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United States v. Davis

United States District Court, E.D. New York

June 22, 2018

UNITED STATES OF AMERICA,
v.
CLIVE DAVIS, Defendant.

          MEMORANDUM & ORDER

          MARGO K. BRODIE, UNITED STATES DISTRICT JUDGE

         Defendant 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”)[1] 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, [2] and (3) conspiracy and attempt to commit robbery in the first-degree under Connecticut state law.[3] (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, [4] 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.

         I. Background

         Defendant 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.[5] (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 another”).

         Defendant 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 felonies.[6]

         II. Relevant statutory framework

         a. Section 924(e)

         Section 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”).

         b. 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 taking; or
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.[7] 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.

         III. Convictions under New York Penal Law ยง 160.05 are ...


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