UNITED STATES of America, Appellee, v. Corey JONES, Defendant-Appellant, 878 F.3d 10

JOHN M. WALKER, JR., Circuit Judge: Defendant Corey Jones appeals from a sentence entered in the United States District Court for the Eastern District of New York (Garaufis, J.) following a jury trial conviction for assaulting a federal officer in violation of 18 U.S.C. § 111. He was sentenced as a career offender principally to 180 months in prison to be followed by three years of supervised release. The primary basis for Jones’ appeal is that, in light of the Supreme Court’s holding in Johnson v.

United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) {Johnson I), New York first-degree robbery is no longer categorically a crime of violence under the force clause of the Career Offender Guideline, U.S.S.G. §§ 4B1.1 and 4B1.2, and that the district court therefore erred in concluding that his prior conviction for first-degree robbery would automatically serve as one of- the predicate offenses for a career offender designation. After oral argument in this matter, the Supreme Court decided Beckles v.

United States, — U.S. -, 137 S.Ct. 886, 197 L.Ed.2d 145 (2017), which held that the residual clause of the Career Offender Guideline—a second basis for finding a crime of violence—was not unconstitutional. The Court reached this conclusion notwithstanding the government’s concession to the contrary in cases around the country that the residual clause, like the identically worded provision of the Armed Career Criminal Act (“ACCA”), was void for vagueness.

In light of Bedeles, we find that New York first-degree robbery categorically qualifies as a crime of violence under the residual clause and therefore need not address Jones’ argument based on the force clause. We also find that his sentence is substantively reasonable and therefore AFFIRM the sentence imposed by the district court and REMAND for further consideration as may be just under the circumstances. BACKGROUND On June 21, 2013, Corey Jones was finishing a ninety-two month federal sentence for unlawful gun possession in a halfway house.

Jones verbally threatened a staff member, a violation of the rules of the halfway house, and thereby was remanded to the custody of the Bureau of Prisons. Two Deputy U.S. Marshals arrived to take Jones to prison, but Jones resisted the Marshals’ efforts to take him into custody. During the ensuing altercation, Jones bit the finger of one of the Marshals, who suffered puncture wounds, necessitating antibiotics and a tetanus vaccine at a hospital, This assault, it turned out, had grave consequences for Jones who was now in all likelihood a “career offender” subject to a greatly enhanced sentence.

A jury convicted Jones of assaulting a federal officer in violation of 18 U.S.C. § 111. In the pre-sentence report, the probation officer calculated a relatively modest base offense level of fifteen for the assault. But the probation officer then determined that Jones was a career offender pursuant to the Career Offender Guideline because, in addition to (1) being over eighteen years of age when he committed the assault and (2) the assault being a crime of violence, (3) he had at least two prior felony convictions of a crime of violence.

According to the report, Jones’ previous two convictions in New York for first-degree robbery and second-degree assault satisfied the third element of the test. The probation officer, following U.S.S.G. § 4B1.1, increased the offense level to thirty-two, which, when combined with Jones’ criminal history category of VI, resulted in a Guidelines range of 210 to 262 months of incarceration. Because the statutory maximum for assault is twenty years, the effective Guidelines range was 210 to 240 months.

The district court adopted the findings of the pre-sentence report and sentenced Jones to 180 months, or fifteen years, in prison for the assault, to be followed by three years of supervised release. Jones now appeals his sentence, arguing, first, that the district court erred in designating him a career offender and, second, that his sentence is substantively unreasonable. After oral argument, we published an opinion that resolved Jones’ appeal in his favor.

The government had conceded that the residual clause was void for vagueness, and we concluded that the force clause could not be applied to Jones for reasons not relevant here. Shortly after our decision was issued, however, we vacated the opinion in order to await the Supreme Court’s decision in Beckles. See United States v. Jones, 838 F.3d 296 (2d Cir. 2016) (mem.). Beckles addressed the constitutionality of the Career Offender Guideline’s residual clause, which was in effect "at the time of Jones’ sentencing but has since been removed and replaced with new language. Following Johnson v.

United States, — U.S. ——, 135 S.Ct. 2551, 2557, 192 L.Ed.2d 569 (2015) (Johnson II), which held- that the residual clause of the ACCA was unconstitutionally'void for vagueness, there existed a general belief that the identically worded residual clause of the Career Offender Guideline was similarly unconstitutional, as the government had consistently maintained. In Beckles, however, the Court held that the residual clause of the Career Offender Guideline is immune from void-for-vagueness challenges, as are the Guidelines generally. Beckles, 137 S.Ct. at 892.

