15

‐ 2525

‐ cr

United States v. Hendricks



## In the



# United States Court of Appeals

**for the Second Circuit**

A UGUST T ERM 2018

No. 15

‐ 2525

‐ cr

U NITED S TATES OF A MERICA

, Appellee

,

v.

R OBERT H ENDRICKS

, Defendant

‐ Appellant,

S HAKEAL H ENDRICKS

, T AIQUAN H OWARD

, AKA T AIQUAN H ENDRICKS

,

C HARLES E. R OBINSON

, J R

., Defendants

.

On Appeal from the United States District Court

for the Northern District of New York

A RGUED : D ECEMBER 5, 2018

D ECIDED : A PRIL 11, 20192 Before: C ABRANES

, P OOLER

, and D RONEY

, Circuit Judges

.

Defendant

‐ Appellant Robert Hendricks (“Robert”) appeals

from an August 4, 2015 judgment of the United States District

Court for the Northern District of New York (Norman A.

Mordue, Judge ) convicting him, following a trial, of (1) credit

union robbery, in violation of 18 U.S.C. §§ 2113(a), 2; and (2)

using a firearm during a crime of violence, in violation of 18

U.S.C. §§ 924(c)(1)(A)(ii), 2. The District Court sentenced Robert

principally to 360 months’ incarceration to be followed by 5

years of supervised release. On appeal, Robert challenges the

validity of his conviction for using a firearm during a crime of

violence, arguing that federal credit union robbery does not

qualify as a “crime of violence” for the purposes of § 924(c). He

further contends that the District Court abused its discretion

and denied him a fair trial by (1) excluding a photograph of the

individual Robert claims actually robbed the credit union, and

(2) admitting testimony of victim witnesses regarding the

robbery’s impact on them in the aftermath of the crime. Finally,

Robert challenges his sentence and argues that the District Court

plainly erred by sentencing him as a career offender under the

residual clause of the 2014 edition of United States Sentencing

Guidelines § 4B1.2(a)(2). We AFFIRM the judgment of the

District Court.3 RAJIT S. DOSANJH, Assistant United States

Attorney, for Grant C. Jaquith, United States

Attorney for the Northern District of New

York, Syracuse, NY, for Appellee

.

STEVEN Y. YUROWITZ, New York, NY, for

Defendant

‐ Appellant

.

J OSÉ A. C ABRANES

, Circuit Judge :

Defendant

‐ Appellant Robert Hendricks (“Robert”) appeals

from an August 4, 2015 judgment of the United States District Court

for the Northern District of New York (Norman A. Mordue, Judge )

convicting him, following a jury trial, of (1) credit union robbery, in

violation of 18 U.S.C. §§ 2113(a), 2; and (2) using a firearm during a

crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii), 2. The

District Court sentenced Robert principally to 360 months’

incarceration to be followed by 5 years of supervised release. On

appeal, Robert challenges the validity of his conviction for using a

firearm during a crime of violence, arguing that federal credit union

robbery does not qualify as a “crime of violence” for the purposes of

§ 924(c). He further contends that the District Court abused its

discretion and denied him a fair trial by (1) excluding a photograph of

the individual Robert claims actually robbed the credit union, and (2)

admitting testimony of victim witnesses regarding the robbery’s

impact on them in the aftermath of the crime. Finally, Robert

challenges his sentence and argues that the District Court plainly erred4 by sentencing him as a career offender under the residual clause of the

2014 edition of United States Sentencing Guidelines § 4B1.2(a)(2).

I. BACKGROUND

A. The Access Federal Credit Union Robbery

On the morning of August 19, 2013, Robert Hendricks

(“Robert”), Shakeal Hendricks (“Shakeal”), Taiquan Howard

(“Taiquan”), and a fourth man drove to Camden, New York, where

they intended to rob a credit union. 1 Deeming the operation in

Camden too risky, the four moved on to another target—the Access

Federal Credit Union (“AFCU”) in Rome, New York.

On reaching the AFCU at approximately 12:25 p.m., the four

men parked in a nearby lot. Shakeal entered the credit union lobby

first while the other three men remained in the car. Shakeal

approached the two tellers on duty and requested information

regarding the credit union’s financial services. The tellers directed

him to a customer service representative’s cubicle.

