17-1943 Brown v. United States

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT



### SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AN D THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILE D WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN EL ECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SU MMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Seco nd Circuit, held at the Thurgood Marshall United States Courthou se, 40 Foley Square, in the City of New York, on the 14 th day of February, two thousand nineteen.

PRESENT: G ERARD E. L YNCH , S USAN L. C ARNEY , C HRISTOPHER F. D RONEY , Circuit Judges
,

_____________ _______________ _____________
A CESHUNN B ROWN , Petitioner-Appellee
,
v. No. 17-1943

U NITED S TATES OF A MERICA , Respondent-Appellant

.

_____________ _______________ _____________ FOR APPELLANT: D AVID K. K ESSLER (Amy Busa, on the brief ), for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, NY.

FOR APPELLEE: E LIZABETH E. M ACEDONIO , Esq., New York, NY.2 Appeal from a judgment of the United Stat es District Court for the Eastern District of New York (Weinstein, J. ).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the grant of the 28 U.S.C. § 2255 motion is
REVERSED , the amended judgment entered on June 1, 2017, is VACATED , and the

cause REMANDED for the District Court to re instate the original sentence. The government appeals from an orde r entered on May 31, 2017, and amended judgment entered on June 1, 2017, that (1) granted Aceshunn Brown’s second and successive motion under 28 U.S.C. § 2255, (2) reduced his sentence from the mandatory minimum of 180 months to time served, and (3) ordered hi s immediate release from prison. We assume the parties’ familiarity with the underlying facts, procedural history, and arguments on appeal, to which we refer only as necessary to ex plain our decision to reverse the District Court’s grant of Brown’s § 2255 motion, vaca te the amended judgment, and remand the
cause for the District Court to re instate Brown’s original sentence.
The government argues that the District Co urt erred in concluding that Brown’s two prior convictions for the New York offens e of attempted second-degree robbery, in violation of New York Penal Law §§ 160.10 an d 110, did not qualify as “violent felon[ies]” under the Armed Career Criminal Act (“ACCA”) , 18 U.S.C. § 924(e). We review de novo the District Court’s ruling on this question. See United States v. Brown , 629 F.3d 290, 294 (2d Cir. 2011) (per curiam).
The recent Supreme Co urt decision in Stokeling v. United States , 139 S. Ct. 544 (2019),
and our recent decisions in United States v. Thrower , -- F.3d --, 2019 WL 385652 (2d Cir. Jan. 31, 2019) (per curiam), and United States v. Pereira-Gomez , 903 F.3d 155 (2d Cir. 2018), resolve this case in the government’s favor. In Stokeling , the Supreme Court held that the “the term ‘physical force’ in the ACCA encompasses the degree of force necessary to commit common-law robbery”—it is “the amount of force necessary to overcome a victim’s
resistance.” 139 S. Ct. at 555. In Thrower , we held that New York robbery in the first and third degrees, “which like every degree of r obbery in New York require[] the common law3 element of ‘forcible stealing,’” are “violent felon[ies]” under the A CCA. 2019 WL 385652, at
*4. We further held in Pereira-Gomez that all degrees of New York robbery, including attempted robbery, qualify as “crimes of violen ce” under the 2014 Sentencing Guidelines’ nearly identical force clause. 903 F.3d at 166; compare U.S.S.G. § 2L1.2, cm t. n.1(b)(iii) (2014),
with 18 U.S.C. § 924(e)(2)(B)(i). In light of these decisions, it is eviden t that Brown’s prior convictions under New York law for attempted second-degree robbery qualify as violent felonies under the ACCA. 1 Accordingly, the District Cour t erred in granting Brown’s § 2255 motion and reducing his
sentence to time served.

* * *

We therefore REVERSE the District Co urt’s grant of Brown’s § 2255 motion, VACATE the amended judgment, and REMAND the cause for the District Court to reinstate Brown’s original sentence.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

1 In light of this disposition, we do not reach the government’s arguments that Brown’s claim for relief under § 2255 is procedurally barred.