SEAN STUCKEY, Pеtitioner-Appellant, v. UNITED STATES OF AMERICA Respondent-Appellee.
No. 16-4133-pr
United States Court of Appeals For the Second Circuit
DECEMBER 20, 2017
August Term, 2017. Argued: September 29, 2017. The Clerk of Court is directed to amend the caption as set forth above.
Before: CHIN and DRONEY, Circuit Judges, and RESTANI, Judge.**
Appeal from a judgment of the United States District Court for the Southern District of New York (Oetken, J.) denying a motion filed pursuant to
MATTHEW B. LARSEN, Federal Defenders of New York, New York, NY, for Petitioner-Appellant.
NICHOLAS FOLLY, Assistant United States Attorney (Margaret Garnett, Assistant United States Attorney, of counsel), for Joon H. Kim, Acting United States Attorney for the Southern District of New York, New York, NY, for Respondent-Appellee.
In 2007, Sean Stuckey was convicted in the United States District Court for the Southern District of New York of possession of a handgun by a previously convicted felon in violation of
In 2016, Stuckey filed a motion in the district court under
In the district court‘s proceedings concerning his
The district court rejected this argument, concluding that the robbery statute‘s intent requirement satisfies Leocal‘s intent requirement without the need for additional proof that the defendant intended to commit the aggravating acts necessary to elevate the crime to first degree robbery. We agree with the district court that the intent requirement for an offense to qualify as an ACCA predicate was satisfied by Stuckey‘s two рrior first degree robbery convictions. Accordingly, we AFFIRM the judgment of the district court.
BACKGROUND
In March 2006, Sean Stuckey was on New York state parole and visited his parole office to report that he was having a “problem in his neighborhood.” United States v. Stuckey, No. 06-cr-339, 2007 WL 2962594, at *2 (S.D.N.Y. Oct. 10, 2007). Because his parole officer was not able to see him at that time, the officer visited Stuckey that evening at his rented room in the Bronx. Id. During the visit, the officer entered Stuckey‘s room and saw a loaded handgun on top of Stuckey‘s nightstand, in violation of his parole conditions. Id. at *3. Officers from the New York City Police Department arrived and took Stuckey into custody. Id. Stuckey was then indicted in the United States District Court for the Southern District of New York for possession of a handgun and ammunition by a felon, in violation of
At his sentencing on January 10, 2008, the district court (Patterson, Jr., J.) sentenced Stuckey to 188 months and 10 days’ imprisonment, applying the mandatory minimum of 180 months required by the ACCA,
Following his conviction and sentencing, Stuckey appealed to this Court. On appeal, Stuckey raised various arguments regarding his competency, the suppression and admission of evidence, the constitutionality of
During his hearing before the district court on his
DISCUSSION
On appeal, Stuckey argues that his New York first degree robbery convictions are not categorically violent felonies under the ACCA because he must have personally intended the particular enhanced conduct under the two subsections of the New York first degree robbery statute under which he was convicted to qualify the convictions as ACCA predicatеs. Stuckey relies on two Supreme Court precedents: Leocal v. Ashcroft, 543 U.S. 1 (2004), which requires a threshold level of intent for ACCA predicate crimes, and Johnson v. United States, 559 U.S. 133 (2010), which clarifies the degree of force necessary for an ACCA predicate. “We review de novo the district court‘s determination of whether a prior offense is a ‘violent felony’ under the ACCA,” United States v. Lynch, 518 F.3d 164, 168 (2d Cir. 2008), and conclude that Stuckey‘s first degree robbery convictions satisfy the ACCA‘s intent requirement.
The New York robbery statute sets forth the following as to the aggravating circumstances that elevate the offense to first degree robbery:
A person is guilty of [first degree] robbery . . . when he forcibly steals property and when, in the course of the commission of the crime . . . he or another participant in the crime: 1) Causes serious physical injury to any person who is not a participant in the crime; or 2) Is armed with a deadly weapon; or 3) Uses or threatens the immediate use of a dangerous instrument; or 4) Displays what appears to be a . . . firearm . . . .
The New York Court of Appeals explained the statute‘s intent requirement in People v. Miller, 661 N.E.2d 1358 (N.Y. 1995). There, the court drew a distinction between the “core robbery offense” and the aggravating circumstances necessary for a first degree robbery. 661 N.E.2d at 1362.4 To prove the “core robbery offense,” the state must establish “[t]he culpable mental state.” Id. Under the statute, “[i]t is the robber‘s intent . . . to permanently deprive the victim of property by compelling the victim to give up property or quashing any resistance to that act that is prohibited by law.” Id. In contrast, “strict liability attaches to an aggravating circumstance.” Id. at 1363.
