Shabazz v. United States of America

17-167-cr
Shabazz v. United States of America
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
3
August Term, 2017 4
5
(Argued: February 26, 2018 Decided: January 4, 2019 ) 6
7
Docket No. 17‐167 8
9
10
_____________________________________ 11
12
AL‐MALIK FRUITKWAN SHABAZZ, fka Edward Levi Singer, 13
14
Petitioner‐Appellee, 15
16
v. 17
18
UNITED STATES OF AMERICA, 19
20
Respondent‐Appellant. 21
_____________________________________ 22
23
Before: 24
25
KATZMANN, Chief Judge, LEVAL, Circuit Judge, and BERMAN, 26
District Judge.* 27
28
The government appeals from the judgment of the United States 29
District Court for Connecticut (Stefan R. Underhill, J.) granting petitioner Al‐ 30
Malik Fruitkwan Shabazz’s motion under 28 U.S.C. § 2255 to set aside his 31
sentence imposed under the Armed Career Criminal Act of 1984 (“ACCA”), 32
18 U.S.C. § 924(e), on the ground that his prior convictions for robbery under 33
Con. Gen. Stat. § 53a‐133 did not qualify as ACCA predicates under ACCA’s 34
Force Clause, mandating a sentence of at least fifteen years imprisonment. 35
* Judge Richard M. Berman, United States District Court for the Southern
District of New York, sitting by designation.

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2
Held, any offense that satisfies the essential elements of robbery under § 53a‐ 1
133 involves use or threat of force capable of causing pain or injury and thus 2
qualifies as an ACCA predicate. REVERSED. 3
4
C HARLES F. WILLSON, Federal 5
Defender’s Office, Hartford, CT, for 6
Petitioner‐Appellee. 7
8
JOCELYN COURTNEY K AOUTZANIS (Marc 9
H. Silverman, on the brief), on behalf of 10
Deirdre M. Daly, United States 11
Attorney, District of Connecticut, New 12
Haven, CT, for Respondent‐Appellant. 13
14
LEVAL, Circuit Judge: 15
This is an appeal by the United States from a grant of habeas corpus 16
under 28 U.S.C. § 2255 by the United States District Court for the District of 17
Connecticut (Stefan R. Underhill, J.) in favor of petitioner Al‐Malik Fruitkwan 18
Shabazz, requiring reduction of Shabazz’s sentence. The question presented 19
by the appeal is whether the offense of robbery, as defined by Connecticut’s 20
basic robbery statute, Conn. Gen. Stat. § 53a‐133, is a “violent felony” as that 21
term is used in the Armed Career Criminal Act of 1984 (“ACCA”), 18 U.S.C. § 22
924(e). That issue turns on whether robbery, as specified in § 53a‐133, has as 23
an essential element the use or threatened use of force that is capable of 24
causing pain or injury. See Johnson v. United States, 559 U.S. 133 (2010) (“2010 25
Johnson”). 26

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Shabazz was convicted in 2004 in the United States District Court for 1
Connecticut on one count of unlawful possession of a firearm by a convicted 2
felon, in violation of 18 U.S.C. § 922(g)(1). At the time, Shabazz had, among 3
other convictions, four prior Connecticut state‐court robbery convictions 4
under § 53a‐133. If at least three of those prior convictions were for violent 5
felonies as that term has been defined by the Supreme Court for purposes of 6
the ACCA statute, ACCA mandated a sentence of at least fifteen years 7
imprisonment. In sentencing Shabazz for the firearm violation, the district 8
court concluded that a mandatory fifteen‐year sentence was required by 9
ACCA and sentenced Shabazz to 235 months imprisonment. 1 10
Since that time, decisions of the United States Supreme Court and our 11
court have substantially altered the meaning of ACCA. Shabazz brought this 12
petition for habeas corpus contending that ACCA, as currently understood, 13
no longer applies to his robbery convictions because, he argues, one can be 14
convicted of robbery in Connecticut for a theft that does not employ force 15
capable of causing pain or injury. The district court, in a thoughtful, scholarly 16
1 The district court started with the mandatory minimum sentence as the
baseline and determined, based on aggravating circumstances of Shabazz’s
offense, that a sentence above that minimum was warranted.

