United States v. Hendricks

15‐2525‐cr
United States v. Hendricks
In the
United States Court of Appeals
for the Second Circuit
A UGUST TERM 2018
No. 15‐2525‐cr
U NITED S TATES OF AMERICA,
Appellee,
v.
R OBERT HENDRICKS ,
Defendant‐Appellant,
S HAKEAL H ENDRICKS , TAIQUAN H OWARD, AKA TAIQUAN HENDRICKS ,
C HARLES E. R OBINSON, JR .,
Defendants.
On Appeal from the United States District Court
for the Northern District of New York
A RGUED: D ECEMBER 5, 2018
D ECIDED: A PRIL 11, 2019

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Before: C ABRANES , POOLER , and D RONEY, Circuit Judges.
Defendant‐Appellant Robert Hendricks (“Robert”) appeals
from an August 4, 2015 judgment of the United States District
Court for the Northern District of New York (Norman A.
Mordue, Judge) convicting him, following a trial, of (1) credit
union robbery, in violation of 18 U.S.C. §§ 2113(a), 2; and (2)
using a firearm during a crime of violence, in violation of 18
U.S.C. §§ 924(c)(1)(A)(ii), 2. The District Court sentenced Robert
principally to 360 months’ incarceration to be followed by 5
years of supervised release. On appeal, Robert challenges the
validity of his conviction for using a firearm during a crime of
violence, arguing that federal credit union robbery does not
qualify as a “crime of violence” for the purposes of § 924(c). He
further contends that the District Court abused its discretion
and denied him a fair trial by (1) excluding a photograph of the
individual Robert claims actually robbed the credit union, and
(2) admitting testimony of victim witnesses regarding the
robbery’s impact on them in the aftermath of the crime. Finally,
Robert challenges his sentence and argues that the District Court
plainly erred by sentencing him as a career offender under the
residual clause of the 2014 edition of United States Sentencing
Guidelines § 4B1.2(a)(2). We AFFIRM the judgment of the
District Court.

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RAJIT S. DOSANJH, Assistant United States
Attorney, for Grant C. Jaquith, United States
Attorney for the Northern District of New
York, Syracuse, NY, for Appellee.
STEVEN Y. YUROWITZ, New York, NY, for
Defendant‐Appellant.
JOSÉ A. C ABRANES , Circuit Judge:
Defendant‐Appellant Robert Hendricks (“Robert”) appeals
from an August 4, 2015 judgment of the United States District Court
for the Northern District of New York (Norman A. Mordue, Judge)
convicting him, following a jury trial, of (1) credit union robbery, in
violation of 18 U.S.C. §§ 2113(a), 2; and (2) using a firearm during a
crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii), 2. The
District Court sentenced Robert principally to 360 months’
incarceration to be followed by 5 years of supervised release. On
appeal, Robert challenges the validity of his conviction for using a
firearm during a crime of violence, arguing that federal credit union
robbery does not qualify as a “crime of violence” for the purposes of
§ 924(c). He further contends that the District Court abused its
discretion and denied him a fair trial by (1) excluding a photograph of
the individual Robert claims actually robbed the credit union, and (2)
admitting testimony of victim witnesses regarding the robbery’s
impact on them in the aftermath of the crime. Finally, Robert
challenges his sentence and argues that the District Court plainly erred

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by sentencing him as a career offender under the residual clause of the
2014 edition of United States Sentencing Guidelines § 4B1.2(a)(2).
I. BACKGROUND
A. The Access Federal Credit Union Robbery
On the morning of August 19, 2013, Robert Hendricks
(“Robert”), Shakeal Hendricks (“Shakeal”), Taiquan Howard
(“Taiquan”), and a fourth man drove to Camden, New York, where
they intended to rob a credit union. 1 Deeming the operation in
Camden too risky, the four moved on to another target—the Access
Federal Credit Union (“AFCU”) in Rome, New York.
On reaching the AFCU at approximately 12:25 p.m., the four
men parked in a nearby lot. Shakeal entered the credit union lobby
first while the other three men remained in the car. Shakeal
approached the two tellers on duty and requested information
regarding the credit union’s financial services. The tellers directed
him to a customer service representative’s cubicle.
Shortly thereafter, at approximately 12:30 p.m., Taiquan and
Robert entered the credit union brandishing handguns. Taiquan
vaulted the teller’s counter and pointed his handgun at the first teller,
while Robert approached the second teller, who was assisting a
1 Because Robert appeals from a judgment of conviction entered after a jury
trial, we “draw the facts from the evidence presented at trial, viewed in the light
most favorable to the government.” United States v. Thompson, 896 F.3d 155, 159 (2d
Cir. 2018) (internal quotation marks omitted). The Government alleged that Charles
Robinson, Jr. was the fourth man, but he was acquitted of all charges at trial.

