United States Court of Appeals 

For the First Circuit 

No. 17-1011 

UNITED STATES OF AMERICA, 

Appellant, 

v. 

VINCENT STEED, 

Defendant, Appellee. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MAINE 

[Hon. Nancy Torresen, U.S. District Judge] 

Before 

Kayatta, Selya, and Barron, 

Circuit Judges. 

Richard W. Murphy, Acting United States Attorney, and Julia 

M. Lipez, Assistant United States Attorney, on brief for appellant.

 Molly Butler Bailey and Strike, Gonzalez & Butler Bailey on 

brief for appellee. 

January 12, 2018 

 
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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 
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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. 
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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, 870 F.3d 1, 3 (1st Cir. 2017). The final 

clause of the second subpart ("otherwise involves conduct that 

presents a serious potential risk of physical injury to another") 

is known as the "residual clause" of that definition. Id. 

The PSR based the conclusion that Steed was a career 

offender under the guideline on his conviction in 2012 for two 

counts of drug trafficking under Maine law and his conviction in 

2000 for attempted robbery in the second degree under New York 

law. Having determined that the drug trafficking and robbery 

convictions each qualified as predicate offenses under the career 

offender guideline, the PSR applied the career offender sentencing 

enhancement, which resulted in the PSR identifying Steed's total 

offense level under the guidelines to be 29. The PSR also 

determined Steed's criminal history category to be VI. In 

consequence, the PSR calculated Steed's sentencing range under the 

guidelines to be 151 to 188 months of imprisonment.

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 
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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, 135 S. Ct. 2551 (2015) (Johnson II), the residual clause 

was unconstitutionally vague. Accordingly, the District Court 

concluded that the career offender enhancement did not apply to 

Steed, as he had only one prior conviction that qualified as a 

conviction for a predicate offense under the career offender 

guideline -- namely, his conviction under Maine law for two counts 

of drug trafficking, which was a qualifying "controlled substance" 

offense. 

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 
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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, 553 F.3d 27, 31 (1st Cir. 2009). 
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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. DávilaFélix, 667 F.3d 47, 55-56 (1st Cir. 2011) (internal quotation marks 

omitted). Under that approach, we consider "the statutory 

definition of the offense in question, as opposed to the particular 

facts underlying the conviction." Id. at 56 (quoting United States 

v. Piper, 35 F.3d 611, 619 (1st Cir. 1994)); see also Taylor v. 

United States, 495 U.S. 575, 602 (1990). We undertake this 

analysis by focusing on the elements of the offense. DávilaFélix, 667 F.3d at 57. If the elements of the state statute of 

conviction "encompass[] only conduct that constitutes a predicate 

offense," then the conviction qualifies as a predicate conviction 

under the force clause of the career offender guideline's "crime 

of violence" definition. Id. at 56. 

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, 133 S. Ct. 2276, 2281 

(2013); United States v. Tavares, 843 F.3d 1, 10 (1st Cir. 2016), 

reh'g denied, 849 F.3d 529 (1st Cir. 2017). The parties agree 
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that Steed's conviction was for attempting the type of seconddegree robbery that § 160.10(2)(a) of the New York Penal Law sets 

forth. Accordingly, we must determine whether Steed's conviction 

for that offense categorically qualifies as a conviction for a 

"crime of violence" under the force clause of the career offender 

guideline's definition of that term. 

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 
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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 seconddegree 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, 

854 F.3d 87 (1st Cir. 2017). The parties recognize that Mulkern 

considered a similar issue to the one that we confront here, even 

though that case did not concern a potential application of the 

career offender guideline. 

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," 
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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, 674 F.3d 33, 41 

n.5 (1st Cir. 2012) (explaining that, because ACCA's definition of 

a "violent felony" is "almost identical[]" to the Sentencing 

Guidelines' definition of a "crime of violence," we have held that 

"'decisions construing one term inform the construction of the 

other'") (quoting United States v. Holloway, 630 F.3d 252, 254 n.1 

(1st Cir. 2011)).

