Case Information
*2 BARRON , Circuit Judge
. In this appeal, the government challenges the 2016 sentence that Vincent Steed received for his conviction -- following his guilty plea -- for possession with intent to distribute Cocaine Base and Heroin in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). The District Court, in sentencing Steed, concluded that he did not qualify as a "career offender" under the United States Sentencing Guidelines and thus was not subject to the sentencing enhancement that otherwise would apply. The District Court then calculated Steed's guidelines sentencing range on that basis, and sentenced Steed to a prison term of 63 months, which was at the high end of the resulting guidelines sentencing range.
The government now contends that the District Court erred in concluding that Steed did not qualify as a "career offender" under the Sentencing Guidelines and thus that the District Court sentenced him based on an unduly low guidelines sentencing range. Accordingly, the government argues that Steed's sentence must be vacated so that Steed may be re-sentenced.
As has become common in cases of this type, we must address a number of complexities regarding the particularities of state law to resolve the issues on appeal. And, as has also become common in cases of this type, such complexities of state law in turn raise additional questions -- knotty in themselves -- about the requirements of the federal provision that seeks to identify *3 those offenders whose past violence warrants the imposition of an enhanced sentence. After working our way through these questions, we conclude that the government has not identified a sufficient basis for vacating the sentence. Accordingly, we affirm the judgment below.
I.
On June 27, 2016, in the United States District Court for the District of Maine, Steed pleaded guilty to violating 21 U.S.C. § 841(a)(1), (b)(1)(C). The Presentence Investigation Report ("PSR") prepared by the Probation Office recommended that Steed be classified as a "career offender" under § 4B1.1 of the United States Sentencing Guidelines, as set forth in the 2015 version of the United States Sentencing Guidelines Manual.
That guideline defines a "career offender" to include those defendants who have two prior convictions, whether for a "controlled substance offense," U.S. Sentencing Guidelines Manual § 4B1.1(a) (U.S. Sentencing Comm'n 2015), any "crime of violence," id. § 4B1.1(a), or any combination thereof. A "crime of violence" is defined as:
[A]ny offense under federal or state law, punishable by imprisonment for a term exceeding one year, that[] (l) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
Id. § 4B1.2(a).
The first subpart of the language just quoted ("has as
an element the use, attempted use, or threatened use of physical
force against the person of another") is commonly referred to as
the "force clause" of the "crime of violence" definition. See
United States v. Ball,
The District Court thereafter held a sentencing hearing.
The District Court determined at the hearing that the variant of
second-degree robbery under New York law that Steed had been
*5
convicted of attempting to commit did not have as an element the
use of "violent force" under Johnson v. United States, 559 U.S.
133, 140 (2010) (Johnson I). Thus, the District Court reasoned
that Steed had been convicted of an offense that did not fall
within the force clause of the career offender guideline's
definition of a "crime of violence." The District Court then
bypassed the question whether that offense fell within the residual
clause of that guideline's definition of a "crime of violence"
because the government conceded that, after Johnson v. United
States,
Partly in consequence of this ruling, the District Court determined that Steed's total offense level was 19, rather than 29, as the PSR had stated. The District Court also determined that, as the PSR had stated, Steed's criminal history category was VI. The District Court then accepted the government's recommended two-level reduction of Steed's total offense level. The District Court thus calculated Steed's guidelines sentencing range to be 51 *6 to 63 months of imprisonment. The District Court then sentenced Steed to a sentence at the high end of that range -- 63 months of imprisonment.
The parties do not dispute that Steed's conviction for two counts of drug trafficking under Maine law qualifies as a conviction for a "controlled substance" offense under the career offender guideline. See U.S.S.G. § 4B1.2(b). The dispute before us therefore concerns only whether the government is right in contending that, contrary to the District Court's ruling, Steed's conviction for attempted second-degree robbery under New York law qualifies as a predicate conviction under the career offender guideline as a "crime of violence." For, if the government is right on that point, then Steed is subject to the career offender enhancement under that guideline.
II.
We begin with the government's contention that Steed's
2000 conviction for attempted second-degree robbery under New York
law is for an offense that "has as an element the use, attempted
use, or threatened use of physical force against the person of
another" and thus is for an offense that the force clause of the
career offender guideline's definition of a "crime of violence"
encompasses. U.S.S.G. § 4B1.2(a)(1). Our review is de novo.
United States v. Almenas,
A.
In assessing whether a conviction qualifies as a
predicate conviction under the force clause of the career offender
guideline's definition of a "crime of violence," we apply what is
known as the "categorical approach." United States v. Dávila-
Félix,
In cases where the state criminal statute at issue "sets
out one or more elements of the offense in the alternative[,]"
such that the offense is divisible into more than one offense, we
must first identify the specific offense for which the defendant
was convicted. Descamps v. United States,
B.
