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
11
No. 15‐1518‐cr 12
13
U NITED S TATES OF AMERICA, 14
Appellee, 15
16
v. 17
18
C OREY JONES, 19
Defendant‐Appellant. 20
________ 21
22
Appeal from the United States District Court 23
for the Eastern District of New York. 24
No. 13 Cr. 00438 – Nicholas G. Garaufis, District Judge. 25
________ 26
27
Before: WALKER , C ALABRESI, and H ALL , Circuit Judges. 28
________ 29
30
Defendant Corey Jones appeals from a sentence entered in the 31
United States District Court for the Eastern District of New York 32
(Garaufis, J.) following a jury‐trial conviction for assaulting a federal 33

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

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Judge C ALABRESI and Judge HALL concur in the opinion of the 1
Court. Judge C ALABRESI files a separate concurring opinion, which 2
Judge H ALL joins. 3
________ 4
B RIDGET M. R OHDE , Acting Assistant United 5
States Attorney (Amy Busa, Assistant United 6
States Attorney, on the brief), for Acting United 7
States Attorney for the Eastern District of New 8
York, for Appellee. 9
10
MATTHEW B. L ARSEN, Assistant Federal Defender, 11
Federal Public Defenders of New York, New 12
York, NY, for Defendant‐Appellant. 13
________ 14
JOHN M. WALKER , JR ., Circuit Judge: 15
Defendant Corey Jones appeals from a sentence entered in the 16
United States District Court for the Eastern District of New York 17
(Garaufis, J.) following a jury trial conviction for assaulting a federal 18
officer in violation of 18 U.S.C. § 111. He was sentenced as a career 19
offender principally to 180 months in prison to be followed by three 20
years of supervised release. The primary basis for Jones’ appeal is 21
that, in light of the Supreme Court’s holding in Johnson v. United 22
States, 559 U.S. 133 (2010) (Johnson I), New York first‐degree robbery 23
is no longer categorically a crime of violence under the force clause 24
of the Career Offender Guideline, U.S.S.G. §§ 4B1.1 and 4B1.2, and 25
that the district court therefore erred in concluding that his prior 26

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4 15‐1518‐cr
conviction for first‐degree robbery would automatically serve as one 1
of the predicate offenses for a career offender designation. 2
After oral argument in this matter, the Supreme Court 3
decided Beckles v. United States, 137 S. Ct. 886 (2017), which held that 4
the residual clause of the Career Offender Guideline—a second basis 5
for finding a crime of violence—was not unconstitutional. The Court 6
reached this conclusion notwithstanding the government’s 7
concession to the contrary in cases around the country that the 8
residual clause, like the identically worded provision of the Armed 9
Career Criminal Act (“ACCA”), was void for vagueness. In light of 10
Beckles, we find that New York first‐degree robbery categorically 11
qualifies as a crime of violence under the residual clause and 12
therefore need not address Jones’ argument based on the force 13
clause. We also find that his sentence is substantively reasonable and 14
therefore AFFIRM the sentence imposed by the district court. 15
Judge C ALABRESI and Judge HALL concur in the opinion of the 16
Court. Judge C ALABRESI files a separate concurring opinion, which 17
Judge H ALL joins. 18
BACKGROUND 19
On June 21, 2013, Corey Jones was finishing a ninety‐two 20
month federal sentence for unlawful gun possession in a halfway 21
house. Jones verbally threatened a staff member, a violation of the 22
rules of the halfway house, and thereby was remanded to the 23

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5 15‐1518‐cr
custody of the Bureau of Prisons. Two Deputy U.S. Marshals arrived 1
to take Jones to prison, but Jones resisted the Marshals’ efforts to 2
take him into custody. During the ensuing altercation, Jones bit the 3
finger of one of the Marshals, who suffered puncture wounds, 4
necessitating antibiotics and a tetanus vaccine at a hospital. This 5
assault, it turned out, had grave consequences for Jones who was 6
now in all likelihood a “career offender” subject to a greatly 7
enhanced sentence. 8
A jury convicted Jones of assaulting a federal officer in 9
violation of 18 U.S.C. § 111. In the pre‐sentence report, the probation 10
officer calculated a relatively modest base offense level of fifteen for 11
the assault. But the probation officer then determined that Jones was 12
a career offender pursuant to the Career Offender Guideline 13
because, in addition to (1) being over eighteen years of age when he 14
committed the assault and (2) the assault being a crime of violence, 15
(3) he had at least two prior felony convictions of a crime of violence. 16
According to the report, Jones’ previous two convictions in New 17
York for first‐degree robbery and second‐degree assault satisfied the 18
third element of the test. The probation officer, following U.S.S.G. 19
§ 4B1.1, increased the offense level to thirty‐two, which, when 20
combined with Jones’ criminal history category of VI, resulted in a 21
Guidelines range of 210 to 262 months of incarceration. Because the 22