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customer. Robert shoved the customer, grabbed him by the neck,
pushed him down into a chair, and warned that he would “blow
[him] away.”2 At the same time, Shakeal forced the customer service
representative to exit her cubicle and then left the credit union.
Robert pointed a gun at the customer service representative and told
her to sit on the floor.
Meanwhile, Taiquan, his gun still pointed at the first teller,
asked who could open the vault. The first teller responded that he
could, so Taiquan forced him to do so. Robert then threw a backpack
he was carrying to Taiquan to fill with money from the vault. While
the first teller filled the backpack with cash, Robert remained in the
lobby with his gun drawn, observing the other AFCU employees and
its lone customer.
Once the backpack was full, Taiquan and Robert left the credit
union. The four men then drove to a Dunkin’ Donuts in East
Syracuse, New York, before going their separate ways.
B. The Government’s Case at Trial
In an indictment filed on March 13, 2014, Robert, Taiquan, and
Charles E. Robinson, Jr. were charged with credit union robbery, in
violation of 18 U.S.C. §§ 2113(a), 2. Robert and Taiquan were also
charged with using a firearm during a crime of violence, in violation
of 18 U.S.C. §§ 924(c)(1)(A)(ii), 2. Taiquan pleaded guilty to both
counts, but Robert and Charles E. Robinson, Jr. proceeded to trial.
2 App. 70.

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Shakeal testified as a government witness pursuant to a plea
agreement.
At trial, the Government elicited testimony from, among
others, the three credit union employees who were present for the
robbery. The Government asked these witnesses (1) how they felt
during the robbery, and (2) how the robbery impacted them in the
aftermath of the crime.
With respect to the latter inquiry, the Government asked the
first teller whether he was “able to return to work” after the robbery.3
He responded: “No. I tried to go to a different branch and I didn’t
make it behind the teller line. I walked in the back door and . . . Just a
lot of fear and there’s just—I couldn’t do anything but just think
about what happened and, no, I wasn’t able to go back to work, no.” 4
The Government asked the second teller the same question.
She testified that she did not return to work after the robbery because
she “couldn’t bring [herself] to go back in that credit union.”5
Finally, the Government asked the customer service
representative how the “experience affect[ed her].”6 She responded:
“Very leery of unfamiliar situations. If I walk around and there’s a
group of black men, it bothers me a little bit. I would avoid—if they
3 Id. at 54.
4 Id.
5 Id. at 57.
6 Id. at 65.

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were like all standing in front of a store, I would avoid going in the
store or go around them. Iʹm getting better about that, but it was a
very scary situation. I didnʹt know what they were going to do,
didn’t know who they were going to hurt. My second family, you
know, they were hurting our own. I see what it did to the tellers. I
don’t have nightmares or anything.”7
Robert objected to the Government’s question to the first teller
and customer service representative based on irrelevance. He further
objected to the testimony of the customer service representative as
“potentially prejudicial” and “introduced for no purpose other than
to inflame the jury.”8 The District Court overruled each objection.
C. Robert’s Defense
At trial, Robert did not testify and called no witnesses. Instead,
he relied on cross‐examination of the Government’s witnesses to
suggest that he was mistakenly identified as a participant in the
robbery.
In support of his misidentification defense, Robert sought to
implicate a third party, Jamar Sesum, a.k.a. “Bam” (“Bam”).9 While
cross‐examining one of the Government’s witnesses, Robert sought
to admit into evidence a photograph of Bam. The Government
7 Id.
8 Id.
9 The record reflects inconsistent spelling of this individual’s name. We
adopt the spelling used by the parties in their briefs on appeal.