After Beckles, we invited the parties in this case to provide supplemental briefing as to whether first-degree robbery, as defined in New York, categorically qualifies as a crime of violence under the previously codified residual clause of the Career Offender Guideline. Wé now address that question. DISCUSSION As noted, prior to Beckles, Jones’ argument centered upon the force clause of the Career Offender Guideline.

Aided now by the Supreme Court’s holding that the residual clause of the Career Offender Guideline is not void for vagueness, we find that first-degree robbery as defined in New York is categorically a crime of violence under the residual clause and thus we need not address Jones’ argument based on the force clause. In the district court, Jones,contested his career offender designation solely on the basis that his first-degree robbery conviction occurred when he was a juvenile. He raised no argument" that robbery in New York was not a crime of violence.

We accordingly review his present, challenge on that ground for plain error. See United States v. Gamez, 577 F.3d 394, 397 (2d Cir. 2009) (per curiam). To meet this standard, Jones must establish the existence of (1) an error; (2) “that is plain”; (3) “that affects substantial rights”; (4) and that “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (alterations and citation omitted). We apply this standard less “stringently in the sentencing context, where the cost of correcting an unpre-served error is not as great as in the trial context.” Id.

We first address point (1): whether the district court committed error of any kind in designating Jones a career offender. I. The Legal Provisions at Issue in This Appeal This appeal involves the interplay between substantive state criminal law and the federal Sentencing Guidelines (“Guidelines”). The question we face is straightforward: is first-degree robbery in New York, defined in New York Penal Law §§ 160.00 and 160.15, however it may be committed, categorically a crime of violence under the Career Offender Guideline?

A defendant commits robbery in New York when he “forcibly steals property,” which the statute defines as “a larceny” involving the use or threatened “immediate use of physical force upon another person.” N.Y. Penal Law § 160.00. The various degrees of robbery, which carry different penalties, turn upon the presence of particular aggravating factors. Compare § 160.05 (defining third-degree robbery), with § 160.10 (defining second-degree robbery), and with § 160.15 (defining first-degree robbery).

First-degree robbery occurs when a defendant commits robbery and during the course of the crime or his immediate flight either “(1) [clauses serious physical injury to any person who is not a participant in the crime; or (2) [i]s armed with a deadly weapon; or (3) [u]ses or threatens the immediate use of- a dangerous instrument; or (4) [displays- what appears to be a ... firearm.” § 160.15. The Career Offender Guideline enhances sentences for defendants in federal court who satisfy certain criteria. See U. S.

Sentencing Guidelines Manual § 4Bl.l(a) (U.S. ■ Sentencing Comm’n Nov. 2014) (U.S.S.G.), A defendant is a career, offender if (1) he.-is “at least eighteen years old at the time [he] committed the instant offense of conviction”; (2) his “instant offense of conviction is a felony that is ... a crime of violence”; and (3) he “has at least two prior- felony convictions of .., a crime of violence.” Id. At the- time of Jones’ sentencing in 2015, as mentioned earlier, there were two separate clauses defining “crime of violence.” See § 4B1.2(a).

The first definition, the “force clause,” specifies that a crime of violence is a felony “that has as an element the use, attempted use, or threatened use of physical force against the person of another.” § 4B1.2(a)(l). The second clause enumerates several offenses that qualify as crimes of violence—“burglary of a dwelling, arson, [ ] extortion[, or] involves use of explosives”—before ending with the “residual clause,” which specifies that a crime of violence also includes any'offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” § 4B1.2(a)(2) (2015). II.

The Categorical and Modified Categorical Approaches The Supreme Court has set forth the methodology for determining' whether a state conviction qualifies as a predicate offense for a federal sentence enhancement. There are two possible methods: the categorical approach and the modified categorical approach. See Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). The categorical approach is confined to an examination of the legal elements of the state criminal statute to determine whether they are identical to or narrower than the relevant federal statute. See id.

If so, a conviction under the state statute categorically qualifies as a predicate offense. See id. However, if the state statute criminalizes any conduct that would not fall within the scope of either the force clause or the residual clause, a conviction under the state statute is not categorically a crime of violence and cannot serve as a predicate offense. See id. Under the categorical approach we must confine our inquiry to the legal elements of the state statute without at all considering the facts of the underlying crime. The Supreme Court has set forth two reasons for this.