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6 15‐1518‐cr
statutory maximum for assault is twenty years, the effective 1
Guidelines range was 210 to 240 months. 2
The district court adopted the findings of the pre‐sentence 3
report and sentenced Jones to 180 months, or fifteen years, in prison 4
for the assault, to be followed by three years of supervised release. 5
Jones now appeals his sentence, arguing, first, that the district court 6
erred in designating him a career offender and, second, that his 7
sentence is substantively unreasonable. 8
After oral argument, we published an opinion that resolved 9
Jones’ appeal in his favor. The government had conceded that the 10
residual clause was void for vagueness, and we concluded that the 11
force clause could not be applied to Jones for reasons not relevant 12
here. Shortly after our decision was issued, however, we vacated the 13
opinion in order to await the Supreme Court’s decision in Beckles. 14
See United States v. Jones, 838 F.3d 291, 291 (2d Cir. 2016) (mem.). 15
Beckles addressed the constitutionality of the Career Offender 16
Guideline’s residual clause, which was in effect at the time of Jones’ 17
sentencing but has since been removed and replaced with new 18
language.1 Following Johnson v. United States, 135 S. Ct. 2551, 2557 19
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 on the belief that, contrary to Beckles’ later holding, the residual clause was
unconstitutional. See U.S. Sentencing Comm’n, Amendments to the Sentencing
Guidelines 1‐3 (Jan. 21, 2016), http://www.ussc.gov/sites/default/files/pdf/amendment‐
process/official‐text‐amendments/20160121_Amendments_0.pdf.

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7 15‐1518‐cr
(2015) (Johnson II), which held that the residual clause of the ACCA 1
was unconstitutionally void for vagueness, there existed a general 2
belief that the identically worded residual clause of the Career 3
Offender Guideline was similarly unconstitutional, as the 4
government had consistently maintained. In Beckles, however, the 5
Court held that the residual clause of the Career Offender Guideline 6
is immune from void‐for‐vagueness challenges, as are the 7
Guidelines generally. Beckles, 137 S. Ct. at 892. After Beckles, we 8
invited the parties in this case to provide supplemental briefing as to 9
whether first‐degree robbery, as defined in New York, categorically 10
qualifies as a crime of violence under the previously codified 11
residual clause of the Career Offender Guideline.2 We now address 12
that question. 13
DISCUSSION 14
As noted, prior to Beckles, Jones’ argument centered upon the 15
force clause of the Career Offender Guideline. Aided now by the 16
Supreme Court’s holding that the residual clause of the Career 17
Offender Guideline is not void for vagueness, we find that first‐ 18
degree robbery as defined in New York is categorically a crime of 19
violence under the residual clause and thus we need not address 20
Jones’ argument based on the force clause. 21
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
In the district court, Jones contested his career offender 1
designation solely on the basis that his first‐degree robbery 2
conviction occurred when he was a juvenile. He raised no argument 3
that robbery in New York was not a crime of violence. We 4
accordingly review his present challenge on that ground for plain 5
error. See United States v. Gamez, 577 F.3d 394, 397 (2d Cir. 2009) (per 6
curiam). To meet this standard, Jones must establish the existence of 7
(1) an error; (2) “that is plain”; (3) “that affects substantial rights”; (4) 8
and that “seriously affects the fairness, integrity, or public 9
reputation of judicial proceedings.” Id. (alterations and citation 10
omitted). We apply this standard less “stringently in the sentencing 11
context, where the cost of correcting an unpreserved error is not as 12
great as in the trial context.” Id. We first address point (1): whether 13
the district court committed error of any kind in designating Jones a 14
career offender. 15
I. The Legal Provisions at Issue in This Appeal 16
This appeal involves the interplay between substantive state 17
criminal law and the federal Sentencing Guidelines (“Guidelines”). 18
The question we face is straightforward: is first‐degree robbery in 19
New York, defined in New York Penal Law §§ 160.00 and 160.15, 20
however it may be committed, categorically a crime of violence 21
under the Career Offender Guideline? 22