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objected, but the District Court admitted the photograph “subject to
connection,” requiring Robert to later demonstrate its relevance. 10 At
the close of trial, the Government renewed its objection, arguing that
Robert had failed to show the photograph was relevant and that
introducing it would confuse the jury. The District Court found
Robert’s contention that Bam was a third‐party perpetrator “really,
really, speculative” and excluded the photograph. 11
D. Jury Verdict and Sentencing
After deliberating for less than five hours, the jury found
Robert guilty of both credit union robbery and using a firearm
during a crime of violence.12
At sentencing, the District Court found that Robert was a
“career offender” under the 2014 edition of United States Sentencing
Guidelines § 4B1.1 because of his prior felony convictions for
burglary in the second degree, in violation of New York Penal Law
§ 140.25(2), and criminal sale of a controlled substance in the third
degree, in violation of New York Penal Law § 220.39(1).13 As a result
10 App. 86.
11 Id. at 175.
12 The jury acquitted Charles E. Robinson, Jr. of credit union robbery, the
sole crime with which he was charged.
13 U.S.S.G. § 4B1.1 provides that:
(a) A defendant is a career offender if (1) the defendant was at least
eighteen years old at the time the defendant committed the instant
offense of conviction; (2) the instant offense of conviction is a felony

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of Robert’s status as a “career offender,” his advisory Guidelines
range was 360 months’ to life imprisonment. On July 23, 2015, the
District Court sentenced Robert to 240 months’ imprisonment on the
credit union robbery charge and 120 months’ imprisonment on the
§ 924(c) charge, to run consecutively, for a total effective sentence of
360 months’ imprisonment. This appeal followed.
II. DISCUSSION
This case presents four questions:
(1) Whether federal credit union robbery, in violation of 18
U.S.C. § 2113(a), is categorically a “crime of violence” for the
purposes of a conviction for using a firearm during a crime
of violence under 18 U.S.C. § 924(c)(1)(A)(ii);
(2) Whether the District Court abused its discretion when it
admitted testimony from victims of the credit union robbery
regarding the robbery’s impact on them in the aftermath of
the crime;
(3) Whether the District Court abused its discretion by
excluding a photograph of a third party that Robert claims
actually committed the robbery; and
that is either a crime of violence or a controlled substance offense;
and (3) the defendant has at least two prior felony convictions of
either a crime of violence or a controlled substance offense.

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(4) Whether the District Court plainly erred in sentencing Robert
as a career offender under the residual clause of the 2014
edition of United States Sentencing Guidelines § 4B1.2(a)(2).
A. Standard of Review
We review legal questions underlying a challenge to a criminal
conviction de novo.14 Because Robert did not challenge the validity of
his conviction under § 924(c) before the District Court, we review his
conviction for plain error.15
The District Court’s evidentiary rulings, in turn, are reviewed
for abuse of discretion to the extent that they were objected to
below.16 “To find such abuse, we must conclude that the trial judge’s
evidentiary rulings were arbitrary and irrational.” 17 A district court
“has considerable discretion in deciding whether an adequate
foundation has been laid for the introduction of relevant
documents.”18 This Court “accord[s] particular deference to the trial
court’s rulings as to foundation and relevance.”19 Similarly, we
14 United States v. Sampson, 898 F.3d 287, 298 (2d Cir. 2018).
15 See United States v. Vilar, 729 F.3d 62, 70 (2d Cir. 2013) (explaining “plain
error” review).
16 United States v. Gupta, 747 F.3d 111, 137 (2d Cir. 2014).
17 United States v. White, 692 F.3d 235, 244 (2d Cir. 2012) (internal quotation
marks omitted).
18 Gupta, 747 F.3d at 137.
19 Id.

