15‐1518‐cr United States v. Jones
In the United States Court of Appeals For the Second Circuit ________
AUGUST TERM, 2015
ARGUED: APRIL 27, 2016 DECIDED: JULY 21, 2016
No. 15‐1518‐cr
UNITED STATES OF AMERICA, Appellee,
v.
COREY JONES, Defendant‐Appellant. ________
Appeal from the United States District Court for the Eastern District of New York. No. 13 Cr. 00438 – Nicholas G. Garaufis, Judge. ________
Before: WALKER, CALABRESI, and HALL, Circuit Judges. ________
Defendant Corey Jones appeals from a sentence entered in the
United States District Court for the Eastern District of New York
(Garaufis, J.) following a jury trial convicting him of assaulting a 2 15‐1518‐cr
federal officer in violation of 18 U.S.C. § 111. He was sentenced as a
career offender principally to 180 months in prison to be followed by
three years of supervised release. He argues on appeal that, in light
of the Supreme Court’s holding in Johnson v. United States, 559 U.S.
133 (2010), New York robbery is no longer necessarily a “crime of
violence” within the meaning of U.S.S.G. §§ 4B1.1(a) and 4B1.2(a)
and that the district court therefore erred in concluding that his prior
conviction for first‐degree robbery could automatically serve as one
of the predicate offenses for a career offender designation. He also
argues that his sentence is substantively unreasonable. We conclude
that, after Johnson, a conviction for first‐degree robbery in New York
is not in every instance a conviction for a “crime of violence” and
therefore VACATE his sentence and REMAND for resentencing.
________
MARGARET LEE, Assistant United States Attorney (Amy Busa, Assistant United States Attorney, on the brief), for Robert L. Capers, United States Attorney for the Eastern District of New York, for Appellee.
MATTHEW B. LARSEN, Assistant Federal Defender, Federal Public Defenders of New York, for Defendant‐Appellant.
3 15‐1518‐cr
JOHN M. WALKER, JR., Circuit Judge:
United States District Court for the Eastern District of New York
(Garaufis, J.) following a jury trial convicting him of assaulting a
federal officer in violation of 18 U.S.C. § 111. He was sentenced as a
career offender principally to 180 months in prison to be followed by
three years of supervised release. He argues on appeal that, in light
of the Supreme Court’s holding in Johnson v. United States, 559 U.S.
133 (2010), New York robbery is no longer necessarily a “crime of
violence” within the meaning of U.S.S.G. §§ 4B1.1(a) and 4B1.2(a)
and that the district court therefore erred in concluding that his prior
conviction for first‐degree robbery could automatically serve as one
of the predicate offenses for a career offender designation. He also
argues that his sentence is substantively unreasonable. We conclude
that, after Johnson, a conviction for first‐degree robbery in New York
is not in every instance a conviction for a “crime of violence” and
BACKGROUND
On June 21, 2013, Corey Jones was in a halfway house,
finishing a 92‐month federal sentence for unlawful gun possession.
After Jones allegedly verbally threatened a staff member, two
Deputy U.S. Marshals came to take Jones to prison. Jones resisted
the Marshals’ efforts to take him into custody and, during the 4 15‐1518‐cr
ensuing altercation, Jones bit the finger of one of the Marshals, who
suffered puncture wounds and received antibiotics and a tetanus
vaccine at a hospital.
A jury convicted Jones of assaulting a federal officer in
violation of 18 U.S.C. § 111. In the pre‐sentence report, the probation
officer calculated an offense level of 15 for the assault. However, the
probation officer determined that Jones was a career offender
pursuant to U.S.S.G §§ 4B1.1(a) and 4B1.2(a) (the “Career Offender
Guideline”) because, in addition to (1) being over 18 years of age
when he had committed the assault and (2) the instant offense being
a crime of violence, (3) he “[had] at least two prior felony
convictions of . . . a crime of violence.” The probation officer
concluded that Jones’s previous convictions in New York for first‐
degree robbery and second‐degree assault satisfied the third element
of the test. As a result of the career offender designation, the
probation officer increased the offense level to 32, which, combined
with Jones’s criminal history category of VI, resulted in a Guidelines
range of 210 to 262 months in prison. Because the statutory
maximum for assault is 20 years, the probation officer adjusted the
top of the range down to 240 months.
