United States v. Thrower
914 F.3d 770
2d Cir.2019Background
- In 2005 William Thrower was convicted under 18 U.S.C. § 922(g)(1) for possessing a firearm; at sentencing in 2008 the district court applied the ACCA enhancement (18 U.S.C. § 924(e)(1)) and imposed a 180‑month mandatory minimum.
- The district court’s ACCA determination relied on Thrower’s prior New York convictions, including first‑degree robbery (N.Y. Penal Law § 160.15), third‑degree burglary (§ 140.20), fourth‑degree larceny (§ 155.30), attempted third‑degree robbery (§§ 160.05 & 110.00), and third‑degree robbery (§ 160.05).
- After Johnson II struck down ACCA’s residual clause as void for vagueness and Welch made Johnson II retroactive, Thrower filed a § 2255 petition challenging the ACCA enhancement.
- The district court granted relief, concluding that New York robbery in the third degree and attempted robbery in the third degree do not qualify as ACCA “violent felonies” under the force clause, leaving fewer than three valid predicates and ordering release on time served.
- The Government appealed, arguing that New York robbery (first and third degrees) and attempted third‑degree robbery categorically satisfy ACCA’s force clause because they require the use, attempted use, or threatened use of physical force sufficient to overcome resistance.
Issues
| Issue | Plaintiff's Argument (Thrower) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether NY robbery in the third degree is an ACCA "violent felony" under the force clause | §160.05 can be satisfied by less than force capable of causing physical pain/injury; thus not a violent felony | §160.05 requires "forcible stealing"—use or threatened immediate use of physical force to overcome resistance—matching ACCA's force clause | Robbery in the third degree is a "violent felony" under ACCA (force clause) |
| Whether NY robbery in the first degree is an ACCA "violent felony" | Certificate of Relief argument: restored civil rights might disqualify the conviction as an ACCA predicate | Certificate exception only applies if it removes firearm prohibition; Thrower did not show that here | Robbery in the first degree is a "violent felony" under ACCA |
| Whether NY attempted robbery in the third degree is an ACCA "violent felony" | An attempt could be to threaten use of force (not attempt to use force), so may not meet ACCA's attempted‑use element | NY attempt requires conduct ‘‘dangerously near’’ completion—a substantial step toward forcible stealing—thus satisfies attempted‑use element | Attempted robbery in the third degree is a "violent felony" under ACCA |
| Whether district court erred in granting §2255 relief and reducing sentence to 120 months | Relied on Johnson II to invalidate residual clause and found fewer than three valid predicates | Even without the residual clause, Thrower has three qualifying ACCA predicates (robberies and attempted robbery) so 180‑month minimum applies | Reversed district court; §2255 grant vacated; original 180‑month sentence to be reinstated |
Key Cases Cited
- Johnson v. United States, 559 U.S. 133 (2010) (defined "physical force" for ACCA as violent force capable of causing pain or injury)
- Stokeling v. United States, 139 S. Ct. 544 (2019) (ACCA "physical force" includes force necessary to overcome common‑law robbery resistance)
- Descamps v. United States, 570 U.S. 254 (2013) (adopted the categorical approach to prior‑conviction predicates)
- Welch v. United States, 136 S. Ct. 1257 (2016) (Johnson II applies retroactively to collateral challenges)
- United States v. Brown, 629 F.3d 290 (2d Cir. 2011) (review of categorical approach is de novo)
- Gonzales v. Duenas‑Alvarez, 549 U.S. 183 (2007) (petitioner must point to state‑court applications to show statute reaches nonqualifying conduct)