The statute “imposes [this] strict liability” where “an attendant circumstance to the robbery [occurs] . . . , subjecting the robber to harsher punishmеnt because of the additional grievous consequences produced by the intended forcible taking.” Id. at 1362-63.
Here, Stuckey was convicted of the New York first degree robbery statute twice: once under subsection (3), and once under subsection (4).5 Thus, we must determine whether a conviction for these particular offenses—which require the use, threat, or display of a dangerous instrument or firearm—satisfies the intent requirement for ACCA predicates for all of the crime‘s participants in light of the strict liability component of the statute.
II. Categorical and Modified Categorical Approaches
To determine which prior convictions qualify as violent felonies under the
This inquiry requires a two-step analysis. We must first identify the “elements of the statute forming the basis of the defendant‘s conviction.” Descamps v. United States, 133 S. Ct. 2276, 2281 (2013). In doing so, we examine what is “the minimum criminal conduct necessary for conviction under [that] particular [state] statute,” Acosta, 470 F.3d at 135, mindful that “there must be a ‘realistic probability . . . that the State would apply its statute to conduct‘” that constitutes the minimal criminal activity necessary for a conviction, Moncrieffe v. Holder, 569 U.S. 184, 191 (2013) (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)).
Second, we then compare the minimum conduct necessary for a state conviction with the conduct that cоnstitutes a “violent felony” under the ACCA.
In some instances, an additional step is required because a “statute[] . . . ha[s] a more complicated (sometimes called ‘divisible‘) structure . . . .” Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). These statutes “list elements in the alternative, and thereby define multiple crimes.” Id. at 2249. When a court encounters a statute that might be violated using alternative elements, a court may “look[] to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of.” Id. The court then applies the categorical approach as it normally would, having determined that a statute “list[s] . . . multiple crimes,” and having established the particular subsection under which the defendant was convicted. Id. This approach is known as the modified categorical approach.
Here, the modified categorical approach applies. New York‘s first degree robbery statute lists four different aggravating circumstances, or different ways of committing the offense. Both the government and Stuckey agree that he was convicted under
As to the ACCA‘s intent requirement, we must assume that Stuckey himself did not commit or intend to commit the aggravated conduct that elevated the offenses to first degree robbery. Rather, because of
III. The Armed Career Criminal Act
The ACCA imposes a fifteen-year mandatory minimum sentence on individuals who are convicted of a violation of
any crime punishable by imprisonment for a term exceeding one year . . . that – (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is [one of several enumerated offenses], or otherwise involves conduct that presents a serious potential risk of physical injury to another . . . .
Two Supreme Court decisions interpreting the ACCA‘s elements clause provide particular guidance to us here. The first is Leocal v. Ashcroft, 543 U.S. 1 (2004). In Leocal, the Court addressed the “crime of violence” provision at
federal statute. 543 U.S. at 9. The Court held, however, that the elements clause of
The second Supreme Court decision is Johnson v. United States, 559 U.S. 133 (2010).10 Johnson 2010 concerned a Florida state criminal statute for battery. Under the Florida statute, a defendant could face conviction for “‘actually and intentionally touch[ing]‘” a victim. 559
U.S. at 136 (alteration omitted) (quoting
The Court, however, determined that the “physical force” required by the ACCA‘s elements clause is more demanding. Id. The Court stated that it must “interpret[] the phrase ‘physical force’ as used in defining . . . the statutory category of ‘violent felon[ies].‘” Id. at 140 (second alteration in original) (quoting
Thus, ACCA predicate convictions must satisfy these two requirements: (1) intent (as required by Leocal) and (2) sufficiently violent conduct (as required by Johnson 2010).
IV. Application of Leocal, Johnson 2010, and the Modified Categorical Approach
Stuckey argues that we should read Leocal‘s intent requirement in tandem with the Johnson 2010 degree of force requirement. Under this approach, Stuckey‘s New York convictions would qualify as ACCA predicates only if Stuckey intended the increased uses of force, that is, the aggravating conduct of subsections (3) and (4) of the robbery statute. The district court summarized this argument as “encourag[ing] the Court to combine Leocal and Johnson 2010 to hold that in order for an individual‘s prior conviction to be deemed a violent felony under the ACCA, that individual must have intended the use of violent force.” Stuckey v. United States, 224 F. Supp. 3d 219, 227 (S.D.N.Y. 2016). The district court, however, rejected this argument, reasoning that the “ACCA requires only that a crime satisfy Leocal‘s minimum intent threshold and that it separately clear Johnson 2010[‘s] ‘violent force’ bar to be deemed a violent felony—nothing more.” Id. at 228.
