16

‐ 1604 (L)

United States v. Moore

1



## In the 2



# United States Court of Appeals

3



## For the Second Circuit 4

________ 5

6

A UGUST T ERM

, 2017 7

8

S UBMITTED : M ARCH 27, 2018 9

D ECIDED : F EBRUARY 25, 2019 10

11

No. 16

‐ 1604 (L), No. 16

‐ 1624 (con) 12

13

U NITED S TATES OF A MERICA

, 14

Appellee, 15

16

v. 17

18

C ALVIN S TEPHON M OORE

, 19

Defendant

‐ Appellant. 20

________ 21

22

Appeal from the United States District Court 23

for the Northern District of New York. 24

No. 1:15

‐ cr

‐ 27

‐ 1

– Thomas J. McAvoy, District Judge

. 25

________ 26

27

Before: K ATZMANN

, Chief Judge

, W ALKER and P OOLER

, Circuit Judges

. 28

________ 29

30

Defendant

‐ Appellant Calvin Stephon Moore appeals his 31

sentence following a guilty plea to three counts of federal bank 32

robbery in the United States District Court for Northern District of 332 16

‐ 1604 (L), 16

‐ 1624 (con)

New York (Thomas J. McAvoy, Judge ). Moore received three 1

concurrent 135

‐ month terms of imprisonment. 2

On appeal, Moore argues that the district court erred in 3

determining that he was subject to a sentencing enhancement as a 4

career offender under the 2015 version of the Career Offender 5

Guidelines of the United States Sentencing Guidelines, §§ 4B1.1–2. He 6

argues that neither federal bank robbery nor New York robbery in the 7

third degree are crimes of violence under U.S.S.G. § 4B1.2. 8

Rejecting Moore’s arguments, we AFFIRM. 9

________ 10

Grant C. Jaquith, United States Attorney for the 11

Northern District of New York (Michael S. Barnett 12

and Steven D. Clymer, Assistant United States 13

Attorneys, on the brief ), Syracuse, NY, for Appellee

. 14

15

Lisa A. Pebbles, Federal Public Defender for the 16

Northern District of New York (Molly Corbett and 17

James P. Egan, Assistant Federal Public Defenders, 18

on the brief ), Albany, NY, for Defendant

‐ Appellant. 19

________ 20

J OHN M. W ALKER

, J R

., Circuit Judge : 21

Defendant

‐ Appellant Calvin Stephon Moore appeals his 22

sentence following a guilty plea to three counts of federal bank 23

robbery in the United States District Court for Northern District of 24

New York (Thomas J. McAvoy, Judge ). Moore received three 25

concurrent 135

‐ month terms of imprisonment. 263 16

‐ 1604 (L), 16

‐ 1624 (con)

On appeal, Moore argues that the district court erred in 1

determining that he was subject to a sentencing enhancement as a 2

career offender under the 2015 version of the Career Offender 3

Guidelines of the United States Sentencing Guidelines, §§ 4B1.1–2. He 4

argues that neither federal bank robbery nor New York robbery in the 5

third degree are crimes of violence under U.S.S.G. § 4B1.2. 6

Rejecting Moore’s arguments, we AFFIRM. 7

BACKGROUND 8

In October 2015, Moore pled guilty to committing the following 9

three counts of robbery of federally insured banks in late 2014. On 10

November 17, 2014, Moore and an accomplice robbed a branch of 11

KeyBank in Schenectady, New York. During the robbery, Moore said, 12

“[T]his is a hold up give me money.” App’x at 37. Moore’s 13

accomplice was arrested and told the police that Moore threatened 14

the teller by stating he had a gun. On November 18, 2014, Moore 15

robbed a branch of Adirondack Bank in Utica, New York. According 16

to a teller, Moore said, “I have a gun, I will start shooting, give me all 17

bundles 100’s and 50’s.” Id. at 38. He also presented a note stating 18

that he had a gun and would shoot if necessary. The final offense 19

occurred on December 30, 2014, when Moore robbed a branch of First 20

Citizens Bank in Columbia, South Carolina. Moore told a teller that 21

he had a gun and presented a note demanding money. Later that 22

evening, South Carolina police officers received a report of a person 234 16

‐ 1604 (L), 16

‐ 1624 (con)