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opinion, agreed with Shabazz and granted his petition. The court vacated his 1
prior sentence, sentenced him to 120 months imprisonment, and released him 2
from custody because he had completed service of the new sentence. The 3
cornerstone of the district court’s ruling was that robbery under § 53a‐133 4
does not necessarily involve use of force that is capable of causing pain or 5
injury. 6
The government brought this appeal, arguing that Connecticut’s core 7
robbery statute does require force (or threat of force) that is capable of causing 8
pain or injury. If the government is correct, Shabazz had at least three prior 9
violent felonies, and therefore faced a mandatory sentence of at least fifteen 10
years under ACCA. 11
We respectfully disagree with the district court’s view that 12
Connecticut’s robbery statute does not require at a minimum force that would 13
satisfy the ACCA standard. We think that the threat of force capable of 14
causing pain or injury is inherent in the crime of robbery. Accordingly, we 15
VACATE the judgment. 16

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BACKGROUND 1
In 2005, Shabazz was convicted of one count of unlawful possession of 2
a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1). See United 3
States v. Singer, No. 3:04‐cr‐210‐1 (SRU) (doc. 1, 71). In addition to other 4
convictions, Shabazz had four prior Connecticut convictions for various 5
degrees of robbery, each of which included a conviction under § 53a‐133. 6
Robbery in Connecticut is defined under a statutory scheme that 7
includes a basic robbery offense under § 53a‐133, and additional statutes that 8
define the aggravating factors, such that all robbery convictions must include 9
a conviction under § 53a‐133, and any conviction for aggravated degrees of 10
robbery, such as first degree robbery or second degree robbery, requires an 11
additional conviction under the statute that defines the aggravating factors. 12
The basic definition of robbery under § 53a‐133 is as follows: 13
A person commits robbery when, in the course of 14
committing a larceny, he uses or threatens the immediate use of 15
physical force upon another person for the purpose of: (1) 16
Preventing or overcoming resistance to the taking of the property 17
or to the retention thereof immediately after the taking or (2) 18
compelling the owner of such property or another person to 19
deliver up the property or to engage in other conduct which aids 20
in the commission of the larceny. 21

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ACCA specifies that a person who violates 18 U.S.C. § 922(g)(1)’s 1
prohibition of possession of a firearm by a convicted felon and has three 2
previous convictions “for a violent felony” (or a serious drug offense) is 3
subject to a mandatory minimum sentence of fifteen years. 18 U.S.C. § 4
924(e)(1).2 The term “violent felony” is defined to include any crime 5
2 The full text of 18 U.S.C. 924(e) states: (e)(1) In the case of a person who
violates section 922(g) of this title and has three previous convictions by any
court referred to in section 922(g)(1) of this title for a violent felony or a
serious drug offense, or both, committed on occasions different from one
another, such person shall be fined under this title and imprisoned not less
than fifteen years, and, notwithstanding any other provision of law, the court
shall not suspend the sentence of, or grant a probationary sentence to, such
person with respect to the conviction under section 922(g).
(2) As used in this subsection—
(A) the term “serious drug offense” means—
(i) an offense under the Controlled Substances Act (21 U.S.C. 801
et seq.), the Controlled Substances Import and Export Act (21 U.S.C.
951 et seq.), or chapter 705 of title 46, for which a maximum term of
imprisonment of ten years or more is prescribed by law; or
(ii) an offense under State law, involving manufacturing,
distributing, or possessing with intent to manufacture or distribute, a
controlled substance (as defined in section 102 of the Controlled
Substances Act (21 U.S.C. 802), for which a maximum term of
imprisonment of ten years or more is prescribed by law;
(B) the term “violent felony” means any crime punishable by
imprisonment for a term exceeding one year, or any act of juvenile
delinquency involving the use or carrying of a firearm, knife, or
destructive device that would be punishable by imprisonment for such
term if committed by an adult, that—

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punishable by imprisonment for a term exceeding one year that falls into any 1
of three categories that are defined in clauses (i) and (ii) of § 924(e)(1)(B). The 2
first of these, known as the Force Clause, set forth in subsection (i), is the 3
subject of this appeal. It specifies that the offense “(i) has as an element the 4
use, attempted use, or threatened use of physical force against the person of 5
another.” 18 U.S.C. § 924(e)(2)(B)(i). The second and third categories, the so‐ 6
called Enumerated Felonies Clause and the Residual Clause, are set forth in 7
subsection (ii). The Enumerated Felonies Clause includes any offense that “is 8
burglary, arson, or extortion, [or] involves use of explosives.” 18 U.S.C. § 9
924(e)(2)(B)(ii). The Residual Clause includes any offense that “otherwise 10
involves conduct that presents a serious potential risk of physical injury to 11
another.” Id. In order to determine whether a prior conviction comes within 12
one of the aggravating categories, the Supreme Court ruled in Taylor v. United 13
(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of physical
injury to another; and
(C) the term “conviction” includes a finding that a person has
committed an act of juvenile delinquency involving a violent felony.
(The language in italics has been found constitutionally invalid and may not
be used for sentencing purposes. Johnson v. United States, 135 S.Ct. 2551
(2015).)