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“accord great deference” to a district court’s analysis under Federal
Rule of Evidence 403.20 Even where we conclude that a district court
erred in admitting evidence under Rule 403, the error will
nonetheless be deemed harmless if we conclude with “fair assurance
that the jury’s judgment was not substantially swayed by the error.”21
Finally, where, as here, a defendant challenges his or her
sentence on a basis not raised before the District Court, we review for
plain error.22
B. Credit Union Robbery as a “Crime of Violence”
Robert contends that his conviction for using a firearm during
a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii), is
invalid because federal credit union robbery under 18 U.S.C.
§ 2113(a) is not a “crime of violence” within the meaning of § 924(c).
We begin our analysis with the relevant statutory text. Section
924(c)(1) provides that:
(A). . . any person who, during and in relation to any
crime of violence . . . for which the person may be
prosecuted in a court of the United States, uses or carries
a firearm, or who, in furtherance of any such crime,
20 Id. at 132 (internal quotation marks omitted).
21 United States v. Padilla, 548 F.3d 179, 190 (2d Cir. 2008) (internal quotation
marks omitted).
22 United States v. Pereira‐Gomez, 903 F.3d 155, 161 (2d Cir. 2018) (describing
plain error review in the sentencing context).

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possesses a firearm, shall, in addition to the punishment
provided for such crime of violence . . .
(ii) if the firearm is brandished, be sentenced to a
term of imprisonment of not less than 7 years . . . 23
Section 924(c)(3) defines a “crime of violence” as “an offense
that is a felony” and:
(A) has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another, or
(B) that by its nature, involves a substantial risk that
physical force against the person or property of another
may be used in the course of committing the offense.24
We refer to subparagraph (A) of § 924(c)(3) as the “force
clause” and to subparagraph (B) as the “risk‐of‐force clause.” 25
To determine whether a crime is a “crime of violence” under
§ 924(c)(3)(A), we apply the so‐called “categorical approach.”26 Under
23 18 U.S.C. § 924(c)(1)(A).
24 Id. § 924(c)(3).
25 United States v. Hill, 890 F.3d 51, 54 (2d Cir. 2018).
26 The Supreme Court has described the categorical approach in a series of
cases involving the Sentencing Guidelines and the Armed Career Criminal Act. See
Taylor v. United States, 495 U.S. 575, 600 (1990) (holding that the categorical
approach should be applied to the Armed Career Criminal Act); see also Stokeling v.
United States, 139 S. Ct. 544, 554‐55 (2019) (applying the categorical approach in
evaluating Florida robbery under the force clause of the Armed Career Criminal

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this “approach,” we evaluate whether “the minimum criminal
conduct necessary for conviction under a particular statute”
necessarily involves violence.27 In doing so, we focus only on the
elements of the offense and do not consider the particular facts of the
underlying crime.28 In this case, then, we inquire whether the
elements of credit union robbery necessarily involve physical force .
We have recently held that § 2113(a) is a “divisible” statute
because it contains two separate paragraphs that “delineate[] two
methods of committing” credit union robbery.29 In this case, there is
no dispute that Robert was charged with, and convicted of, the first
method of committing credit union robbery—namely, “by force and
violence, or by intimidation.”30 We therefore must determine whether
credit union robbery “by force and violence, or by intimidation”
categorically constitutes a “crime of violence.” Perhaps
unsurprisingly, we conclude that it does.
Robert argues that his conviction under § 2113(a) does not
categorically constitute a “crime of violence” because one might be
Act); United States v. Hill, 890 F.3d 51, 55 (2d Cir. 2018) (applying the categorical
approach to determine whether a federal crime qualified as a “crime violence”
under § 924(c)(3)(A)).
27 Hill, 890 F.3d at 55 (internal quotation mark omitted).
28 Id.
29 United States v. Moore, 916 F.3d 231, 238 (2d Cir. 2019).
30 18 U.S.C. § 2113(a); App. 12 (operative indictment); Appellant Br. 4.