at a Motel 6 tossing a suspicious item over a fence and into a parking 1

lot. The item was a dye pack and several $20 bills. Officers began 2

stopping people near the Motel 6 and asking for identification. At 3

some point, they stopped Moore and discovered that he was wanted 4

for federal bank robberies in New York. The officers searched his 5

motel room pursuant to a warrant and found currency stolen earlier 6

in the day from the Columbia branch of First Citizens Bank. 7

In January 2015, a federal grand jury in the Northern District of 8

New York returned an indictment charging Moore with two counts 9

of bank robbery “by intimidation” in violation of 18 U.S.C. § 2113(a). 10

Id. at 11. In February 2015, a federal grand jury in the District of South 11

Carolina returned an indictment charging Moore with one count of 12

bank robbery “by force and violence and by intimidation” in violation 13

of 18 U.S.C. § 2113(a). Id. at 13. Subsequently, the South Carolina case 14

was transferred to the Northern District of New York. 15

In October 2015, Moore pled guilty to all three counts of federal 16

bank robbery. The Probation Office recommended that Moore be 17

sentenced under the Career Offender Guidelines. See U.S. Sentencing 18

Guidelines Manual § 4B1.1(a) (U.S. Sentencing Comm’n 2015). 1 19

1 Citations to the Guidelines are hereinafter referred to as “U.S.S.G.” With

only one exception not relevant here, district courts are to sentence

defendants pursuant to the version of the Guidelines in effect on the date

of sentencing. See 18 U.S.C. § 3553(a)(4)(A)(ii); see also Beckles v. United

States

, 137 S. Ct. 886, 890 n.1 (2017). Accordingly, unless otherwise stated,5 16

‐ 1604 (L), 16

‐ 1624 (con)

Specifically, the Probation Office determined that: (1) Moore was at 1

least 18 years old when he committed the crimes; (2) federal bank 2

robbery is a crime of violence; and (3) Moore had two prior felony 3

convictions for New York robbery in the third degree, New York 4

Penal Law § 160.05, which the Probation Office considered to be 5

crimes of violence. With adjustments for Moore’s acceptance of 6

responsibility, his offense level of 29 and criminal history category of 7

VI yielded a Guidelines range of 151 to 188 months. 8

Moore objected to the Probation Office’s conclusion that he was 9

a career offender, arguing that the Supreme Court’s decisions in 10

Johnson v. United States

, 559 U.S. 133 (2010) (“ Johnson I ”), and Johnson 11

v. United States

, 135 S. Ct. 2551 (2015) (“ Johnson II ”), narrowed the 12

definition of a crime of violence under U.S.S.G. § 4B1.2(b) in such a 13

way that he should not be considered a career offender because 14

neither federal bank robbery nor New York robbery in the third 15

degree are crimes of violence. Johnson I clarified that the term 16

“physical force” in the definition of the term “violent felony” under 17

the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(i), 18

means “violent” force, or “force capable of causing physical pain or 19

injury to another person.” 559 U.S. at 140. Johnson II held that the 20

all references to the Guidelines are to the November 2015 version, which

was in effect when Moore was sentenced on May 9, 2016. Thus, the

amendments to §§ 4B1.1–2 that were in effect between August 1, 2016, and

October 31, 2016, do not apply to this appeal. See also infra note 2.6 16

‐ 1604 (L), 16

‐ 1624 (con)

residual clause of the ACCA—which is worded identically to the 2015 1

version of the Career Offender Guidelines under which Moore was 2

sentenced—was unconstitutionally void for vagueness. 135 S. Ct. at 3

2557. 4

Rejecting Moore’s arguments, the district court sentenced him 5

to concurrent 135

‐ month terms of imprisonment on each of the three 6

counts of conviction, followed by three years of supervised release. 7

App’x at 187–88. At the sentencing hearing, the district judge 8

announced, “[F]or the record

. . . regardless of any potential difference 9

in the guidelines calculations, including the fact that the criminal 10

offender guideline application was not taken into account in the plea 11

agreement, the Court would have imposed the same sentence based 12

upon the [previously stated] factors and reasoning.” Id. at 188. Moore 13

now challenges his sentence on the grounds that neither federal bank 14

robbery nor New York robbery in the third degree qualifies as a crime 15

of violence under the Career Offender Guidelines. 16

Before we turn to the merits of Moore’s appeal, we note the 17

somewhat unusual briefing schedule of this appeal. In November 18

2016, after Moore had already filed his opening brief, we vacated our 19

opinion in United States v. Jones, 830 F.3d 142 (2d Cir. 2016) (“ Jones I ”) 20

in light of the Supreme Court’s grant of certiorari in Beckles v. United 21

States

, 137 S. Ct. 886 (2017). See United States v. Jones, 838 F.3d 296 (2d 22

Cir. 2016) (order vacating Jones I ). Moore’s opening brief heavily 237 16

‐ 1604 (L), 16

‐ 1624 (con)

