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United States v. Childers

United States District Court, D. Maine

June 13, 2017

UNITED STATES OF AMERICA
v.
RAHEEM CHILDERS

          SENTENCING ORDER

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         Raheem Childers has two prior convictions for offenses that the Government contends qualify him as a career offender. Mr. Childers no longer contests that his prior Massachusetts drug-trafficking conviction serves as a predicate offense[1]; however, he disagrees with the Government as to his prior New York robbery conviction. The Court concludes that the New York robbery conviction is a “crime of violence” pursuant to U.S.S.G. § 4B1.2(a)(2) because robbery is an enumerated offense and the New York robbery statute substantially corresponds to the generic form of robbery.

         I. BACKGROUND

         On June 8, 2016, a federal grand jury indicted Raheem Childers charging him with a single count of knowingly and intentionally possessing with intent to distribute a mixture or substance containing a detectable amount of fentanyl, a Schedule I controlled substance, and aiding and abetting that conduct, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Indictment (ECF No. 14). On August 16, 2016, Mr. Childers entered a guilty plea. Min. Entry (ECF No. 30).

         The Court held a presentence conference on December 13, 2016 and the parties agreed to file sentencing memoranda addressing whether Mr. Childers is a career offender within the meaning of U.S.S.G. § 4B1.1. Min. Entry (ECF No. 36). The Government filed its sentencing memorandum on January 30, 2017. Gov't's Mem. in Aid of Sentencing (ECF No. 39) (Gov't's Mem.). Mr. Childers filed his response on March 16, 2017. Def.'s Mem. in Aid of Sentencing (ECF No. 43) (Def.'s Opp'n). The Government replied on March 24, 2017, raising the impact of the Supreme Court's decision in Beckles v. United States, 137 S.Ct. 886 (2017), which was issued after the Government's initial memorandum. Gov't's Reply Mem. In Aid of Sentencing (ECF No. 44) (Gov't's Reply). As the Government's reply raised a new issue, the Court ordered Mr. Childers to respond. Order (ECF No. 45). On June 8, 2017, Mr. Childers filed a supplemental sentencing memorandum addressing the new issue. Def.'s Suppl. Mem. in Aid of Sentencing (ECF No. 46) (Def.'s Sur-Reply).

         II. THE PRESENTENCE INVESTIGATION REPORT

         In Part B of the Second Revised Presentence Investigation Report (PSR), not counting separate counts, the Probation Office (PO) listed twelve arrests that resulted in convictions for Mr. Childers, beginning June 11, 2002, when Mr. Childers was arrested and later convicted of attempted robbery in the second degree, through March 3, 2014, when he turned himself in for and was later convicted of credit card theft and fraud. Second Revised Presentence Investigation Report ¶¶ 23-34 (PSR). The PO calculated Mr. Childers' total criminal history score at 20, which resulted in a criminal history category of VI. Id. ¶ 35. Mr. Childers' total offense level is 23. Id. ¶ 21.

         In the initial PSR, the PO concluded that Mr. Childers was a career offender as a consequence of his prior New York conviction for attempted robbery in the second degree (New York robbery conviction) and his prior Massachusetts conviction for trafficking in controlled substances. See Gov't's Mem. at 1. Mr. Childers objected. Id. Based on Mr. Childers' objection regarding the New York robbery conviction and a recent ruling by Chief Judge Torresen of this District in United States v. Steed, No. 2:16-cr-48-NT, the PO ultimately concluded that the New York robbery was not a crime of violence and modified the PSR to remove the career offender enhancements. Revised Addendum to PSR at 1.

         III. THE SIGNIFICANCE OF THE ISSUES

         Generally, the consequences of application of the career offender guideline are two-fold. First, a career offender's criminal history category is automatically adjusted to Category VI. U.S.S.G. § 4B1.1(b). Additionally, a defendant's offense level is adjusted based on the offense statutory maximum. Id. These adjustments, in turn, affect a defendant's imprisonment range.

         Mr. Childers' criminal history category is Category VI regardless of the career offender enhancement. PSR ¶ 35. Where application of the career offender guidelines would affect Mr. Childers is in his total offense level. Because the statutory maximum for a violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 is twenty years, see 21 U.S.C. § 841(b)(1)(C), Mr. Childers' total offense level would increase from 23 to 29 after taking into account the adjustment for acceptance of responsibility. See U.S.S.G. § 4B1.1(b)(3). As a result, Mr. Childers' guideline imprisonment range would increase from 92 to 115 months to 151 to 188 months.

         IV. THE PARTIES' POSITIONS

         A. The Government's Memorandum

         As an initial matter, the Government clarifies that although the PSR states that Mr. Childers had one prior conviction for robbery in the second degree in Queens County Superior Court, the records obtained from that court show two convictions of attempted robbery in the second degree. Gov't's Mem. at 2-3. The Government then argues that robbery in the second degree in violation of New York State Penal Law § 160.10(1) is a “crime of violence” within the meaning of U.S.S.G. § 4B1.2 and Johnson v. United States, 559 U.S. 133 (2010) (Johnson I). Id. at 4.

         The Government states that under Johnson I, the phrase “physical force” in the context of the Armed Career Criminal Act's (ACCA) definition of “violent felony” means “violent force-that is, force capable of causing physical pain or injury to another person.” Id. (citing Johnson I, 559 U.S. at 140). The Government explains that because the First Circuit has held that the terms “crime of violence” under the career offender guideline and “violent felony” under the ACCA are identical in meaning, and that decisions construing one term inform the construction of the other, the Court should consider whether the New York second degree robbery statute requires “violent force” as defined by Johnson I. Id. at 5. The Government concludes that it does. Id. at 6.

