951 F.3d 66
2d Cir.2020Background
- David Ojeda pleaded guilty to being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)) and obstruction of justice; district court sentenced him to 15 years on the § 922(g) count under the Armed Career Criminal Act (ACCA).
- ACCA application rested on three prior New York convictions: 2007 first‑degree robbery (N.Y. Penal Law § 160.15) and two 1998 attempted controlled‑substance offenses (attempted sale, attempted possession with intent to sell).
- District court found (1) New York first‑degree robbery is a categorical ACCA “violent felony” under the elements clause and (2) the attempted drug offenses are ACCA “serious drug offenses.”
- Ojeda appealed, arguing (a) Curtis Johnson’s definition of "physical force" means his robbery conviction is not a violent felony, and (b) Samuel Johnson’s vagueness reasoning invalidates ACCA’s use of the word "involving," so his attempted drug convictions cannot qualify as serious drug offenses.
- The Second Circuit rejected both arguments, relying on circuit precedent (notably Thrower and Wallace) and affirmed the ACCA sentence.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Ojeda) | Held |
|---|---|---|---|
| Whether New York first‑degree robbery is a categorical "violent felony" under ACCA § 924(e)(2)(B)(i) | Robbery (any degree) requires forcible stealing that includes use/threatened use of physical force; thus it qualifies under the elements clause | Curtis Johnson limits "physical force" to "violent force" and Ojeda contends first‑degree robbery can be convicted without such force | Affirmed: New York forcible‑stealing element necessarily involves physical (violent) force; robbery is a categorical violent felony (Thrower controls) |
| Whether attempted sale/attempted possession with intent to sell are ACCA "serious drug offenses" under § 924(e)(2)(A)(ii) (the clause "involving manufacturing, distributing, or possessing") | "Involving" reasonably covers inchoate offenses whose elements require intent to manufacture/distribute/possess; federal law treats attempts/conspiracies similarly, so attempts qualify | Samuel Johnson struck ACCA language as unconstitutionally vague; Ojeda argues "involving" is likewise too vague to give notice that attempts qualify | Affirmed: "involving" is not unconstitutionally vague here; attempts that have elements requiring intent to distribute/possess with intent to distribute qualify as serious drug offenses (King, Wallace) |
Key Cases Cited
- Curtis Johnson v. United States, 559 U.S. 133 (2010) (defines "physical force" as "violent force" for ACCA elements clause)
- Samuel Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidated ACCA residual clause as unconstitutionally vague)
- Stokeling v. United States, 139 S. Ct. 544 (2019) (ACCA "physical force" covers force sufficient for common‑law robbery; degree of potentiality suffices)
- United States v. Thrower, 914 F.3d 770 (2d Cir. 2019) (New York robbery—even third degree—constitutes a categorical ACCA violent felony)
- United States v. Wallace, 937 F.3d 130 (2d Cir. 2019) (attempt crimes that have distribution/possession elements qualify as ACCA serious drug offenses)
- United States v. King, 325 F.3d 110 (2d Cir. 2003) (New York attempted possession with intent to sell qualifies as a serious drug offense under ACCA)
- Stuckey v. United States, 878 F.3d 62 (2d Cir. 2017) (recognizing New York robbery as crime of violence under the elements/force clause)
- Kawashima v. Holder, 565 U.S. 478 (2012) (categorical approach: determine whether elements of an offense "involve" a specified feature)