The district court adopted the findings contained in the pre‐
sentence report and sentenced Jones to 180 months in prison to be
followed by three years of supervised release. 5 15‐1518‐cr
Jones now appeals his sentence, arguing first that the district
court erred in sentencing him as a career offender and second that
his sentence was substantively unreasonable.
DISCUSSION
We must resolve the question of whether a first‐degree
robbery conviction in New York is necessarily a conviction for a
“crime of violence” such that it will always be a predicate offense for
a sentencing enhancement under the Career Offender Guideline. At
first glance the answer to this question might appear to be a
straightforward “yes,” as we held in United States v. Spencer, 955 F.2d
814, 820 (2d Cir. 1992). However, Jones argues that our holding in
Spencer cannot survive the Supreme Court’s analysis in Johnson v.
United States, 559 U.S. 133 (2010). We conclude that he is correct.
The Supreme Court’s analysis in Johnson compels us to overrule our
holding in Spencer and to hold that a first‐degree robbery conviction
in New York is no longer necessarily a conviction for a “crime of
violence” as that term is used in the Career Offender Guideline.
Because Jones did not raise his argument about Johnson’s
applicability to New York’s first‐degree robbery statute before the
district court, we review for plain error. United States v. Gamez, 577
F.3d 394, 397 (2d Cir. 2009) (per curiam). To meet this standard,
Jones must establish the existence of (1) an error; (2) “that is plain”;
(3) “that affects substantial rights”; (4) and that “seriously affects the 6 15‐1518‐cr
fairness, integrity or public reputation of judicial proceedings.” Id.
(internal quotation marks and alterations omitted). We apply this
standard less “stringently in the sentencing context, where the cost
of correcting an unpreserved error is not as great as in the trial
context.” Id. We first turn to whether the district court committed
error before addressing the remaining plain error requirements.
I. The Legal Provisions at Issue in this Appeal
This appeal involves the interplay between three legal
provisions: the Armed Career Criminal Act (“ACCA”), the Career
Offender Guideline, and New York’s robbery statute. We must
determine whether first‐degree robbery in New York, defined in
New York Penal Law §§ 160.00 and 160.15, is necessarily a “crime of
violence” under the Career Offender Guideline. To do so, we must
address the relationship between the term “crime of violence” in the
Guideline and the term “violent felony” in the ACCA, as explicated
in Johnson.
The ACCA requires sentencing judges to impose a sentence of
at least 15 years’ imprisonment on offenders who are convicted of
illegally possessing a firearm or ammunition and who have “three
previous convictions . . . for a violent felony or a serious drug
offense.” 18 U.S.C. § 924(e)(1). The ACCA defines “violent felony”
as a felony “that has as an element the use, attempted use, or 7 15‐1518‐cr
threatened use of physical force against the person of another.” Id. §
924(e)(2)(B)(i).
The Career Offender Guideline enhances sentences for
defendants who are career offenders. U.S.S.G §§ 4B1.1(a). A
defendant is a career offender if (1) he is “at least eighteen years old
at the time [he] committed the instant offense of conviction”; (2) his
“instant offense of 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.” U.S.S.G §§ 4B1.1(a). In defining “crime of
violence,” U.S.S.G. § 4B1.2(a)(1) uses language identical to that in the
ACCA’s definition of “violent felony.” 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).