         First, the Government points out that under the New York State Penal Law, a person is guilty of robbery when he “forcibly steals property, ” which is further defined by the statute as one who “uses or threatens the immediate use of physical force upon another person.” Id. at 5 (citing N.Y. Penal Law §§ 160.00, 160.10(1)). The Government claims that this statute tracks the career offender guideline and argues that by its plain language, robbery under New York law “has as an element the use, attempted use, or threatened use of physical force against the person of another.” Id. (citing U.S.S.G. § 4B1.2).

         Second, the Government argues that New York's requirement of the use or threatened use of physical power against another person “is precisely what the Supreme Court suggested Congress had in mind in using the term ‘physical force' in the ACCA.” Id. at 5-6. The Government urges the Court to reject any suggestion that robbery under New York law criminalizes non-violent behavior because, in its view, the New York cases concerning convictions under the statute all involve the use or threatened use of physical power, which it deems as violence. Id. at 6 n.8.

         B. Raheem Childers' Opposition

         Mr. Childers first claims that the PO's reliance on the 2016 Guidelines Manual results in an ex post facto violation. Def.'s Opp'n at 1 n.1. Mr. Childers then states that the Government bears the burden of showing the offense is a crime of violence under the force clause, and agrees that the definition of physical force as laid out in Johnson I applies. Id. at 2. Mr. Childers adds that the inquiry into whether an offense is a “crime of violence” begins with the categorical approach, which looks to the statutory definitions of the prior convictions and not the defendant's actual conduct. Id. He further observes that if the statute is divisible, meaning there are elements set out in the alternative, the modified categorical approach is applied, which permits the Court to look at limited additional documentation to ascertain which alternative within the statute was charged. Id. at 3.

         Because he concludes that New York State Penal Law § 160.10 includes several alternatives, Mr. Childers uses the modified categorical approach and looks to the indictment for the specific alternative charged. Id. He claims that, based on the indictment, he pleaded guilty to the following portion of the statute:

         A person is guilty of robbery in the second degree when he forcibly steals property and when:

2. In the course of the commission of the crime or immediate flight therefrom, he or another participant in the crime:
(a) Causes physical injury to any person who is not a participant in the crime.

Id.[2]

         Mr. Childers then claims that “[i]n addressing what level of physical force is necessary to convict someone of ‘forcibly stealing property, ' New York courts have held that very little force is necessary.” Id. at 3-4 (collecting cases). He cites United States v. Moncrieffe, 167 F.Supp.3d 383 (E.D.N.Y. 2016), a case in which the Eastern District of New York addressed a similar issue in the deportation context and concluded that robbery in New York is not a crime of violence based on the force clause because “the physical force required under the New York robbery statute can be minimal and does not need to amount to the necessary violent force under federal section 16(a).” Id. at 4 (quoting Moncrieffe, 167 F.Supp.3d at 406). Mr. Childers contends that “[i]n order for a prior conviction to count as a ‘crime of violence' under U.S.S.G. § 4B1.2(a), all of the conduct that could possibly come under the statute needs to qualify as a ‘crime of violence'” and argues that this is simply not the case under New York's second degree robbery statute. Id. at 5. Therefore, Mr. Childers concludes that his prior New York robbery conviction cannot be used as a predicate offense under the career offender guidelines. Id. at 5-6.

         C. The Government's Reply

         In reply, the Government maintains that Mr. Childers' prior convictions for attempted robbery in the second degree qualify as career offender predicates under the force clause of U.S.S.G. § 4B1.2(a)(1). Gov't's Reply at 1.

         In addition, the Government raises the impact of Beckles v. United States, 137 S.Ct. 886 (2017), a recent case in which the United States Supreme Court held that its decision in Johnson v. United States, 135 S.Ct. 2551 (2015) (Johnson II) that the residual clause of the ACCA is void for vagueness does not apply to the identically-worded residual clause in the career offender guidelines. Id. at 1-2. The Government explains that it did not press the applicability of the residual clause or the language in Application Note 1 enumerating robbery as a crime of violence because of the Johnson II decision, as well as the First Circuit's decision in United States v. Soto- Rivera, 811 F.3d 53 (1st Cir. 2016). Id. at 2. However, it claims that the Court is not bound by its concession which was made before Beckles. Id. at 3 (citing United States v. Thompson, 851 F.3d 129 (1st Cir. 2017)).

         The Government states that under Application Note 1 to U.S.S.G. § 4B1.2 (2015), robbery is enumerated as a “crime of violence” and an attempt to commit such an offense is also counted. Id. It further states that the relevant inquiry is “whether a defendant was necessarily convicted of the ‘generic' form of a particular offense contemplated by U.S.S.G. § 4B1.2(a).” Id. at 4. The Government then argues that the definition of robbery as set forth in New York State Penal Law § 160.00 “corresponds in all material respects to the generic definition of robbery” and thus a defendant convicted for robbery in New York is necessarily convicted of the generic form of robbery. Id. at 4-5.

         D. Raheem Childers' Sur-Reply

         In his sur-reply, Mr. Childers contends that even enumerated offenses such as robbery must still be proven by the Government. Def.'s Sur-Reply at 1. He argues that for the reasons set forth in his initial memorandum, the Government cannot meet its burden in this regard. Id.

         V. DISCUSSION

         First, the Court considers Mr. Childers' ex post facto concerns in order to determine which version of the Guidelines Manual applies and whether it matters. Then, the Court analyzes whether Mr. Childers' prior New York robbery conviction is a “crime of violence” pursuant to U.S.S.G. § 4B1.2(a).

         A. Ex Post ...


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