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9 15‐1518‐cr
A defendant commits robbery in New York when he “forcibly 1
steals property,” which the statute defines as “a larceny” involving 2
the use or threatened “immediate use of physical force upon another 3
person.” N.Y. Penal Law § 160.00. The various degrees of robbery, 4
which carry different penalties, turn upon the presence of particular 5
aggravating factors. Compare § 160.05 (defining third‐degree 6
robbery), with § 160.10 (defining second‐degree robbery), and with 7
§ 160.15 (defining first‐degree robbery). First‐degree robbery occurs 8
when a defendant commits robbery and during the course of the 9
crime or his immediate flight either “(1) [c]auses serious physical 10
injury to any person who is not a participant in the crime; or (2) [i]s 11
armed with a deadly weapon; or (3) [u]ses or threatens the 12
immediate use of a dangerous instrument; or (4) [d]isplays what 13
appears to be a . . . firearm.” § 160.15. 14
The Career Offender Guideline enhances sentences for 15
defendants in federal court who satisfy certain criteria. See U. S. 16
Sentencing Guidelines Manual § 4B1.1(a) (U.S. Sentencing Comm’n 17
Nov. 2014) (U.S.S.G.). A defendant is a career offender if (1) he is “at 18
least eighteen years old at the time [he] committed the instant 19
offense of conviction”; (2) his “instant offense of conviction is a 20
felony that is . . . a crime of violence”; and (3) he “has at least two 21
prior felony convictions of . . . a crime of violence.” Id. 22

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At the time of Jones’ sentencing in 2015,3 as mentioned earlier, 1
there were two separate clauses defining “crime of violence.” See 2
§ 4B1.2(a). The first definition, the “force clause,” specifies that a 3
crime of violence is a felony “that has as an element the use, 4
attempted use, or threatened use of physical force against the person 5
of another.” § 4B1.2(a)(1). The second clause enumerates several 6
offenses that qualify as crimes of violence—“burglary of a dwelling, 7
arson, [] extortion[, or] involves use of explosives”—before ending 8
with the “residual clause,” which specifies that a crime of violence 9
also includes any offense that “otherwise involves conduct that 10
presents a serious potential risk of physical injury to another.” 11
§ 4B1.2(a)(2) (2015). 12
II. The Categorical and Modified Categorical Approaches 13
The Supreme Court has set forth the methodology for 14
determining whether a state conviction qualifies as a predicate 15
offense for a federal sentence enhancement. There are two possible 16
methods: the categorical approach and the modified categorical 17
approach. See Descamps v. United States, 133 S. Ct. 2276, 2281 (2013). 18
The categorical approach is confined to an examination of the 19
legal elements of the state criminal statute to determine whether 20
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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11 15‐1518‐cr
they are identical to or narrower than the relevant federal statute. 1
See id. If so, a conviction under the state statute categorically 2
qualifies as a predicate offense. See id. However, if the state statute 3
criminalizes any conduct that would not fall within the scope of 4
either the force clause or the residual clause, a conviction under the 5
state statute is not categorically a crime of violence and cannot serve 6
as a predicate offense. See id. 7
Under the categorical approach we must confine our inquiry 8
to the legal elements of the state statute without at all considering 9
the facts of the underlying crime. The Supreme Court has set forth 10
two reasons for this. First, the text of the Career Offender Guideline, 11
like that of the ACCA, explicitly refers to convictions rather than 12
conduct. See Mathis v. United States, 136 S. Ct. 2243, 2252 (2016). The 13
Career Offender Guideline directs the sentencing court to consider 14
whether the offender “has at least two prior felony convictions of . . . 15
a crime of violence,” U.S.S.G. § 4B1.1(a), which indicates that “the 16
sentencer should ask only about whether the defendant had been 17
convicted of crimes falling within certain categories, and not about 18
what the defendant had actually done,” Mathis, 136 S. Ct. at 2252 19
(internal quotation marks and citation omitted). 20
Second, by focusing upon the legal elements, rather than the 21
facts of the offense, the sentencing court “avoids unfairness to 22
defendants.” Id. at 2253. “Statements of ‘non‐elemental fact’ in the 23

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12 15‐1518‐cr
records of prior convictions [such as the precise manner in which the 1
crime was committed] are prone to error precisely because their 2
proof is unnecessary.” Id. (citation omitted). Defendants therefore 3
may have little incentive to ensure the correctness of those details of 4
earlier convictions that could later trigger the unforeseen career 5
offender enhancement. 6
Occasionally, however, a state statute will criminalize 7
multiple acts in the alternative. Where this occurs, courts may 8
employ what is known as the modified categorical approach. But the 9
Supreme Court has emphasized that the modified categorical 10
approach is available only where the state statute is “divisible” into 11
separate crimes. Descamps, 122 S. Ct. at 2281‐82; see also Flores v. 12
Holder, 779 F.3d 159, 165‐66 (2d Cir. 2015). A statute is divisible if it 13
“list[s] elements in the alternative, and thereby define[s] multiple 14
crimes” but is not divisible if it instead lists “various factual means of 15
committing a single element.” Mathis, 136 S. Ct. at 2249 (emphases 16
added). 17
When a statute is divisible, a court employing the modified 18
categorical approach can then peer into the record to see which of 19
the multiple crimes was implicated. But the court may discern this 20
only from “a limited class of documents (for example, the 21
indictment, jury instructions, or plea agreement and colloquy) to 22
determine what crime, with what elements, a defendant was 23

