United States v. Jones 1 In the

15‐1518‐cr
United States v. Jones
1
In the 2
United States Court of Appeals 3
For the Second Circuit 4
________ 5
6
A UGUST TERM , 2015 7
8
A RGUED: A PRIL 27, 2016 9
D ECIDED: S EPTEMBER 11, 2017 10
A MENDED: O CTOBER 5, 2017 11
12
No. 15‐1518‐cr 13
14
U NITED S TATES OF AMERICA, 15
Appellee, 16
17
v. 18
19
C OREY JONES, 20
Defendant‐Appellant. 21
________ 22
23
Appeal from the United States District Court 24
for the Eastern District of New York. 25
No. 13 Cr. 00438 – Nicholas G. Garaufis, District Judge. 26
________ 27
28
Before: WALKER , C ALABRESI, and H ALL , Circuit Judges. 29
________ 30
31
Defendant Corey Jones appeals from a sentence entered in the 32
United States District Court for the Eastern District of New York 33

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(Garaufis, J.) following a jury‐trial conviction for assaulting a federal 1
officer in violation of 18 U.S.C. § 111. He was sentenced as a career 2
offender principally to 180 months in prison to be followed by three 3
years of supervised release. The primary basis for Jones’ appeal is 4
that, in light of the Supreme Court’s holding in Johnson v. United 5
States, 559 U.S. 133 (2010) (Johnson I), New York first‐degree robbery 6
is no longer categorically a crime of violence under the force clause 7
of the Career Offender Guideline, U.S.S.G. §§ 4B1.1 and 4B1.2, and 8
that the district court therefore erred in concluding that his prior 9
conviction for first‐degree robbery would automatically serve as one 10
of the predicate offenses for a career offender designation. 11
After oral argument in this matter, the Supreme Court 12
decided Beckles v. United States, 137 S. Ct. 886 (2017), which held that 13
the residual clause of the Career Offender Guideline—a second basis 14
for finding a crime of violence—was not unconstitutional. The Court 15
reached this conclusion notwithstanding the government’s 16
concession to the contrary in cases around the country that the 17
residual clause, like the identically worded provision of the Armed 18
Career Criminal Act (“ACCA”), was void for vagueness. In light of 19
Beckles, we find that New York first‐degree robbery categorically 20
qualifies as a crime of violence under the residual clause and 21
therefore need not address Jones’ argument based on the force 22
clause. We also find that his sentence is substantively reasonable and 23

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therefore AFFIRM the sentence imposed by the district court and 1
REMAND for further consideration as may be just under the 2
circumstances. 3
Judge C ALABRESI and Judge HALL concur in the opinion of the 4
Court. Judge C ALABRESI files a separate concurring opinion, which 5
Judge H ALL joins. 6
________ 7
B RIDGET M. R OHDE , Acting Assistant United 8
States Attorney (Amy Busa, Assistant United 9
States Attorney, on the brief), for Acting United 10
States Attorney for the Eastern District of New 11
York, for Appellee. 12
MATTHEW B. L ARSEN, Assistant Federal Defender, 13
Federal Public Defenders of New York, New 14
York, NY, for Defendant‐Appellant. 15
________ 16
JOHN M. WALKER , JR ., Circuit Judge: 17
Defendant Corey Jones appeals from a sentence entered in the 18
United States District Court for the Eastern District of New York 19
(Garaufis, J.) following a jury trial conviction for assaulting a federal 20
officer in violation of 18 U.S.C. § 111. He was sentenced as a career 21
offender principally to 180 months in prison to be followed by three 22
years of supervised release. The primary basis for Jones’ appeal is 23
that, in light of the Supreme Court’s holding in Johnson v. United 24
States, 559 U.S. 133 (2010) (Johnson I), New York first‐degree robbery 25
is no longer categorically a crime of violence under the force clause 26

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4 15‐1518‐cr
of the Career Offender Guideline, U.S.S.G. §§ 4B1.1 and 4B1.2, and 1
that the district court therefore erred in concluding that his prior 2
conviction for first‐degree robbery would automatically serve as one 3
of the predicate offenses for a career offender designation. 4
After oral argument in this matter, the Supreme Court 5
decided Beckles v. United States, 137 S. Ct. 886 (2017), which held that 6
the residual clause of the Career Offender Guideline—a second basis 7
for finding a crime of violence—was not unconstitutional. The Court 8
reached this conclusion notwithstanding the government’s 9
concession to the contrary in cases around the country that the 10
residual clause, like the identically worded provision of the Armed 11
Career Criminal Act (“ACCA”), was void for vagueness. In light of 12
Beckles, we find that New York first‐degree robbery categorically 13
qualifies as a crime of violence under the residual clause and 14
therefore need not address Jones’ argument based on the force 15
clause. We also find that his sentence is substantively reasonable and 16
therefore AFFIRM the sentence imposed by the district court and 17
REMAND for further consideration as may be just under the 18
circumstances. 19
Judge C ALABRESI and Judge HALL concur in the opinion of the 20
Court. Judge C ALABRESI files a separate concurring opinion, which 21
Judge H ALL joins. 22

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BACKGROUND 1
On June 21, 2013, Corey Jones was finishing a ninety‐two 2
month federal sentence for unlawful gun possession in a halfway 3
house. Jones verbally threatened a staff member, a violation of the 4
rules of the halfway house, and thereby was remanded to the 5
custody of the Bureau of Prisons. Two Deputy U.S. Marshals arrived 6
to take Jones to prison, but Jones resisted the Marshals’ efforts to 7
take him into custody. During the ensuing altercation, Jones bit the 8
finger of one of the Marshals, who suffered puncture wounds, 9
necessitating antibiotics and a tetanus vaccine at a hospital. This 10
assault, it turned out, had grave consequences for Jones who was 11
now in all likelihood a “career offender” subject to a greatly 12
enhanced sentence. 13
A jury convicted Jones of assaulting a federal officer in 14
violation of 18 U.S.C. § 111. In the pre‐sentence report, the probation 15
officer calculated a relatively modest base offense level of fifteen for 16
the assault. But the probation officer then determined that Jones was 17
a career offender pursuant to the Career Offender Guideline 18
because, in addition to (1) being over eighteen years of age when he 19
committed the assault and (2) the assault being a crime of violence, 20
(3) he had at least two prior felony convictions of a crime of violence. 21
According to the report, Jones’ previous two convictions in New 22
York for first‐degree robbery and second‐degree assault satisfied the 23

