Case Information
‐ ‐ cr United States America Zimmian
UNITED STATES COURT OF APPEALS F OR THE S ECOND C IRCUIT
_____________________
A UGUST T ERM , (A RGUED : N OVEMBER D ECIDED : F EBRUARY 2020) No. ‐
_____________________ U NITED S TATES OF A MERICA , Appellee , ‐ ‐
Z IMMIAN T ABB
Defendant Appellant. Before: S ACK H ALL Circuit Judges R AKOFF District Judge .
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At issue case whether defendant appellant Zimmian Tabb’s convictions for N.Y. Penal Law (“N.Y.P.L.”) 120.05(2) federal constitute predicate offenses for purposes career offender enhancement Guidelines district (Hellerstein, J. ) applied enhancement found constituted “crime violence” *2 and conviction U.S.C. constituted predicate “controlled offense.” Court agrees both findings. Accordingly, application career offender sentencing enhancement was appropriate judgment district AFFIRMED.
_______________________ FOR APPELLEE: W ON S. S HIN Assistant United States
Attorney (Geoffrey S. Berman, United States Attorney for Southern District New York, David W. Denton, Jr., Rebekah Donaleski, Assistant United States Attorneys, on brief ), New York, NY FOR DEFENDANT APPELLANT: R ICHARD E. S IGNORELLI Law Office
Richard E. Signorelli, New York, NY
_______________________
RAKOFF, District Judge :
Zimmian appeals from judgment entered on January Order entered on January District for Southern District New York (Hellerstein, J. ). contends he was improperly classified career offender based convictions for N.Y. Penal Law (“N.Y.P.L.”) federal Because we agree both crimes constitute offenses purposes career offender enhancement Guidelines (“U.S.S.G.”) § 4B1.1, we affirm judgment of district court.
I. Facts
On May pled guilty aiding and abetting distribution of 3.75 grams of crack cocaine, violation of U.S.C. § 841(b)(1)(C) and U.S.C. § plea agreement did stipulate whether Tabb’s prior convictions qualified him for career offender enhancement U.S.S.G. Under U.S.S.G. 4B1.1, a defendant a career offender if (1) he over 18; (2) present offense felony violence or a controlled substance offense; (3) he “has least two prior felony convictions either controlled substance offense.” 4B1.2 sets out definitions both “crime violence” “controlled substance offense.”
At sentencing, district concluded had two felony convictions for purposes enhancement. First, Tabb’s conviction for distribute possess intent distribute crack cocaine violation constituted controlled offense. Second, violation N.Y. Penal Law (“N.Y.P.L.”) 120.05(2) constituted predicate violence.
Based on these convictions, district court concluded Tabb qualified career offender enhancement calculated Guidelines range months’ imprisonment. Without career offender enhancement, Guidelines range would have been months. Ultimately, district imposed below guidelines sentence months. appeals judgment order ground he should not have been classified as career offender. This reviews de novo district court’s interpretation Guidelines. Matthews 2000).
II. Analysis
argues he should not have been classified career offender 4B1.1 because he did not have two predicate convictions. First, he N.Y. Penal Law within *5 the relevant provision of U.S.S.G. § 4B1.2 (known as the “Force Clause”). Second, he argues conviction under U.S.C. § is not a it does qualify as a controlled offense. Neither persuasive.
A. Conviction Attempted Assault in Second Degree (N.Y.P.L § 120.05(2))
first attempted assault in second degree under N.Y.P.L § 120.05(2) a under Force Clause of § 4B1.2. A person guilty N.Y.P.L. § 120.05(2) when, “[w]ith intent cause physical injury to another person, he causes such injury to such person or a third person means a deadly weapon or a dangerous instrument.” This qualifies as “crime violence” Force Clause (also sometimes referred as “Elements Clause”) if it “has as element use, attempted use, or threatened use force against person another.” *6 U.S.S.G. § 4B1.2’s Force Clause identical language in two other statutes:
the definition of “violent felony” under the Armed Career Criminal Act (“ACCA”), and the definition of “crime of violence” under U.S.C. § 16(a). “[T]he identical language the elements clauses of 16(a) [ACCA] means cases interpreting the clause in one statute are highly persuasive in interpreting the other statute,” well as in interpreting Stuckey 62, n.9 2017), cert. denied S. Ct. (2018). Thus, evaluating claim, guided by its ACCA 16(a) jurisprudence. first the N.Y.
