13-2941-cr

United States v. Flores

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 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

17th day of June two thousand fourteen.

Present: ROSEMARY S. POOLER,

PETER W. HALL, 

SUSAN L. CARNEY,

Circuit Judges.

_____________________________________________________

UNITED STATES OF AMERICA,

Appellee,

 -v- 13-2941-cr

MARIO FLORES, AKA Sealed Defendant 1,

Defendant-Appellant.

_____________________________________________________

Appearing for Appellant: Colleen P. Cassidy, Federal Defenders of New York, Inc., Appeals

Bureau, New York, N.Y.

 

Appearing for Appellee: Paul M. Monteleoni, Assistant United States Attorney (Preet

Bharara, United States Attorney for the Southern District of New

York, Brian A. Jacobs, Assistant United States Attorney, on the

brief), New York, N.Y.

Appeal from the United States District Court for the Southern District of New York

(Stein, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED. 

Mario Flores pleaded guilty to one violation of 18 U.S.C. § 922(g)(1), possessing a

firearm that had been shipped in interstate commerce after having been convicted of a felony. He

was sentenced principally to 60 months imprisonment by the United States District Court for the

Southern District of New York (Stein, J.). Flores now appeals from his July 31, 2013 judgment

of conviction, entered on August 1, 2013. On appeal, he asserts that the district court erred in

determining that burglary in the third degree under New York law, N.Y. Penal Law § 140.20,

constitutes a “crime of violence” under Section 4B1.2(a)(2) of the United States Sentencing

Guidelines. We assume the parties’ familiarity with the underlying facts, procedural history, and

specification of issues for review.

The argument Flores advances is foreclosed by our precedent. In United States v. Brown,

we concluded that a conviction for “third-degree burglary in violation of New York law was a

crime of violence within the meaning of the last clause of [U.S.S.G.] § 4B1.2(a)(2).” 514 F.3d

256, 269 (2d Cir. 2008). The upshot for the defendant in Brown was that “his record included

two crimes of violence, making his base offense level 24.” Id. The same result obtains here. 

Flores recognizes our holding in Brown, but suggests that a trio of recent Supreme Court

decisions have undermined our reasoning in that decision. We are not persuaded. Flores first

points us to Begay v. United States, 553 U.S. 137 (2008), and to Chambers v. United States, 555

U.S. 122 (2009). It is true that both Begay and Chambers interpreted the residual clause of the

Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii), to require analysis of the risk

posed by crimes which putatively fell under ACCAs residual clause, compared to the risk posed

by enumerated crimes. Begay, 553 U.S. at 141-45 (risk posed by driving under the influence is

not comparable to risk posed by enumerated offenses of burglary, arson, extortion, or crimes

involving explosives); Chambers, 555 U.S. at 127-29 (failure to report for periodic

imprisonment does not pose comparable risk as enumerated offenses). We relied on the parallel

natures of the residual clauses of ACCA and U.S.S.G. § 4B1.2(a)(2) in reaching our conclusion

in Brown. 514 F.3d at 266-68. But it does not follow that the reasoning of Begay and Chambers,

which required a comparison between the potential risks of enumerated offenses and putative

similar offenses falling under the residual clause, has cast doubt upon our approach in Brown. If

anything, these cases have arguably strengthened it (as the government argues) because our

conclusion in Brown was based on our determination that “third-degree ‘burglary itself is a crime

that inherently involves a risk of personal injury.’” 514 F.3d at 268 (quoting United States v.

Andrello, 9 F.3d 247, 249 (2d Cir. 1993)). 

Nor are we persuaded that the Supreme Court’s decision in Descamps v. United States,

133 S. Ct. 2276 (2013), has undermined Brown. Flores correctly points out that Descamps

concerned the appropriate reach of the “categorical” approach to determining whether a state law

crime might serve as an enumerated ACCA predicate. 133 S. Ct. at 2283-86. But Brown applied

the categorical approach to New York’s third-degree burglary statute. Brown, 514 F.3d at 265.

Flores apparently takes no issue with Brown’s application of the categorical approach, and we

thus fail to appreciate how, exactly, Flores believes Brown was undermined by Descamps. 

2
We are “bound by the decision of a prior panel unless the decision has been overturned

either by the Supreme Court or this Court en banc.” United States v. Thomas, 628 F.3d 64, 69

(2d Cir. 2010). Finding no merit in Flores’s argument that our holding in Brown has been

disturbed (and cognizant that this Court has not revisited Brown en banc), we cannot find that the

district court committed procedural error in determining Flores’s baseline sentence under the

Guidelines. 

We have examined the remainder of Flores’s arguments, and find them to be without

merit. Accordingly, the judgment of the district court hereby is AFFIRMED.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

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