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6 15‐1518‐cr
third element of the test. The probation officer, following U.S.S.G. 1
§ 4B1.1, increased the offense level to thirty‐two, which, when 2
combined with Jones’ criminal history category of VI, resulted in a 3
Guidelines range of 210 to 262 months of incarceration. Because the 4
statutory maximum for assault is twenty years, the effective 5
Guidelines range was 210 to 240 months. 6
The district court adopted the findings of the pre‐sentence 7
report and sentenced Jones to 180 months, or fifteen years, in prison 8
for the assault, to be followed by three years of supervised release. 9
Jones now appeals his sentence, arguing, first, that the district court 10
erred in designating him a career offender and, second, that his 11
sentence is substantively unreasonable. 12
After oral argument, we published an opinion that resolved 13
Jones’ appeal in his favor. The government had conceded that the 14
residual clause was void for vagueness, and we concluded that the 15
force clause could not be applied to Jones for reasons not relevant 16
here. Shortly after our decision was issued, however, we vacated the 17
opinion in order to await the Supreme Court’s decision in Beckles. 18
See United States v. Jones, 838 F.3d 291, 291 (2d Cir. 2016) (mem.). 19
Beckles addressed the constitutionality of the Career Offender 20
Guideline’s residual clause, which was in effect at the time of Jones’ 21
sentencing but has since been removed and replaced with new 22

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7 15‐1518‐cr
language.1 Following Johnson v. United States, 135 S. Ct. 2551, 2557 1
(2015) (Johnson II), which held that the residual clause of the ACCA 2
was unconstitutionally void for vagueness, there existed a general 3
belief that the identically worded residual clause of the Career 4
Offender Guideline was similarly unconstitutional, as the 5
government had consistently maintained. In Beckles, however, the 6
Court held that the residual clause of the Career Offender Guideline 7
is immune from void‐for‐vagueness challenges, as are the 8
Guidelines generally. Beckles, 137 S. Ct. at 892. After Beckles, we 9
invited the parties in this case to provide supplemental briefing as to 10
whether first‐degree robbery, as defined in New York, categorically 11
qualifies as a crime of violence under the previously codified 12
residual clause of the Career Offender Guideline.2 We now address 13
that question. 14
1 After Johnson v. United States, 135 S. Ct. 2551, 2557 (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‐text‐
amendments/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 clause and some
of the ongoing litigation and uncertainty resulting from Johnson II. Id.
2 The alternative basis for the career offender enhancement—the commission of a
“controlled substance offense”—is not relevant here. See U.S.S.G. § 4B1.1(a).

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8 15‐1518‐cr
DISCUSSION 1
As noted, prior to Beckles, Jones’ argument centered upon the 2
force clause of the Career Offender Guideline. Aided now by the 3
Supreme Court’s holding that the residual clause of the Career 4
Offender Guideline is not void for vagueness, we find that first‐ 5
degree robbery as defined in New York is categorically a crime of 6
violence under the residual clause and thus we need not address 7
Jones’ argument based on the force clause. 8
In the district court, Jones contested his career offender 9
designation solely on the basis that his first‐degree robbery 10
conviction occurred when he was a juvenile. He raised no argument 11
that robbery in New York was not a crime of violence. We 12
accordingly review his present challenge on that ground for plain 13
error. See United States v. Gamez, 577 F.3d 394, 397 (2d Cir. 2009) (per 14
curiam). To meet this standard, Jones must establish the existence of 15
(1) an error; (2) “that is plain”; (3) “that affects substantial rights”; (4) 16
and that “seriously affects the fairness, integrity, or public 17
reputation of judicial proceedings.” Id. (alterations and citation 18
omitted). We apply this standard less “stringently in the sentencing 19
context, where the cost of correcting an unpreserved error is not as 20
great as in the trial context.” Id. We first address point (1): whether 21
the district court committed error of any kind in designating Jones a 22
career offender. 23

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9 15‐1518‐cr
I. The Legal Provisions at Issue in This Appeal 1
This appeal involves the interplay between substantive state 2
criminal law and the federal Sentencing Guidelines (“Guidelines”). 3
The question we face is straightforward: is first‐degree robbery in 4
New York, defined in New York Penal Law §§ 160.00 and 160.15, 5
however it may be committed, categorically a crime of violence 6
under the Career Offender Guideline? 7
A defendant commits robbery in New York when he “forcibly 8
steals property,” which the statute defines as “a larceny” involving 9
the use or threatened “immediate use of physical force upon another 10
person.” N.Y. Penal Law § 160.00. The various degrees of robbery, 11
which carry different penalties, turn upon the presence of particular 12
aggravating factors. Compare § 160.05 (defining third‐degree 13
robbery), with § 160.10 (defining second‐degree robbery), and with 14
§ 160.15 (defining first‐degree robbery). First‐degree robbery occurs 15
when a defendant commits robbery and during the course of the 16
crime or his immediate flight either “(1) [c]auses serious physical 17
injury to any person who is not a participant in the crime; or (2) [i]s 18
armed with a deadly weapon; or (3) [u]ses or threatens the 19
immediate use of a dangerous instrument; or (4) [d]isplays what 20
appears to be a . . . firearm.” § 160.15. 21
The Career Offender Guideline enhances sentences for 22
defendants in federal court who satisfy certain criteria. See U. S. 23