First, the text of the Career Offender Guideline, like that of the ACCA, explicitly refers to convictions rather than conduct. See Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 2252, 195 L.Ed.2d 604 (2016).

The Career Offender Guideline directs the sentencing court to consider whether the offender “has at least two prior felony convictions of ... a crime of violence,” U.S.S.G. § 4Bl.l(a), which indicates that “the sentencer should ask only about whether the defendant had been convicted of crimes falling within certain categories, and not about what the defendant had actually done,” Mathis, 136 S.Ct. at 2252 (internal quotation marks and citation omitted).

Second, by focusing upon the legal elements, rather than the facts of the offense, the sentencing court “avoids unfairness to defendants.” Id. at 2253. “Statements of ‘non-elemental fact’ in the records of prior convictions [such as the precise manner in which the crime was committed] are prone to error precisely because their proof is unnecessary.” Id. (citation omitted). Defendants therefore may have little incentive to ensure the correctness of those details of earlier convictions that could later trigger the unforeseen career offender enhancement.

Occasionally, however, a state statute will criminalize multiple acts in the alternative. Whei*e this occurs, courts may employ what is known as the modified categorical approach. But the Supreme Court has emphasized that the modified categorical approach is available only where the state statute is “divisible” into separate crimes. Descamps, 133 S.Ct. at 2281-82; see also Flores v. Holder, 779 F.3d 159, 165-66 (2d Cir. 2015).

A statute is divisible if it “list[s] elements in the alternative, and thereby define[s] multiple crimes” but is not divisible if it instead lists “various factual means of committing a single element.” Mathis, 136 S.Ct. at 2249 (emphases added). When a statute is divisible, a court employing the modified categorical approach can then peer into the record to see which of the multiple crimes was implicated.

But the court may discern this only from “a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of.” Id. Once that determination is made, the modified categorical approach is at an end and the court must apply the categorical approach to the legal elements of the appropriate criminal offense. Id. New York’s first-degree robbery statute is divisible and therefore subject to the modified categorical approach. New York defines robbery as “forcibly stea[ling] property.” N.Y.

Penal Law §§ 160.00-.15. There are four categories of first-degree robbery, depending on whether: the perpetrator “(1) [clauses serious physical injury to any person who is not a participant in the crime; or (2) [i]s armed with a deadly weapon; or (3) [u]ses or threatens the immediate use of a dangerous instrument; or (4) [displays what appears to be a ... firearm.” § 160.15; see also Flores, 779 F.3d at 166 (analyzing the divisibility of New York’s first-degree sexual abuse statute).

In the typical case under the modified categorical approach we would examine certain documents in the record to ascertain which of the four crimes Jones committed. In this instance, however, we are stymied and unable to employ the modified categorical approach because no one has produced the record. Where this occurs, however, we are not at a complete loss. We instead look to “the least of [the] acts” proscribed by the statute to see if it qualifies as a predicate offense for the career offender enhancement. See Johnson I, 559 U.S. at 137, 130 S.Ct. 1265.

If .so, Jones’s first-degree robbery conviction can serve as a predicate offense for the enhancement regardless of which first-degree robbery subpart provided the basis for his conviction. See id. Jones identifies the act of “forcibly stealing property” while “armed with a deadly weapon” as being the “least of the acts” in the statute, and we agree. See N.Y. Penal Law § 160.15(2). The question we must answer, therefore, is whether a defendant who perpetrates such

an act commits a crime of violence within the meaning of the residual clause of the Career Offender Guideline. In the opinion we issued and then withdrew, prior to Beckles, we addressed only the force clause. We did- not concern ourselves with whether Jones’ first-degree robbery conviction qualified as a crime of violence under the Career Offender Guideline’s residual clause because, consistent with the government’s concession on that point, we had previously held that the residual clause was unconstitutional in light of Johnson II. See United States v.

Welch, 641 Fed.Appx. 37, 42-43 (2d Cir. 2016) (summary order). Now that the Supreme Court has held in Beckles that the Guidelines, regardless of whatever other defects they may have, cannot be void for vagueness, 137 S.Ct. at 890, we are free to assess whether New York first-degree robbery categorically qualifies as a crime of violence under the residual clause. III. Whether Jones’ Conviction Qualifies as a Crime of Violence Under the Residual Clause We have little difficulty concluding that the “least of the acts” of first-degree robbery satisfies the definition of the Guidelines’ residual clause.