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13 15‐1518‐cr
convicted of.” Id. Once that determination is made, the modified 1
categorical approach is at an end and the court must apply the 2
categorical approach to the legal elements of the appropriate 3
criminal offense. Id. 4
New York’s first‐degree robbery statute is divisible and 5
therefore subject to the modified categorical approach. New York 6
defines robbery as “forcibly stea[ling] property.” N.Y. Penal Law §§ 7
160.00–.15. There are four categories of first‐degree robbery, 8
depending on whether: the perpetrator “(1) [c]auses serious physical 9
injury to any person who is not a participant in the crime; or (2) [i]s 10
armed with a deadly weapon; or (3) [u]ses or threatens the 11
immediate use of a dangerous instrument; or (4) [d]isplays what 12
appears to be a . . . firearm.” § 160.15; see also Flores, 779 F.3d at 166 13
(analyzing the divisibility of New York’s first‐degree sexual abuse 14
statute). 15
In the typical case under the modified categorical approach 16
we would examine certain documents in the record to ascertain 17
which of the four crimes Jones committed. In this instance, however, 18
we are stymied and unable to employ the modified categorical 19
approach because no one has produced the record. Where this 20
occurs, however, we are not at a complete loss. We instead look to 21
“the least of [the] acts” proscribed by the statute to see if it qualifies 22
as a predicate offense for the career offender enhancement. See 23

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Johnson I, 559 U.S. at 137. If so, Jones’s first‐degree robbery 1
conviction can serve as a predicate offense for the enhancement 2
regardless of which first‐degree robbery subpart provided the basis 3
for his conviction. See id. 4
Jones identifies the act of “forcibly stealing property” while 5
“armed with a deadly weapon” as being the “least of the acts” in the 6
statute, and we agree. See N.Y. Penal Law § 160.15(2). The question 7
we must answer, therefore, is whether a defendant who perpetrates 8
such an act commits a crime of violence within the meaning of the 9
residual clause of the Career Offender Guideline. 10
In the opinion we issued and then withdrew, prior to Beckles, 11
we addressed only the force clause. We did not concern ourselves 12
with whether Jones’ first‐degree robbery conviction qualified as a 13
crime of violence under the Career Offender Guideline’s residual 14
clause because, consistent with the government’s concession on that 15
point, we had previously held that the residual clause was 16
unconstitutional in light of Johnson II. See United States v. Welch, 641 17
F. App’x 37, 42‐43 (2d Cir. 2016) (summary order). Now that the 18
Supreme Court has held in Beckles that the Guidelines, regardless of 19
whatever other defects they may have, cannot be void for 20
vagueness, 137 S. Ct. at 890, we are free to assess whether New York 21
first‐degree robbery categorically qualifies as a crime of violence 22
under the residual clause. 23

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III. Whether Jones’ Conviction Qualifies as a Crime of 1
Violence Under the Residual Clause 2
We have little difficulty concluding that the “least of the acts” 3
of first‐degree robbery satisfies the definition of the Guidelines’ 4
residual clause. The least of the acts, both sides agree, is “forcibly 5
stealing property” while “armed with a deadly weapon.” The 6
residual clause provides that a crime of violence includes any 7
offense that “ involves conduct that presents a serious potential risk 8
of physical injury to another.” U.S.S.G. § 4B1.2(a)(2). Plainly, a 9
robber who forcibly steals property from a person or from his 10
immediate vicinity, while armed with a deadly weapon, engages in 11
“conduct that presents a serious potential risk of physical injury to 12
another.” See id. 13
If there were any misgiving on this score, it is removed by the 14
commentary provision to the Guidelines in effect at the time of 15
Jones’ sentencing, which specifically enumerated robbery as a crime 16
of violence.4 § 4B1.2 cmt. n.1. 17
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