New York Penal Law § 160.00 sets forth the general definition of the offense of robbery by providing that:
A person forcibly steals property and commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of . . . [p]reventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or . . . [c]ompelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.
Section 160.10 then sets forth four variants of robbery in the second degree. N.Y. Penal Law § 160.10. Section 160.10(2)(a), which is the variant that the parties agree is relevant here, defines that offense to occur when "when [someone] forcibly steals property," and "[i]n the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime: . . . [c]auses physical injury to any person who is not a participant in the crime." N.Y. Penal Law § 160.10(2)(a). Finally, New York defines an "attempt" as *9 occurring when someone, "with intent to commit a crime . . . engages in conduct which tends to effect the commission of such crime[.]" N.Y. Penal Law § 110.00.
We set to one side the fact that Steed was convicted of attempting to commit second-degree robbery under § 160.10(2)(a). Doing so allows us to focus on whether this variant of second- degree robbery is an offense that falls under the force clause. For, if that offense does not fall under that clause, then the offense of attempting to commit that offense does not either.
We begin our review by following the lead of the parties
and considering our recent precedent in United States v. Mulkern,
Mulkern concerned a defendant's contention that his prior state law conviction under Maine law for a robbery offense did not qualify as a predicate conviction under the Armed Career Criminal Act (ACCA). Id. at 92. Mulkern's analysis of ACCA is relevant here because of that statute's similarities with the career offender guideline.
ACCA penalizes those who possess firearms if they have three or more prior convictions for a "violent felony." 18 U.S.C. § 924(e)(1). Moreover, ACCA's definition of a "violent felony," *10 id. § 924(e)(2)(B), contains a force clause that is worded nearly identically to the force clause of the career offender guideline's definition of a "crime of violence." Thus, as we have explained before, precedents that, like Mulkern, construe the force clause
in the definition of a "violent felony" under ACCA are directly
relevant to the analysis that we must undertake in construing the
force clause of the career offender guideline's definition of a
"crime of violence." See United States v. Hart,
We explained in Mulkern that the robbery offense under Maine law for which the defendant had been convicted in that case required that the defendant had "use[d] physical force on another with the intent . . . (1) to prevent or overcome resistance to the taking of the property, or to the retention of the property" or "(2) to compel the person in control of the property to give it up or to engage in other conduct which aids in the taking or carrying away of the property." 854 F.3d at 91 (quoting Me. Stat. tit. 17-A, § 651(1)). We then held that neither variant of this robbery offense under Maine law qualified under the force clause of ACCA's *11 definition of a "violent felony" because of the way that Maine defined the robbery offense. Id. at 93-94.
In so holding, we relied on the decision of Maine's
highest court in Raymond v. State,
On that basis, we then concluded that the force clause
of ACCA's definition of a "violent felony" did not encompass the
offense of robbery in Maine that was at issue. Id. at 93-94. We
reasoned that such a minimal use of force as would be required
merely to snatch a purse was too slight a use of force to constitute
force "'capable of causing physical pain or injury'" under
Johnson I. Id. at 93-94 (quoting Johnson I,
C.
The government contends that a review of the relevant New York state court precedent shows that § 160.10(2)(a) falls within the force clause of the career offender guideline's definition of a "crime of violence" because that offense requires more than the use or threatened use of "any physical force." Mulkern, 854 F.3d at 93. And, the government contends, that conclusion is supported by the precedent that shows that New York law -- unlike Maine law, as Mulkern had held -- does not make a mere purse snatching a robbery in the second degree under § 160.10(2)(a), and that this was the case, presumably, even as of 2000, when Steed was convicted.
The government relies for this assertion chiefly on a
relatively recent New York Court of Appeals case, People v.
Jurgins,
The government does also point to several New York intermediate appellate court precedents that pre-date Steed's conviction. These cases address the conduct that may qualify as either second-degree or third-degree robbery under New York law.
State intermediate appellate court precedents are
certainly potentially relevant to our present inquiry. But the
precedents on which the government relies do not suffice to support
its contention. Those cases find there to have been a robbery
under New York law based on the use of seemingly greater force
than was necessary to prove robbery under the Maine robbery statute
considered in Mulkern. See, e.g., People v. Bennett, 631 N.Y.S.2d
834, 834 (N.Y. App. Div. 1995) (creation of a "human wall" was
sufficient force for second-degree robbery); People v. Lee, 602
N.Y.S.2d 138, 139 (N.Y. App. Div. 1993) (a "bump" and "forcibly
block[ing]" the victim's pursuit was sufficient force for second-
degree robbery); see also People v. Safon,
As it happens, there are precedents that the government does not reference but that pre-date Steed's 2000 conviction and that directly address whether the act of snatching property falls within New York's definition of robbery either in the second or the third degree. We thus must consider these precedents. If they indicate that, as of 2000, a snatching may have constituted a second-degree robbery under § 160.10(2)(a), then Steed's conviction would not be one for an offense that falls within the force clause. For there need be only "'a realistic probability . . . that the [state] would apply its statute . . .'" to include that minimal conduct in order for the state statutory offense to fall outside the force clause. United States v. Ellison, 866 F.3d 32, 38 (1st Cir. 2017) (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)) (alteration in original).
