United States v. Pereira-Gomez
903 F.3d 155
2d Cir.2018Background
- Pereira pleaded guilty in 1997 in New York to attempted robbery in the second degree (N.Y. Penal Law §§ 110.00, 160.10) and was subsequently deported multiple times.
- He was indicted in 2015 for illegal reentry after deportation following an aggravated-felony conviction, in violation of 8 U.S.C. §§ 1326(a), (b)(2), and pleaded guilty in 2016 without a plea agreement on Guidelines range.
- The parties disputed whether Pereira’s 1997 attempted-robbery conviction qualified as a "crime of violence" under U.S.S.G. § 2L1.2 (2014)—which would trigger a 16-level enhancement—focusing on application note 1(B)(iii)’s “enumerated offenses” and “force clause.”
- The District Court concluded the conviction was a crime of violence and applied the later (2016) Guidelines to impose a 46-month sentence; Pereira appealed the legal classification under the 2014 Guidelines.
- The Second Circuit examined whether New York attempted robbery matches the generic definition of robbery for the enumerated-offenses analysis and whether it has as an element the use, attempted use, or threatened use of violent physical force for the force-clause analysis.
Issues
| Issue | Pereira's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether NY attempted robbery (§§110.00, 160.10) is a "crime of violence" under the enumerated-offenses list in U.S.S.G. §2L1.2 cmt.1(B)(iii). | Pereira: It does not match generic robbery because NY law lacks the required "from the person or in the presence of" element; thus it sweeps more broadly. | Gov: The conviction falls within the enumerated offense "robbery" for enhancement. | Held: Not a crime of violence under the enumerated-offenses analysis (NY statute is broader than generic robbery). |
| Whether NY attempted robbery is a "crime of violence" under the force clause (elemental use/threatened use of physical force). | Pereira: Attempted robbery can be committed without violent force; after Johnson, "physical force" requires violent force capable of causing injury. | Gov: NY robbery requires "forcible stealing"—use/threat of immediate physical force sufficient to compel delivery—so it involves violent force. | Held: NY robbery (and attempted robbery) qualifies under the force clause as it requires violent force. |
| Whether the modified categorical approach is applicable given §160.10’s alternative acts. | Pereira: Certificate of disposition does not specify subsection, so ambiguity exists. | Gov: Modified categorical approach applies to determine whether elements meet the force-clause requirement. | Held: Applied modified categorical approach but outcome did not turn on which subsection was charged; robbery’s definition satisfies the force clause. |
| Whether earlier precedents (e.g., Spencer) remain good law post-Johnson. | Pereira: Johnson undermines Spencer’s holding that NY robbery is a crime of violence. | Gov: Johnson distinguished; NY robbery requires violent force unlike the battery statute in Johnson. | Held: Spencer remains consistent; NY robbery remains a crime of violence under the force clause despite Johnson. |
Key Cases Cited
- Descamps v. United States, 570 U.S. 254 (categorical approach limits inquiry to statutory elements)
- Mathis v. United States, 136 S. Ct. 2243 (use of categorical/modified categorical approaches)
- Johnson v. United States, 559 U.S. 133 ("physical force" means violent force capable of causing injury)
- Peugh v. United States, 569 U.S. 530 (ex post facto prohibition on applying harsher Guidelines promulgated after offense)
- Taylor v. United States, 495 U.S. 575 (definition of generic burglary and categorical method)
- United States v. Spencer, 955 F.2d 814 (2d Cir.) (holding New York robbery is a crime of violence under force clause)
- Stuckey v. United States, 878 F.3d 62 (2d Cir.) (force-clause analysis in Guidelines context)
- People v. Jurgins, 26 N.Y.3d 607 (N.Y. 2015) (NY Court of Appeals: some takings like snatching/pickpocketing are not robbery under NY law)