United States District Court, E.D. New York
MEMORANDUM & ORDER
K. BRODIE, UNITED STATES DISTRICT JUDGE
Clive Davis pleaded guilty to a one-count indictment charging
him with being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). (Indictment dated
October 23, 2014, Docket Entry No. 6.) According to the
addendum to the Pre-sentence Investigation Report and the
Government, Davis is subject to a mandatory minimum sentence
of fifteen years pursuant to 18 U.S.C. § 924(e)(1) of
the Armed Career Criminal Act of 1984
(“ACCA”) because of his prior state felonies for
(1) conspiracy to possess with intent to distribute a
controlled substance, (2) attempted robbery in the
third-degree under New York state law,  and (3)
conspiracy and attempt to commit robbery in the first-degree
under Connecticut state law. (PSR Addendum, Docket Entry No.
39; Gov. Letter dated June 15, 2018, (“Gov.
Letter”), Docket Entry No. 40.) Davis asserts that
section 924(e)(1) is inapplicable, arguing that his robbery
offenses are not violent felonies within the meaning of the
ACCA. (Def. Letter dated June 7, 2018, (“Def.
Letter”), Docket Entry No. 38.) For the reasons stated
on the record on June 19, 2018,  and below, the Court
determines that third-degree robberies under New York Penal
Law § 160.05 are not violent felonies within the meaning
of the ACCA.
challenges the applicability of section 924(e)(1) by
asserting that his (1) 1998 conviction for attempted
third-degree robbery under New York law, and (2) 2004
convictions for conspiracy and attempt to commit robbery in
the first-degree under Connecticut law are not violent
felonies within the meaning of the ACCA. (Def. Letter 1.)
Because the Connecticut conspiracy and attempt offenses were
committed on the same occasion, those convictions are treated
as one for purposes of section 924(e)(1). See United
States v. Bordeaux, 886 F.3d 189, 195 (2d Cir. 2018)
(“Under our precedents, a defendant's prior
convictions are deemed convictions for offenses
‘committed on occasions different from one
another,' only if the defendant committed the offenses in
distinct ‘criminal episodes.'” (citations
omitted)); 18 U.S.C. § 924(e)(1) (requiring offenses to
be “committed on occasions different from one
thus correctly argues that the mandatory minimum imposed by
section 924(e)(1) would not apply if either set of
convictions do not qualify as a violent felony. (Def. Letter
13.) Consequently, for section 924(e)(1) to be applicable,
both the 1998 New York conviction and at least one of the
2004 Connecticut convictions must be violent
Relevant statutory framework
924(e)(1) applies to a conviction under 18 U.S.C. §
922(g)(1) “if the defendant has three previous
convictions in state or federal court for ‘serious drug
offense[s]' or ‘violent felon[ies].'”
Stuckey v. United States, 878 F.3d 62, 64 (2d Cir.
2017) (quoting 18 U.S.C. § 924(e)(1)). A violent felony
is defined as:
any crime punishable by imprisonment for a term exceeding one
year . . . that - (i) has as an element the use, attempted
use, or threatened use of physical force against the person
of another; or (ii) is [one of several enumerated offenses],
or otherwise involves conduct that presents a serious
potential risk of physical injury to another . . . .
18 U.S.C. § 924(e)(2)(B). This case only concerns 18
U.S.C. § 924(e)(2)(B)(i), known as the
“force” or “elements” clause. See
Stuckey, 878 F.3d at 68; Villanueva v. United
States, __ F.3d __, __, 2018 WL 3077064, at *1 (2d Cir.
June 22, 2018). As to that clause, “the phrase
‘physical force' means violent force -
that is, force capable of causing physical pain or injury to
another person.” Johnson v. United States, 559
U.S. 133, 140 (2010) (“2010 Johnson”).
New York Penal Law §§ 160.00, 160.05
Defendant challenges the characterization of his third-degree
robbery conviction, defined as “forcibly steal[ing]
property, ” pursuant to New York Penal Law §
160.05. A person forcibly steals property when:
in the course of committing a larceny, he uses or threatens
the immediate use of physical force upon another person for
the purpose of:
1. Preventing or overcoming resistance to the taking of the
property or to the retention thereof immediately after the
2. Compelling the owner of such property or another person to
deliver up the property or to engage in other conduct which
aids in the commission of the larceny.
N.Y. Penal Law § 160.00. Convictions for third-degree
robberies are also categorized as class D felonies.
Id. Accordingly, the relevant inquiry is whether
“forcibly steal[ing]” requires violent force as
defined by 2010 Johnson.
Convictions under New York Penal Law § 160.05 are ...