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10 15‐1518‐cr
Sentencing Guidelines Manual § 4B1.1(a) (U.S. Sentencing Comm’n 1
Nov. 2014) (U.S.S.G.). A defendant is a career offender if (1) he is “at 2
least eighteen years old at the time [he] committed the instant 3
offense of conviction”; (2) his “instant offense of conviction is a 4
felony that is . . . a crime of violence”; and (3) he “has at least two 5
prior felony convictions of . . . a crime of violence.” Id. 6
At the time of Jones’ sentencing in 2015,3 as mentioned earlier, 7
there were two separate clauses defining “crime of violence.” See 8
§ 4B1.2(a). The first definition, the “force clause,” specifies that a 9
crime of violence is a felony “that has as an element the use, 10
attempted use, or threatened use of physical force against the person 11
of another.” § 4B1.2(a)(1). The second clause enumerates several 12
offenses that qualify as crimes of violence—“burglary of a dwelling, 13
arson, [] extortion[, or] involves use of explosives”—before ending 14
with the “residual clause,” which specifies that a crime of violence 15
also includes any offense that “otherwise involves conduct that 16
presents a serious potential risk of physical injury to another.” 17
§ 4B1.2(a)(2) (2015). 18
3 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.

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II. The Categorical and Modified Categorical Approaches 1
The Supreme Court has set forth the methodology for 2
determining whether a state conviction qualifies as a predicate 3
offense for a federal sentence enhancement. There are two possible 4
methods: the categorical approach and the modified categorical 5
approach. See Descamps v. United States, 133 S. Ct. 2276, 2281 (2013). 6
The categorical approach is confined to an examination of the 7
legal elements of the state criminal statute to determine whether 8
they are identical to or narrower than the relevant federal statute. 9
See id. If so, a conviction under the state statute categorically 10
qualifies as a predicate offense. See id. However, if the state statute 11
criminalizes any conduct that would not fall within the scope of 12
either the force clause or the residual clause, a conviction under the 13
state statute is not categorically a crime of violence and cannot serve 14
as a predicate offense. See id. 15
Under the categorical approach we must confine our inquiry 16
to the legal elements of the state statute without at all considering 17
the facts of the underlying crime. The Supreme Court has set forth 18
two reasons for this. First, the text of the Career Offender Guideline, 19
like that of the ACCA, explicitly refers to convictions rather than 20
conduct. See Mathis v. United States, 136 S. Ct. 2243, 2252 (2016). The 21
Career Offender Guideline directs the sentencing court to consider 22
whether the offender “has at least two prior felony convictions of . . . 23

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a crime of violence,” U.S.S.G. § 4B1.1(a), which indicates that “the 1
sentencer should ask only about whether the defendant had been 2
convicted of crimes falling within certain categories, and not about 3
what the defendant had actually done,” Mathis, 136 S. Ct. at 2252 4
(internal quotation marks and citation omitted). 5
Second, by focusing upon the legal elements, rather than the 6
facts of the offense, the sentencing court “avoids unfairness to 7
defendants.” Id. at 2253. “Statements of ‘non‐elemental fact’ in the 8
records of prior convictions [such as the precise manner in which the 9
crime was committed] are prone to error precisely because their 10
proof is unnecessary.” Id. (citation omitted). Defendants therefore 11
may have little incentive to ensure the correctness of those details of 12
earlier convictions that could later trigger the unforeseen career 13
offender enhancement. 14
Occasionally, however, a state statute will criminalize 15
multiple acts in the alternative. Where this occurs, courts may 16
employ what is known as the modified categorical approach. But the 17
Supreme Court has emphasized that the modified categorical 18
approach is available only where the state statute is “divisible” into 19
separate crimes. Descamps, 122 S. Ct. at 2281‐82; see also Flores v. 20
Holder, 779 F.3d 159, 165‐66 (2d Cir. 2015). A statute is divisible if it 21
“list[s] elements in the alternative, and thereby define[s] multiple 22
crimes” but is not divisible if it instead lists “various factual means of 23

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13 15‐1518‐cr
committing a single element.” Mathis, 136 S. Ct. at 2249 (emphases 1
added). 2
When a statute is divisible, a court employing the modified 3
categorical approach can then peer into the record to see which of 4
the multiple crimes was implicated. But the court may discern this 5
only from “a limited class of documents (for example, the 6
indictment, jury instructions, or plea agreement and colloquy) to 7
determine what crime, with what elements, a defendant was 8
convicted of.” Id. Once that determination is made, the modified 9
categorical approach is at an end and the court must apply the 10
categorical approach to the legal elements of the appropriate 11
criminal offense. Id. 12
New York’s first‐degree robbery statute is divisible and 13
therefore subject to the modified categorical approach. New York 14
defines robbery as “forcibly stea[ling] property.” N.Y. Penal Law §§ 15
160.00–.15. There are four categories of first‐degree robbery, 16
depending on whether: the perpetrator “(1) [c]auses serious physical 17
injury to any person who is not a participant in the crime; or (2) [i]s 18
armed with a deadly weapon; or (3) [u]ses or threatens the 19
immediate use of a dangerous instrument; or (4) [d]isplays what 20
appears to be a . . . firearm.” § 160.15; see also Flores, 779 F.3d at 166 21
(analyzing the divisibility of New York’s first‐degree sexual abuse 22
statute). 23