relied on Jones I

, so we stayed this appeal until Jones I could be 1

reconsidered in the wake of Beckles

. In Beckles

, the Supreme Court 2

held that because the Sentencing Guidelines are advisory and not 3

mandatory, see United States v. Booker, 543 U.S. 220, 245 (2005), they 4

are not subject to a void for vagueness challenge, and therefore, the 5

residual clause of the Career Offender Guidelines was not 6

unconstitutional. 137 S. Ct. at 894–95. In United States v. Jones

, 878 7

F.3d 10, 17 (2d Cir. 2017) (“ Jones II ”), we held that New York first 8

degree robbery qualified as a crime of violence under the residual 9

clause of the 2014 version of the Career Offender Guidelines. The 10

language of the 2014 version of the Career Offender Guidelines is 11

substantively the same as the 2015 (pre

‐ amendment) version that 12

applies to Moore’s sentence here. Compare U.S.S.G. § 4B1.2 (2014), 13

with U.S.S.G. § 4B1.2 (2015). 14

In September 2017, we lifted the stay, but Moore opted to rest 15

on his originally filed opening brief, which relied substantially on our 16

vacated and superseded opinion in Jones I

. After the Government 17

filed its brief in December 2017, Moore filed a reply brief relying on 18

new arguments. At our request, the Government submitted 19

additional briefing in response to Moore’s argument that, contrary to 20

dictum in Jones II

, New York’s definition of robbery lacks an element 21

present in the generic definition of robbery. 22

238 16

‐ 1604 (L), 16

‐ 1624 (con)

DISCUSSION 1

The two issues in this appeal are whether the district court 2

erred in determining that federal bank robbery by intimidation in 3

violation of 18 U.S.C. § 2113(a) and New York third

‐ degree robbery 4

in violation of New York Penal Law § 160.05 are crimes of violence 5

under the 2015 version of the Career Offender Guidelines, U.S.S.G. 6

§§ 4B1.1–2. We review de novo a district court’s determination of 7

whether an offense is a crime of violence under the Guidelines. United 8

States v. Van Mead

, 773 F.3d 429, 432 (2d Cir. 2014). 9

I. The Career Offender Guidelines 10

The Career Offender Guidelines provide for an enhanced 11

sentence when the defendant: (1) is at least 18 years old at the time 12

she committed the instant offense of conviction; (2) has an instant 13

offense of conviction that is a felony crime of violence; and (3) has at 14

least two prior felony convictions constituting crimes of violence or 15

controlled substance offenses. U.S.S.G. § 4B1.1(a). 16

When Moore was sentenced in May 2016, there were three 17

separate provisions in the applicable U.S.S.G. § 4B1.2 Guideline 18

defining “crime of violence.” The first clause, commonly known as 19

the “force clause” or the “elements clause,” specifies that a crime of 20

violence is a felony that “has as an element the use, attempted use, or 21

threatened use of physical force against the person of another.” Id. 22

§ 4B1.2(a)(1). The second clause, known as the “enumerated clause,” 239 16

‐ 1604 (L), 16

‐ 1624 (con)

enumerates four offenses that qualify as crimes of violence: “burglary 1

of a dwelling, arson, or extortion, [or crimes] involv[ing the] use of 2

explosives.

. . .” Id. § 4B1.2(a)(2)

. Finally, the residual clause specifies 3

that a crime of violence also includes any felony that “otherwise 4

involves conduct that presents a serious potential risk of physical 5

injury to another.” 2 Id. 6

In addition to these three clauses in the text of the § 4B1.2(a) 7

Guideline, application note 1 in the commentary to the Guideline 8

includes an additional list of enumerated offenses that qualify as 9

crimes of violence: “murder, manslaughter, kidnapping, aggravated 10

assault, forcible sex offenses, robbery, arson, extortion, extortionate 11

extension of credit, and burglary of a dwelling.” Id. § 4B1.2 cmt. n.1. 12

For the sake of clarity, this opinion will refer to this fourth provision 13

defining crimes of violence as the “commentary clause.” 3 14

2 After Johnson II

, the Sentencing Commission amended the Career Offender

Guidelines through a supplement to the 2015 Guidelines, effective August

1, 2016, to remove the residual clause. See Jones II

, 878 F.3d at 14 n.1 (citing

U.S. Sentencing Comm’n, Amendments to the Sentencing Guidelines 4–5

(Jan. 21, 2016), https://www.ussc.gov/sites/default/files/pdf/amendment

‐ process/official

‐ text

‐ amendments/20160121_Amendments_0.pdf (last

visited Feb. 22, 2019)). This amendment does not apply to Moore, as noted

supra note 1.