Shortly thereafter, at approximately 12:30 p.m., Taiquan and

Robert entered the credit union brandishing handguns. Taiquan

vaulted the teller’s counter and pointed his handgun at the first teller,

while Robert approached the second teller, who was assisting a

1 Because Robert appeals from a judgment of conviction entered after a jury

trial, we “draw the facts from the evidence presented at trial, viewed in the light

most favorable to the government.” United States v. Thompson

, 896 F.3d 155, 159 (2d

Cir. 2018) (internal quotation marks omitted). The Government alleged that Charles

Robinson, Jr. was the fourth man, but he was acquitted of all charges at trial.5 customer. Robert shoved the customer, grabbed him by the neck,

pushed him down into a chair, and warned that he would “blow

[him] away.” 2 At the same time, Shakeal forced the customer service

representative to exit her cubicle and then left the credit union.

Robert pointed a gun at the customer service representative and told

her to sit on the floor.

Meanwhile, Taiquan, his gun still pointed at the first teller,

asked who could open the vault. The first teller responded that he

could, so Taiquan forced him to do so. Robert then threw a backpack

he was carrying to Taiquan to fill with money from the vault. While

the first teller filled the backpack with cash, Robert remained in the

lobby with his gun drawn, observing the other AFCU employees and

its lone customer.

Once the backpack was full, Taiquan and Robert left the credit

union. The four men then drove to a Dunkin’ Donuts in East

Syracuse, New York, before going their separate ways.

B. The Government’s Case at Trial

In an indictment filed on March 13, 2014, Robert, Taiquan, and

Charles E. Robinson, Jr. were charged with credit union robbery, in

violation of 18 U.S.C. §§ 2113(a), 2. Robert and Taiquan were also

charged with using a firearm during a crime of violence, in violation

of 18 U.S.C. §§ 924(c)(1)(A)(ii), 2. Taiquan pleaded guilty to both

counts, but Robert and Charles E. Robinson, Jr. proceeded to trial.

2 App. 70.6 Shakeal testified as a government witness pursuant to a plea

agreement.

At trial, the Government elicited testimony from, among

others, the three credit union employees who were present for the

robbery. The Government asked these witnesses (1) how they felt

during the robbery, and (2) how the robbery impacted them in the

aftermath of the crime.

With respect to the latter inquiry, the Government asked the

first teller whether he was “able to return to work” after the robbery. 3

He responded: “No. I tried to go to a different branch and I didn’t

make it behind the teller line. I walked in the back door and

. . . Just a

lot of fear and there’s just—I couldn’t do anything but just think

about what happened and, no, I wasn’t able to go back to work, no.” 4

The Government asked the second teller the same question.

She testified that she did not return to work after the robbery because

she “couldn’t bring [herself] to go back in that credit union.” 5

Finally, the Government asked the customer service

representative how the “experience affect[ed her].” 6 She responded:

“Very leery of unfamiliar situations. If I walk around and there’s a

group of black men, it bothers me a little bit. I would avoid—if they

3 Id. at 54.

4 Id.

5 Id. at 57.

6 Id

. at 65.7 were like all standing in front of a store, I would avoid going in the

store or go around them. I ʹ m getting better about that, but it was a

very scary situation. I didn ʹ t know what they were going to do,

didn’t know who they were going to hurt. My second family, you

know, they were hurting our own. I see what it did to the tellers. I

don’t have nightmares or anything.” 7

Robert objected to the Government’s question to the first teller

and customer service representative based on irrelevance. He further

objected to the testimony of the customer service representative as

“potentially prejudicial” and “introduced for no purpose other than

to inflame the jury.” 8 The District Court overruled each objection.

C. Robert’s Defense

At trial, Robert did not testify and called no witnesses. Instead,

he relied on cross

‐ examination of the Government’s witnesses to

suggest that he was mistakenly identified as a participant in the

robbery.

In support of his misidentification defense, Robert sought to

implicate a third party, Jamar Sesum, a.k.a. “Bam” (“Bam”). 9 While

cross

‐ examining one of the Government’s witnesses, Robert sought

to admit into evidence a photograph of Bam. The Government

7 Id

.