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14 15‐1518‐cr
In the typical case under the modified categorical approach 1
we would examine certain documents in the record to ascertain 2
which of the four crimes Jones committed. In this instance, however, 3
we are stymied and unable to employ the modified categorical 4
approach because no one has produced the record. Where this 5
occurs, however, we are not at a complete loss. We instead look to 6
“the least of [the] acts” proscribed by the statute to see if it qualifies 7
as a predicate offense for the career offender enhancement. See 8
Johnson I, 559 U.S. at 137. If so, Jones’s first‐degree robbery 9
conviction can serve as a predicate offense for the enhancement 10
regardless of which first‐degree robbery subpart provided the basis 11
for his conviction. See id. 12
Jones identifies the act of “forcibly stealing property” while 13
“armed with a deadly weapon” as being the “least of the acts” in the 14
statute, and we agree. See N.Y. Penal Law § 160.15(2). The question 15
we must answer, therefore, is whether a defendant who perpetrates 16
such an act commits a crime of violence within the meaning of the 17
residual clause of the Career Offender Guideline. 18
In the opinion we issued and then withdrew, prior to Beckles, 19
we addressed only the force clause. We did not concern ourselves 20
with whether Jones’ first‐degree robbery conviction qualified as a 21
crime of violence under the Career Offender Guideline’s residual 22
clause because, consistent with the government’s concession on that 23

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15 15‐1518‐cr
point, we had previously held that the residual clause was 1
unconstitutional in light of Johnson II. See United States v. Welch, 641 2
F. App’x 37, 42‐43 (2d Cir. 2016) (summary order). Now that the 3
Supreme Court has held in Beckles that the Guidelines, regardless of 4
whatever other defects they may have, cannot be void for 5
vagueness, 137 S. Ct. at 890, we are free to assess whether New York 6
first‐degree robbery categorically qualifies as a crime of violence 7
under the residual clause. 8
III. Whether Jones’ Conviction Qualifies as a Crime of 9
Violence Under the Residual Clause 10
We have little difficulty concluding that the “least of the acts” 11
of first‐degree robbery satisfies the definition of the Guidelines’ 12
residual clause. The least of the acts, both sides agree, is “forcibly 13
stealing property” while “armed with a deadly weapon.” The 14
residual clause provides that a crime of violence includes any 15
offense that “ involves conduct that presents a serious potential risk 16
of physical injury to another.” U.S.S.G. § 4B1.2(a)(2). Plainly, a 17
robber who forcibly steals property from a person or from his 18
immediate vicinity, while armed with a deadly weapon, engages in 19
“conduct that presents a serious potential risk of physical injury to 20
another.” See id. 21
If there were any misgiving on this score, it is removed by the 22
commentary provision to the Guidelines in effect at the time of 23

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Jones’ sentencing, which specifically enumerated robbery as a crime 1
of violence.4 § 4B1.2 cmt. n.1. 2
Commentary provisions must be given “controlling weight” 3
unless they: (1) conflict with a federal statute, (2) violate the 4
Constitution, or (3) are plainly erroneous or inconsistent with the 5
Guidelines provisions they purport to interpret. Stinson v. United 6
States, 508 U.S. 36, 45 (1993). Jones has not identified any such flaws 7
nor do we discern any. Where the basis for categorizing a prior 8
conviction as a crime of violence is that the offense is specifically 9
enumerated as such in the Career Offender Guideline or its 10
commentary, we undertake the categorical approach by comparing 11
the state statute to the generic definition of the offense. See United 12
States v. Walker, 595 F.3d 441, 445‐46 (2d Cir. 2010). 13
That there is consensus in the criminal law as to what 14
constitutes robbery thus further convinces us that the least of the 15
acts constituting New York first‐degree robbery, i.e., “forcibly 16
4 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 convicted 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).

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stealing property” while “armed with a deadly weapon,” is a crime 1
of violence under the residual clause. As we have noted, “all fifty 2
states define robbery, essentially, as the taking of property from 3
another person or from the immediate presence of another person 4
by force or by intimidation.” Id. (emphasis in original). Indeed, it 5
would seem that, pursuant to the commentary to the former residual 6
clause, robbery of any degree in New York qualifies as a crime of 7
violence. 8
Jones contends nonetheless that New York’s robbery statute is 9
broader than the generic definition. He argues, specifically, that the 10
generic definition of robbery requires the use or threat of force in the 11
process of asserting dominion over the property that is the subject of 12
the offense, whereas the New York statute would be violated by a 13
robber who uses or threatens force after assuming dominion of the 14
property. We disagree. 15
The specific language of the New York robbery statute that 16
Jones points to is that “forcible stealing” consists of (1) the “use[] or 17
threat[] [of] immediate use of physical force upon another person” 18
(2) “in the course of committing a larceny” (3) for the purpose of 19
either “preventing or overcoming resistance to the taking of the 20
property or to the retention thereof immediately after the taking” or 21
“[c]ompelling the owner of such property or another person to 22
deliver up the property or to engage in other conduct which aids in 23

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18 15‐1518‐cr
the commission of the larceny.” N.Y. Penal Law § 160.00 (emphasis 1
added). 2
The generic definition of robbery, however, is broader than 3
Jones acknowledges. It is true that the common law definition 4
confines robbery to the use or threat of force before, or simultaneous 5
to, the assertion of dominion over property and therefore comports 6
with Jones’ argument. See, e.g., Wayne LaFave, 3 Substantive Criminal 7
Law § 20.3(e) (2d ed. Supp. 2016); Charles E. Torcia, 4 Wharton’s 8
Criminal Law § 463 (15th ed. Supp. 2016). But a majority of states 9
have departed from the common law definition of robbery, 10
broadening it, either statutorily or by judicial fiat, to also prohibit 11
the peaceful assertion of dominion followed by the use or threat of 12
force. See, e.g., LaFave § 20.3(e); Torcia § 463; State v. Moore, 274 S.C. 13
468, 480‐81 (S.C. Ct. App. 2007) (collecting state statutes and judicial 14
decisions that have departed from the common law definition of 15
robbery). Indeed, the Model Penal Code, which we relied upon in 16
United States v. Walker, 595 F.3d at 446, is often cited as the authority 17
for expanding the definition of robbery in this manner, see LaFave 18
§ 20.3(e), because it specifies that robbery includes conduct where 19
the initial use or threat of force occurs “in flight after the attempt or 20
commission [of the theft],” Model Penal Code § 222.1. As a result, 21
this broader definition has supplanted the common law meaning as 22
the generic definition of robbery. See Taylor v. United States, 495 U.S. 23