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 
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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, 467 A.2d 161, 165 (Me. 1983). 

There, the Maine Law Court explained that the drafters of Maine's 

robbery statute, Me. Stat. tit. 17-A, § 651, "made a conscious 

decision that any physical force with the intent specified in" the 

relevant portion of the statute that defined that offense sufficed 

to satisfy the force element of that offense. Raymond, 467 A.2d 

at 165 (emphasis in original). The Maine Law Court concluded that, 

in light of this statutory definition of the offense of robbery, 

"a case where the victim was at the time unaware of a stealthy 

taking of her purse" did not constitute a robbery, but that a purse 

"snatching" effected with the requisite intent did. Id. at 164. 

Raymond explained that "the mere act of snatching a purse from the 

hand of a victim is a sufficient act of physical force required 

for robbery," because of the amount of physical force that the act 

of "snatching" necessarily requires the perpetrator to use. Id. 

Raymond relied for this conclusion on the reasoning of 

Commonwealth v. Jones, 283 N.E.2d 840 (Mass. 1972). In that case, 

the Massachusetts Supreme Judicial Court had explained, in holding 

that a purse snatching constituted a robbery under Massachusetts 

law, that "where, as here, the actual force used is sufficient to 

produce awareness, although the action may be so swift as to leave 
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the victim momentarily in a dazed condition, the requisite degree 

of force is present to make the crime robbery." Id. at 845. 

In light of Raymond, we concluded in Mulkern that 

"Maine's highest court recognizes that 'any physical force' 

suffices to satisfy the 'physical force' element" of the offense 

of robbery, because Maine defines that offense's physical force 

requirement to be satisfied by a use of physical force that 

suffices to produce mere awareness in the victim. Mulkern, 854 

F.3d at 93 (quoting Raymond, 467 A.2d at 165) (emphasis omitted). 

We thus concluded that the robbery offense at issue could, under 

Maine law, be satisfied by proof of "'the mere act of snatching a 

purse from the hand of a victim' . . . even if the robber never 

made 'direct bodily contact' with the victim." Id. (quoting 

Raymond, 467 A.2d at 164, 165). 

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, 559 U.S. at 140); see 

also Johnson I, 559 U.S. at 140-41 ("We think it clear that in the 

context of a statutory definition of 'violent felony,' the phrase 

'physical force' means violent force -- that is, force capable of 
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causing physical pain or injury to another person. . . . When the 

adjective 'violent' is attached to the noun 'felony,' its 

connotation of strong physical force is even clearer."); accord 

United States v. Ramos–González, 775 F.3d 483, 504 (1st Cir. 2015). 

Against this precedential background, we turn back, 

then, to the question at issue here: whether the type of robbery 

that Steed was convicted of attempting to commit -- a variant of 

second-degree robbery under New York law -- falls within the force 

clause of the career offender guideline's definition of a "crime 

of violence." The answer to this key question is one that concerns 

the state of New York law as it stood at the time that Steed was 

convicted of attempting to commit that crime, which was in 2000. 

That is so because we apply an historical approach to determine 

whether an offense categorically matches the elements of the force 

clause of the definition of a "crime of violence" under the career 

offender guideline. After all, that is the approach that we use 

in construing the force clause of the definition of a "violent 

felony" under ACCA, United States v. Faust, 853 F.3d 39, 57 (1st 

Cir. 2017) (holding that categorical analysis under ACCA must be 

conducted as to the state of the law at the time of the defendant's 

conviction), and, as we have explained, our precedents concerning 

the proper construction of ACCA's force clause inform our 

construction of the career offender guideline's force clause as 

well, see Hart, 674 F.3d at 41 n.5. 
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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, 46 N.E.3d 1048 (N.Y. 2015). We are, of course, bound by 

how a state's highest court defines a crime in that state. See 

Tavares, 843 F.3d at 14. But, even setting aside the fact that 

Jurgins was decided long after Steed's conviction, we do not find 

Jurgins to support the government's contention about the state of 

New York law at the time of that conviction. Jurgins simply 

assumed, based on the representations of the parties in that case, 

that a purse snatching would not qualify as a robbery under New 

York law. 46 N.E.3d at 1053. For that reason, Jurgins makes no 

holding with respect to the issue that we must resolve. 
- 15 - 

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 seconddegree robbery); see also People v. Safon, 560 N.Y.S.2d 552, 552 