8 Id.

9 The record reflects inconsistent spelling of this individual’s name. We

adopt the spelling used by the parties in their briefs on appeal.8 objected, but the District Court admitted the photograph “subject to

connection,” requiring Robert to later demonstrate its relevance. 10 At

the close of trial, the Government renewed its objection, arguing that

Robert had failed to show the photograph was relevant and that

introducing it would confuse the jury. The District Court found

Robert’s contention that Bam was a third

‐ party perpetrator “really,

really, speculative” and excluded the photograph. 11

D. Jury Verdict and Sentencing

After deliberating for less than five hours, the jury found

Robert guilty of both credit union robbery and using a firearm

during a crime of violence. 12

At sentencing, the District Court found that Robert was a

“career offender” under the 2014 edition of United States Sentencing

Guidelines § 4B1.1 because of his prior felony convictions for

burglary in the second degree, in violation of New York Penal Law

§ 140.25(2), and criminal sale of a controlled substance in the third

degree, in violation of New York Penal Law § 220.39(1). 13 As a result

10 App. 86.

11 Id

. at 175.

12 The jury acquitted Charles E. Robinson, Jr. of credit union robbery, the

sole crime with which he was charged.

13 U.S.S.G. § 4B1.1 provides that:

(a) A defendant is a career offender if (1) the defendant was at least

eighteen years old at the time the defendant committed the instant

offense of conviction; (2) the instant offense of conviction is a felony9 of Robert’s status as a “career offender,” his advisory Guidelines

range was 360 months’ to life imprisonment. On July 23, 2015, the

District Court sentenced Robert to 240 months’ imprisonment on the

credit union robbery charge and 120 months’ imprisonment on the

§ 924(c) charge, to run consecutively, for a total effective sentence of

360 months’ imprisonment. This appeal followed.

II. DISCUSSION

This case presents four questions:

(1) Whether federal credit union robbery, in violation of 18

U.S.C. § 2113(a), is categorically a “crime of violence” for the

purposes of a conviction for using a firearm during a crime

of violence under 18 U.S.C. § 924(c)(1)(A)(ii);

(2) Whether the District Court abused its discretion when it

admitted testimony from victims of the credit union robbery

regarding the robbery’s impact on them in the aftermath of

the crime;

(3) Whether the District Court abused its discretion by

excluding a photograph of a third party that Robert claims

actually committed the robbery; and

that is either a crime of violence or a controlled substance offense;

and (3) the defendant has at least two prior felony convictions of

either a crime of violence or a controlled substance offense.10 (4) Whether the District Court plainly erred in sentencing Robert

as a career offender under the residual clause of the 2014

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

A. Standard of Review

We review legal questions underlying a challenge to a criminal

conviction de novo

. 14 Because Robert did not challenge the validity of

his conviction under § 924(c) before the District Court, we review his

conviction for plain error. 15

The District Court’s evidentiary rulings, in turn, are reviewed

for abuse of discretion to the extent that they were objected to

below. 16 “To find such abuse, we must conclude that the trial judge’s

evidentiary rulings were arbitrary and irrational.” 17 A district court

“has considerable discretion in deciding whether an adequate

foundation has been laid for the introduction of relevant

documents.” 18 This Court “accord[s] particular deference to the trial

court’s rulings as to foundation and relevance.” 19 Similarly, we

14 United States v. Sampson

, 898 F.3d 287, 298 (2d Cir. 2018).

15 See United States v. Vilar

, 729 F.3d 62, 70 (2d Cir. 2013) (explaining “plain

error” review).

16 United States v. Gupta

, 747 F.3d 111, 137 (2d Cir. 2014).

17 United States v. White

, 692 F.3d 235, 244 (2d Cir. 2012) (internal quotation

marks omitted).

18 Gupta

, 747 F.3d at 137

.

19 Id.11 “accord great deference” to a district court’s analysis under Federal

Rule of Evidence 403. 20 Even where we conclude that a district court

erred in admitting evidence under Rule 403, the error will

nonetheless be deemed harmless if we conclude with “fair assurance

that the jury’s judgment was not substantially swayed by the error.” 21

Finally, where, as here, a defendant challenges his or her

sentence on a basis not raised before the District Court, we review for

plain error. 22

B. Credit Union Robbery as a “Crime of Violence”

Robert contends that his conviction for using a firearm during

a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii), is

invalid because federal credit union robbery under 18 U.S.C.