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19 15‐1518‐cr
575, 598 (1990) (specifying that the “generic” definition of a crime is 1
the “sense in which the term is now used in the criminal codes of 2
most states”). 3
Moreover, New York places two restrictions on the temporal 4
relationship between the underlying theft and the use or threat of 5
force that buttress the conclusion that its definition of robbery falls 6
within the generic definition of the offense: (1) force must be “in the 7
course of committing a larceny,” i.e., a theft, and (2) force must occur 8
during “immediate flight” after the taking for purposes of retaining 9
the property. See N.Y. Penal Law § 160.00. Jones does not provide, 10
and we are not aware of, any authority that the New York statute 11
criminalizes the use of force after the robber has successfully carried 12
the property away and reached a place of temporary safety. 13
For all of the foregoing reasons, we easily conclude that New 14
York’s definition of robbery necessarily falls within the scope of 15
generic robbery as set forth in the commentary to U.S.S.G. § 4B1.2(a). 16
Because Jones’ argument that first‐degree robbery is not necessarily 17
a crime of violence within the meaning of U.S.S.G. § 4B1.2(a) under 18
the categorical approach is without merit, the district court did not 19
commit error, much less plain error, in sentencing Jones as a career 20
offender. 21

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20 15‐1518‐cr
IV. The Substantive Reasonableness of Jones’ Sentence 1
Finally, we reject Jones’ argument that his sentence of 180 2
months is substantively unreasonable. In assessing the substantive 3
reasonableness of a sentence for abuse of discretion, we review 4
questions of law de novo and questions of fact for clear error. United 5
States v. Bonilla, 618 F.3d 102, 108 (2d Cir. 2010) (citation omitted). 6
We may not substitute our own judgment for that of the district 7
court and can find substantively unreasonable only those sentences 8
that are so “shockingly high, shockingly low, or otherwise 9
unsupportable as a matter of law” that affirming them would 10
“damage the administration of justice.” United States v. Rigas, 583 11
F.3d 108, 123 (2d Cir. 2009). In the “overwhelming majority of 12
cases,” a sentence within the Guidelines range will “fall comfortably 13
within the broad range of sentences that would be reasonable.” 14
United States v. Perez‐Frias, 636 F.3d 39, 43 (2d Cir. 2011) (citation 15
omitted). 16
Jones’ Guidelines range was 210 months to 262 months, the 17
top of which was lowered to 240 months, the statutory maximum for 18
assault of a federal officer. The court imposed a sentence of 180 19
months, or fifteen years, which, while substantial, was considerably 20
below the Guidelines range. 21
The primary thrust of Jonesʹ argument is that a fifteen‐year 22
sentence is substantively unreasonable for an assault of a federal 23

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21 15‐1518‐cr
officer that consists solely of biting the victimʹs finger and in which 1
the injury was not permanent. Jonesʹ argument, however, misses the 2
mark. The district court specified a combination of reasons for the 3
fifteen‐year sentence, including: (1) the need to encourage respect 4
for the law and cooperation with law enforcement officials who are 5
attempting to carry out their lawful duties; (2) Jonesʹ substantial 6
prior criminal history, consisting of seven prior convictions, two of 7
which, in addition to the assault of the officer, resulted in him being 8
designated a career offender; and (3) Jonesʹ substantial history of 9
misconduct while incarcerated, including twenty‐seven occasions 10
upon which he was disciplined. 11
Jones attempts to compare his case to instances where 12
defendants were convicted of violating the same statute, received 13
lower sentences, and arguably committed more egregious conduct. 14
That defendants convicted of similar or even more serious conduct 15
received lower sentences, however, does not render Jonesʹ sentence 16
substantively unreasonable. Plainly, the district court also relied 17
upon Jones’ criminal and prison history, including his career 18
offender status, which distinguishes this case from those to which he 19
refers. Under these circumstances, we cannot say that Jones’ 20
sentence was substantively unreasonable. 21

-- 21 of 33 --

22 15‐1518‐cr
CONCLUSION 1
For the reasons stated above, we AFFIRM the sentence 2
imposed by the district court and REMAND for further 3
consideration as may be just under the circumstances. 4

-- 22 of 33 --

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
GUIDO
concurr
I
its reaso
mandat
To expl
in a way
also cor
B A.
C
residen
felony p
release)
The staf
resisted
stepped
lower h
1
intellect
disabili
at 5, Jon
Sanford
O CALABR
ring:
believe Ju
oning and
ted by the
lain why I
y that is sl
rrect, and i
Backgroun
Corey Jone
tial reentry
possession
), Jones alle
ff member
d arrest. Th
d towards,
his head to
This I.Q. s
tual functi
ty,” which
nes Senten
d L. Drob”,
RESI, Circu
dge Walke
in its resu
law, seem
think so, l
ightly diff
in which, a
nd
s is a now-
y center (“
n of a firear
egedly gru
rs called th
he marshal
kicked, or
the groun
score is con
ioning, bel
h is an I.Q.
cing Mem
, at 5.
it Judge, w
er’s opinio
ult. I write
ms to me to
et me give
ferent from
as noted ab
-39-year-o
“RRC”), fin
rm, (he wa
umbled a t
he federal m
ls concede
r punched
nd, the han
nsidered to
low the gen
score of a
morandum,
1
with whom
on states th
separately
be highly
e the facts a
m the major
bove, I join
ld man wi
nishing a n
as five mon
threat and
marshals t
d that, dur
them. Non
nd of the m
o be in the
nerally acc
pproximat
Exhibit A
m Peter W. H
he law corr
y because t
unjust, an
and proced
rity opinio
n, fully.
ith an I.Q.
nearly eigh
nths’ shy o
was insole
to take cus
ring his re
netheless,
marshal wh
e “mentally
cepted ran
tely 70‐75.
A, “Sentenc
Hall, Circu
rectly, and
that result,
nd little sho
dural histo
on—which
of 69.1 Wh
ht-year sen
of his sched
ent to a sta
tody of Jon
esistance, Jo
as they w
ho was app
y deficient
nge for “int
See Dist. C
cing Memo
uit Judge, jo
d I concur i
, while
ort of absu
ory of this
h, however
hile at a
ntence for
duled
aff membe
nes, who
ones never
ere trying
prehendin
t” range of
tellectual
Ct. Dkt. 46
o Letter of
oins,
in
urd.
case
r, is
er.
r
to
g
f
6–1
Dr.