(N.Y. App. Div. 1990) (tugging money was sufficient force for 

third-degree robbery); cf. United States v. Moncrieffe, 167 F. 

Supp. 3d 383, 404-05 (E.D.N.Y.), appeal withdrawn, No. 16-965 (July 

31, 2016) (discussing cases). But, even if the government is right 

that bumping, tugging, and forming a wall constitute conduct that 

falls within the force clause of the provision of the career 

offender guideline that defines a "crime of violence," but see 

United States v. Childers, 2017 WL 2559858 at 10 (D. Me. June 6, 
- 16 - 

2017); Moncrieffe, 167 F. Supp. 3d at 406; United States v. 

Johnson, 220 F. Supp. 2d 264, 272 (E.D.N.Y. 2016), these precedents 

do not rule out the possibility that less significant uses or 

threatened uses of force, including purse snatching, could have 

been used to commit a robbery under § 160.10(2)(a) as of the time 

of Steed's 2000 conviction. Thus, these precedents, in and of 

themselves, do not suffice to support the government's cause. 

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 
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conviction. See People v. Middleton, 623 N.Y.S.2d 298 (N.Y. App. 

Div. 1995) (holding that a purse snatching where the victim was 

not "intimidated, knocked down, struck, or injured" did not 

constitute third-degree robbery); People v. Chessman, 429 N.Y.S.2d 

224, 227 (N.Y. App. Div. 1980) (concluding that a purse snatching 

where the victim "did not feel anything on her body" would not 

constitute third-degree robbery); People v. Davis, 418 N.Y.S.2d 

127, 128 (N.Y. App. Div. 1979) (modifying judgment of third-degree 

robbery where there was no evidence the victim was in danger or 

saw the defendant approach her). But, not all of them do. In 

particular, People v. Lawrence, 617 N.Y.S.2d 769 (N.Y. App. Div. 

1994), suggests that, at least as of 1994, New York third-degree 

robbery included purse snatching. 

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, 

467 A.2d at 164, can never be a robbery. After all, although such 
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a snatching would involve no bodily contact with the victim, it 

could involve the use of just enough force to "produce awareness, 

although the action may be so swift as to leave the victim 

momentarily in a dazed condition." Mulkern, 854 F.3d at 92–93 

(citing Jones, 283 N.E.2d at 845). 

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, 402 N.E.2d at 121. 

In the course of addressing that issue, the intermediate appellate 

court canvassed the relevant precedents in New York and other 

states -- including the decision by the Massachusetts Supreme 

Judicial Court in Jones on which the Maine Law Court in Raymond 

had relied in finding a purse snatching to constitute a robbery. 

Santiago, 405 N.Y.S.2d at 757; see Raymond, 467 A.2d at 164 (citing 

Jones, 283 N.E.2d at 845). That court concluded from this review 

that it appeared to be an open question under New York law whether 

"purse snatching, per se, constitutes a robbery" under New York 

law. Santiago, 405 N.Y.S.2d at 757. 