§ 2113(a) is not a “crime of violence” within the meaning of § 924(c).

We begin our analysis with the relevant statutory text. Section

924(c)(1) provides that:

(A).

. . any person who, during and in relation to any

crime of violence

. . . for which the person may be

prosecuted in a court of the United States, uses or carries

a firearm, or who, in furtherance of any such crime,

20 Id. at 132 (internal quotation marks omitted).

21 United States v. Padilla

, 548 F.3d 179, 190 (2d Cir. 2008) (internal quotation

marks omitted).

22 United States v. Pereira

‐ Gomez

, 903 F.3d 155, 161 (2d Cir. 2018) (describing

plain error review in the sentencing context).12 possesses a firearm, shall, in addition to the punishment

provided for such crime of violence

. . .

(ii) if the firearm is brandished, be sentenced to a

term of imprisonment of not less than 7 years

. . . 23

Section 924(c)(3) defines a “crime of violence” as “an offense

that is a felony” and:

(A) has as an element the use, attempted use, or

threatened use of physical force against the person or

property of another, or

(B) that by its nature, involves a substantial risk that

physical force against the person or property of another

may be used in the course of committing the offense. 24

We refer to subparagraph (A) of § 924(c)(3) as the “force

clause” and to subparagraph (B) as the “risk

‐ of

‐ force clause.” 25

To determine whether a crime is a “crime of violence” under

§ 924(c)(3)(A), we apply the so

‐ called “categorical approach.” 26 Under

23 18 U.S.C. § 924(c)(1)(A).

24 Id. § 924(c)(3).

25 United States v. Hill

, 890 F.3d 51, 54 (2d Cir. 2018).

26 The Supreme Court has described the categorical approach in a series of

cases involving the Sentencing Guidelines and the Armed Career Criminal Act. See

Taylor v. United States

, 495 U.S. 575, 600 (1990) (holding that the categorical

approach should be applied to the Armed Career Criminal Act); see also Stokeling v.

United States

, 139 S. Ct. 544, 554

‐ 55 (2019) (applying the categorical approach in

evaluating Florida robbery under the force clause of the Armed Career Criminal13 this “approach,” we evaluate whether “the minimum criminal

conduct necessary for conviction under a particular statute”

necessarily involves violence. 27 In doing so, we focus only on the

elements of the offense and do not consider the particular facts of the

underlying crime. 28 In this case, then, we inquire whether the

elements of credit union robbery necessarily involve physical force

.

We have recently held that § 2113(a) is a “divisible” statute

because it contains two separate paragraphs that “delineate[] two

methods of committing” credit union robbery. 29 In this case, there is

no dispute that Robert was charged with, and convicted of, the first

method of committing credit union robbery—namely, “by force and

violence, or by intimidation.” 30 We therefore must determine whether

credit union robbery “by force and violence, or by intimidation”

categorically constitutes a “crime of violence.” Perhaps

unsurprisingly, we conclude that it does.

Robert argues that his conviction under § 2113(a) does not

categorically constitute a “crime of violence” because one might be

Act); United States v. Hill

, 890 F.3d 51, 55 (2d Cir. 2018) (applying the categorical

approach to determine whether a federal crime qualified as a “crime violence”

under § 924(c)(3)(A)).

27 Hill

, 890 F.3d at 55 (internal quotation mark omitted).

28 Id.

29 United States v. Moore

, 916 F.3d 231, 238 (2d Cir. 2019).

30 18 U.S.C. § 2113(a); App. 12 (operative indictment); Appellant Br. 4.14 convicted under this statute by negligently intimidating a victim.

Because a “crime of violence” generally does not “encompass

accidental or negligent conduct,” 31 Robert contends the minimum

criminal conduct necessary for a conviction under § 2113(a) does not

necessarily involve the use or threatened use of force.