Penal Law cannot crime violence the substantive crime itself crime violence. To determine whether state crime falls Guidelines, the Second Circuit generally uses “categorical approach” prescribed Supreme Court. Taylor U.S. (1990). Under abstract approach, considers “generic, contemporary meaning” crime guidelines, id. then determines whether crime committed Force Clause, we need determine whether would also meet enumerated offenses clause definition violence. *7 defendant falls under this “generic offense.” Court “ignores the circumstances the particular defendant’s crime and asks instead what is the minimum criminal conduct necessary sustain conviction under relevant statute.” Singh v. Barr F.3d (2d Cir. 2019) (internal quotation marks and citation omitted). “[O]nly if statute’s elements are same as, or narrower than, those generic offense does serve offense enhancement.” v. Castillo F.3d (2d Cir. 2018) (internal quotation marks citation omitted). N.Y.P.L. 120.05(2) is categorical approach is severely undercut Court’s holdings from ACCA 16(a) contexts. In Walker (2d Cir. 2006) (per curiam), Court held N.Y.P.L. 120.05(2) “categorically” violent felony ACCA “[t]o (attempt to) cause injury means deadly weapon dangerous instrument necessarily (attempt to) ‘physical force,’ any reasonable interpretation term.” Id. More recently, Singh Barr 2019) (per curiam), reaffirmed Walker ’s holding held substantive *8 also categorically crime of violence under § 16(a)’s Force Clause. Thus, Court has found substantive crime of N.Y.P.L. § 120.05(2) categorically “has as an element use, threatened use of physical force against person of another” under both ACCA § 16(a).
Tabb provides no reason why result should be different under § Indeed, largely relies on cases from both ACCA § 16(a) context argue second ‐ degree assault N.Y.P.L. § 120.05(2) crime of violence. For example, relies earlier 16(a) case, Chrzanoski v. Ashcroft F.3d 2003), argue does qualify crime violence it may accomplished indirect force. Singh however, necessarily, explicitly, rejected when found was violence 16(a). (“[I]ndirect methods inflicting serious physical injury still meet physical force requirement 16(a).”). Moreover, view “force” set forth Chrzanoski was subsequently modified our Court in light Supreme decision Castleman which held force context misdemeanor domestic “encompasses even its indirect application.” Villanueva *9 123, (2d Cir. 2018) (quoting Castleman , U.S. 157, (2014)); see also Hill F.3d (2d Cir. 2018) (recognizing the Chrzanoski “did have benefit of Supreme Court’s reasoning Castleman ”).
Tabb’s alternative Chrzanoski based ‐‐ ‐ N.Y.P.L. 120.05(2) is categorically a crime violence can committed omission ‐‐ no more successful. In Singh requested supplemental briefing on “whether NYPL 120.05(2) allows imposition liability based defendant’s omission to act.” Singh at Neither parties nor panel were able find single example such liability being imposed. Id. Indeed, panel explained “it nearly impossible conceive scenario which person could knowingly or intentionally injure, or attempt injure, another person deadly weapon without engaging at least some affirmative, forceful conduct.” Id. (quoting Ramos 2018)). Thus, notwithstanding objections, we find substantive “has element use, threatened use force against person another” categorically
We next examine whether attempted second degree assault N.Y.P.L. 120.05(2) may nonetheless not categorically of violence. We reject possibility. Walker although an ACCA case, squarely held that attempted requires the attempted use of physical force “on any reasonable interpretation of that term.” at This essentially precludes finding New York attempted does not have “as element . . . use . . . of physical force against person another”
Recognizing application Walker ’s holding would negate argument, offers number reasons why not controlling here. None persuasive. first Walker not controlling Walker Court did discuss statutory definition “dangerous instrument,” which can include substances can cause death or physical injury without use any force. As discussed above, however, Supreme has rejected notion use poison another indirect application force does involve force, see Castleman S. Ct. Second Circuit has recognized adopted holding multiple statutory contexts. *11 See Villanueva , at 128 29 (ACCA); Hill , 890 F.3d at 59 60 (18 924(c)(3)(A)).