-- 23 of 33 --

2
Jones slipped down Jones’ face, and Jones bit him, causing the finger to bleed. 1
Shortly thereafter, Jones said, “I give,” and was arrested and taken away. The 2
marshal provided a sworn affidavit indicating that he suffered no loss because of 3
the injury and that he did not request damages. At trial, the bite was described 4
by the prosecutor as “not the most serious wound you’ll ever see.” 5
Pursuant to a single-count indictment for assaulting a federal officer, Jones 6
was found guilty in violation of 18 U.S.C. § 111(a)(1)–(b). Under the Guidelines 7
as they were then calculated, and as described in Judge Walker’s opinion, Jones 8
faced a sentence of between 210–240 months, (seventeen-and-one-half to twenty 9
years), with the high end being the statutory maximum. This calculation was 10
based on Jones’ designation as a career offender, a status that was triggered by 11
two earlier convictions: (i) an assault in which the then twenty-year-old Jones 12
shot a man in the leg, which later needed to be amputated, and (ii) a conviction 13
for first-degree robbery in New York, a crime Jones committed when he was 14
sixteen years old.2 15
The district court, applying what it believed was the law of this circuit as it 16
stood at that time, found that Jones’ robbery conviction constituted a “crime of 17
2 A defendant’s youthful offender adjudications are, for the purposes of the
relevant Guidelines calculations, deemed “‘adult convictions’ [where the
defendant] (1) pleaded guilty to both felony offenses in an adult forum and (2)
received and served a sentence of over one year in an adult prison for each
offense.” See United States v. Jones, 415 F.3d 256, 264 (2d Cir. 2005).

-- 24 of 33 --

3
violence” under the categorical approach to the Sentencing Guidelines. See 1
United States v. Spencer, 955 F.2d 814, 820 (2d Cir. 1992) (holding that, under the 2
law of New York, the crime of attempted third-degree robbery constitutes a 3
“crime of violence” for the purposes of the “force clause” of the Sentencing 4
Guidelines), abrogated by Johnson v. United States, 559 U.S. 133 (2010) (Johnson I); 5
see also United States v. Reyes, 691 F.3d 453 (2d Cir. 2012) (per curiam). 3 Given this 6
3 A crime of violence, along with other factors, serves as a predicate
requiring a district court to sentence a defendant as a “career offender” subject to
an increased sentencing spectrum. See U.S. Sentencing Guidelines Manual
§ 4B1.1(a) (U.S. Sentencing Comm’n Nov. 2014) (U.S.S.G.) (defining “career
offender” as a defendant who is (1) “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.”) .
As described in Judge Walker’s opinion, there were, at the time of Jones’
sentencing, two clauses in the Sentencing Guidelines, either of which could
define a “crime of violence.” These two clauses are referred to as the “force
clause,” and the “residual clause.” 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.” U.S.S.G. § 4B1.2(a)(1). The
“residual clause” comes at the end of a second set of enumerated offenses, and
provides that a crime of violence also includes any offense that “otherwise
involves conduct that presents a serious potential risk of physical injury to
another.” Id. § 4B1.2(a)(2).
In Spencer, we had held that, under the force clause, third‐degree robbery,
as defined by New York law, was a crime of violence. After the Supreme Court’s
analysis of the force clause in Johnson I, however, we held that battery, as defined
by the state of Florida, was not a crime of violence. Reyes, 691 F.3d 453. In Reyes,
we noted Johnson I’s dictate that, to constitute a “crime of violence” under the

-- 25 of 33 --

1
2
3
4
5
6
7
8
9
10
11
12
13
holding
crime o
applied
range w
instead
twenty
D
sentenc
D B.
Ju
the forc
Garaufi
the forc
categor
found t
was an
Reyes, th
present
Ju
robbery
reasons
United S
(finding
that ana
and her
g, and beca
of violence,
d. Absent Jo
would have
of the ran
years that
Departing
ced Jones to
Doctrinal D
udge Gara
ce clause to
is was of th
ce clause ev
ical appro
hat battery
open ques
hat questio
t in the New
udge Gara
y was a crim
s similar to
States v. Ya
g in analog
alysis, how
re essentia
ause Jones’
, the distric
ones’ desig
e been betw
nge of 210-2
t the court
downwar
o fifteen ye
Developm
aufis’ opini
o New Yor
he view th
ven after J
ach, a crim
y did not m
stion whet
on depend
w York de
aufis held t
me of viol
o those giv
ates, No. 16
gous circum
wever, was
l – residua
’ prior con
ct court de
gnation as
ween 36 an
240 month
deemed ap
d significa
ears.
ments and I
ion rested
rk State’s d
hat first-deg
Johnson I, Ju
me must in
meet that d
ther first‐d
ded on whe
efinition of
that the rea
ence. In ou
en in Reyes
6‐3997, 201
mstances t
s with resp
al clause.
4
nviction for
etermined
s a career o
nd 48 mon
hs, or the se
pplicable.
antly from
Impact on
on his inte
definition o
gree robbe
udge Gara
nvolve the
definition.
egree robb
ether the u
f that crime
asoning of
ur former,
s, that first
17 WL 3402
that the for
pect to the
r assault ce
that the ca
offender, h
nths (or thr
eventeen-a
m the Gui
Sentencin
erpretation
of robbery
ery was a c
aufis did n
“use of ph
Id. at 460.
bery was a
use of phys
e.
f Spencer m
withdraw
t‐degree ro
2084 (6thC
rce clause
force claus
ertainly co
areer offen
his Guidelin
ree to four
and-one-h
delines, Ju
ng
n of the ap
y. Because J
crime of vi
not address
hysical forc
Even after
a crime of v
sical force
meant that
wn opinion
obbery wa
Cir. Aug 9,
does not a
se, not the
onstituted
nder status
nes senten
r years),
half years to
udge Gara
pplication o
Judge
iolence un
s the
ce,” and
r Spencer, i
violence. A
was, inde
first degre
n, we held,
as not. Cf.,
2017)
apply). All
e co‐extant
a
s
nce
o
aufis
of
nder
it
After
ed,
ee
for
l of
–