3 Other opinions inside and outside this circuit have referred to the

enumerated offenses in the commentary simply as “enumerated offenses,”

but that can lead to confusion because the four offenses specifically

identified in the text of the 2015 (pre

‐ amendment) § 4B1.2(a)(2) Guideline

are commonly referred to as the “enumerated offenses” or the “enumerated

clause.” Other opinions have referred to these offenses listed in the10 16

‐ 1604 (L), 16

‐ 1624 (con)

II. Federal Bank Robbery “by Force and Violence, or by 1

Intimidation” Is a Crime of Violence Because it Is 2

Specifically Enumerated in the Commentary Clause 3

and Conforms to the Definition of Generic Robbery 4

Moore argues that federal bank robbery does not qualify as a 5

crime of violence under the force clause because the offense can be 6

committed by mere intimidation, which does not necessarily require 7

the use, attempted use, or threatened use of violent force. Appellant’s 8

Br. at 27–29. We have yet to address in a published opinion the issue 9

of whether federal bank robbery is a crime of violence under any of 10

the Guidelines’ provisions defining a crime of violence. 4 We take this 11

commentary as specific examples of crimes of violence that would be

captured under the residual clause. While this is true, the fact that they

have been specifically enumerated provides them with a special status akin

to the four enumerated offenses in the Guideline so that there is no need for

a court to decide the central question under the residual clause of whether

these offenses “involve[] conduct that presents a potential risk of physical

injury to another.” U.S.S.G. § 4B1.2(a)(2). For this reason, these specifically

enumerated offenses deserve their own designation, and we think the

“commentary clause” is the most appropriate title. However, when the

residual clause was eliminated on August 1, 2016, in the supplement to the

2015 Guidelines, the enumerated offenses in the commentary clause were

incorporated into the text of § 4B1.2(a)(2). Therefore, references to the

commentary clause are only relevant to cases applying § 4B1.2 before the

August 1, 2016 amendments.

4 The issue was addressed in two recent summary orders. United States v.

Dykes

, 724 F. App’x 39, 44–45 (2d Cir. 2018) (summary order) concluded that

because the definition of generic robbery “mirrors the elements of statutory

federal bank robbery,” federal bank robbery qualifies as a crime of violence

under the commentary clause of U.S.S.G. § 4B1.2. Killion v. United States

,

728 F. App’x 19, 21–22 (2d Cir. 2018) (summary order) held that federal

bank robbery qualifies as a crime of violence under the similarly

‐ worded

force clause of the ACCA.11 16

‐ 1604 (L), 16

‐ 1624 (con)

occasion now to hold that federal bank robbery “by force and 1

violence, or by intimidation” under 18 U.S.C. § 2113(a) qualifies as a 2

crime of violence under the commentary clause because it is 3

enumerated in the Guidelines commentary and conforms to the 4

definition of generic robbery. In so holding, we make no 5

determination as to whether federal bank robbery “by force and 6

violence, or by intimidation” is also a crime of violence under the 7

other clauses. 8

Commentary and application notes in the Guidelines must be 9

given controlling weight unless they: (1) conflict with a federal 10

statute, (2) violate the Constitution, or (3) are plainly erroneous or 11

inconsistent with the Guidelines provision they purport to interpret. 12

Jones II

, 878 F.3d at 18 (citing Stinson v. United States, 508 U.S. 36, 45 13

(1993)). Neither party contends that any such flaws exist here. We 14

must therefore treat robbery the same as if it were an enumerated 15

offense in the Guidelines text. See United States v. Jackson, 60 F.3d 128, 16

131 (2d Cir. 1995) (“Application Note 1 is authoritative because it 17

interprets and explains § 4B1.2 by listing offenses that constitute

. . . 18

‘crimes of violence’

. . . even though the broadened definition of 19

[‘crimes of violence’] articulated in the commentary does not appear 20

in an actual guideline.

. . .”). 21

Treating robbery as we would an enumerated offense in the 22

Guidelines text, we must analyze its applicability to the bank 2312 16

‐ 1604 (L), 16

‐ 1624 (con)

robberies in the case at hand by using what is known as the 1

categorical or modified categorical approach. See Jones II

, 878 F.3d at 2

15–16 (citing Descamps v. United States

, 570 U.S. 254, 257 (2013)). 3

Under the categorical approach we examine the legal elements of the 4

criminal statute of conviction (rather than the circumstances of the 5

criminal act) to determine whether they are identical to or narrower 6

than a “generic” version of the offense. See id. at 16; see also United 7

States v. Castillo

, 896 F.3d 141, 149–50 (2d Cir. 2018). The generic 8

definition of an offense is the “contemporary understanding of the 9

term,” as ascertained from the criminal codes of the states, federal 10

criminal statutes, the Model Penal Code, scholarly treatises, legal 11

dictionaries, and, when appropriate, the common law. Castillo, 896 12

F.3d at 150 (internal quotations omitted). If the offense matches or is 13

narrower than the generic version, a conviction under the statute 14

categorically qualifies as a predicate crime of violence offense. Jones 15

II, 878 F.3d at 16

. If, however, the statute criminalizes any conduct 16

that would not fall within the scope of the generic offense, the offense 17

cannot be considered a crime of violence. Castillo, 896 F.3d at 149–50

. 18

As noted, the categorical approach is confined to the legal elements of 19

the statute, with no consideration of the facts of the underlying crime. 20

Jones II, 878 F.3d at 16. 21

In the event a statute criminalizes multiple acts in the 22

alternative, thereby defining multiple crimes, it is considered 2313 16

‐ 1604 (L), 16

‐ 1624 (con)

“divisible,” and we apply the modified categorical approach. Id. A 1

statute is not considered divisible if, instead of defining multiple 2

crimes, it lists various factual means of committing a single crime. Id. 3

For example, a statute that prohibits “the lawful entry or the unlawful 4

entry of a premises with intent to steal” is divisible because it 5

criminalizes two alternative offenses—the less serious offense of 6

burglary with lawful entry and the more serious offense of burglary 7

with unlawful entry. See Mathis v. United States, 136 S. Ct. 2243, 2249 8

(2016) (internal quotations omitted). In a case like that, a court would 9

apply the modified categorical approach and look to “a limited class 10

of documents,” such as “the indictment, jury instructions, or plea 11

agreement and colloquy” to determine which of those two alternative 12

offenses was the offense of conviction. Id. (internal quotations 13

omitted). The court would then return to the categorical analysis and 14

compare the elements of the offense of conviction with the elements 15

of the relevant generic offense. Id. 16

The parties do not contest that § 2113(a) of the federal bank 17

robbery statute is divisible, and we agree. That subsection delineates 18

two methods of committing the crime of bank robbery: (1) “by force 19

and violence, or by intimidation” or (2) “by enter[ing] or attempt[ing] 20

to enter” a federal financial institution “with intent to commit

. . . any 21

felony affecting” such financial institution “and in violation of any 22

statute of the United States, or any larceny.” 18 U.S.C. § 2113(a). 2314 16

‐ 1604 (L), 16

‐ 1624 (con)

Therefore, § 2113(a) is divisible, and we may look to Moore’s plea 1

agreements to determine under which method he was convicted. See 2

United States v. Wilson

, 880 F.3d 80, 84 n.3 (3d Cir. 2018) (accepting the 3

district court’s determination that § 2113(a) is divisible because it 4

contains two separate paragraphs, each containing a separate version 5

of the crime of federal bank robbery); United States v. Rinker, 746 F. 6

App’x 769, 772 n.21 (10th Cir. 2018) (unpublished) (collecting cases); 7

see also Jones II, 878 F.3d at 16. 8

According to Moore’s plea agreements, he was convicted under 9

the first method: bank robbery “by force and violence, or by 10

intimidation.” See Plea Agreement 3–4, United States v. Moore, No. 15

‐ 11

cr

‐ 27 (N.D.N.Y. Oct. 29, 2015), ECF No. 17; Plea Agreement 3–4, 12

United States v. Moore, No. 15

‐ cr

‐ 281 (N.D.N.Y. Oct. 29, 2015), ECF No. 13

5. 14

While the text of the 2015 version of the Guidelines only 15

enumerates four general crimes that per se qualify as crimes of 16

violence—“burglary of a dwelling, arson, or extortion, [or crimes] 17

involv[ing the] use of explosives

. . . ,” U.S.S.G. § 4B1.2(a)(2)—the 18

commentary clause specifically lists robbery as a crime of violence, 19

along with murder, manslaughter, kidnapping, aggravated assault, 20

forcible sex offenses, arson, extortion, extortionate extension of credit, 21

and burglary of a dwelling. Id. § 4B1.2 cmt. n.1. For the reasons stated 22

earlier, we give these enumerated offenses in the commentary clause 2315 16

‐ 1604 (L), 16

‐ 1624 (con)

the same effect as we would if they were in the text of the Guideline 1

itself. Jackson, 60 F.3d at 131. 2

Thus, we must determine whether the “by force and violence, 3

or by intimidation” clause of the federal bank robbery statute 4

corresponds in substance to the generic definition of robbery. See 5

United States v. Walker

, 595 F.3d 441, 445–46 (2d Cir. 2010) (“[W]here a 6

specific offense

. . . is listed as a qualifying [crime of violence], ‘then 7

the trial court need find only that the state statute corresponds in 8

substance to the generic meaning of [the specific offense].’” (quoting 9

Taylor v. United States, 495 U.S. 575, 599 (1990))). We found in Walker 10

that “all fifty states define robbery, essentially, as the taking of 11

property from another person or from the immediate presence of 12

another person by force or by intimidation,” thus meeting the generic 13

definition of robbery Id. at 446 (emphasis in original). The relevant 14

clause in § 2113(a) defines bank robbery as taking “by force and 15

violence, or by intimidation,

. . . from the person or presence of 16

another

. . . any property or money or any other thing of value 17

belonging to, or in the care, custody, control, management, or 18

possession of, any bank, credit union, or any savings and loan 19

association.” 18 U.S.C. § 2113(a). This definition criminalizes conduct 20

that contains all of the elements of generic robbery we announced in 21

Walker

. 595 F.3d at 446; accord United States v. Dykes

, 724 F. App’x 39, 22

45 (2d Cir. 2018) (summary order). Thus, because the “by force and 2316 16

‐ 1604 (L), 16

‐ 1624 (con)

violence, or by intimidation” clause of the federal bank robbery 1

statute “is the same as, or narrower than, the relevant generic offense” 2

of robbery, it constitutes a crime of violence subject to U.S.S.G. § 3

4B1.2’s sentencing enhancement. Mathis, 136 S. Ct. at 2257. 5 4

Accordingly, we hold that federal bank robbery “by force and 5

violence, or by intimidation” is a crime of violence under the 6

5 Moore does not contend that federal bank robbery fails to meet the generic

definition of robbery. Rather, he focuses his argument exclusively on the

force clause, arguing that “intimidation” does not require the use or threat

of violent force and that this bank robbery statute does not require the

defendant make an intentional threat of physical force. Appellant’s Br. at

27–29. Since we conclude that federal bank robbery is a predicate crime of

violence under the Guidelines’ commentary clause, we decline to resolve

the question of whether federal bank robbery is also a crime of violence

under the force clause. We note, however, 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. See

Killion, 728 F. App’x at 21–22 (“Killion argues that in light of Johnson [I]

, federal armed bank robbery is no longer a violent felony

. . . [because] the

offense does not require the use of any force

. . . [since] intimidation

involves at most a threat of injury.

. . . [However,] the threat of injury is still

a threat to use physical force, and is punishable under the ACCA’s force

clause.” (internal citations omitted)); see also United States v. Wilson

, 880 F.3d

80, 84–85 (3d Cir. 2018); United States v. Harper

, 869 F.3d 624, 626–27 (8th Cir.

2017); United States v. Ellison

, 866 F.3d 32, 35–40 (1st Cir. 2017); United States

v. Brewer

, 848 F.3d 711, 715–16 (5th Cir. 2017); United States v. McGuire

, 678

F. App’x 643, 645–46 (10th Cir. 2017) (summary order); McBride

, 826 F.3d at

295–96; United States v. Jenkins

, 651 F. App’x 920, 925 (11th Cir. 2016) (per

curiam); United States v. McNeal

, 818 F.3d 141, 152–53 (4th Cir. 2016); United

States v. Jones

, 932 F.2d 624, 625 (7th Cir. 1991); United States v. Selfa

, 918 F.2d

749, 751 (9th Cir. 1990).17 16

‐ 1604 (L), 16

‐ 1624 (con)

commentary clause of the Career Offender Guidelines because it 1

conforms to the generic definition of robbery. 2

III. New York Robbery in the Third

‐ Degree Is a Crime of 3

Violence Under the Force Clause 4

Moore also argues that the district court erred in applying the 5

Career Offender Guidelines’ sentencing enhancement because New 6

York robbery in the third degree is not a crime of violence under 7

either the force clause or the commentary clause. We hold that New 8

York robbery in the third degree is categorically a crime of violence 9

under the force clause of U.S.S.G. § 4B1.2(a)(1). Our holding today 10

parallels this court’s recent decisions in United States v. Thrower, No. 11

17

‐ 445, 2019 WL 385652, at *3 (2d Cir. Jan. 31, 2019) (per curiam), and United 12

States v. Pereira

‐ Gomez, 903 F.3d 155, 166 (2d Cir. 2018), in which we 13

held that New York robbery in the third degree is a violent felony 14

under the force clause of 18 U.S.C. § 924(3)(2)(B) and a crime of 15

violence under the force clause of U.S.S.G. § 2L1.2 of the 2014 16

Guidelines, respectively. In light of our holding under the force 17

clause, we do not consider Moore’s argument that the New York 18

statute is broader than the definition of generic robbery and not a 19

crime of violence under the commentary clause. 6 20

6 Moore also argues in his reply brief that New York robbery in the third

degree is not a crime of violence under the residual clause but concedes that

the district court did not rely on the residual clause in making the

determination that New York robbery in the third degree is a crime of18 16

‐ 1604 (L), 16

‐ 1624 (con)

As with the commentary clause, we analyze whether an offense 1

is a crime of violence under the force clause using the categorical 2

approach. Pereira

‐ Gomez, 903 F.3d at 164 (citing Stuckey v. United 3

States, 878 F.3d 62, 66–67 (2d Cir. 2017)). This approach, familiar by 4

now, involves two steps: first we identify the elements of the 5

predicate conviction by determining the minimum criminal conduct 6

a defendant must commit to be convicted; second, we determine 7

whether that minimum criminal conduct “has as an element the use, 8

attempted use, or threatened use of physical force,” U.S.S.G. 9

§ 4B1.2(a)(1). Stuckey

, 878 F.3d at 67; see also United States v. Hill, 890 10

F.3d 51, 55–56 (2d Cir. 2018). “[T]o show a predicate conviction is not 11

a crime of violence ‘requires more than the application of legal 12

imagination to [the]

. . . statute’s language.’

. . . [T]here must be a 13

‘realistic probability, not a theoretical possibility,’ that the statute at 14

issue could be applied to conduct that does not constitute a crime of 15

violence.” Hill

, 890 F.3d at 56 (alterations omitted) (quoting Gonzales 16

v. Duenas

‐ Alvarez

, 549 U.S. 183, 193 (2007)). This means that a 17

defendant must point to at least one case in which a court in fact 18

applied a particular statute in a manner for which he or she argues. 19

Id. 20

violence. We decline to consider this argument given our holding that New

York robbery in the third degree is a crime of violence under the force

clause.19 16

‐ 1604 (L), 16

‐ 1624 (con)

New York third

‐ degree robbery is not divisible, and therefore 1

we apple the categorical approach without modification. See Mathis, 2

136 S. Ct. at 2248–49. A person is guilty of New York third

‐ degree 3

robbery when she “forcibly steals property.” N.Y. Penal Law § 160.05. 4

A person forcibly steals property when, 5

in the course of committing a larceny, he uses or 6

threatens the immediate use of physical force upon 7

another person for the purpose of: (1) [p]reventing or 8

overcoming resistance to the taking of the property or to 9

the retention thereof immediately after the taking; or 10

(2) [c]ompelling the owner of such property or another 11

person to deliver up the property or to engage in other 12

conduct which aids in the commission of the larceny. 13

N.Y. Penal Law § 160.00; see also Pereira

‐ Gomez, 903 F.3d at 165. 14

Distilled to its basic elements, third

‐ degree robbery in New 15

York requires the use or threat of immediate physical force upon 16

another in furtherance of a larceny. Plainly then, the elements of this 17

offense constitute a crime of violence under the force clause of the 18

Career Offender Guidelines because they include “as an element the 19

use, attempted use, or threatened use of physical force against the 20

person of another.” U.S.S.G. § 4B1.2(a)(1). 21

Moore’s arguments that New York robbery in the third degree 22

does not qualify as a crime of violence under the force clause of the 23

Career Offender Guidelines are unavailing. He argues that New York 24

third

‐ degree robbery does not require violent force but can be violated 25

with “relatively minor physical power,” Appellant’s Reply Br. at 14, 2620 16

‐ 1604 (L), 16

‐ 1624 (con)

and therefore runs afoul of the Supreme Court’s requirement in 1

Johnson I that physical force be “violent force—that is, force capable 2

of causing physical pain or injury to another person,” Johnson I, 559 3

U.S. at 140 (emphasis omitted). 7 4

To support his argument, Moore principally relies on our 5

vacated opinion in Jones I

. To the extent anything in our vacated Jones 6

I opinion may have supported Moore’s position, it has no 7

precedential value. See In re Bernard L. Madoff Inv. Sec. LLC, 721 F.3d 8

54, 68 (2d Cir. 2013) (“[V]acatur dissipates precedential force.”); see 9

also Pereira

‐ Gomez

, 903 F.3d at 165 n.45 (“In [ Jones I ], this Court initially 10

reversed Spencer on the basis of perceived supervening Supreme 11

Court guidance. But Jones I was subsequently vacated and our ruling 12

in Spencer was reinstated.”); Massey v. United States, 895 F.3d 248, 251 13

n.6 (2d Cir. 2018) (per curiam) (same). 14

7 In holding that physical force means violent force or force capable of

causing physical pain or injury to another person, the Johnson I Court was

interpreting the ACCA’s force clause defining a “violent felony” and not

the Career Offender Guidelines’ force clause defining a “crime of violence.”

559 U.S. at 135, 140. The Supreme Court has never directly held that Johnson

I’ s definition of physical force applies to the Career Offender Guidelines’

force clause. However, the two clauses are substantively similar to one

another, and, as discussed, the Supreme Court indicated in Johnson I that

case law interpreting a specific force clause can be reliably applied to other,

similarly phrased force clauses. See id. at 140. Therefore, we assume

without holding that Johnson I ’s definition of physical force applies to the

force clause of the Career Offender Guidelines at issue in this case. See, e.g.,

Hill

, 890 F.3d at 58 (assuming, without deciding, that Johnson I ’s definition

of physical force applies to 18 U.S.C. § 924(c)(3)(A)’s similar force clause

definition of crime of violence).21 16

‐ 1604 (L), 16

‐ 1624 (con)