This argument is unavailing. The Supreme Court has held that

§ 2113(a) requires proof of “knowledge with respect to the actus reus

of the crime (here, the taking of property of another by force and

violence or intimidation).” 32 With respect to the “intimidation”

element, a defendant “must at least know that his actions would

create the impression in an ordinary person that resistance would be

met by force.” 33 In short, knowledge

, not merely negligence, is

required.

We recently observed that “this circuit, in a summary order,

and our sister circuits, in published opinions, have consistently held

that federal bank robbery by intimidation is a crime of violence under

the force clause of various sentence enhancement Guidelines and

statutes.” 34 Indeed, every circuit to have addressed the issue has held

31 Leocal v. Ashcroft

, 543 U.S. 1, 11 (2004) (discussing 18 U.S.C. § 16).

32 Carter v. United States

, 530 U.S. 255, 268 (2000).

33 United States v. McBride

, 826 F.3d 293, 296 (6th Cir. 2016) (emphasis added)

(rejecting argument that negligent “intimidation” can support a conviction under

§ 2113(a)).

34 Moore

, 916 F.3d at 239 n.5. (citing Killion v. United States

, 728 F. App’x 19,

21

‐ 22 (2d Cir. 2018)); s ee also Johnson v. United States

, 779 F.3d 125, 128

‐ 29 (2d Cir.15 that bank robbery “by intimidation” under § 2113(a) involves the

threatened use of physical force and thus constitutes a crime of

violence within the meaning of § 924(c)(3)(A) or the career offender

guideline, U.S.S.G. § 4B1.2(a). 35

We thus have little difficulty in holding that bank robbery

committed “by intimidation” categorically constitutes a crime of

violence for the purposes of § 924(c)(1)(A), and, therefore, that

Robert’s conviction for using a firearm during a crime of violence

under § 924(c)(1)(A)(ii) does not constitute error, much less “plain

error.” 36

C. Victim Impact Testimony

Robert next argues that the District Court abused its discretion

or erred by allowing the Government to question three credit union

2015) (stating without elaboration that bank robbery under § 2113(a) constitutes a

“crime of violence” for the purposes of conviction under § 924(c)(1)(A)).

35 See United States v. McCranie

, 889 F.3d 677, 681 (10th Cir. 2018)

(§ 4B1.2(a)); United States v. Wilson

, 880 F.3d 80, 85

‐ 86 (3d Cir. 2018) (same); United

States v. Ellison

, 866 F.3d 32, 35 (1st Cir. 2017) (same); United States v. Williams

, 864

F.3d 826, 830 (7th Cir. 2017) (§ 924(c)(3)(A)); United States v. Brewer

, 848 F.3d 711,

714

‐ 16 (5th Cir. 2017) (§ 4B1.2(a)); Allen v. United States

, 836 F.3d 894, 894

‐ 95 (8th

Cir. 2016) (§ 924(c)(3)(A)); In re Sams

, 830 F.3d 1234, 1239 (11th Cir. 2016) (same);

McBride

, 826 F.3d at 296 (§ 4B1.2(a)); United States v. McNeal

, 818 F.3d 141, 153 (4th

Cir. 2016) (§ 924(c)(3)(A)).

36 Because we conclude that credit union robbery “by intimidation” is a

crime of violence within the meaning of the “force” clause, § 924(c)(3)(A), we need

not address the parties’ arguments regarding whether it also is a crime of violence

under the “risk

‐ of

‐ force” clause, § 924(c)(3)(B).16 employee witnesses about the robbery’s impact on them in the

aftermath of the crime. 37 The Government counters that such

evidence was relevant to prove that Robert committed the robbery

“by intimidation.” Though we agree that the District Court erred, we

conclude that the error was, in the circumstances presented here,

harmless.

Testimony regarding a crime’s impact on a victim is admissible

at trial if it is relevant to prove an element of the charged offense and

is subject to the normal tests for relevancy and unfair prejudice under

Federal Rules of Evidence 401 and 403, respectively. 38 When

evaluating the admissibility of victim impact testimony during trial, a

district court should carefully consider the prejudicial potential of

such testimony.

37 We note that “‘abuse of discretion’ is a nonpejorative term of art; it implies

no misconduct on the part of the district court.” United States v. Bove

, 888 F.3d 606,

607 n.1 (2d Cir. 2018) (citing In re City of New York

, 607 F.3d 923, 943 n.21 (2d Cir.