Tabb next argues that an intervening Supreme Court case, Johnson , U.S. (2010), effectively abrogated Walker . In Johnson , Supreme Court clarified “physical force” means “ violent force ‐‐ that is, force capable causing physical pain injury to another person.” Id. at 140. However, Walker held attempted in necessarily involves an attempt use such physical force “on any reasonable interpretation term.” Walker For reason, this has already rejected, albeit in unpublished opinion, notion Johnson abrogated Walker . See Brunstorff F. App’x Cir.), cert. denied S. Ct. (2019). We agree.
Finally, Walker controlling “attempt” New York law broader than generic “attempt” described in guidelines. Thus, argues, defendant could convicted in New York without ever “attempt[ing]” force sense defined guidelines. *12 The elements New York attempt, however, are no broader than generic attempt. The Second Circuit has found that generic attempt “the presence criminal intent completion substantial step toward committing crime.” Sui v. INS , 250 F.3d 105, 115 (2d Cir. 2001). New York attempt requires intent commit an “action taken an accused [] ‘so near [the crime’s] accomplishment all reasonable probability itself would have been committed.’” v. Pereira Gomez , 903 155, 166 (2d Cir. 2018) (quoting People v. Mahboubian NY.2d 174, (1989)). Second Circuit has held latter element New York attempt “categorically requires person take ‘substantial step’ toward force.” v. Thrower 2019) (per curiam). Thus, elements New York attempt are same narrower than generic attempt, *13 and attempted in under New York law categorically involves “attempted . . . of force” under U.S.S.G. § 4B1.2.
For foregoing reasons, we find under § categorically a under Force Clause U.S.S.G. § 4B1.2. Tabb’s conviction statute thus properly served as a predicate for his enhancement.
B. Conviction for Narcotics Conspiracy Under U.S.C. § also for to distribute possess with intent to distribute crack cocaine violation § (“Section 846”) cannot qualify as a “controlled substance offense” U.S.S.G. As defined U.S.S.G. 4B1.2, controlled substance offense is: offense federal or state law, punishable imprisonment term
exceeding one year, prohibits manufacture, import, export, distribution, or dispensing controlled substance (or counterfeit substance) or possession controlled substance (or counterfeit substance) intent manufacture, import, export, distribute, dispense. Application Note commentary clarifies controlled offenses “include offenses aiding abetting, conspiring, attempting commit such offenses.” 4B1.2 cmt. n.1. plain text U.S.S.G. 4B1.2 interpreted Application Note thus appears include *14 conspiracies such as U.S.C. 846. Tabb nonetheless argues that narcotics conspiracy Section is not encompassed by this definition, is thus not proper predicate enhancement. first that is
proper Application Note conflicts with Guidelines text by improperly expanding it. See Stinson U.S. (1993) (holding Guidelines commentary is valid binding judiciary unless is “plainly erroneous inconsistent with” Guidelines text). This argument, however, foreclosed this Circuit Jackson 1995). In Jackson directly addressed dismissed argument “the Sentencing Commission exceeded its statutory mandate . . . including drug conspiracies controlled substance offenses.” Id.
Although attempts argue Jackson only addressed Commission’s authority, specific Application Note improperly conflicts guideline text, purported distinction without substance. In our view, there no way reconcile Jackson ’s holding Commission had “authority expand definition ‘controlled *15 offense’ to include aiding abetting, conspiring, and attempting to commit such offenses” through Application Note 1, id. at 133, with Tabb’s proposed holding that Guideline text forbids expanding definition controlled offense include conspiracies. next argues that even if Application Note 1 is valid, the word “conspiracy” does not encompass conviction for federal narcotics conspiracy Section 846. [6] Specifically, he argues that narcotics conspiracy under 21 U.S.C. 846 not a “controlled offense” U.S.S.G. 4B1.1 because term conspiracy Application Note 1 encompasses only “generic” conspiracy. To do so, relies on United States v. Norman , 935 F.3d 232 (4th Cir. 2019), which Fourth Circuit held Application Note 1 incorporates generic definition conspiracy, generic conspiracy requires an overt act, federal narcotics conspiracy 21 846 not generic conspiracy because it does not require an overt act. Id. at 237 ‐ 38. [7] We respectfully disagree. The essence an agreement two more persons commit unlawful act. See Praddy F.3d *17 147, Cir. 2013). Although conspiracy common law often required that overt act, however trivial, be taken in furtherance conspiracy, Congress has chosen to eliminate requirement case several federal crimes, most notably narcotics conspiracy. Shabani U.S. (1994).