We again note that Stuckey does not contest that his first degree robbery convictions satisfy the force requirement described in Johnson 2010. The “[u]se[] or threaten[ed] . . . immediate use of a dangerous instrument,”
The intent requirement as to the use of force must also satisfy Leocal, however. But, we agree with the district court that the intent and force requirements outlined in Leocal and Johnson 2010 are examined separately. Under New York‘s first degree robbery statute, the state must first prove that the defendant “inten[ded] . . . to permanently deprive the victim of property by compelling the victim to give up property or quashing any resistance to that act.” Miller, 661 N.E.2d at 1362. This “requisite intent remains the same” regardless of whether the state charges a first, second, or third degree robbery. Id. The statute then imposes strict liability for any aggravating circumstances, “subjecting the robber to harsher punishment because of the additional grievous consequences produced by the intended forcible taking.” Id. at 1363. “This gradation of robbery offenses embodies a legislative determination that the presence of one of the enumerated ‘aggravating factors’ exacerbates the core criminal act and increases the danger of serious physical injury to . . . a non-participant, thus warranting harsher punishment for the robber.” Id. at 1361. “The enhanced severity of the crime is therefore reflected in the statutory designation of the degree of the offense.” Id.
The New York statute reflects the principle of criminal law that a defendant may be held responsible for actions taken by an accomplice to certain crimes. See United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938) (recounting the history of criminal liability for the acts of other individuals); Francis Bowes Sayre, Criminal Responsibility for the Acts of Another, 43 Harv. L. Rev. 689, 702-04 (1930). Indeed, certain federal offenses also embody this principle. See Pinkerton v. United States, 328 U.S. 640 (1946); United States v. Parkes, 497 F.3d 220, 232 (2d Cir. 2007).
Stuckey‘s objection is that a co-participant to the robbery might brandish or discharge a firearm without the accomplice knowing, рlanning, or at all intending for such additional violence to occur. But the ACCA requires only a threshold intent to engage in criminal conduct. The New
Leocal does not compel a different result. Commission of a first degree robbery in New York meets the rеquirement that a defendant have “a higher degree of intent than negligent or merely accidental conduct.” 543 U.S. at 9. Although the New York statute allows an individual to be held strictly liable for the display of a weapon, the defendant must intend to engage in “forcible stealing.”
Decisions from other circuits support this conclusion. For example, in United States v. Ramon Silva, the Tenth Circuit determined that it is sufficient that the predicate ACCA offense require general intent as to the conduct constituting the crime. 608 F.3d 663, 673-74 (10th Cir. 2010). The court rejected the argument that a defendant must have a specific intent to “injure or induce fear,” which the dissent argued was required by Leocal. Id. at 679. Rather, the court explained, it was sufficient for the defendant to intentionally engage in “apprehension causing” conduct that threatened the use of physical force—even if the defendant did not intend to cause injury. Id. at 673; see also United States v. Am, 564 F.3d 25, 33-34 (1st Cir. 2009) (holding that general intent as to a crime involving use of physical force meets the requirements for an ACCA predicate offense). So too here: the defendant need not commit the aggravating conduct, but rather need only intend to engage in the conduct of the underlying robbery.
Furthermore, Rosemond v. United States does not affect our conclusion, as Stuckey suggests. 134 S. Ct. 1240 (2014). In that case, the defendant, Rosemond, was involved in a “drug deal gone bad” when either he or an accomplice shot at a would-be drug buyer after the buyer stole drugs from Rosemond and his fellow drug sellers. Id. at 1243. The government charged Rosemond with aiding and abetting a violation of
Rosemond contended that these instructions were insufficient, and the Supreme Court agreed, holding that a “defendant‘s knowledge of a firearm must be advance knowledge” to result in aiding and abеtting liability under
Rosemond, however, simply interprеted the intent requirement for aiding and abetting liability. It thus does not bear on the question of whether a state offense that provides enhanced penalties for a defendant for violent aggravating circumstances under a “strict liability” regime requires additional intent as to the aggravating factor to count as an ACCA predicate offense. As we have explained, the intent to commit the underlying robbery in the New York statute is sufficient for ACCA purposes.
Thus, having determined that Leocal and Johnson 2010 impose separate thresholds for force and intent in evaluating potential ACCA predicate convictions, we conclude that Stuckey‘s first degree robbery convictions satisfy the modified categorical approach. Stuckey‘s convictions meet Leocal‘s intent requirement because the state was required to prove the robber‘s “intent . . . to permanently deprive the victim of property by compelling the victim to give up property.” Miller, 661 N.E.2d at 1362.
CONCLUSION
For the foregoing reasons, Stuckey‘s prior convictions under subsections (3) and (4) of the New York first degree robbery statute,