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Commentary provisions must be given “controlling weight” 1
unless they: (1) conflict with a federal statute, (2) violate the 2
Constitution, or (3) are plainly erroneous or inconsistent with the 3
Guidelines provisions they purport to interpret. Stinson v. United 4
States, 508 U.S. 36, 45 (1993). Jones has not identified any such flaws 5
nor do we discern any. Where the basis for categorizing a prior 6
conviction as a crime of violence is that the offense is specifically 7
enumerated as such in the Career Offender Guideline or its 8
commentary, we undertake the categorical approach by comparing 9
the state statute to the generic definition of the offense. See United 10
States v. Walker, 595 F.3d 441, 445‐46 (2d Cir. 2010). 11
That there is consensus in the criminal law as to what 12
constitutes robbery thus further convinces us that the least of the 13
acts constituting New York first‐degree robbery, i.e., “forcibly 14
stealing property” while “armed with a deadly weapon,” is a crime 15
of violence under the residual clause. As we have noted, “all fifty 16
states define robbery, essentially, as the taking of property from 17
another person or from the immediate presence of another person 18
by force or by intimidation.” Id. (emphasis in original). Indeed, it 19
would seem that, pursuant to the commentary to the former residual 20
(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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clause, robbery of any degree in New York qualifies as a crime of 1
violence. 2
Jones contends nonetheless that New York’s robbery statute is 3
broader than the generic definition. He argues, specifically, that the 4
generic definition of robbery requires the use or threat of force in the 5
process of asserting dominion over the property that is the subject of 6
the offense, whereas the New York statute would be violated by a 7
robber who uses or threatens force after assuming dominion of the 8
property. We disagree. 9
The specific language of the New York robbery statute that 10
Jones points to is that “forcible stealing” consists of (1) the “use[] or 11
threat[] [of] immediate use of physical force upon another person” 12
(2) “in the course of committing a larceny” (3) for the purpose of 13
either “preventing or overcoming resistance to the taking of the 14
property or to the retention thereof immediately after the taking” or 15
“[c]ompelling the owner of such property or another person to 16
deliver up the property or to engage in other conduct which aids in 17
the commission of the larceny.” N.Y. Penal Law § 160.00 (emphasis 18
added). 19
The generic definition of robbery, however, is broader than 20
Jones acknowledges. It is true that the common law definition 21
confines robbery to the use or threat of force before, or simultaneous 22
to, the assertion of dominion over property and therefore comports 23

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18 15‐1518‐cr
with Jones’ argument. See, e.g., Wayne LaFave, 3 Substantive Criminal 1
Law § 20.3(e) (2d ed. Supp. 2016); Charles E. Torcia, 4 Wharton’s 2
Criminal Law § 463 (15th ed. Supp. 2016). But a majority of states 3
have departed from the common law definition of robbery, 4
broadening it, either statutorily or by judicial fiat, to also prohibit 5
the peaceful assertion of dominion followed by the use or threat of 6
force. See, e.g., LaFave § 20.3(e); Torcia § 463; State v. Moore, 274 S.C. 7
468, 480‐81 (S.C. Ct. App. 2007) (collecting state statutes and judicial 8
decisions that have departed from the common law definition of 9
robbery). Indeed, the Model Penal Code, which we relied upon in 10
United States v. Walker, 595 F.3d at 446, is often cited as the authority 11
for expanding the definition of robbery in this manner, see LaFave 12
§ 20.3(e), because it specifies that robbery includes conduct where 13
the initial use or threat of force occurs “in flight after the attempt or 14
commission [of the theft],” Model Penal Code § 222.1. As a result, 15
this broader definition has supplanted the common law meaning as 16
the generic definition of robbery. See Taylor v. United States, 495 U.S. 17
575, 598 (1990) (specifying that the “generic” definition of a crime is 18
the “sense in which the term is now used in the criminal codes of 19
most states”). 20
Moreover, New York places two restrictions on the temporal 21
relationship between the underlying theft and the use or threat of 22
force that buttress the conclusion that its definition of robbery falls 23

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19 15‐1518‐cr
within the generic definition of the offense: (1) force must be “in the 1
course of committing a larceny,” i.e., a theft, and (2) force must occur 2
during “immediate flight” after the taking for purposes of retaining 3
the property. See N.Y. Penal Law § 160.00. Jones does not provide, 4
and we are not aware of, any authority that the New York statute 5
criminalizes the use of force after the robber has successfully carried 6
the property away and reached a place of temporary safety. 7
For all of the foregoing reasons, we easily conclude that New 8
York’s definition of robbery necessarily falls within the scope of 9
generic robbery as set forth in the commentary to U.S.S.G. § 4B1.2(a). 10
Because Jones’ argument that first‐degree robbery is not necessarily 11
a crime of violence within the meaning of U.S.S.G. § 4B1.2(a) under 12
the categorical approach is without merit, the district court did not 13
commit error, much less plain error, in sentencing Jones as a career 14
offender. 15
IV. The Substantive Reasonableness of Jones’ Sentence 16
Finally, we reject Jones’ argument that his sentence of 180 17
months is substantively unreasonable. In assessing the substantive 18
reasonableness of a sentence for abuse of discretion, we review 19
questions of law de novo and questions of fact for clear error. United 20
States v. Bonilla, 618 F.3d 102, 108 (2d Cir. 2010) (citation omitted). 21
We may not substitute our own judgment for that of the district 22
court and can find substantively unreasonable only those sentences 23