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States, 495 U.S. 575, 600 (1990), that the court must employ a “categorical 1
approach,” looking not at the facts of the defendant’s prior crimes but at the 2
statute under which he was convicted to determine whether the essential 3
elements of that statute bring the crime within the ACCA requirements. 4
In sentencing Shabazz on his 2005 conviction for unlawful gun 5
possession, the court concluded on the basis of his prior Connecticut robbery 6
convictions that he was subject to ACCA’s fifteen‐year mandatory minimum 7
sentence. The court did not explain which of the clauses of the ACCA statute 8
justified its application to his case. Shabazz timely appealed his conviction 9
without contesting the applicability of ACCA, and our court affirmed the 10
judgment by summary order. United States v. Singer, 241 F. App’x 727, 729 (2d 11
Cir. 2007). 12
Subsequent to his conviction, court decisions have altered the meaning 13
of the ACCA statute. In 2010, the Supreme Court interpreted the phrase 14
“physical force” in the Force Clause. See Johnson v. United States, 559 U.S. 133 15
(2010) (“2010 Johnson”). The Supreme Court reasoned that because the term 16
“physical force” occurred “in the context of a statutory definition of ‘violent 17
felony,’” the physical force invoked by the statute needed to be “violent 18

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force—that is, force capable of causing physical pain or injury to another 1
person.” Id. at 140 (emphasis in original). Therefore, in order for a previous 2
conviction to qualify as an ACCA predicate under the Force Clause, the 3
statutory definition of the crime must require force capable of causing 4
physical pain or injury to another person, or the threat of such force. Id. Then, 5
in 2015, in Johnson v. Unites States, 153 S. Ct. 2551 (2015) (“2015 Johnson”), the 6
Supreme Court struck down ACCA’s Residual Clause, finding it to be 7
unconstitutionally vague. 8
After 2015 Johnson, Shabazz brought this petition, arguing that his 9
sentence must be set aside because, to the extent the application of ACCA 10
might have depended on the Residual Clause, that clause has since been 11
invalidated, and to the extent it might have depended on the Force Clause, 12
that would have been improper because the crime of robbery as defined by 13
§ 53a‐133 can be committed by use of force that is not sufficient to cause pain 14
or injury. 15
The issue before the district court was whether any three of Shabazz’s 16
prior Connecticut robbery convictions were obtained under a statute that 17

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required as an essential element the use or threat of force capable of causing 1
pain or injury. 2
On January 3, 2017, the district court issued a written ruling granting 3
Shabazz’s § 2255 motion and vacating his sentence. The court ruled that 4
simple robbery under § 53a‐133, without aggravating factors, does not qualify 5
as an ACCA predicate because the crime can be committed by use of levels of 6
force so slight that they are not capable of causing pain or injury. Thus, 7
notwithstanding that two of Shabazz’s convictions for first degree robbery 8
qualified as crimes of violence because the aggravating factor necessarily 9
involved violent force, his other robbery convictions did not require violence. 10
Having only two, and not three, prior violent felonies, Shabazz did not 11
qualify for mandatory sentencing under ACCA.3 The government brought 12
this appeal. 13
DISCUSSION 14
3 The district court, in adjudicating Shabazz’s petition under § 2255,
concluded that, in passing Shabazz’s sentence in 2005, it had probably relied,
at least in part, on the now‐unconstitutional Residual Clause to determine
that ACCA’s mandatory sentencing provision applied. If the elements of
§ 53a‐133 require violent force, ACCA’s sentencing provision mandatorily
applied to Shabazz under the Force Clause, so that even if the sentencing
court had erroneously relied on the Residual Clause, the error was harmless.

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The government contends that robbery under § 53a‐133 requires force 1
capable of causing pain or injury, so that, regardless of whether Shabazz was 2
convicted of aggravating factors, each of his Connecticut robbery convictions 3
qualifies as a violent felony within the meaning of ACCA’s Force Clause. 4
Employing the categorical approach mandated by Taylor, 495 U.S. at 600; see 5
also Mathis v. United States, 136 S. Ct. 2243, 2248‐49 (2016) (outlining the 6
categorical approach); Descamps v. United States, 570 U.S. 254, 257 (2013) 7
(same), courts identify “the minimum criminal conduct necessary for 8
conviction under a particular statute.” United States v. Acosta, 470 F.3d 132, 135 9
(2d Cir. 2006). “The reviewing court ‘cannot go behind the offense as it was 10
charged to reach [its] own determination as to whether the underlying facts’ 11
qualify the offense as,” in this case, a violent felony. Hill, 890 F.3d at 55 12
(quoting Ming Lam Sui v. INS, 250 F.3d 105, 117‐18 (2d Cir. 2001)). 13
Connecticut’s statute defines robbery essentially as it is understood in 14
the common law and largely throughout the United States, as requiring the 15
use or threat of force to take property from the person of another without the 16
person’s consent. Robbery has consistently been treated as an aggravated 17
form of larceny because the taking of property from the person of another 18

