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18-2802-pr 

Baldwin 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 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 30th day of September, two thousand nineteen. 

PRESENT: JOSÉ A. CABRANES, 

GERARD E. LYNCH, 

CHRISTOPHER F. DRONEY, 

Circuit Judges. 

 

FREDDERICK BALDWIN, also known as FRANK KEITH, 

Petitioner-Appellee, 18-2802-pr 

v. 

UNITED STATES OF AMERICA, 

Respondent-Appellant. 

 

FOR PETITIONER-APPELLEE: Darrell Fields, Federal Defenders of New 

York, New York, NY. 

FOR RESPONDENT-APPELLANT: Amy Busa and Sylvia Shweder, Assistant 

United States Attorneys, for Richard P. 

Donoghue, United States Attorney for the 

Eastern District of New York, Brooklyn, 

NY. 

Appeal from an August 23, 2018 order of the United States District Court for the Eastern 

District of New York (Edward R. Korman, Judge). 
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UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the order of the District Court be and hereby is 

VACATED AND REMANDED. 

The Government challenges the District Court’s determination that the New York offense 

of robbery in the third degree is not a “violent felony” under the Armed Career Criminal Act, 18 

U.S.C. § 924(e) (“ACCA”). In doing so, the Government seeks re-sentencing for Fredderick Baldwin 

(“Baldwin”). 

In 1997, Baldwin was convicted of possession of a firearm as a convicted felon, in violation 

of 18 U.S.C. § 922(g), and received a sentencing enhancement under ACCA due to three prior 

violent felony convictions: one conviction for the New York offense of robbery in the first degree 

and two convictions for the New York offense of robbery in the third degree. Nineteen years later, 

in 2016, Baldwin petitioned the District Court, under 28 U.S.C. § 2255, to vacate his sentence. He 

argued that both New York robbery in the first and third degrees were incorrectly found to be 

categorically violent felonies at sentencing. The District Court agreed with regard to third-degree 

robbery (without reaching the issue of first-degree robbery) and determined that Baldwin had his 

sentence wrongly enhanced under ACCA. We assume the parties’ familiarity with the underlying 

facts, the procedural history of the case, and the issues on appeal. 

“We review de novo questions of law relating to a district court’s application of the ACCA.” 

United States v. Brown, 629 F.3d 290, 293 (2d Cir. 2011). 

Since the District Court’s ruling, we decided United States v. Thrower, 914 F.3d 770 (2d Cir. 

2019), in which we concluded that “the New York offense of robbery in the third degree, which like 

every degree of robbery in New York requires the common law element of ‘forcible stealing,’ is a 

‘violent felony’ under ACCA.” Id. at 776. Under Thrower, Baldwin’s initial sentencing decision was 

correct. With two convictions for third-degree robbery and one conviction for first-degree robbery 

(which Thrower also concluded is a “violent crime”), Baldwin was clearly eligible for the ACCA 

sentencing enhancement that he received. Id. 

As we noted in Villanueva v. United States, 893 F.3d 123 (2d Cir. 2018)—a case in which we 

also reversed a District Court judgment that had vacated an ACCA sentence—resentencing should 

occur “in light of the circumstances as they stood at the time of resentencing.” Id. at 132 (internal 

quotation marks omitted). The fact that Baldwin has been out of prison for over a year and the fact 

that he had only six months remaining on his sentence at the time he was released are 
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“circumstance[s] the District Court is entitled to consider in deciding whether to impose a sentence 

that requires him to serve all, part, or none of the unexpired term of the original sentence.” Id.

CONCLUSION 

For the foregoing reasons, we VACATE the August 23, 2018 order of the District Court 

and REMAND the cause for resentencing. The mandate shall issue forthwith. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk