Date: 03-13-2018

Case Style:

Case Number: 15-3313

Judge: JOSÉ A. CABRANES

Court: United States Court of Appeals for the Second Circuit on appeal from the Southern District of New York (New York County)

Plaintiff's Attorney: Daniel M. Tracer, Thomas McKay and Karl Metzner

Defendant's Attorney: Matthew B. Larsne - FPD

Description: This case, in which oral argument was heard in September 2016
but which was held in abeyance pending decision first in United States
v. Jones, No. 15‐1518, __ F.3d __, slip op. (2d Cir. Oct. 5, 2017), then in
United States v. Morales, No. 14‐3661 (2d Cir. Jan. 22, 2018), presents the
following questions: (1) whether the evidence at trial was sufficient to
prove possession of crack cocaine with intent to distribute; and (2)
whether the New York offense of robbery in the second degree
constitutes a “crime of violence” as that term was defined in the United
States Sentencing Guidelines (“Guidelines”) before August 1, 2016.
The second question is one of first impression. We answer both
questions in the affirmative and therefore AFFIRM the judgment of
October 7, 2015 of the United States District Court for the Southern
District of New York (Katherine Polk Failla, Judge).
I. BACKGROUND
Defendant‐Appellant Edward Smith (“Smith”) appeals from a
District Court judgment entered on October 7, 2015 by Judge Failla. A
jury convicted Smith of being a felon in possession of a firearm and
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ammunition, in violation of 18 U.S.C. § 922(g)(1), and of possession of
crack cocaine with intent to distribute, in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(C). The District Court imposed a term of one hundred
twenty months’ imprisonment for each of the two charges, the terms
to run concurrently.
Smith argues: (a) that the evidence introduced at trial was
insufficient to prove possession of crack cocaine with intent to
distribute; and (b) that the District Court miscalculated his base
offense level under the Guidelines because second‐degree robbery, in
New York law, is not a “crime of violence” as the term is defined in
the applicable version of the Guidelines.
II. DISCUSSION
A. Sufficiency of the Evidence
Smith argues that the evidence presented at trial was
insufficient to prove possession of crack cocaine with intent to
distribute. The officers’ testimony that they recovered bags of crack
cocaine from him at the police station could not have been true, he
argues, because he “was bleeding from his hands on the night in
question,” whereas “the baggies allegedly recovered from [him] were
bloodless.” Br. Appellant 15–16. The bags thus could not have been
“pried from his bleeding and tightly[ ]clenched hands.” Id. at 16.
A court reviewing a conviction entered pursuant to a jury
verdict for sufficiency of the evidence must affirm the conviction if it
determines that “after viewing the evidence in the light most favorable
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to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Musacchio
v. United States, 136 S. Ct. 709, 715 (2016) (emphasis in original)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see also United
States v. Daugerdas, 837 F.3d 212, 221 (2d Cir. 2016).
We conclude that there was sufficient evidence to convict Smith.
The officers involved in Smith’s arrest testified at trial that they did not
search Smith until they were back at the police station because a hostile
crowd had gathered at the scene of the arrest. They also testified that
as they prepared to search Smith at the station, Smith removed
something from his pocket and clenched it in his fist. When they pried
Smith’s fist open, they discovered a plastic bag containing fourteen
smaller plastic bags of crack cocaine. Even if no blood was found on
the fourteen smaller plastic bags, the jury might reasonably have
inferred from the officers’ testimony that Smith’s hands were no
longer bleeding by the time he arrived at the police station. The jury
might also reasonably have inferred that Smith’s hands were still
bleeding but that no blood was on the smaller bags because they were
enclosed within the larger plastic bag. The government’s choice not to
introduce the larger plastic bag into evidence did not require the jury
to reject this second possible inference or to conclude that the officers’
testimony was not credible.
B. Calculation of Base Offense Level
Smith also argues that the District Court miscalculated his base
offense level under the Guidelines because robbery in the second
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degree, in violation of New York Penal Law section 160.10, is not a
“crime of violence” as the term is defined in the applicable version of
the Guidelines.
We review the District Court’s calculation for plain error
because Smith did not object to the calculation in the District Court.
See United States v. Hargrett, 156 F.3d 447, 451 (2d Cir. 1998). Plain error
exists when: “(1) there is an error; (2) the error is clear or obvious,
rather than subject to reasonable dispute; (3) the error affected the
appellant’s substantial rights, which in the ordinary case means it
affected the outcome of the district court proceedings; and (4) the error
seriously affects the fairness, integrity[,] or public reputation of
judicial proceedings.” United States v. Marcus, 560 U.S. 258, 262 (2010)
(internal quotation marks and brackets omitted). In the review of a
sentence, however, the plain error standard is not applied
“stringently,” since “the cost of correcting an unpreserved error is not
as great as in the trial context.” United States v. Gamez, 577 F.3d 394, 397
(2d Cir. 2009).
At the time of Smith’s sentencing, the Guidelines defined “crime
of violence” as “any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that—(1) has as an
element the use, attempted use, or threatened use of physical force
against the person of another, or (2) is burglary of a dwelling, arson,
or extortion, involves use of explosives, or otherwise involves conduct
that presents a serious potential risk of physical injury to another.”
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Guidelines Manual § 4B1.2(a) (U.S. Sentencing Comm’n 2014).1
Paragraph (1) is known as the “force clause”; the part of paragraph (2)
beginning with “or otherwise involves” is known as the “residual
clause.” The residual clause was removed from the Guidelines
effective August 1, 2016 because the United States Sentencing
Commission had determined the phrase to be unconstitutionally
vague in light of the Supreme Court’s decision in Johnson v. United
States, 135 S. Ct. 2551 (2015). See United States v. Jones, No. 15‐1518, __
F.3d __, slip op. at 7 n.1 (2d Cir. Oct. 5, 2017). The Supreme Court had
held in Johnson that the identically worded residual clause of the
Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), was
unconstitutionally vague. Johnson, 135 S. Ct. at 2554. The Guidelines
residual clause has since been held, however, to be constitutional.
Beckles v. United States, 137 S. Ct. 886, 892 (2017).
The District Court calculated Smith’s base offense level as 20. To
come to this result it first found, tacitly, that Smith’s conviction in this
federal proceeding for unlawful possession of a firearm and
1 The applicable version of the Sentencing Guidelines is the version in effect
on the day the defendant is sentenced. See 18 U.S.C. § 3553(a)(4)(A)(ii) (2012); United
States v. Jones, No. 15‐1518, __ F.3d __, slip op. at 10 n.3 (2d Cir. Oct. 5, 2017). Smith
was sentenced on October 1, 2015. See App. Appellant 633–713 (transcript of
sentencing). The applicable Guidelines Manual is therefore the 2014 version, which
remained in effect until November 1, 2015. Compare Guidelines Manual i (U.S.
Sentencing Comm’n 2014) (indicating that the 2014 version incorporates
amendments to the Guidelines up through the amendments effective November 1,
2014), with Guidelines Manual i (U.S. Sentencing Comm’n 2015) (indicating that the
2015 version incorporates amendments to the Guidelines up through the
amendments effective November 1, 2015).
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ammunition followed a conviction on March 30, 2005 for robbery in
the second degree in violation of New York Penal Law section 160.10.
It then implicitly concluded that second‐degree robbery met the
definition of a crime of violence in section 4B1.2(a) of the Guidelines.
The applicable provision of the Guidelines, section 2K2.1(a)(4)(A),
therefore fixed Smith’s base offense level at 20.
We have not yet decided whether the New York offense of
second‐degree robbery is a crime of violence under either the force
clause or the residual clause of section 4B1.2(a) of the Guidelines in
effect when Smith was sentenced.
We have recently held, however, that the New York offense of
first‐degree robbery is a crime of violence under the then‐applicable
residual clause of section 4B1.2(a) of the Guidelines. Jones, __ F.3d __.
In Jones, we noted that the official commentary on section 4B1.2 of the
2014 version of the Guidelines—also the relevant version in this case—
explicitly names robbery as a crime of violence. See id., slip op. at 15–
16; see also Guidelines Manual § 4B1.2 application note 1, at para. 2
(“‘Crime of violence’ includes murder, manslaughter, kidnapping,
aggravated assault, forcible sex offenses, robbery, arson, extortion,
extortionate extension of credit, and burglary of a dwelling.”). We also
noted that an official Guidelines commentary provision is controlling
unless it “(1) conflict[s] with a federal statute, (2) violate[s] the
Constitution, or (3) [is] plainly erroneous or inconsistent with the
Guidelines provision[ it] purport[s] to interpret.” Jones, slip op. at 16
(citing Stinson v. United States, 508 U.S. 36, 45 (1993)). None of these
exceptions applied in Jones. Id. at 16. We then confirmed that the
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meaning of “robbery” in the Guidelines commentary encompassed the
offense of first‐degree robbery within the meaning of New York law.
We did so in part by finding that the first element of the New York
first‐degree‐robbery statute fell within the generic definition of
robbery in all American jurisdictions. Compare N.Y. Penal Law § 160.15
(“A person is guilty of robbery in the first degree when he forcibly
steals property . . . .”), with Jones, slip op. at 17 (“[A]ll fifty states define
robbery, essentially, as the taking of property from another person or
from the immediate presence of another person by force or by
intimidation.” (emphasis omitted) (quoting United States v. Walker, 595
F.3d 441, 446 (2d Cir. 2010)). We concluded that the New York offense
of first‐degree robbery constituted a crime of violence under the
residual clause of section 4B1.2(a)(2) of the Guidelines. See Jones, slip
op. at 16–17, 19.
The rationale of Jones is directly applicable to this case. In New
York law, the first element of second‐degree robbery is the same as the
first element of first‐degree robbery. Compare N.Y. Penal Law § 160.10
(“A person is guilty of robbery in the second degree when he forcibly
steals property . . . .”), with id. § 160.15 (“A person is guilty of robbery
in the first degree when he forcibly steals property . . . .”). The first
elements of both provisions, taken on their own, bring these offenses
within the scope of the generic definition of robbery that we discussed
in Jones. It is thus unnecessary to consider the differences between the
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other elements of the first‐degree‐robbery statute and the other
elements of the second‐degree‐robbery statute.2
For these reasons we hold that the New York offense of robbery
in the second degree is within the meaning of “crime of violence” as
defined in section 4B1.2(a) of the Guidelines that were in effect when
Smith was sentenced.3 The District Court’s calculation of Smith’s base
offense level was therefore not erroneous.
III. CONCLUSION
In summary, we hold as follows:
(1) the evidence presented at Smith’s trial was sufficient to prove
possession of crack cocaine with intent to distribute; and
(2) because the New York offense of robbery in the second
degree constitutes a crime of violence within the meaning of
the United States Sentencing Guidelines in effect when Smith
2 Smith argues that second‐degree robbery cannot qualify as a crime of
violence under the force clause of section 4B1.2(a)(1) of the Guidelines. See Br.
Appellant 22–27. But because we concluded in Jones that first‐degree robbery
qualified as a crime of violence under the residual clause, and because we see no
relevant difference between New York’s first‐ and second‐degree‐robbery statutes,
it is not necessary to address Smith’s argument about the force clause.
3 As we noted above, the residual clause was replaced with different
language as of August 1, 2016. Our holding thus applies only to sentencing
decisions made under the Guidelines in effect before that date. See supra text
following note 1. We note, however, that the replacement language expressly
names “robbery” as one of the crimes of violence. See Guidelines Manual § 4B1.2(a)(2)
(U.S. Sentencing Comm’n 2016).
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was sentenced on October 1, 2015, the District Court’s
calculation of Smith’s base offense level was not erroneous.

Outcome: We AFFIRM the District Court’s judgment of October 7, 2015.

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