2010)). The term merely describes circumstances in which a district court “base[s]

its ruling on an erroneous view of the law or on a clearly erroneous assessment of

the evidence, or render[s] a decision that cannot be located within the range of

permissible decisions.” In re Sims

, 534 F.3d 117, 132 (2d Cir. 2008) (internal

quotation marksand citation omitted).

38 Cf. United States v. Copple

, 24 F.3d 535, 545

‐ 46 (3d Cir. 1994) (victim

testimony regarding financial losses in criminal fraud trial was proper insofar as it

was relevant to prove specific intent, but further victim impact testimony had little

probative value and was unfairly prejudicial).17 Here, Robert was charged with committing credit union

robbery “by force and violence, or by intimidation.” 39 A defendant

acts “by intimidation” when he knowingly engages in conduct from

which “an ordinary person in the teller’s position reasonably could

infer a threat of bodily harm.” 40 Although this standard is objective,

“evidence that the teller felt threatened is probative of whether a

reasonable person would have been afraid under the same

circumstances.” 41

Evidence regarding how the three credit union employees felt

during the robbery is certainly relevant to whether Robert acted “by

intimidation.” Testimony regarding the robbery’s impact on the

victims in the aftermath of the crime may also be relevant to

intimidation at the time of its commission. However, where—as

here—the testimony concerns impact weeks and months after the

39 18 U.S.C. § 2113(a).

40 United States v. Kelley

, 412 F.3d 1240, 1244 (11th Cir. 2005) (internal

quotation marks omitted); see also 3 L EONARD B. S AND ET AL

., M ODERN F EDERAL

J URY I NSTRUCTIONS

– C RIMINAL ¶ 53

‐ 12 (2018) (requiring that defendant have

“act[ed] in an intimidating manner,” which “means that the defendant did or said

something that would make an ordinary reasonable person fear bodily harm”);

United States v. Fleury

, 38 F. App’x 50, 51 (2d Cir. 2002) (non

‐ precedential summary

order) (observing that district court used similar instruction).

41 United States v. Gilmore

, 282 F.3d 398, 403 (6th Cir. 2002) (internal quotation

marks omitted); cf. United States v. Walker

, 835 F.2d 983, 987 (2d Cir. 1987) (noting

that a victim’s subjective state of mind can be relevant to the question of whether

a defendant’s behavior would inspire fear in a reasonable person for the purposes

of 18 U.S.C. § 111).18 crime had undisputedly ended, it likely is only minimally probative

of whether Robert acted “by intimidation” during the robbery.

Moreover, such testimony raises the specter of unfair prejudice.

We conclude that the District Court did not abuse its discretion

or plainly err in determining that, for the purposes of Rule 401, the

Government could ask the two tellers whether they could return to

work and ask the customer service representative how the experience

affected her. 42 Testimony regarding how the credit union employees

felt after the robbery was relevant because the lingering effects of the

robbery may tend to show that they were intimidated at the time of

the robbery.

We further conclude that the District Court did not plainly err

in admitting the testimony of the two tellers that they could not

return to work under Rule 403. 43 The tellers’ brief answers that they

were unable to return to work did not carry a substantial risk of

unfair prejudice.

We reach a different conclusion, however, regarding the

District Court’s treatment of the customer service representative’s

testimony. Her testimony regarding her fear of groups of black men

carried a substantial risk of evoking racial bias. Accordingly, the

42 Robert objected to the Government’s questions to the first teller and

customer service representative based on relevance, App. 54, but did not object to

the Government’s question to the second teller, App. 57.