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against the victim’s will by force or threat of force is inevitably capable of 1
causing physical harm to the victim, regardless of whether the force actually 2
employed in the taking of the property is by itself sufficient to cause pain or 3
injury. Scholars of the criminal law underline the inherent potential for 4
physical harm to the victim as the explanation why robbery developed as, 5
and continues to be treated as, an aggravated felony, generally carrying 6
harsher punishments than other forms of larceny. See 3 W. LaFave, 7
Substantive Criminal Law § 20.3, p. 221 (3d ed. 2017) (“Robbery, a common‐ 8
law felony, and today everywhere a statutory felony regardless of the amount 9
taken, may be thought of as aggravated larceny—misappropriation of 10
property under circumstances involving a danger to the person as well as a danger 11
to property—and thus deserving of a greater punishment than that provided 12
for larceny. Robbery consists of all six elements of larceny . . . plus two 13
additional requirements: [(1)] that the property be taken from the person or 14
presence of the other and [(2)] that the taking be accomplished by means of 15
force or putting in fear.”) (emphasis added); see also id. at 222 n.4 (“Robbery 16
may be considered a greater crime than the sum of the two lesser crimes of 17
larceny and assault (or battery). As stated in Model Penal Code § 222.1, 18

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Comment at 98 (1980): . . . [T]he robber may be distinguished from the 1
stealthy thief by the hardihood that enables him to carry out his purpose in 2
the presence of his victim and over his opposition—obstacles that might deter 3
ordinary sneak thieves and that justify the feeling of special danger evoked by 4
robbery.”) (emphasis added); E. Podgor, P. Henning, and N. Cohen, Mastering 5
Criminal Law, p. 215 (2d ed. 2015) (“Robbery, often punished by a lengthy 6
prison term, is an aggravated form of larceny. The offense entails a larceny 7
coupled with the use of force or a threat of violence to dispossess the victim of 8
the property. Robbery is deemed a very serious crime, a felony in every 9
jurisdiction, because it presents the real danger of immediate serious physical harm 10
to the victim. . . . Because the actual or potential bodily harm is the primary 11
concern with robbery, it occurs irrespective of the value of the items taken.”) 12
(emphasis added). 13
Notwithstanding a robber’s actual use of minimal force (that would not 14
in itself cause pain or injury) to take property from the person of another 15
against the victim’s will, those face‐to‐face circumstances inherently carry an 16
implicit threat of escalation, perhaps because of the victim’s predictable 17
reaction, capable of resulting in physical harm. Therefore, even such minimal 18

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force, when employed in a taking of property from the person of another, 1
inherently implicates a realistic threat of causing pain or injury, so that the 2
crime qualifies as an ACCA predicate under 2010 Johnson.4 We therefore 3
conclude that the district court erred in its belief that, because the crime of 4
robbery could be committed through the actual use of minimal physical force, 5
it should not be deemed to fall within the category of a crime capable of 6
causing pain or injury. 7
We conclude that the use or threat of even minimal force on another 8
person in aid of the theft of that person’s property, as required by § 53a‐133, is 9
inherently capable of causing pain or injury, with the consequence that any 10
violation of § 53a‐133 qualifies as an ACCA predicate. Shabazz had three or 11
4 We note that the Supreme Court, in a very recent decision, see United States
v. Stitt, 139 S. Ct. 399 (2018), considered whether two state burglary statutes
covering entry into vehicles designed or adapted for overnight
accommodation categorically fit within the generic definition of “burglary” in
the Enumerated Felonies Clause. In holding in the affirmative and
distinguishing from earlier cases, Stitt relied in significant part on the
“inherently dangerous” nature of such burglaries because they create a more
significant likelihood of in‐person confrontation than burglaries of premises
that are less likely to be occupied. See id. at 406‐07. Because, among other
reasons, the statutes in question applied exclusively to a category of
burglaries more likely to result in a violent confrontation, the Court held that
they fit the enumerated felony of burglary.

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more such ACCA predicates. ACCA therefore mandated that he be sentenced 1
to no less than fifteen years imprisonment. 2
Accordingly, we VACATE the district court’s judgment. The district 3
court’s judgment on Shabazz’s petition vacated his original sentence, 4
substituting the court’s new, lesser sentence. The effect of our ruling vacating 5
that judgment is to reinstate the original sentence. 6
CONCLUSION 7
For the foregoing reasons, the district court’s judgment vacating 8
Shabazz’s sentence is VACATED, with the consequence that the original 9
sentence is reinstated. 10

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