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convicted under this statute by negligently intimidating a victim.
Because a “crime of violence” generally does not “encompass
accidental or negligent conduct,”31 Robert contends the minimum
criminal conduct necessary for a conviction under § 2113(a) does not
necessarily involve the use or threatened use of force.
This argument is unavailing. The Supreme Court has held that
§ 2113(a) requires proof of “knowledge with respect to the actus reus
of the crime (here, the taking of property of another by force and
violence or intimidation).” 32 With respect to the “intimidation”
element, a defendant “must at least know that his actions would
create the impression in an ordinary person that resistance would be
met by force.”33 In short, knowledge, not merely negligence, is
required.
We recently observed that “this circuit, in a summary order,
and our sister circuits, in published opinions, have consistently held
that federal bank robbery by intimidation is a crime of violence under
the force clause of various sentence enhancement Guidelines and
statutes.” 34 Indeed, every circuit to have addressed the issue has held
31 Leocal v. Ashcroft, 543 U.S. 1, 11 (2004) (discussing 18 U.S.C. § 16).
32 Carter v. United States, 530 U.S. 255, 268 (2000).
33 United States v. McBride, 826 F.3d 293, 296 (6th Cir. 2016) (emphasis added)
(rejecting argument that negligent “intimidation” can support a conviction under
§ 2113(a)).
34 Moore, 916 F.3d at 239 n.5. (citing Killion v. United States, 728 F. App’x 19,
21‐22 (2d Cir. 2018)); see also Johnson v. United States, 779 F.3d 125, 128‐29 (2d Cir.

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that bank robbery “by intimidation” under § 2113(a) involves the
threatened use of physical force and thus constitutes a crime of
violence within the meaning of § 924(c)(3)(A) or the career offender
guideline, U.S.S.G. § 4B1.2(a).35
We thus have little difficulty in holding that bank robbery
committed “by intimidation” categorically constitutes a crime of
violence for the purposes of § 924(c)(1)(A), and, therefore, that
Robert’s conviction for using a firearm during a crime of violence
under § 924(c)(1)(A)(ii) does not constitute error, much less “plain
error.”36
C. Victim Impact Testimony
Robert next argues that the District Court abused its discretion
or erred by allowing the Government to question three credit union
2015) (stating without elaboration that bank robbery under § 2113(a) constitutes a
“crime of violence” for the purposes of conviction under § 924(c)(1)(A)).
35 See United States v. McCranie, 889 F.3d 677, 681 (10th Cir. 2018)
(§ 4B1.2(a)); United States v. Wilson, 880 F.3d 80, 85‐86 (3d Cir. 2018) (same); United
States v. Ellison, 866 F.3d 32, 35 (1st Cir. 2017) (same); United States v. Williams, 864
F.3d 826, 830 (7th Cir. 2017) (§ 924(c)(3)(A)); United States v. Brewer, 848 F.3d 711,
714‐16 (5th Cir. 2017) (§ 4B1.2(a)); Allen v. United States, 836 F.3d 894, 894‐95 (8th
Cir. 2016) (§ 924(c)(3)(A)); In re Sams, 830 F.3d 1234, 1239 (11th Cir. 2016) (same);
McBride, 826 F.3d at 296 (§ 4B1.2(a)); United States v. McNeal, 818 F.3d 141, 153 (4th
Cir. 2016) (§ 924(c)(3)(A)).
36 Because we conclude that credit union robbery “by intimidation” is a
crime of violence within the meaning of the “force” clause, § 924(c)(3)(A), we need
not address the parties’ arguments regarding whether it also is a crime of violence
under the “risk‐of‐force” clause, § 924(c)(3)(B).

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employee witnesses about the robbery’s impact on them in the
aftermath of the crime.37 The Government counters that such
evidence was relevant to prove that Robert committed the robbery
“by intimidation.” Though we agree that the District Court erred, we
conclude that the error was, in the circumstances presented here,
harmless.
Testimony regarding a crime’s impact on a victim is admissible
at trial if it is relevant to prove an element of the charged offense and
is subject to the normal tests for relevancy and unfair prejudice under
Federal Rules of Evidence 401 and 403, respectively. 38 When
evaluating the admissibility of victim impact testimony during trial, a
district court should carefully consider the prejudicial potential of
such testimony.
37 We note that “‘abuse of discretion’ is a nonpejorative term of art; it implies
no misconduct on the part of the district court.” United States v. Bove, 888 F.3d 606,
607 n.1 (2d Cir. 2018) (citing In re City of New York, 607 F.3d 923, 943 n.21 (2d Cir.
2010)). The term merely describes circumstances in which a district court “base[s]
its ruling on an erroneous view of the law or on a clearly erroneous assessment of
the evidence, or render[s] a decision that cannot be located within the range of
permissible decisions.” In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (internal
quotation marksand citation omitted).
38 Cf. United States v. Copple, 24 F.3d 535, 545‐46 (3d Cir. 1994) (victim
testimony regarding financial losses in criminal fraud trial was proper insofar as it
was relevant to prove specific intent, but further victim impact testimony had little
probative value and was unfairly prejudicial).

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Here, Robert was charged with committing credit union
robbery “by force and violence, or by intimidation.”39 A defendant
acts “by intimidation” when he knowingly engages in conduct from
which “an ordinary person in the teller’s position reasonably could
infer a threat of bodily harm.” 40 Although this standard is objective,
“evidence that the teller felt threatened is probative of whether a
reasonable person would have been afraid under the same
circumstances.”41
Evidence regarding how the three credit union employees felt
during the robbery is certainly relevant to whether Robert acted “by
intimidation.” Testimony regarding the robbery’s impact on the
victims in the aftermath of the crime may also be relevant to
intimidation at the time of its commission. However, where—as
here—the testimony concerns impact weeks and months after the
39 18 U.S.C. § 2113(a).
40 United States v. Kelley, 412 F.3d 1240, 1244 (11th Cir. 2005) (internal
quotation marks omitted); see also 3 L EONARD B. SAND ET AL ., MODERN FEDERAL
J URY INSTRUCTIONS – C RIMINAL ¶ 53‐12 (2018) (requiring that defendant have
“act[ed] in an intimidating manner,” which “means that the defendant did or said
something that would make an ordinary reasonable person fear bodily harm”);
United States v. Fleury, 38 F. App’x 50, 51 (2d Cir. 2002) (non‐precedential summary
order) (observing that district court used similar instruction).
41 United States v. Gilmore, 282 F.3d 398, 403 (6th Cir. 2002) (internal quotation
marks omitted); cf. United States v. Walker, 835 F.2d 983, 987 (2d Cir. 1987) (noting
that a victim’s subjective state of mind can be relevant to the question of whether
a defendant’s behavior would inspire fear in a reasonable person for the purposes
of 18 U.S.C. § 111).

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crime had undisputedly ended, it likely is only minimally probative
of whether Robert acted “by intimidation” during the robbery.
Moreover, such testimony raises the specter of unfair prejudice.
We conclude that the District Court did not abuse its discretion
or plainly err in determining that, for the purposes of Rule 401, the
Government could ask the two tellers whether they could return to
work and ask the customer service representative how the experience
affected her.42 Testimony regarding how the credit union employees
felt after the robbery was relevant because the lingering effects of the
robbery may tend to show that they were intimidated at the time of
the robbery.
We further conclude that the District Court did not plainly err
in admitting the testimony of the two tellers that they could not
return to work under Rule 403.43 The tellers’ brief answers that they
were unable to return to work did not carry a substantial risk of
unfair prejudice.
We reach a different conclusion, however, regarding the
District Court’s treatment of the customer service representative’s
testimony. Her testimony regarding her fear of groups of black men
carried a substantial risk of evoking racial bias. Accordingly, the
42 Robert objected to the Government’s questions to the first teller and
customer service representative based on relevance, App. 54, but did not object to
the Government’s question to the second teller, App. 57.
43 Robert did not object to the admission of either teller’s testimony based
on Rule 403.

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District Court should have stricken this testimony or issued a
curative instruction pursuant to Federal Rule of Evidence 403, and its
failure to do so was an “abuse of discretion.” 44
That said, the record here permits us to conclude with “fair
assurance that the jury’s judgment was not substantially swayed by
the error,” and that the error is therefore harmless.45 To determine
whether an error is harmless, we consider “(1) the overall strength of
the prosecution’s case; (2) the prosecutor’s conduct with respect to
the improperly admitted evidence; (3) the importance of the wrongly
admitted evidence; and (4) whether such evidence was cumulative of
other properly admitted evidence.” 46 The strength of the
prosecution’s case is the most important factor.47
In this case, the Government’s evidence against Robert was
overwhelming. Shakeal Hendricks, one of the robbery participants,
provided detailed testimony regarding Robert’s involvement in
planning and executing the crime. Laverne Hendricks, Robert’s
relative, testified regarding his actions on the day of the robbery and
described his clothing, which was also captured in surveillance
footage of the robbery. Additionally, the prosecution presented
cellular telephone data placing a cell phone associated with Robert in
44 See supra note 37.
45 Padilla, 548 F.3d at 190 (internal quotation marks omitted).
46 United States v. McCallum, 584 F.3d 471, 478 (2d Cir. 2009) (internal
quotation marks and brackets omitted)
47 Id.

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the vicinity of the initial target in Camden, the AFCU in Rome, and
the Dunkin’ Donuts in East Syracuse. Finally, Detective Bolton of the
Rome Police Department testified regarding Robert’s statements
during two interviews that took place on October 18, 2013 and
November 22, 2013. These statements include Robert’s admission
that he participated in the robbery and that he disposed of clothing
worn during the robbery at the Dunkin’ Donuts. Detective Bolton’s
testimony also revealed that Robert repeatedly made false claims that
he later admitted were untrue. Taken together, this overwhelming
evidence of guilt assures us that the jury was not substantially
swayed by the improper testimony.
We are further assured that the error is harmless because the
wrongly admitted testimony was limited in scope. The improper
testimony of post‐incident fear or trauma was not especially
important to the Government’s case. All three witness properly
testified regarding the fear and intimidation they experienced during
the robbery, and Robert never disputed that the robbery was
conducted in an objectively intimidating manner.
Accordingly, we conclude that, although the District Court
abused its discretion in admitting the customer service
representative’s testimony regarding the robbery’s impact on her in
the aftermath of the crime, in the totality of circumstances presented
in this record the error was harmless.

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D. Third‐Party Photograph
Robert also argues that the District Court erred in excluding a
photograph of Bam, who Robert contends actually committed the
robbery. We disagree.
A criminal defendant generally has the right to introduce at
trial evidence tending to show that another person committed the
crime, so long as the evidence “sufficiently connect[s] the other
person to the crime.”48 But “[t]he potential for speculation into
theories of third‐party culpability to open the door to tangential
testimony raises serious concerns.”49 A court “must be sensitive to
the special problems presented by ‘alternative perpetrator’ evidence”
and must ensure that the defendant shows a “sufficient . . . nexus
between the crime charged and the asserted ‘alternative
perpetrator.’”50
Robert contends that he laid a sufficient foundation to support
the introduction of Bam’s photograph. He points to the following
evidence: (1) Shakeal’s testimony that he (Shakeal) and Bam were
close friends; (2) an eye‐witness account describing “two kids”
running away from the robbery, even though Robert was 55 years
old at the time; (3) records showing phone calls between Shakeal’s
phone and Bam’s phone before and after the robbery; and
48 White, 692 F.3d at 246 (internal quotation marks omitted).
49 Wade v. Mantello, 333 F.3d 51, 61 (2d Cir. 2003).
50 Id. at 61‐62 (quoting United States v. McVeigh, 153 F.3d 1166, 1191 (10th Cir.
1998)).

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(4) Shakeal’s testimony that he went shopping for sneakers with Bam
after the robbery.
Like the District Court, we conclude that this evidence is
insufficient to show the required nexus between Bam and the
robbery. Although the evidence Robert cites might tend to show that
Bam knew about the robbery, none of the evidence places Bam
anywhere near the robbery scene or suggests that he was otherwise
involved in the crime. Accordingly, the District Court did not err in
excluding Bam’s photograph.
E. Application of the Career Offender Guidelines
Finally, Robert contends that the District Court erred in finding
that he was subject to sentencing as a “career offender” under the
2014 edition of United States Sentencing Guidelines § 4B1.1.51
Specifically, he argues that his prior felony conviction for burglary in
the second degree, in violation of New York Penal Law § 140.25, does
not constitute a “crime of violence” for the purposes of the career
offender Guidelines. We are not persuaded.
Section 4B1.1 provides that:
(a) A defendant is a career offender if (1) the defendant
was at least eighteen years old at the time the defendant
committed the instant offense of conviction; (2) the
instant offense of conviction is a felony that is either a
51 We generally apply the version of the United States Sentencing Guidelines
in effect at the time of sentencing, unless doing so would violate the Ex Post Facto
Clause. United States v. Riggi, 649 F.3d 143, 146 n.2 (2d Cir. 2011).