43 Robert did not object to the admission of either teller’s testimony based

on Rule 403.19 District Court should have stricken this testimony or issued a

curative instruction pursuant to Federal Rule of Evidence 403, and its

failure to do so was an “abuse of discretion.” 44

That said, the record here permits us to conclude with “fair

assurance that the jury’s judgment was not substantially swayed by

the error,” and that the error is therefore harmless. 45 To determine

whether an error is harmless, we consider “(1) the overall strength of

the prosecution’s case; (2) the prosecutor’s conduct with respect to

the improperly admitted evidence; (3) the importance of the wrongly

admitted evidence; and (4) whether such evidence was cumulative of

other properly admitted evidence.” 46 The strength of the

prosecution’s case is the most important factor. 47

In this case, the Government’s evidence against Robert was

overwhelming. Shakeal Hendricks, one of the robbery participants,

provided detailed testimony regarding Robert’s involvement in

planning and executing the crime. Laverne Hendricks, Robert’s

relative, testified regarding his actions on the day of the robbery and

described his clothing, which was also captured in surveillance

footage of the robbery. Additionally, the prosecution presented

cellular telephone data placing a cell phone associated with Robert in

44 See supra note 37.

45 Padilla

, 548 F.3d at 190 (internal quotation marks omitted).

46 United States v. McCallum

, 584 F.3d 471, 478 (2d Cir. 2009) (internal

quotation marks and brackets omitted)

47 Id.20 the vicinity of the initial target in Camden, the AFCU in Rome, and

the Dunkin’ Donuts in East Syracuse. Finally, Detective Bolton of the

Rome Police Department testified regarding Robert’s statements

during two interviews that took place on October 18, 2013 and

November 22, 2013. These statements include Robert’s admission

that he participated in the robbery and that he disposed of clothing

worn during the robbery at the Dunkin’ Donuts. Detective Bolton’s

testimony also revealed that Robert repeatedly made false claims that

he later admitted were untrue. Taken together, this overwhelming

evidence of guilt assures us that the jury was not substantially

swayed by the improper testimony.

We are further assured that the error is harmless because the

wrongly admitted testimony was limited in scope. The improper

testimony of post

‐ incident fear or trauma was not especially

important to the Government’s case. All three witness properly

testified regarding the fear and intimidation they experienced during

the robbery, and Robert never disputed that the robbery was

conducted in an objectively intimidating manner.

Accordingly, we conclude that, although the District Court

abused its discretion in admitting the customer service

representative’s testimony regarding the robbery’s impact on her in

the aftermath of the crime, in the totality of circumstances presented

in this record the error was harmless.21 D. Third

‐ Party Photograph

Robert also argues that the District Court erred in excluding a

photograph of Bam, who Robert contends actually committed the

robbery. We disagree.

A criminal defendant generally has the right to introduce at

trial evidence tending to show that another person committed the

crime, so long as the evidence “sufficiently connect[s] the other

person to the crime.” 48 But “[t]he potential for speculation into

theories of third

‐ party culpability to open the door to tangential

testimony raises serious concerns.” 49 A court “must be sensitive to

the special problems presented by ‘alternative perpetrator’ evidence”

and must ensure that the defendant shows a “sufficient

. . . nexus

between the crime charged and the asserted ‘alternative

perpetrator.’” 50

Robert contends that he laid a sufficient foundation to support

the introduction of Bam’s photograph. He points to the following

evidence: (1) Shakeal’s testimony that he (Shakeal) and Bam were

close friends; (2) an eye

‐ witness account describing “two kids”

running away from the robbery, even though Robert was 55 years

old at the time; (3) records showing phone calls between Shakeal’s

phone and Bam’s phone before and after the robbery; and

48 White

, 692 F.3d at 246 (internal quotation marks omitted).

49 Wade v. Mantello

, 333 F.3d 51, 61 (2d Cir. 2003).

50 Id. at 61

‐ 62 (quoting United States v. McVeigh

, 153 F.3d 1166, 1191 (10th Cir.

1998)).22 (4) Shakeal’s testimony that he went shopping for sneakers with Bam

after the robbery.

Like the District Court, we conclude that this evidence is

insufficient to show the required nexus between Bam and the

robbery. Although the evidence Robert cites might tend to show that

Bam knew about the robbery, none of the evidence places Bam

anywhere near the robbery scene or suggests that he was otherwise

involved in the crime. Accordingly, the District Court did not err in

excluding Bam’s photograph.

E. Application of the Career Offender Guidelines

Finally, Robert contends that the District Court erred in finding

that he was subject to sentencing as a “career offender” under the

2014 edition of United States Sentencing Guidelines § 4B1.1. 51

Specifically, he argues that his prior felony conviction for burglary in

the second degree, in violation of New York Penal Law § 140.25, does

not constitute a “crime of violence” for the purposes of the career

offender Guidelines. We are not persuaded.

