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 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN 

CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE 

EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION 

“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY 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 Second Circuit, held at 

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 

on the 14th day of February, two thousand nineteen. 

PRESENT: 

GERARD E. LYNCH, 

SUSAN L. CARNEY, 

CHRISTOPHER F. DRONEY, 

Circuit Judges, 

_________________________________________ 

ACESHUNN BROWN, 

 Petitioner-Appellee, 

 v. No. 17-1943 

UNITED STATES OF AMERICA, 

 Respondent-Appellant. 

_________________________________________

FOR APPELLANT: DAVID K. KESSLER (Amy Busa, on the 

brief), for Richard P. Donoghue, United 

States Attorney for the Eastern District of 

New York, Brooklyn, NY. 

FOR APPELLEE: ELIZABETH E. MACEDONIO, Esq., New 

York, NY.
2 

Appeal from a judgment of the United States 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 reinstate the original sentence. 

The government appeals from an order 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 his 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 explain our decision to reverse the District 

Court’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. 

The government argues that the District Court erred in concluding that Brown’s two 

prior convictions for the New York offense of attempted second-degree robbery, in 

violation of New York Penal Law §§ 160.10 and 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 Court 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 robbery in New York require[] the common law 
 

3 

element of ‘forcible stealing,’” are “violent felon[ies]” under the ACCA. 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 violence” under the 2014 Sentencing Guidelines’ 

nearly identical force clause. 903 F.3d at 166; compare U.S.S.G. § 2L1.2, cmt. n.1(b)(iii) (2014), 

with 18 U.S.C. § 924(e)(2)(B)(i). 

In light of these decisions, it is evident 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 Court erred in granting Brown’s § 2255 motion and reducing his 

sentence to time served. 

* * * 

 We therefore REVERSE the District Court’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.