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that are so “shockingly high, shockingly low, or otherwise 1
unsupportable as a matter of law” that affirming them would 2
“damage the administration of justice.” United States v. Rigas, 583 3
F.3d 108, 123 (2d Cir. 2009). In the “overwhelming majority of 4
cases,” a sentence within the Guidelines range will “fall comfortably 5
within the broad range of sentences that would be reasonable.” 6
United States v. Perez‐Frias, 636 F.3d 39, 43 (2d Cir. 2011) (citation 7
omitted). 8
Jones’ Guidelines range was 210 months to 262 months, the 9
top of which was lowered to 240 months, the statutory maximum for 10
assault of a federal officer. The court imposed a sentence of 180 11
months, or fifteen years, which, while substantial, was considerably 12
below the Guidelines range. 13
The primary thrust of Jonesʹ argument is that a fifteen‐year 14
sentence is substantively unreasonable for an assault of a federal 15
officer that consists solely of biting the victimʹs finger and in which 16
the injury was not permanent. Jonesʹ argument, however, misses the 17
mark. The district court specified a combination of reasons for the 18
fifteen‐year sentence, including: (1) the need to encourage respect 19
for the law and cooperation with law enforcement officials who are 20
attempting to carry out their lawful duties; (2) Jonesʹ substantial 21
prior criminal history, consisting of seven prior convictions, two of 22
which, in addition to the assault of the officer, resulted in him being 23

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designated a career offender; and (3) Jonesʹ substantial history of 1
misconduct while incarcerated, including twenty‐seven occasions 2
upon which he was disciplined. 3
Jones attempts to compare his case to instances where 4
defendants were convicted of violating the same statute, received 5
lower sentences, and arguably committed more egregious conduct. 6
That defendants convicted of similar or even more serious conduct 7
received lower sentences, however, does not render Jonesʹ sentence 8
substantively unreasonable. Plainly, the district court also relied 9
upon Jones’ criminal and prison history, including his career 10
offender status, which distinguishes this case from those to which he 11
refers. Under these circumstances, we cannot say that Jones’ 12
sentence was substantively unreasonable. 13
CONCLUSION 14
For the reasons stated above, we AFFIRM the sentence 15
imposed by the district court. 16

-- 21 of 30 --

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21
22
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
Jones sl
Shortly
marsha
the inju
by the p
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
lipped dow
thereafter
l provided
ury and tha
prosecutor
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
wn Jones’ f
r, Jones sai
d a sworn a
at he did n
r as “not th
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
face, and Jo
id, “I give,
affidavit in
not request
he most ser
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
ones bit hi
” and was
ndicating t
t damages.
rious woun
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
im, causing
s arrested a
that he suf
. At trial, th
nd you’ll e
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
g the finge
and taken
ffered no lo
he bite wa
ever see.”
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
er to bleed
away. The
oss becaus
as describe
t” range of
tellectual
Ct. Dkt. 46
o Letter of
oins,
in
urd.
case
r, is
er.
r
to
g
d.
e
se of
ed
f
6–1
Dr.

-- 22 of 30 --

2
Pursuant to a single-count indictment for assaulting a federal officer, Jones 1
was found guilty in violation of 18 U.S.C. § 111(a)(1)–(b). Under the Guidelines 2
as they were then calculated, and as described in Judge Walker’s opinion, Jones 3
faced a sentence of between 210–240 months, (seventeen-and-one-half to twenty 4
years), with the high end being the statutory maximum. This calculation was 5
based on Jones’ designation as a career offender, a status that was triggered by 6
two earlier convictions: (i) an assault in which the then twenty-year-old Jones 7
shot a man in the leg, which later needed to be amputated, and (ii) a conviction 8
for first-degree robbery in New York, a crime Jones committed when he was 9
sixteen years old.2 10
The district court, applying what it believed was the law of this circuit as it 11
stood at that time, found that Jones’ robbery conviction constituted a “crime of 12
violence” under the categorical approach to the Sentencing Guidelines. See 13
United States v. Spencer, 955 F.2d 814, 820 (2d Cir. 1992) (holding that, under the 14
law of New York, the crime of attempted third-degree robbery constitutes a 15
“crime of violence” for the purposes of the “force clause” of the Sentencing 16
Guidelines), abrogated by Johnson v. United States, 559 U.S. 133 (2010) (Johnson I); 17
see also United States v. Reyes, 691 F.3d 453 (2d Cir. 2012) (per curiam). 3 Given this 18
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).
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