A defendant commits robbery in New York when he “forcibly
steals property,” which the statute defines as “a larceny” involving
the use or threatened “immediate use of physical force upon another
person.”1 N.Y. Penal Law § 160.00. The various degrees of robbery,
That statute provides, “Robbery is forcible stealing. A person forcibly 1
steals property and commits robbery 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 8 15‐1518‐cr
which carry differing penalties, turn on the presence or absence of
particular aggravating factors. Compare id. § 160.05 (defining third‐
degree robbery), with id. § 160.10 (defining second‐degree robbery),
and with id. § 160.15 (defining first‐degree robbery). A defendant
commits first‐degree robbery in New York when he commits
robbery and during the course of the crime or his immediate flight
either “(1) [c]auses serious physical injury to any other person who
is not a participant in the crime; or (2) [i]s armed with a deadly
weapon; or (3) [u]ses or threatens the immediate use of a dangerous
instrument; or (4) [d]isplays what appears to be a . . . firearm.” Id. §
160.15.
II. The Interpretation of “Violent Felony” under the ACCA in Johnson In Johnson, the Supreme Court held that “the Florida felony
offense of battery by actually and intentionally touching another
person” does not have “as an element the use of physical force
against the person of another,” and thus does not “constitute[] a
‘violent felony’ under the [ACCA].” 559 U.S. at 135 (internal
quotation marks and alterations omitted). The Court reached this
conclusion after considering the ordinary definition of “force,”
which “suggest[s] a degree of power that would not be satisfied by
the merest touching,” and its common law definition, which
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. 9 15‐1518‐cr
encompasses “even the slightest offensive touching.” Id. at 139. The
Court determined that the term’s ordinary meaning made more
sense in the context of the definition of a “violent felony” because
“by itself, the word ‘violent’ . . . connotes a substantial degree of
force . . . [but] [w]hen the adjective ‘violent’ is attached to the noun
‘felony,’ its connotation of strong physical force is even clearer.” Id.
at 140. Therefore, “in the context of a statutory definition of ‘violent
felony,’ the phrase ‘physical force’ means violent force—that is, force
capable of causing physical pain or injury to another.” Id. (emphasis
in original). Correspondingly, force that is not “capable of causing
physical pain or injury to another,” id., i.e. less‐than‐“violent,”
cannot qualify a crime as a violent felony for use as an ACCA
predicate.
In Johnson the Supreme Court interpreted the ACCA’s use of
“violent felony,” whereas here we are called on to interpret the
Career Offender Guideline’s use of “crime of violence.” However,
we have previously applied the Supreme Court’s analysis in Johnson
to determine what constitutes a “crime of violence” within the
meaning of the Career Offender Guideline, United States v. Reyes, 691
F.3d 453, 458 n.1 (2d Cir. 2012) (per curiam), and for good reason.
Because of “the substantial similarity between the ACCA’s
definition of ‘violent felony’ and the [Career Offender] Guidelines’
definition of ‘crime of violence,’ authority interpreting one phrase 10 15‐1518‐cr
frequently is found to be persuasive in interpreting the other
phrase.” United States v. Walker, 595 F.3d 441, 443 n.1 (2d Cir. 2010)
(internal quotation marks and alterations omitted). We see no
reason to depart from our previous approach and we therefore
apply Johnson’s analysis of “violent felony” to the Career Offender
Guideline’s use of “crime of violence.”
III. The Categorical and Modified Categorical Approaches
The Supreme Court has recognized two approaches to
determining whether a state crime qualifies as a predicate crime
under the ACCA: the categorical approach and the modified
categorical approach. Descamps v. United States, 133 S. Ct. 2276, 2281
(2013). The categorical approach is confined to an examination of
the text of the state’s criminal prohibition to determine whether it is
identical to or narrower than the generic crime under the ACCA. Id.
If so, a conviction under the state statute qualifies as an ACCA
predicate. Id. The modified categorical approach permits a court to
“look[] to a limited class of documents (for example, the indictment,
jury instructions, or plea agreement and colloquy) to determine
what crime, with what elements, a defendant was convicted of.”
Mathis v. United States, 136 S. Ct. 2243, 2249 (2016).