A number of these precedents do favor the government's
position that snatching does not constitute robbery in the second
degree under § 160.10(2)(a) and did not do so prior to Steed's
*17
conviction. See People v. Middleton,
Lawrence held that the defendant committed a robbery in
the third degree in "snatching" a purse because the court was "'not
persuaded that [the] defendant engaged in a nonphysical,
unobtrusive snatching' of the victim's purse." Id. at 770 (quoting
People v. Rivera, 554 N.Y.S.2d 115, 116 (N.Y. App. Div. 1990))
(emphasis added). Lawrence indicates that a snatching not unlike
one that would qualify as a robbery under the statute considered
in Mulkern, 854 F.3d at 93, could be considered physical and
obtrusive enough to constitute a robbery in New York, at least in
the third degree, even if a mere "stealthy taking," see Raymond,
Moreover, in People v. Santiago, 402 N.E.2d 121 (N.Y.
1980), which was decided more than a decade before Lawrence, an
intermediate appellate court considered whether a defendant who
was on a moving train and had snatched a purse from a victim
standing on a subway platform had thereby committed a robbery in
the second degree under § 160.10(2)(a). People v. Santiago, 405
N.Y.S.2d 752, 753 (N.Y. App. Div. 1978) aff'd,
That court ultimately determined that there was no need to resolve that issue definitively because "there was sufficient *19 evidence to support a jury finding that the victim resisted by clinging to her purse and that the overcoming of this resistance, through the use of the overwhelming momentum of the train, constituted a robbery by any definition of that term." Id. And, on appeal, the New York Court of Appeals affirmed the intermediate appellate court's ruling in a one paragraph decision that also did not resolve the issue of whether purse snatching per se constitutes a robbery. Santiago, 402 N.E.2d at 121. But, in light of the intermediate appellate court's opinion, it appears that, as of the time of Santiago, it was an open question under New York law as to whether second-degree robbery under § 160.10(2)(a) encompassed purse snatchings like those that Maine counts as robberies.
To be sure, neither the third-degree robbery offense at issue in Lawrence nor the robbery offense at issue in Mulkern required, as second-degree robbery under § 160.10(2)(a) does, that the defendant or another participant in the crime "[i]n the course of the commission of the crime or of immediate flight therefrom . . . [c]ause[] physical injury to any person who is not a participant in the crime." N.Y. Penal Law § 160.10(2)(a). And the government contends that this injury requirement means that this variant of second-degree robbery in New York on its face requires the use of more force (or threatened force) than a robbery offense like the one at issue in Mulkern, which could be committed by a mere snatching.
But, it appears that, at least prior to Steed's 2000
conviction, this injury requirement would not in and of itself
have ruled out a snatching from qualifying as a robbery in the
second degree under § 160.10(2)(a). A 1997 intermediate appellate
court precedent from New York had ruled that an injury that
occurred when the victim of the offense fell while chasing the
perpetrator satisfied the injury requirement under § 160.10(2)(a),
as long as such injury could be "foreseen as being reasonably
related to the acts of the accused." People v. Brown, 653 N.Y.S.2d
301, 303 (N.Y. App. Div. 1997). That is significant because
Lawrence indicated that, as of 2000, a snatching that engendered
awareness of the theft in the victim constituted a robbery in the
third degree. See Lawrence,
*21 Accordingly, as we read the relevant New York precedents, there is a realistic probability that Steed's conviction was for attempting to commit an offense for which the least of the acts that may have constituted that offense included "purse snatching, per se." Santiago, 405 N.Y.S.2d at 757. As
Mulkern held that such conduct falls outside the scope of the
nearly identically-worded force cause at issue there, Mulkern, 854
F.3d at 93-94, we cannot say that, under the categorical approach,
Steed's conviction was for an offense that the force clause of the
career offender guideline's definition of a "crime of violence"
encompasses. We note in this regard that other courts have held
that the force clause fails to encompass second-degree robbery in
New York. Childers, 2017 WL 2559858 at 10; Moncrieffe, 167
F. Supp. 3d at 406; Johnson,
III.
We turn, then, to the government's alternative argument. Here, the government contends that Steed's conviction was for an offense that, even if not covered by the force clause of the career offender guideline's definition of a "crime of violence," is covered by that definition's residual clause. U.S.S.G. § 4B1.2(a)(2). But, we do not agree.
A.