-- 26 of 33 --

5
additional possible determinant of a crime of violence now at issue before us: the 1
“residual clause.” 2
After Jones’ initial sentencing, but before we heard Jones’ appeal, the 3
Supreme Court found language in the Armed Career Criminal Act (“ACCA”) 4
which was identical to the language used in the residual clause of the 5
Guidelines—the lynchpin clause undergirding the authority of Jones’ current 6
sentence—to be unconstitutionally vague. Johnson v. United States, 135 S. Ct. 2551, 7
2557 (2015) (Johnson II). Subsequent to Johnson II, most federal courts of appeals 8
to decide the issue found that, given the Supreme Court’s decision, the residual 9
clause was also unconstitutionally vague. See United States v. Pawlak, 822 F.3d 10
902, 907-11 (6th Cir. 2016); United States v. Hurlburt, 835 F.3d 715, 725 (7th Cir. 11
2016); United States v. Calabretta, 831 F.3d 128, 137 (3d Cir. 2016); United States v. 12
Madrid, 805 F.3d 1204, 1210 (10th Cir. 2015); but see United States v. Matchett, 802 13
F.3d 1185, 1193-96 (11th Cir. 2015). 14
As a result—with the application of the force clause to Jones in doubt as a 15
result of Johnson I, and with the residual clause struck down across several 16
circuits as a result of Johnson II—any number of defendants were found not to 17
have committed crimes of violence, either as a matter of first instance, or on 18
appeal, for purposes of determining their career offender status under the 19
Guidelines. Accordingly, they were resentenced (or sentenced in the first 20

-- 27 of 33 --

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
instance
lower se
R C.
T
appeals
Guideli
Majorit
P D.
W
I, the fo
that the
clause,
Jones’ r
Guideli
for rese
Jones, it
B
granted
whethe
in a stat
e) to lower
entences.
Removal o
The Senten
s grounded
ines and re
y Opinion
Procedural
We heard J
orce clause
e other pos
was uncon
robbery con
ines. We th
entencing. W
t should no
Before the d
d certiorari
r the langu
ute, was al
r sentences
f the Resid
cing Comm
d on the Su
emoved th
n, n.1).
l History in
ones’ appe
was not a
ssible grou
nstitutiona
nviction d
herefore or
We expres
ot treat him
district cou
in Beckles v
uage that,
lso void fo
s. We are t
dual Claus
mission, in
upreme Co
he residual
n this Cou
eal after Jo
applicable t
und for Jon
al, pursuan
id not qua
rdered Jon
ssly instruc
m as a care
urt resente
v. United S
in Johnson
or vaguene
6
told the go
se from th
n light of th
ourt’s deci
clause as
urt
hnson II, an
to him; (ii)
nes’ career
nt to Johnso
alify as a p
nes’ sentenc
cted the di
eer offende
enced Jone
States, 137 S
II it had d
ess when th
overnment
he Guideli
he decision
ision in Joh
a basis for
nd we held
) (like seve
offender s
on II; and,
redicate vi
ce vacated
istrict cour
er.
es, howeve
S. Ct. 886 (
deemed un
he identica
t is not cha
ines
ns of sever
hnson II, rev
r future sen
d: (i) that,
eral of our
status, the
(iii) that, a
iolent offe
d and sent
rt that, in r
er, the Supr
(2017), to c
nconstitutio
al languag
allenging th
ral courts o
vised the
ntencing. (
under John
sister circu
residual
as a result,
ense under
the case ba
resentencin
reme Cour
consider
onally vag
ge was
hese
of
(See
nson
uits)
r the
ack
ng
rt
gue

-- 28 of 33 --

7
employed in the Guidelines. In view of the Supreme Court’s action, we withdrew 1
our opinion, and suspended resentencing pending the Beckles decision. 2
Interestingly, at least one district court, in an independent case, had already 3
granted a motion for resentencing in light of our now-recalled decision. Miles v. 4
United States, No. 11-cr-581, 2016 WL 4367958 (S.D.N.Y. Aug 15, 2016). 5
In Beckles, the Supreme Court held the relevant clause of the Guidelines not 6
to be unconstitutionally vague. 4 Hence, the clause remained applicable to cases 7
like the one before us. 8
As a result, we are bound to consider Jones’ earlier convictions on the basis 9
of the revived (but no longer extant, since it has been removed by the Sentencing 10
Commission) residual clause. Under that clause, we today correctly find that 11
Jones’ robbery conviction constituted a crime of violence and, as such, served as 12
a predicate offense which—together with his assault convictions—categorically 13
renders Jones a career offender. He was, therefore, correctly subject to the 14
4 The Supreme Court held as it did based on the history of discretion in
sentencing before the Guidelines and the discretionary nature of the Guidelines
themselves. My concern with our holding today does not dispute the correctness
of the Court’s decision. That the Court’s decision was unexpected, however,
cannot be doubted. Between Johnson II and Beckles, courts of appeals, prosecutors,
and the Sentencing Commission took actions which assumed a different result.
Indeed, the Justice Department had taken the position that Johnson II governed
Beckles, and the Supreme Court had to appoint special counsel to present the
opposite view. It is that unexpectedness and what happened between Johnson II
and Beckles that is, in significant part, responsible for making today’s result so
troubling to me.