The Supreme Court has made clear in Descamps and Mathis
that the modified categorical approach is only available in a very
limited circumstance to achieve a very limited purpose. Where the 11 15‐1518‐cr
state statute is divisible—i.e. it proscribes multiple crimes with
different elements—the modified categorical approach can be
employed to determine which crime pertains to the defendant’s
actual conduct. Mathis, 136 S. Ct. at 2249. Once that determination
is made, the purpose of the modified categorical approach is at an
end. Id. The court must then use the categorical approach to
determine whether the statutory elements of the crime of conviction
so determined are equal to or narrower than the ACCA generic
crime. Id. If the statutory elements permit a conviction for a crime
that is not within the scope of the ACCA generic crime then it
cannot be used as an ACCA predicate and that is true even if the
modified categorical approach would demonstrate that in fact the
actual conduct of the defendant was fully consistent with the generic
crime. Id. at 2248.
When analyzing statutes using the categorical approach, we
focus on the elements of the crime of conviction and not the facts
underlying the crime for two reasons. First, the text of the Career
Offender Guideline, like the text of the ACCA, explicitly refers to
convictions and not conduct. Id. at 2252. The Career Offender
Guideline directs the sentencing court to consider whether the
offender “has at least two prior felony convictions of . . . a crime of
violence,” U.S.S.G §§ 4B1.1(a), which indicates that “the sentencer
should ask only about whether the defendant had been convicted of 12 15‐1518‐cr
crimes falling within certain categories, and not about what the
defendant had actually done.” See Mathis, 136 S. Ct. at 2252 (internal
quotation marks omitted).
Second, a focus on the elements of the crime of conviction,
rather than the facts of what the defendant did “avoids unfairness to
defendants.” See id. at 2253. “Statements of ‘non‐elemental fact’ in
the records of prior convictions are prone to error precisely because
their proof is unnecessary,” see id., so defendants may have little
incentive to ensure the correctness of records of earlier convictions
that could later trigger the career offender enhancement.
Whether we apply the categorical or modified categorical
approach to a state statute depends on whether the statute is
indivisible or divisible. See Flores v. Holder, 779 F.3d 159, 166 (2d Cir.
2015). A statute is indivisible if it “sets out a single . . . set of
elements to define a single crime,” while a statute is divisible if it
“list[s] elements in the alternative, and thereby define[s] multiple
crimes.” Mathis, 136 S. Ct. at 2249.
New York’s first‐degree robbery statute is divisible, and thus
eligible for the modified categorical approach, because it lists four
categories of first‐degree robbery: “forcibly stea[ling] property”
while either “(1) [causing] serious physical injury to any person who
is not a participant in the crime; or (2) [armed] with a deadly
weapon; or (3) [using or threatening] the immediate use of a 13 15‐1518‐cr
dangerous instrument; or (4) [displaying] what appears to be a . . .
firearm.” N.Y. Penal Law § 160.15; see Flores, 779 F.3d at 166
(analyzing the divisibility of New York’s first‐degree sexual abuse
statute).
In this case, however, we are unable to employ the modified
categorical approach to determine which of the four subparts of the
statute provided the basis for Jones’s first‐degree robbery conviction
because the facts underlying his conviction are not in the record
before us. Where this occurs we must determine whether “the least
of [the] acts” described in the first‐degree robbery statute can serve
as a predicate offense for the career offender enhancement. See
Johnson, 559 U.S. at 137. If so, then Jones’s first‐degree robbery
conviction can serve as a predicate offense for the enhancement,
regardless of which subpart provided the basis for his conviction. If
not, then his conviction cannot serve as a predicate offense unless
the district court later determines under the modified categorical
approach, with the benefit of further evidence and argument, that
Jones was convicted under a subpart of the first‐degree robbery
statute that constitutes a violent felony.
Jones identifies the act of “forcibly stealing property” while
“armed with a deadly weapon” as being the “least of [the] acts” in
the statute, and we agree. N.Y. Penal Law § 160.15(2). Therefore,
the question we must answer in this appeal is whether a defendant 14 15‐1518‐cr
who “forcibly steals property” while “armed with a deadly weapon”
necessarily commits a “crime of violence” within the meaning of the
Career Offender Guideline. See Johnson, 559 U.S. at 137.