Section 4B1.1 provides that:

(a) A defendant is a career offender if (1) the defendant

was at least eighteen years old at the time the defendant

committed the instant offense of conviction; (2) the

instant offense of conviction is a felony that is either a

51 We generally apply the version of the United States Sentencing Guidelines

in effect at the time of sentencing, unless doing so would violate the Ex Post Facto

Clause. United States v. Riggi

, 649 F.3d 143, 146 n.2 (2d Cir. 2011).23 crime of violence or a controlled substance offense; and

(3) the defendant has at least two prior felony

convictions of either a crime of violence or a controlled

substance offense. 52

The 2014 Sentencing Guidelines Manual defines “crime of

violence” to mean any state or federal offense, punishable by

imprisonment for a term exceeding one year, that:

(1) has as an element the use, attempted use, or

threatened use of physical force against the person of

another, or

(2) is a 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

. 53

Robert contends that his conviction for second

‐ degree burglary

under New York law does not qualify as a “crime of violence”

because the “residual clause” is void for vagueness. But this

argument is foreclosed by the Supreme Court’s recent decision in

Beckles v. United States

, 137 S. Ct. 886 (2017), in which the Court

concluded that the Sentencing Guidelines are not subject to void

‐ for

‐

vagueness challenges and upheld the career offender Guidelines.

52 U.S.S.G. § 4B1.1(a).

53 U.S.S.G. § 4B1.2(a) (emphasis added). The italicized text is generally

referred to as the “residual clause.”24 We have already held that third

‐ degree burglary under New

York law qualifies as a “crime of violence” under the residual clause

of § 4B1.2(a)(2). 54 In light of Beckles

, it is clear that this holding remains

good law. 55 Because, under New York law, third

‐ degree burglary

defines the lesser

‐ included offense of burglary, 56 we have no difficulty

extending this holding to Robert’s second

‐ degree burglary

conviction. 57 Accordingly, the District Court did not err, much less

plainly err, in sentencing Robert as a career offender pursuant to

§ 4B1.2(a)(2).

54 United States v. Brown

, 514 F.3d 256, 268 (2d Cir. 2008).

55 We had previously stated that this holding was abrogated by Johnson v.

United States

, 135 S. Ct. 2551 (2015), which held that the similarly

‐ worded residual

clause of the Armed Career Criminal Act was unconstitutional. See United States v.

Welch

, 641 F. App’x 37, 43 (2d Cir. 2016) (non

‐ precedential summary order). In light

of Beckles

, however, it is clear that the residual clause of the Guidelines is not

unconstitutionally vague. See also Massey v. United States

, 895 F.3d 248, 251 n.6 (2d

Cir. 2018). (noting that after Beckles

, the Second Circuit’s earlier precedent that

robbery under New York law is a crime of violence under the ACCA’s force clause

was “reinstate[d]”).

56 People v. Barney

, 99 N.Y.2d 367, 371 (2003) (holding that, under New York

law, “one cannot commit burglary in the second degree

. . . without also committing

burglary in the third degree”).

57 Cf. Pereira

‐ Gomez

, 903 F.3d at 166 (holding that because the pertinent

component of robbery “is common to all degrees of robbery under New York law

. . . robbery in any degree is a crime of violence”).25 III. CONCLUSION

To summarize, we hold as follows:

(1) Credit union robbery, in violation of 18 U.S.C. § 2113(a),

qualifies as a “crime of violence” under the “force clause” of

§ 924(c)(3)(A) for the purposes of Robert’s conviction under

18 U.S.C. § 924(c)(1)(A)(ii);

(2) While the District Court erred or ”abused its discretion” in

admitting certain victim impact testimony, the error was

harmless in this particular case in light of the substantial

evidence of Robert’s guilt;

(3) The District Court did not err or “abuse its discretion” in

excluding a photograph of an alleged third

‐ party perpetrator

because Robert failed to establish a sufficient nexus between

the third party and the crime; and

(4) The District Court did not err, much less plainly err, in

sentencing Robert as a career offender under the 2014 edition

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

For the foregoing reasons, we AFFIRM the August 4, 2015

judgment of the District Court.