The least of the acts, both sides agree, is “forcibly stealing property” while “armed with a deadly weapon.” The residual clause provides that a crime of violence includes any offense that “involves conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2). Plainly, a robber who forcibly steals property from a person or from his immediate vicinity, while armed with a deadly weapon, engages in “conduct that presents a serious potential risk of physical injury to another.” See id.

If there were any misgiving on this score, it is removed by the commentary provision to the Guidelines in effect at the time of Jones’ sentencing, which specifically enumerated robbery as a crime of violence. § 4B1.2 cmt. n.l. Commentary provisions must be given “controlling weight” unless- they: (1) conflict with a federal statute, (2) violate the Constitution, or (3) are plainly erroneous or inconsistent with the Guidelines provisions they purport to interpret. Stinson v. United States, 508 U.S. 36, 45, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). Jones has not identified any such flaws nor do we discern any.

Where the basis for categoriz-' ing a prior conviction as a crime of violence is that the offense is specifically enumerated as such in the Career Offender Guideline or its commentary, we undertake the categorical approach by comparing the state statute to the generic definition of. the offense. See United States v. Walker, 595 F.3d 441, 445-46 (2d Cir. 2010).

That there is consensus in the criminal law as to what constitutes robbery thus further convinces us that the least of the acts constituting New York first-degree robbery, i.e., “forcibly stealing property” while “armed with a deadly weapon,” is a crime of violence under the residual clause. As we have noted, “all 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.” Id. (emphasis in original).

Indeed, it would seem that, pursuant to the commentary to the former residual clause, robbery of any degree, in New York qualifies as a crime of violence. Jones contends nonetheless that New York’s robbery statute is broader than the generic definition. He argues, specifically, that the generic definition of robbery requires the use or threat of force in the process of asserting dominion over the property that is the subject of the offense, whereas the New York statute would be violated by a robber who uses or threatens force after assuming dominion of the- property. We disagree.

The specific language of the New York robbery statute that Jones points "to is that “forcible stealing” consists of (1) the “use[ ] or threat[] [of] immediate use of physical force upon another person” (2) “in the course of committing a larceny” (3) for the purpose of either “preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking” -or “[compelling the owner of such property or another person to deliver, up the property 'or to engage-in other conduct which aids in the commission of the larceny.” N.Y.. Penal Law § 160.00 (emphasis added).

The generic definition of robbery; however, is broader than Jones acknowledges. It is true that the common law definition confines' robbery to 'the use or threat of force before, or simultaneous to, the assertion of dominion over property and therefore comports with Jones’ argument. See, e.g., Wayne LaFave, 3 Substantive Criminal Law § 20.3(e) (2d ed. Supp. 2016); Charles E. Torcia, 4 Wharton’s Criminal Law § 463 (15th ed. Supp. 2016).

But a majority of states have departed, from the common law definition of robbery, broadening it, either statutorily or by judicial fiat, to also prohibit the peaceful assertion of dominion followed by the use or threat of force. See, e.g., LaPave § 20.3(e); Torcía § 463; State v. Moore, 274 S.C. 468, 480-81, 265 S.E.2d 38 (S.C. 2007) (collecting state statutes and judicial decisions that have departed from the common law definition of robbery). Indeed, the Model Penal Code, which we relied upon in United States v.

Walker, 595 F.3d at 446, is often cited as the authority for expanding the definition of robbery in this manner, see LaPave § 20.3(e), because it specifies that robbery- includes conduct where the initial use or threat of force occurs “in flight after the attempt or commission [of the theft],” Model Penal Code § 222.1. As a result, this broader definition has supplanted the common law meaning as the generic definition of robbery. See Taylor v.

United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (specifying that the “generic” definition of a crime is the “sense in which the term is now used in the criminal codes of most states”).

Moreover, New York places two restrictions on. the temporal relationship between the underlying theft and the use or threat of force that buttress the conclusion that its definition .of robbery falls within .the generic definition of the offense:. (1) force must be “in the course of committing a larceny,” ie., a theft, and (2) force must occur during “immediate flight”, after the taking for purposes of retaining the property. See N.Y. Penal Law § 160.00.