IV. Applying Johnson to New York’s First‐Degree Robbery Statute
In applying Johnson’s definition of physical force to New York
Penal Law § 160.15(2), we would normally be bound by how the
New York Court of Appeals has interpreted § 160.00 and § 160.15.
See Johnson, 559 U.S. at 138. If the New York Court of Appeals has
not ruled on a particular question, however, “the decisions of [New
York Stateʹs Appellate Division] are helpful indicators” for
ascertaining how the Court would rule, and we cannot disregard
such decisions “unless [we are] convinced by other persuasive data
that the [New York Court of Appeals] would decide otherwise.”
Michalski v. Home Depot, Inc., 225 F.3d 113, 116 (2d Cir. 2000).
The New York Court of Appeals has not ruled on whether the
force supporting a robbery conviction can be less than violent.
Decisions of the lower courts, however, have made clear that
“forcible stealing” alone does not necessarily involve the use of
“violent force.” Appellate Division decisions have held that the
requisite force can be established by “evidence that [the defendant]
and three others formed a human wall that blocked the victim’s path
as the victim attempted to pursue someone who had picked his
pocket, allowing the robber to get away,” People v. Bennett, 219 15 15‐1518‐cr
A.D.2d 570, 570, 631 N.Y.S.2d 834, 834 (N.Y. App. Div. 1st Dep’t
1995); evidence that the “defendant bumped his unidentified victim,
took money, and fled while another forcibly blocked the victimʹs
pursuit,” People v. Lee, 197 A.D.2d 378, 378, 602 N.Y.S.2d 138, 139
(N.Y. App. Div. 1st Dep’t 1993); or evidence that “the store clerk
grabbed the hand in which defendant was holding the money and
the two tugged at each other until defendant’s hand slipped out of
the glove holding the money,” People v. Safon, 166 A.D.2d 892, 893,
560 N.Y.S.2d 552, 552 (N.Y. App. Div. 4th Dep’t 1990).
It is immaterial that the defendants in Bennett, Lee, and Safon
were convicted of second‐ and third‐degree robbery rather than
first‐degree robbery. In New York, all degrees of robbery involve
“forcible stealing” and are distinguished by the presence of other
aggravating factors. Compare N.Y. Penal Law § 160.00 (describing
the force required for robbery in general), with id. § 160.15 (listing
the elements that make forcible stealing first‐degree robbery).
Because Appellate Division decisions have interpreted
“forcible stealing,” id., so that it does not always involve “force
capable of causing physical pain or injury to another,” Johnson, 559
U.S. at 140, and because we have no “persuasive data that the [New
York Court of Appeals] would decide otherwise,” Michalski, 225 F.3d
at 116, we are compelled to conclude in the wake of Johnson that a
New York robbery conviction involving forcible stealing, absent 16 15‐1518‐cr
other aggravating factors, is no longer necessarily a conviction for a
“crime of violence” within the meaning of the Career Offender
Guideline.
The question remains whether the less‐than‐violent force that
is required for “forcible stealing” inevitably becomes “violent force”
within the meaning of Johnson when the perpetrator is “armed with
a deadly weapon” as specified in New York Penal Law § 160.15(2).
The New York Court of Appeals, whose interpretations of state
statutes bind us, see Johnson, 559 U.S. at 138, has stated that a
defendant can be convicted under Subsection Two based simply on
his possession of a deadly weapon during the robbery, even if he
never brandishes, uses, or threatens to use such a weapon, see People
v. Pena, 50 N.Y.2d 400, 407 n.2, 406 N.E.2d 1347 (1980). We must
therefore decide whether a robber’s use of less‐than‐violent force
while carrying on his person but not using or threatening the use of
a deadly weapon constitutes “force capable of causing physical pain
or injury to another.” Johnson, 559 U.S. at 140.