text structure Application Note demonstrate that it was intended to include Section narcotics conspiracy. Application Note clarifies “controlled substance offenses” include “the offense[] . . . conspiring . . . to commit such offenses,” language its face encompasses federal narcotics conspiracy. As Ninth Circuit recognized relation to similar Guideline provision, “To hold otherwise would conclude Commission intended exclude federal drug . . . conspiracy offenses when used word ‘conspiring’ modify phrase” controlled offenses. Rivera Constantino (9th 2015). Such holding would also require finding term “conspiracy” includes Section some parts guidelines, see, e.g. U.S.S.G. 2D1.1; 2X1.1, but others. “A standard principle statutory construction provides identical words phrases within same statute should *18 normally be given same meaning.” Rivera Constantino 798 at 905 (quoting Powerex Corp. Reliant Energy Servs., Inc. 551 U.S. 232 (2007)). Moreover, as Court noted in Jackson interpreting “controlled offense” conspiracies to include Section conspiracies harmonizes Sentencing Commission’s intent with congressional intent. This upheld Application Note Jackson part because Section manifested congressional “intent drug conspiracies underlying offenses should treated differently” “impos[ing] same penalty for narcotics conspiracy conviction as for substantive offense.” at Reading Application Note as intended to exclude Section would place Commission at odds Congress itself attaching sentencing enhancements substantive narcotics crimes but to very narcotics conspiracies Congress wanted treated same.
To us, it patently evident Application Note was intended does encompass Section conspiracy. statute thus properly served as predicate for his sentencing enhancement.
III. Conclusion
For foregoing reasons, district correctly concluded convictions for federal constituted crimes purposes career offender sentencing enhancement. district court’s judgment sentence are AFFIRMED.
‘after seizing every thing from which aid can derived, left with ambiguous statute.’” DePierre U.S. (2011) (quoting Smith U.S. (1993)). As described above, Court’s precedent, along traditional rules statutory interpretation, resolve any ambiguity guidelines decidedly against Tabb. Accordingly, rule lenity has no application here. Id.
[1] Jed S. Rakoff, District Southern District New York, sitting designation.
[2] As illustrates, career offender enhancement often dwarfs all other Guidelines calculations recommends imposition severe, even Draconian, penalties.
[3] A can also qualify as “crime violence” if meets guidelines’ “enumerated offenses clause,” or “is murder, voluntary manslaughter, kidnapping, aggravated assault, forcible sex offense, robbery, arson, extortion, or or unlawful possession firearm described 5845(a) explosive material as defined U.S.C. 841(c).” Because qualifies
[4] Although essentially veiled request overrule Walker we nonetheless address thereby reaffirm Walker ’s holding clarify its scope.
[5] citation People Naradzay N.Y.3d (2008), which individual was convicted murder without ever having been presence victims, does change outcome. Someone can take “substantial step” towards using force against victim even if victim physically present moment, example “load[ing] firearm then start[ing] towards person assailed.” People Sullivan N.Y. (1903).
To sure, Jackson only applies Second Circuit. correctly notes Sixth D.C. Circuits have recently agreed with Tabb’s argument that Application Note 1 conflicts text 4B1.2(b) by including crimes Guideline text excludes. See United States v. Havis 927 F.3d 382, (6th Cir. 2019) (en banc) (per curiam); v. Winstead F.3d (D.C. Cir. 2018); see also Crum 963, (9th Cir. 2019) (per curiam) (“If we were free do so, we would follow Sixth D.C. Circuits’ lead.”). But these decisions are no moment here, we, acting three judge panel, are liberty revisit Jackson . See Doscher Sea Port Grp. Sec., LLC 2016) (finding Court “bound panel’s decision until overruled either by sitting en banc Supreme Court”). Accordingly, we find Jackson precludes Application Note invalid.
[6] Government Jackson forecloses affirmed application enhancement based on Section conspiracy. In Jackson however, defendant “d[id] challenge application Sentencing Guidelines,” Jackson at but instead focused whether Applied Note was proper exercise Commission’s authority. Thus, Jackson does control specific question whether district erred finding Application Note 1’s language includes Section conspiracy.
[7] Norman joined Martinez Cruz (10th 2016), which reached same conclusions respect 2L1.2. Id.
[8] As final argument, urges least arguably ambiguous whether his offenses qualify offenses 4B1.1, rule lenity requires us interpret guidelines favor. rule lenity, however, tool last resort “reserved cases where,