United States v. Ball, 2017 U.S. App. LEXIS 16658

Background

Defendant Lonnie Ball pled guilty to possession of a firearm by a felon (18 U.S.C. § 922(g)(1)) and was assigned a Guidelines base level that treated him as having two predicate felonies: one controlled-substance conviction and a 2009 Pennsylvania second-degree robbery conviction (18 Pa. Cons. Stat. § 3701(a)(1)(iv)).
The Probation Office and district court treated the Pennsylvania robbery as a "crime of violence" under U.S.S.G. § 4B1.2(a), producing a higher Guidelines range; Ball contested that classification.
The Guidelines' crime-of-violence definition (2015 Manual) contained three routes: the force clause, enumerated offenses, and the residual clause (risk clause/applicability to examples in the commentary, including "robbery").
After briefing focused on the force clause and both parties (initially) assumed the residual clause was void in light of Johnson v. United States, the Supreme Court decided Beckles, holding the advisory Guidelines are not void-for-vagueness, putting the residual clause back in play.
The First Circuit requested supplemental briefing on whether the Pennsylvania robbery fits the residual clause either because it "involves conduct that presents a serious potential risk of physical injury" or because Pennsylvania robbery "substantially corresponds" to the generic definition of robbery in the Guidelines' commentary.
The First Circuit rejected Ball's waiver argument, held the court may address the issue despite the government's earlier concession, and affirmed that Pennsylvania second-degree robbery qualifies as a Guidelines "crime of violence" under the residual clause, affirming Ball's sentence.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the government waived reliance on the Guidelines' residual clause by conceding its invalidity below	Government (plaintiff) argued waiver excused because Beckles clarified residual clause is valid and appellate court need not accept prior concession	Ball argued government waived the residual-clause argument by not raising it below or on initial appeal	Court rejected waiver argument, followed precedent (Thompson) and excused the concession, proceeding to merits
Whether 18 Pa. Cons. Stat. § 3701(a)(1)(iv) qualifies under the residual clause as an offense that "involves conduct that presents a serious potential risk of physical injury"	Government: the statute’s elements (inflict, threaten, or intentionally put in fear of immediate bodily injury) present a serious potential risk either from the robber’s actions or victims’ responses	Ball: asserted that mere fear does not equate to a potential risk of physical injury	Court accepted government’s position that placing another in fear of immediate bodily injury ordinarily presents a serious potential risk and thus satisfies the residual clause
Whether Pennsylvania second-degree robbery "substantially corresponds" to generic robbery (so it is an example incorporated via the residual clause)	Government: Pennsylvania robbery (taking by force or intimidation) corresponds to generic robbery and any narrower language does not bar classification	Ball: argued that a taking based on intentional fear of immediate bodily injury is non-generic and thus outside the generic definition	Court held Pennsylvania robbery is compatible with generic robbery; any narrower phrasing does not prevent application under Taylor framework; thus it qualifies

Key Cases Cited

Johnson v. United States, 135 S. Ct. 2551 (Sup. Ct.) (invalidating identically worded ACCA residual clause on vagueness grounds)
Beckles v. United States, 137 S. Ct. 886 (Sup. Ct.) (advisory Sentencing Guidelines are not subject to a vagueness challenge)
Taylor v. United States, 495 U.S. 575 (Sup. Ct.) (framework for comparing state offense to generic offense)
James v. United States, 550 U.S. 192 (Sup. Ct.) (discussing risk posed by offenses involving threats of violence)
United States v. Giggey, 551 F.3d 27 (1st Cir.) (describing three ways an offense can be a "crime of violence" under the Guidelines)
United States v. Thompson, 851 F.3d 129 (1st Cir.) (refusing to accept government concession that residual clause was invalid post-Beckles)