possibility, governs categorical analysis)