-- 29 of 33 --

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
sentenc
court—
residua
B
hold the
sentenc
impose
Guideli
D E.
I
the resu
Jo
nature a
district
on its v
Perhaps
howeve
Guideli
T
have de
cing guidel
—albeit, per
al clause—
Because tha
ey stood w
ce. We also
d—which
ines—was
DISCUSSI
agree that
ult to be clo
ones was a
and signifi
court deci
iew of Jon
s the sente
er, imposed
ines, it had
The fact is t
eemed app
lines of 210
rhaps incor
had impo
at sentence
when the d
o hold that
departed
not substa
ION
t the senten
ose to absu
about to be
icance the
ided on a f
es’ prior cr
ence, depar
d because
d gone dow
that we do
propriate if
0–240 mon
rrectly rely
osed his ori
e was corre
district cou
, given the
significant
antively un
nce is not s
urd.
e released
district co
fifteen-yea
riminal ac
rting down
the distric
wn as muc
o not know
f Jones had
8
nths on the
ying on the
iginal sent
ectly based
rt sentence
e applicabl
tly downw
nreasonab
substantiv
when he c
ourt is bette
ar sentence
tivity, and
nward not
ct court bel
h as it felt
w what sen
d been sub
e basis of w
e force clau
tence of fif
d on the G
ed Jones, w
le Guidelin
ward from
le.
vely unreas
committed
er able to e
e. Perhaps
d on Jones’
tably from
lieved that
it reasona
ntence the d
bject to diff
which the d
use rather
fteen years
Guidelines
we now aff
nes, the sen
these appl
sonable; bu
d a crime w
evaluate th
this senten
’ dangerou
m the Guide
t, given th
ably could.
district cou
ferent Gui
district
than the
s.
as we now
firm that
ntence
licable
ut I believe
whose full
han we. Th
nce was ba
usness.
elines, was
ose
.
urt would
delines. H
w
e
he
ased
s,
Had

-- 30 of 33 --

9
our opinion come down slightly earlier, as did those of most other circuits 1
dealing with similar issues, Jones would have been resentenced pursuant to a 2
substantively lower Guidelines range. We would, then, know what sentence 3
would have seemed appropriate to the district court in those circumstances. Had 4
that sentence been lower—as it apparently was in any number of other cases in 5
other circuits—the Government apparently would not have objected to it. Had 6
Jones committed his crime under the currently existing Guidelines, (i.e., in which 7
the residual clause has been removed by the Sentencing Commission), and 8
assuming that we would have read the force clause not to apply (as we did in 9
our earlier, now-retracted opinion), the district court would have had, again, the 10
opportunity to gauge Jones’ degree of dangerousness under a very different set 11
of Guidelines than those we, today, finally conclude it correctly applied at 12
sentencing. 13
Because we (advisedly) withdrew our earlier opinion in light of the 14
Supreme Court’s grant of certiorari in Beckles, and because of the Supreme Court’s 15
ultimate decision in Beckles, I agree that we now are bound to affirm Jones’ 16
original sentence. This means that, as a result of timing quirks (his appeal to us 17
was slightly too late, leading to our decision to pull our earlier opinion), Jones 18
receives a very, very high sentence in contrast with almost every similarly 19
situated defendant. 20

-- 31 of 33 --

10
What is more—and this may be the true source of my sense of absurdity— 1
there appears to be no way in which we can ask the district court to reconsider 2
the sentence it ordered in view of the happenstances that have worked against 3
Jones, and in view of its assessment of Jones’ crimes and of its downward 4
departure. 5
Were this a civil case, there would be any number of ways of letting the 6
lower court revisit matters.5 But, as far as I have been able to discern, there is no 7
way for us to send this back to the district court and ask it to tell us what I 8
believe should determine Jones’ sentence: 9
In the light of sentences that other similarly guilty defendants have 10
received, and in the light of Jones’ own situation, both of which you, as 11
a district judge, are best suited to determine, what is the sentence that 12
you deem appropriate in this case? 13
I find our inability to learn this to be both absurd and deeply troubling. I 14
believe our affirmance is correct, and that we can do no other. I hope, however, 15
5 For example: Federal Rule of Civil Procedure 60(b)(6) provides a court
with the power to entertain a motion to relieve a party from a final judgment for
“any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). To similar effect,
Rule 60(d) states that a court has the power to “entertain an independent action
to relieve a party from a judgment, order, or proceeding.” Id. 60(d)(1).

-- 32 of 33 --

11
that somewhere, somehow, there exists a means of determining what would, in 1
fact, be an appropriate sentence for Jones. 6 2
6 After our opinion was issued, it was called to our attention that 28 U.S.C.
§ 2106 permits affirmances and remands for further proceedings in the interest of
justice, and has been applied in criminal situations, United States v. Guiliano, 644
F.2d 85, 89 (2d Cir. 1981); United States v. Robin, 553 F.2d 8 (2d Cir. 1977) (en
banc); see also United States v. Algahaim, 842 F.3d 796, 800 (2d Cir. 2016) (affirming
a sentence but remanding for further consideration of that sentence, without
making express reference to § 2106). We have now altered our disposition in this
case to that effect. This altered disposition may permit the district court to
reconsider the sentence imposed and thereby go a long way to avoid the
absurdity, which this opinion has suggested.

-- 33 of 33 --