United States v. Moore, 916 F.3d 231

Calvin Stephon Moore pled guilty (Oct 2015) to three counts of federal bank robbery under 18 U.S.C. § 2113(a) for robberies in Nov–Dec 2014; plea agreements specified robbery "by force and violence, or by intimidation."
At sentencing (May 2016, N.D.N.Y.), the Probation Office designated Moore a Career Offender under U.S.S.G. § 4B1.1 based on the instant bank-robbery convictions and two prior New York third-degree robbery convictions, yielding a Guidelines range higher than the sentence imposed.
Moore objected, arguing (relying on Johnson decisions) that neither federal bank robbery nor N.Y. Penal Law § 160.05 (robbery in the third degree) is a "crime of violence" under U.S.S.G. § 4B1.2, so the Career Offender enhancement was improper.
The district court applied the Career Offender enhancement and sentenced Moore to concurrent 135-month terms; it stated it would have imposed the same sentence even under different Guidelines calculations.
On appeal the Second Circuit stayed briefing pending Beckles and Jones developments, then considered whether (1) federal bank robbery under § 2113(a) and (2) N.Y. robbery in the third degree qualify as "crimes of violence" under the pre‑amendment (2015) Career Offender Guidelines.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether federal bank robbery (§ 2113(a) "by force and violence, or by intimidation") is a "crime of violence" under the 2015 Career Offender Guidelines (commentary clause)	Govt: § 2113(a) corresponds to generic robbery and is listed as robbery in the Guidelines commentary, so it qualifies	Moore: "Intimidation" can be non‑violent and need not involve use/threat of violent physical force, so § 2113(a) is not categorically a crime of violence under the force clause	Held: Yes — § 2113(a) (by force/violence or intimidation) is a crime of violence under the Guidelines commentary clause because it matches the generic definition of robbery
Whether New York robbery in the third degree (N.Y. Penal Law § 160.05) is a "crime of violence" under the force (elements) clause of U.S.S.G. § 4B1.2(a)(1)	Govt: N.Y. § 160.05 requires use or threatened immediate physical force in furtherance of larceny, satisfying the force clause	Moore: The statute can be violated with minor or non‑violent force, so it does not necessarily require "violent force" as defined in Johnson I	Held: Yes — N.Y. robbery in the third degree is categorically a crime of violence under the force clause (uses or threatens immediate physical force capable of causing pain/injury)

Johnson v. United States, 559 U.S. 133 (2010) ("physical force" means violent force capable of causing pain/injury)
Johnson v. United States, 135 S. Ct. 2551 (2015) (ACCA residual clause unconstitutional)
Beckles v. United States, 137 S. Ct. 886 (2017) (Sentencing Guidelines advisory, residual clause not subject to vagueness challenge)
Mathis v. United States, 136 S. Ct. 2243 (2016) (categorical/modified categorical approach and divisible statutes)
Descamps v. United States, 570 U.S. 254 (2013) (limits on use of Shepard documents under categorical approach)
United States v. Jones, 878 F.3d 10 (2d Cir. 2017) (guidance on robbery and the commentary/residual clause in this circuit)
Pereira-Gomez v. United States, 903 F.3d 155 (2d Cir. 2018) (N.Y. robbery is a crime of violence under similar force clause)
Stokeling v. United States, 139 S. Ct. 544 (2019) (Florida robbery statute requires only force sufficient to overcome resistance but still a violent felony under force clause)