-- 23 of 30 --

3
holding, and because Jones’ prior conviction for assault certainly constituted a 1
crime of violence, the district court determined that the career offender status 2
applied. Absent Jones’ designation as a career offender, his Guidelines sentence 3
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
categorical approach, a crime must involve the “use of physical force,” and
found that battery did not meet that definition. Id. at 460. Even after Spencer, it
was an open question whether first‐degree robbery was a crime of violence. After
Reyes, that question depended on whether the use of physical force was, indeed,
present in the New York definition of that crime.
Judge Garaufis held that the reasoning of Spencer meant that first degree
robbery was a crime of violence. In our former, withdrawn opinion, we held, for
reasons similar to those given in Reyes, that first‐degree robbery was not. Cf.,
United States v. Yates, No. 16‐3997, 2017 WL 3402084 (6thCir. Aug 9, 2017)
(finding in analogous circumstances that the force clause does not apply). All of
that analysis, however, was with respect to the force clause, not the co‐extant –
and here essential – residual clause.

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26
range w
instead
twenty
D
sentenc
D B.
Ju
the forc
Garaufi
the forc
addition
“residu
A
Suprem
which w
Guideli
sentenc
2557 (20
to decid
clause w
902, 907
2016); U
Madrid,
F.3d 118
A
result o
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
nal possib
ual clause.”
After Jones
me Court fo
was identic
ines—the l
ce—to be u
015) (Johns
de the issu
was also un
7-11 (6th C
United State
, 805 F.3d 1
85, 1193-96
As a result—
of Johnson I
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
le determi
”
’ initial sen
ound langu
cal to the l
lynchpin c
unconstitut
son II). Sub
e found th
nconstitut
Cir. 2016); U
es v. Calabr
1204, 1210
6 (11th Cir
—with the
I, and with
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
inant of a c
ntencing, b
uage in the
language u
lause unde
tionally va
bsequent to
hat, given t
ionally vag
United Stat
retta, 831 F
(10th Cir.
r. 2015).
e applicatio
h the residu
4
nd 48 mon
hs, or the se
pplicable.
antly from
Impact on
on his inte
definition o
gree robbe
udge Gara
crime of vi
but before
e Armed C
used in the
ergirding t
ague. Johns
o Johnson II
the Suprem
gue. See U
tes v. Hurlb
F.3d 128, 13
2015); but
on of the fo
ual clause
nths (or thr
eventeen-a
m the Gui
Sentencin
erpretation
of robbery
ery was a c
aufis did n
iolence now
we heard
Career Crim
e residual c
the author
son v. Unite
I, most fed
me Court’s
United State
burt, 835 F.
37 (3d Cir.
see United
orce clause
struck dow
ree to four
and-one-h
delines, Ju
ng
n of the ap
y. Because J
crime of vi
not address
w at issue
Jones’ app
minal Act
clause of th
rity of Jone
ed States, 1
deral cour
s decision,
es v. Pawlak
.3d 715, 72
. 2016); Un
d States v. M
e to Jones i
wn across
r years),
half years to
udge Gara
pplication o
Judge
iolence un
s the
before us:
peal, the
(“ACCA”)
he
es’ current
135 S. Ct. 2
ts of appea
the residu
k, 822 F.3d
25 (7th Cir.
nited States
Matchett, 80
in doubt a
several
o
aufis
of
nder
: the
)
t
2551,
als
ual
d
.
v.
02
as a

-- 25 of 30 --

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26
circuits
have co
appeal,
Guideli
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
employ
our opin
as a result
ommitted c
for purpo
ines. Accor
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
yed in the G
nion, and
t of Johnson
crimes of v
oses of dete
rdingly, th
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
Guidelines
suspended
n II—any n
violence, ei
ermining t
hey were re
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
s. In view o
d resenten
5
number of
ither as a m
their career
esentenced
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
of the Sup
ncing pend
f defendan
matter of f
r offender
d (or sente
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
reme Cour
ding the Bec
nts were fo
first instan
status und
enced in th
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
rt’s action,
ckles decis
ound not to
ce, or on
der the
he first
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
, we withd
ion.
o
hese
of
(See
nson
uits)
r the
ack
ng
rt
gue
drew

