United States District Court, D. Maine
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
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; 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.
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).
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
THE PRESENTENCE INVESTIGATION REPORT
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.
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.
THE SIGNIFICANCE OF THE ISSUES
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.
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.
THE PARTIES' POSITIONS
The Government's Memorandum
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.
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.
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.
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.
Raheem Childers' Opposition
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.
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:
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.
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.
The Government's Reply
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.
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)).
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.
Raheem Childers' Sur-Reply
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.
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.
Ex Post ...