830 F.3d 142
2d Cir.2016Background
- Corey Jones was convicted by a jury of assaulting a federal officer (18 U.S.C. § 111) after an altercation in a halfway house in 2013 in which he bit a Deputy U.S. Marshal.
- Probation designated Jones a career offender under U.S.S.G. §§ 4B1.1(a) and 4B1.2(a) based on prior New York convictions for first‑degree robbery and second‑degree assault, raising his guideline range substantially.
- The district court adopted the presentence report and sentenced Jones to 180 months’ imprisonment (within the career‑offender adjusted range).
- On appeal Jones argued (1) that Johnson v. United States precludes treating New York first‑degree robbery as necessarily a “crime of violence” under the Career Offender Guideline and (2) that his sentence was substantively unreasonable.
- The Second Circuit reviewed the unpreserved Johnson argument for plain error and analyzed whether a conviction under N.Y. Penal Law § 160.15(2) (forcible stealing while armed with a deadly weapon) necessarily involves the “violent force” Johnson requires.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether New York first‑degree robbery is necessarily a “crime of violence” under U.S.S.G. § 4B1.2(a) | Government: Spencer and prior circuit authority treat NY robbery as a crime of violence | Jones: After Johnson, NY robbery (including §160.15(2)) can be committed with less‑than‑violent force and so may not qualify | The court held Spencer is no longer controlling; NY first‑degree robbery is not necessarily a “crime of violence” for career‑offender purposes |
| Whether possession (but not use/display/threat) of a deadly weapon under §160.15(2) converts less‑than‑violent force into Johnson‑level violent force | Government: presence of a deadly weapon makes the offense violent | Jones: Mere possession without use/threat does not change the nature of the force used against the victim | Held that concealed/undeclared possession does not transform less‑than‑violent force into violent force under Johnson |
| Availability of the modified categorical approach given divisibility of §160.15 | Government: court could treat the statute as divisible and identify the subsection supporting the conviction | Jones: Record on appeal lacks the factual record to identify the subsection | Court: §160.15 is divisible; but because the record here lacks which subsection was the basis, the categorical inquiry controls and §160.15(2) cannot automatically qualify |
| Whether plain error occurred and whether resentencing is required | Government: any error was not plain or did not affect substantial rights | Jones: failing to apply Johnson was plain error that inflated his Guidelines range | Court: Error was plain, affected substantial rights (large Guidelines increase), and warranted vacatur and remand for resentencing |
Key Cases Cited
- Johnson v. United States, 559 U.S. 133 (2010) (defines “physical force” in ACCA context as violent force capable of causing pain or injury)
- Descamps v. United States, 570 U.S. 254 (2013) (limits use of modified categorical approach to divisible statutes)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (clarifies divisibility inquiry and scope of modified categorical approach)
- United States v. Reyes, 691 F.3d 453 (2d Cir. 2012) (applies Johnson reasoning to Career Offender Guideline)
- United States v. Spencer, 955 F.2d 814 (2d Cir. 1992) (prior Circuit decision treating NY robbery as crime of violence; overruled by this opinion)