-- 26 of 30 --

6
Interestingly, at least one district court, in an independent case, had already 1
granted a motion for resentencing in light of our now-recalled decision. Miles v. 2
United States, No. 11-cr-581, 2016 WL 4367958 (S.D.N.Y. Aug 15, 2016). 3
In Beckles, the Supreme Court held the relevant clause of the Guidelines not 4
to be unconstitutionally vague. 4 Hence, the clause remained applicable to cases 5
like the one before us. 6
As a result, we are bound to consider Jones’ earlier convictions on the basis 7
of the revived (but no longer extant, since it has been removed by the Sentencing 8
Commission) residual clause. Under that clause, we today correctly find that 9
Jones’ robbery conviction constituted a crime of violence and, as such, served as 10
a predicate offense which—together with his assault convictions—categorically 11
renders Jones a career offender. He was, therefore, correctly subject to the 12
sentencing guidelines of 210–240 months on the basis of which the district 13
court—albeit, perhaps incorrectly relying on the force clause rather than the 14
residual clause— had imposed his original sentence of fifteen years. 15
Because that sentence was correctly based on the Guidelines as we now 16
hold they stood when the district court sentenced Jones, we now affirm that 17
sentence. We also hold that, given the applicable Guidelines, the sentence 18
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.

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27
impose
Guideli
D E.
I
the resu
Jo
nature a
district
on its v
Perhaps
howeve
Guideli
T
have de
our opin
dealing
substan
would h
that sen
other ci
Jones co
the resi
assumin
our earl
opportu
of Guid
sentenc
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
nion come
g with simi
ntively low
have seem
ntence been
ircuits—th
ommitted
dual claus
ng that we
lier, now-r
unity to ga
delines than
cing.
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
e down slig
ilar issues,
wer Guideli
med approp
n lower—a
he Governm
his crime u
se has been
e would ha
retracted o
auge Jones
n those we
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
ghtly earlie
Jones wou
ines range
priate to th
as it appar
ment appa
under the
n removed
ave read th
opinion), th
’ degree of
e, today, fi
7
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
er, as did t
uld have b
e. We woul
he district c
rently was
rently wou
currently e
d by the Sen
he force cla
he district
f dangerou
inally conc
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
those of m
been resent
ld, then, kn
court in th
in any nu
uld not ha
existing G
ntencing C
ause not to
court wou
usness und
clude it cor
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
most other c
tenced pur
now what
hose circum
mber of ot
ave objecte
Guidelines,
Commissio
o apply (as
uld have ha
der a very
rrectly app
licable
ut I believe
whose full
han we. Th
nce was ba
usness.
elines, was
ose
.
urt would
delines. H
circuits
rsuant to a
t sentence
mstances. H
ther cases
d to it. Ha
(i.e., in wh
on), and
s we did in
ad, again,
different s
plied at
e
he
ased
s,
Had
a
Had
in
ad
hich
n
the
set

-- 28 of 30 --

8
Because we (advisedly) withdrew our earlier opinion in light of the 1
Supreme Court’s grant of certiorari in Beckles, and because of the Supreme Court’s 2
ultimate decision in Beckles, I agree that we now are bound to affirm Jones’ 3
original sentence. This means that, as a result of timing quirks (his appeal to us 4
was slightly too late, leading to our decision to pull our earlier opinion; his 5
crimes too early so that the now-removed, but no longer unconstitutional, 6
residual clause was in effect when he committed them), Jones receives a very, 7
very high sentence in contrast with almost every similarly situated defendant. 8
What is more—and this may be the true source of my sense of absurdity— 9
there appears to be no way in which we can ask the district court to reconsider 10
the sentence it ordered in view of the happenstances that have worked against 11
Jones, and in view of its assessment of Jones’ crimes and of its downward 12
departure. 13
Were this a civil case, there would be any number of ways of letting the 14
lower court revisit matters.5 But, as far as I have been able to discern, there is no 15
way for us to send this back to the district court and ask it to tell us what I 16
believe should determine Jones’ sentence: 17
In the light of sentences that other similarly guilty defendants have 18
received, and in the light of Jones’ own situation, both of which you, as 19
a district judge, are best suited to determine, what is the sentence that 20
you deem appropriate in this case? 21
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).

-- 29 of 30 --

9
I find our inability to learn this to be both absurd and deeply troubling. I 1
believe our affirmance is correct, and that we can do no other. I hope, however, 2
that somewhere, somehow, there exists a means of determining what would, in 3
fact, be an appropriate sentence for Jones. 4

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