That court ultimately determined that there was no need 

to resolve that issue definitively because "there was sufficient 
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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. 
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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, 617 N.Y.S.2d at 770. It thus would 

appear that such a snatching, by producing awareness, would have 

made it reasonably foreseeable that the victim would have given 

chase and thus that any resulting injury that victim suffered while 

doing so would have been reasonably foreseeable. As a result, the 

injury requirement would not appear to have precluded snatchings 

from constituting robberies under § 160.10(2)(a), at least as of 

the time of Steed's conviction, if, as Lawrence indicates, such 

snatchings would otherwise have constituted robberies under that 

provision. And that conclusion would be consistent with, though 

not required by, the intermediate appellate court decision in 

Santiago. 405 N.Y.S.2d at 757. 
- 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, 220 F. Supp. 3d at 272. We thus see 

no error in the District Court's conclusion that Steed's conviction 

was not for an offense that falls within the force clause of 

§ 4B1.2(a) of the United States Sentencing Guidelines. 

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. 
- 22 - 

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, 137 S. Ct. 886 (2017). In that case, the Court held that 

the residual clause of the career offender guideline's definition 

of "crime of violence" -- at least insofar as the career offender 

guideline was no longer mandatory -- was not unconstitutionally 

vague. Id. at 892. And, in the wake of Beckles, as the government 

also notes, we have repeatedly rejected the argument that the 

government may not invoke the residual clause to argue that a 

defendant's prior conviction qualifies as a "crime of violence" 

under the career offender guideline merely because the government 

conceded prior to Beckles that the residual clause was 

unconstitutionally vague under Johnson II. See Ball, 870 F.3d at 

3; United States v. Thompson, 851 F.3d 129, 131 (1st Cir. 2017) 

(per curiam); United States v. Gonsalves, 859 F.3d 95, 114 n.9 

(1st Cir. 2017) ("Although the government conceded in its brief 

that the Guidelines' residual clause was unconstitutionally vague, 

this court is not bound by the government's concession, which, 
- 23 - 

while understandable before Beckles, turned out to be incorrect." 

(internal citation omitted)). 

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. SotoRivera, 811 F.3d 53, 56 (1st Cir. 2016). But, here, the government 

asks us to review the question only for plain error because of its 

pre-Beckles concession that the residual clause was 

unconstitutionally vague.

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. RíosHernández, 645 F.3d 456, 458, 462 (1st Cir. 2011) (quoting United 

States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)). 

Significantly, as the Court explained in United States 

v. Olano, 507 U.S. 725 (1993), plain error review: 

[I]s permissive, not mandatory. If the forfeited error 

is plain and affects substantial rights, the court of 

appeals has authority to order correction, but is not 

required to do so . . . . a plain error affecting 

substantial rights does not, without more, satisfy the 

[fourth prong of the plain error test], for otherwise 

the discretion afforded by [plain error review] would be 

illusory. 

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 

 1 The parties also dispute whether New York's definition of 

attempt falls within the generic definition of attempt. 
- 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, 91 F.3d 826, 833 (6th Cir. 1996)). Another has looked to 

the difference in the length of the sentence imposed and the 

correct sentence to determine whether that difference is 

significant enough to create a "miscarriage of justice" if the 

error is not corrected. United States v. Posters ‘N’ Things Ltd., 

969 F.2d 652, 663 (8th Cir. 1992), aff'd 511 U.S. 513 (1994). And 

the Fifth Circuit has declined to correct even clear and obvious 

errors when "refusal to remedy the error would provide a future 

incentive to the government to raise all available arguments 

below." Gordon, 291 F.3d at 194 (citing United States v. Garcia–

Pillado, 898 F.2d 36, 39–40 (5th Cir. 1990)); United States v. 

Rodriguez, 15 F.3d 408, 416-17 (5th Cir. 1994). 
- 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, 385 F.3d 15, 22-23 (1st Cir. 2004) (rejecting 

defendant's sentencing challenge where defendant had not raised 

the issue below and had not met the fourth prong of the plain error 
- 28 - 

test on appeal); see also United States v Zannino, 895 F.2d 1, 17 

(1st Cir. 1990) (holding that undeveloped arguments are waived). 

IV. 

Accordingly, the sentence is affirmed.