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crime of violence or a controlled substance offense; and
(3) the defendant has at least two prior felony
convictions of either a crime of violence or a controlled
substance offense.52
The 2014 Sentencing Guidelines Manual defines “crime of
violence” to mean any state or federal offense, punishable by
imprisonment for a term exceeding one year, that:
(1) has as an element the use, attempted use, or
threatened use of physical force against the person of
another, or
(2) is a burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves conduct
that presents a serious potential risk of physical injury to
another.53
Robert contends that his conviction for second‐degree burglary
under New York law does not qualify as a “crime of violence”
because the “residual clause” is void for vagueness. But this
argument is foreclosed by the Supreme Court’s recent decision in
Beckles v. United States, 137 S. Ct. 886 (2017), in which the Court
concluded that the Sentencing Guidelines are not subject to void‐for‐
vagueness challenges and upheld the career offender Guidelines.
52 U.S.S.G. § 4B1.1(a).
53 U.S.S.G. § 4B1.2(a) (emphasis added). The italicized text is generally
referred to as the “residual clause.”

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We have already held that third‐degree burglary under New
York law qualifies as a “crime of violence” under the residual clause
of § 4B1.2(a)(2).54 In light of Beckles, it is clear that this holding remains
good law.55 Because, under New York law, third‐degree burglary
defines the lesser‐included offense of burglary,56 we have no difficulty
extending this holding to Robert’s second‐degree burglary
conviction.57 Accordingly, the District Court did not err, much less
plainly err, in sentencing Robert as a career offender pursuant to
§ 4B1.2(a)(2).
54 United States v. Brown, 514 F.3d 256, 268 (2d Cir. 2008).
55 We had previously stated that this holding was abrogated by Johnson v.
United States, 135 S. Ct. 2551 (2015), which held that the similarly‐worded residual
clause of the Armed Career Criminal Act was unconstitutional. See United States v.
Welch, 641 F. App’x 37, 43 (2d Cir. 2016) (non‐precedential summary order). In light
of Beckles, however, it is clear that the residual clause of the Guidelines is not
unconstitutionally vague. See also Massey v. United States, 895 F.3d 248, 251 n.6 (2d
Cir. 2018). (noting that after Beckles, the Second Circuit’s earlier precedent that
robbery under New York law is a crime of violence under the ACCA’s force clause
was “reinstate[d]”).
56 People v. Barney, 99 N.Y.2d 367, 371 (2003) (holding that, under New York
law, “one cannot commit burglary in the second degree . . . without also committing
burglary in the third degree”).
57 Cf. Pereira‐Gomez, 903 F.3d at 166 (holding that because the pertinent
component of robbery “is common to all degrees of robbery under New York law
. . . robbery in any degree is a crime of violence”).

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III. CONCLUSION
To summarize, we hold as follows:
(1) Credit union robbery, in violation of 18 U.S.C. § 2113(a),
qualifies as a “crime of violence” under the “force clause” of
§ 924(c)(3)(A) for the purposes of Robert’s conviction under
18 U.S.C. § 924(c)(1)(A)(ii);
(2) While the District Court erred or ”abused its discretion” in
admitting certain victim impact testimony, the error was
harmless in this particular case in light of the substantial
evidence of Robert’s guilt;
(3) The District Court did not err or “abuse its discretion” in
excluding a photograph of an alleged third‐party perpetrator
because Robert failed to establish a sufficient nexus between
the third party and the crime; and
(4) The District Court did not err, much less plainly err, in
sentencing Robert as a career offender under the 2014 edition
of United States Sentencing Guidelines § 4B1.2(a)(2).
For the foregoing reasons, we AFFIRM the August 4, 2015
judgment of the District Court.

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