Moore also relies on decisions from other circuits interpreting 1

other states’ robbery statutes to support his argument that New York 2

robbery in the third degree is not a crime of violence under the force 3

clause because it does not require violent force. Even if those other 4

states’ robbery statutes were identical to the relevant New York 5

statute, however, they are not controlling in this circuit. Our circuit 6

has addressed this exact argument in Pereira

‐ Gomez and concluded 7

that “[b]y its plain language

. . . New York’s robbery statute includes 8

as an element the use of violent force.” 903 F.3d at 165 (emphasis 9

added). Moore’s argument that New York robbery in the third degree 10

does not require violent force as defined by Johnson I is foreclosed by 11

our recent opinion in Pereira

‐ Gomez

, as supported by the New York 12

Court of Appeals’s interpretation of the statute. Id. 8 13

8 In Pereira

‐ Gomez, we held that robbery in any degree under New York law

is a crime of violence under the force clause of § 2L1.2 of the 2014

Guidelines. 903 F.3d at 166. Even more recently in United States v. Thrower

,

we reached the same conclusion as it pertains to violent felonies under the

force clause in the ACCA. 2019 WL 385652, at *3–4. We have reached

similar conclusions on other, prior occasions. See, e.g., United States v.

Spencer, 955 F.2d 814, 820 (2d Cir. 1992) (attempted New York robbery in

the third degree “has as an element the use, attempted use, or threatened

use of physical force against the person of another” because it requires

“forcibly stealing property and using or threatening the immediate use of

physical force upon another person” (internal quotations and alterations

omitted)); United States v. Brown

, 52 F.3d 415, 425–26 (2d Cir. 1995) (New

York attempted robbery in the third degree constitutes a violent felony

under the force clause of the ACCA, which uses the same language to define

a violent felony as the Career Offender Guidelines: any crime that “has as

an element the use, attempted use, or threatened use of physical force22 16

‐ 1604 (L), 16

‐ 1624 (con)

Any doubt as to the lack of merit of Moore’s argument was 1

recently removed by the Supreme Court’s rejection of a similar 2

challenge to Florida’s robbery statute, which requires “resistance by 3

the victim that is overcome by the physical force of the offender.” See 4

Stokeling v. United States, 139 S. Ct. 544, 549 (2019) (internal quotations 5

omitted). The Court held that the Florida statute does constitute a 6

violent felony under the force clause of the ACCA despite the fact that 7

the force may be minor and may not cause pain or injury, because 8

Johnson I ’s definition of violent force is concerned with only the 9

potential of the force to cause pain or injury, rather than the likelihood 10

that it will. Id. at 554. Like the Florida robbery statute at issue in 11

against the person of another”) (internal quotations omitted); United States

v. Miles, 748 F.3d 485, 490 (2d Cir. 2014) (per curiam) (same). Pereira

‐ Gomez

, Thrower, Brown, and Miles addressed the force clauses of § 2L1.2 and the

ACCA, but we see no reason why the reasoning of these prior cases should

not apply with equal force to the materially identical force clause of the

Career Offender Guidelines in § 4B1.2. See United States v. Parnell, 524 F.3d

166, 169–70 (2d Cir. 2008) (per curiam) (“We have previously relied on

authorities interpreting the ACCA’s definition of a ‘violent felony’ to

interpret the [Career Offender] Guidelines’ definition of ‘crime of violence’

. . . because those provisions are substantively similar, making authority

interpreting one phrase persuasive in interpreting the other phrase.”

(internal quotations, citations, and alterations omitted)); see also Johnson I,

559 U.S. at 140 (applying case law interpreting the force clause of 18 U.S.C.

§ 16’s crime of violence provision to an issue requiring interpretation of the

ACCA’s “very similar” force clause provision). In this case, the force

clauses in the 2014 Guidelines’ version of § 2L1.2 and in the ACCA have the

exact same definition as the force clause in the 2015 version of § 4B1.2: an

offense that “has as an element the use, attempted use, or threatened use of

physical force against the person of another.” Compare Pereira

‐ Gomez, 903

F.3d at 164, and Thrower, 2019 WL 385652, at *2, with U.S.S.G. § 4B1.2(a)(1).23 16

‐ 1604 (L), 16

‐ 1624 (con)

Stokeling

, the New York robbery statute requires the use or threat of 1

force in order to overcome the victim’s resistance to the theft, and 2

therefore, it is “capable of causing physical pain or injury.” Id. at 555 3

(quoting Johnson I, 559 U.S. at 140). 4

CONCLUSION 5

For all of the foregoing reasons, the district court appropriately 6

applied the 2015 (pre

‐ amendment) Career Offender Guidelines’ 7

sentencing enhancement in this case, and thus, we AFFIRM the 8

judgment of the district court. 9