As an initial matter, Steed argues that the government
waived this argument when it conceded that the residual clause was
unconstitutional under Johnson II. As the government points out,
however, there has been a "significant change[] in the legal
landscape" since Steed's sentencing. Shortly after the District
Court sentenced Steed, the Supreme Court decided Beckles v. United
States,
There is a wrinkle, however. Each of the post-Beckles
cases in which we declined to hold the government to its earlier
concession concerned an appeal by the defendant who was challenging
his sentence for being too harsh. Here, by contrast, the
government brings the appeal, and the government does so in order
to subject the defendant to a more severe sentence than he had
received. But even if we assume that, notwithstanding this
wrinkle, the government is not bound by its concession below, the
government's argument still fails under the demanding standard of
review that the government concedes that we must apply. In that
regard, we note that, ordinarily, the question of whether a
conviction is for a "crime of violence" under the residual clause
is one of law, for which our review would be de novo when the issue
has been properly preserved below. See United States v. Soto-
Rivera,
Given the government's concession regarding the proper
standard of review and our general rule that "a party who neglects
to call a looming error to the trial court's attention" is subject
to plain error review, United States v. Sánchez–Berríos, 424 F.3d
*24
65, 73 (1st Cir. 2005), we apply the plain error standard of
review. Accordingly, the government faces the "onerous burden" of
showing "(1) that an error occurred (2) which was clear and obvious
and which not only (3) affected the [party's] substantial rights,
but also (4) seriously impaired the fairness, integrity, or public
reputation of judicial proceedings." United States v. Ríos-
Hernández,
Significantly, as the Court explained in United States
v. Olano,
Id. at 735-37 (internal citations and alterations omitted). And, we conclude, the government has failed to make the required showing under the fourth prong of the plain error standard. Accordingly, we conclude that the government's argument under the residual clause fails.
B.
The parties start with the first two prongs of the plain error standard and vigorously dispute whether it is a clear or obvious error to conclude that the residual clause of the career *25 offender guideline's definition of a "crime of violence" does not encompass an attempt to commit this type of second-degree robbery under New York law. The parties do so chiefly by contesting whether the offense of robbery at issue in this case matches the generic definition of robbery, as robbery is one of the offenses listed in the Application Note to the career offender guideline. U.S.S.G. § 4B1.2, comment. (n.1); see also Ball, 870 F.3d at 5 (holding that the offense listed in the Application Note may be treated "as additional enumerated offenses"). [1]
We do not need to resolve this dispute, however. In order to meet the plain error standard, the government must show that the error, in addition to being clear or obvious, affected the government's substantial rights -- prong three -- and "seriously impaired the fairness, integrity, or public reputation of judicial proceedings" -- prong four. Ríos-Hernández, 645 F.3d at 462. But, the government does not expressly address either the third or fourth prongs of the plain error standard. And even if we assume that the government has impliedly satisfied the third prong by identifying the significant difference in the sentencing range that it contends should have been applied relative to the one that was applied, the government's failure to make any express *26 argument as to the fourth prong of the plain error standard is more problematic.
We are aware of no precedent in which we have addressed
whether a sentencing error that favors the defendant, if not
corrected so that a much harsher sentence may be imposed, would
impair the "fairness, integrity, or public reputation of judicial
proceedings." Id. Some courts of appeals have said that
"sentencing errors raised by the government on appeal require
correction because failure to correct such errors may damage the
reputation of the judicial system by allowing district courts to
sentence without regard to the law." United States v. Gordon, 291
F.3d 181, 194 (2d Cir. 2002) (citing United States v. Barajas–
Nunez,
*27 But, regarding which standard we should apply, the government makes no argument at all. Nor does the government argue why, under whichever test we might apply, a decision to let this sentence stand -- following the government's express concession as to its lawfulness below -- would impair the "fairness, integrity, or public reputation of judicial proceedings," Ríos-Hernández, 645 F.3d at 462, such that remand so that a new and harsher sentence may be imposed is required.
Given the defendant's interest in repose that is
implicated, and the fact that our refusal to permit resentencing
here appears unlikely to be the precipitating cause for the
government to decline to make concessions based on its own best
guess (wrong though it may turn out to be) as to what the
Constitution requires, we do not see how the government could be
said to have satisfied its burden under the fourth prong by not
even addressing it. Thus, we hold that the government has failed
to meet its burden of showing plain error by failing -- in a
situation in which the claimed sentencing error does not obviously
impair the fairness, integrity, or public reputation of the
underlying judicial proceeding -- to make any argument as to how
the fourth prong of that demanding standard is met. See United
States v. Savarese,
(1st Cir. 1990) (holding that undeveloped arguments are waived).
IV.
Accordingly, the sentence is affirmed .
Notes
[1] The parties also dispute whether New York's definition of attempt falls within the generic definition of attempt.