Jones does not provide, and we are not aware of, any authority that the New York statute criminalizes the use of force after the robber has successfully carried the property away and reached a place of temporary safety. For all of the foregoing reasons, we easily conclude that New York’s definition of robbery necessarily falls within .the scope of generic robbery as set forth in the commentary to U.S.S.G. § 4B1.2(a).. Because Jones’ argument that first-degree robbery is not necessarily a crime of violence within the meaning of U.S.S.G. § 4B1.2(

a) under the categorical approach is without merit, the district court did not commit error, much less plain error, in sentencing Jones as a career offender. IV. The Substantive Reasonableness . of Jones’ Sentence Finally, we reject Jones’ argument that his sentence of 180 months is substantively unreasonable. In assessing the substantive reasonableness of a sentence, for abuse of discretion, we-review questions of law de novo and questions of fact for clear error. United States v. Bonilla, 618 F.3d 102, 108 (2d Cir. 2010) (citation .omitted).

We may not substitute our own judgment for that of the district court and can find substantively unreasonable only those sentences that are so “shockingly high, shockingly low, or otherwise unsupportable as a matter of law” that affirming them would “damage the administration of justice.” United States v. Bigas, 583. F.3d 108, 123 (2d Cir. 2009). In the “overwhelming majority of cases,” a sentence within the Guidelines range will “fall comfortably within the broad range of sentences that would be reasonable.” United States v. Perez-Frias, 636 F.3d 39, 43 (2d Cir. 2011) (citation omitted).

Jones’ Guidelines range was 210 months to 262 months, the top of which was lowered to 240 months, the statutory maximum for assault of a federal officer. The court imposed a sentence of 180 months, or fiftéen years, which, while substantial, was considerably below the Guidelines range. The primary thrust of Jones’ argument is that a fifteen-year sentence is substantively unreasonable for an assault of a federal officer that consists solely of biting the victim’s finger and in which the injury was not permanent. Jones’ argument, however, misses the mark.

The district court specified a combination of reasons for the fifteen-year sentence, including: (1) the need to encourage respect for the law and cooperation with law enforcement officials who are attempting to carry out their lawful duties;

(2) Jones’ substantial prior criminal history, consisting of seven prior convictions, two of which, in addition to the assault of the officer, resulted in him being designated a career offender; and

(3) Jones’ substantial history of misconduct while incarcerated, including twenty-seven occasions upon which he was disciplined. Jones attempts to compare his case to instances where defendants were convicted of violating the same statute, received lower sentences, and arguably committed more egregious conduct. That defendants convicted of similar or even more serious conduct received lower sentences, however, does not render Jones’ sentence substantively unreasonable.

Plainly, the district court also relied upon Jones’ criminal and prison history, including his career offender status, which distinguishes this ease from those to which he refers. Under these circumstances, we cannot say that Jones’ sentence was substantively unreasonable. CONCLUSION For the reasons stated above, we AFFIRM the sentence imposed by the district court and REMAND for further consideration as may be just under the circumstances. . After Johnson v.

United States, — U.S. -, 135 S.Ct. 2551, 2557, 192 L.Ed.2d 569 (2015) (Johnson II), the Sentencing Commission amended the Guidelines, effective August 1, 2016, to remove the residual clause. The Sentencing Commission noted disagreements among courts of appeals regarding whether the clause was unconstitutionally vague in light of Johnson II and whether the Guidelines were susceptible to a vagueness challenge. 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- - textamendments/20160121_Amendments_0, . pdf.

The Commission, without taking a position on the constitutionality of the residual clause, "determined that the residual clause ... implicates many of, the same concerns cited by the Supreme Court in [Johnson II}” and removed it "as a matter of policy.” Id. at 5. The Commission suggested that the amendment would alleviate application difficulties associated with the' claúse and some of the ongoing litigation and uncertainty resulting from Johnson II. Id. . The-alternative basis for the career offender enhancement—the commission of a “controlled substance offense”—is not relevant here. See U.S.S.G. § 4Bl.l(a). .

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); see also Beckles, 137 S.Ct. at 890 & n.1. Accordingly, all references to the Guidelines are to the November 2014 version, which was in effect when Jones was sentenced on April 24, 2015. .

The relevant commentary provision specified in full: "Crime of violence” includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included as 'crimes of violence' if (

A) that offense has as an element the use, attempted. use, or threatened use of physical force against the person of another, or (

B) the conduct set forth (i.e., expressly charged) in ‘ the count of which the defendant was con- Vieted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another, U.S.S.G; § 4B1.2 cmt. n.1 (2015). . This I.Q. score is considered to be in the "mentally deficient” range of intellectual functioning, below the generally accepted range for "intellectual disability,” which is an I.Q. score of approximately 70-75. See Dist. Ct. Dkt. 46-1 at 5, Jones Sentencing Memorandum, Exhibit A, “Sentencing Memo Letter of Dr. Sanford L. Drob”, at 5.