The presence of a deadly weapon on the person of a robber
does increase the likelihood that the robber will seriously injure the
victim or a third party during or after the crime, but Johnson directs
our inquiry not to the risk of injury but to the nature of the force
employed. See id. (“[T]he phrase ‘physical force’ means violent
force—that is, force capable of causing physical pain or injury to 17 15‐1518‐cr
another person.” (emphasis omitted)). The Career Offender
Guideline’s residual clause, which defines “crime of violence” as a
crime involving “conduct that presents a serious potential risk of
physical injury to another,” U.S.S.G. § 4B1.2(a)(2), focuses on the risk
of harm created by a defendant’s conduct, but this clause is likely
void for vagueness in light of the Supreme Court’s analysis of the
ACCA’s identical phrase in Johnson v. United States, 135 S. Ct. 2551
(2015) (“Johnson 2015”).2 See United States v. Welch, No. 12‐4402‐CR
(L), 2016 WL 536656, at *4 (2d Cir. Feb. 11, 2016) (summary order);
see also Beckles v. United States, No. 15‐8544, 2016 WL 1029080, at *1
(U.S. June 27, 2016) (granting certiorari to resolve the question of
whether Johnson 2015 applies to the Career Offender Guideline’s
residual clause). If we were to hold that a robbery committed by a
robber who uses less‐than‐violent force while carrying a deadly
weapon on his person—but not displaying, using or threatening the
use of that weapon— constitutes a “crime of violence” based on the
elevated likelihood that the robber would injure someone else, we
would be ignoring the victim‐centric inquiry required by Johnson,
Since Johnson 2015, moreover, the Sentencing Commission has 22
amended the Career Offender Guidelines, effective August 1, 2016, to remove the residual clause from the “crime of violence” definition. 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. 18 15‐1518‐cr
559 U.S. at 140, and employing the risk‐centric inquiry that the
Supreme Court rejected in Johnson 2015, 135 S. Ct. at 2557
When we conduct the inquiry Johnson, 559 U.S. at 140,
requires, we cannot conclude that the presence of a gun that a robber
does not display, use, or threaten to use during a robbery has any
effect on the nature of the force that the robber exerts on his victim.
Put another way, a robber’s possession of a concealed and
unmentioned weapon while he commits a robbery can support a
first‐degree robbery conviction under § 160.15(2) but such
possession cannot turn what is otherwise less‐than‐violent force into
violent force. It is therefore possible to commit first‐degree robbery
in New York in a way that does not fall within the Career Offender
Guideline’s definition of “crime of violence.”
The government’s arguments to the contrary do not persuade
us. The cases it cites from our Circuit, in which we affirmed that
robbery in New York is a crime of violence, either predate Johnson
and are thus irrelevant to the question on appeal or are summary
orders that do not engage with the applicability of Johnson to New
York’s first‐degree robbery statute. The government’s recounting of
the state of the law in other circuits is unavailing. Two of the cases,
United States v. Johnson, 634 F. App’x 227, 232 (11th Cir. 2015) (per
curiam), petition for cert. filed, No. 15‐8448 (U.S. Mar. 8, 2016), and
United States v. Dobbin, 629 F. App’x 448, 452 (3d Cir. 2015), cert. 19 15‐1518‐cr
denied, No. 15‐9101, 136 S. Ct. 2403 (May 31, 2016), do not address
the effect of Johnson at all. The other cases involve state statutes that
are materially distinguishable from New York’s first‐degree robbery
statute and are thus of limited relevance to our analysis.
In sum, we hold that, because a defendant can be convicted of
first‐degree robbery under New York Penal Law § 160.15(2) without
necessarily using violent force, a first‐degree robbery conviction
obtained pursuant to this subsection cannot serve as a predicate
conviction for a career offender enhancement. We must conclude
therefore that the district court erred in sentencing Jones as a career
offender based on his prior conviction for first‐degree robbery
without determining under the modified categorical approach
which subsection of § 160.15 provided the basis for his conviction.
V. The Remaining Elements of Plain Error Review
To obtain resentencing under a plain error standard of review,
Jones must demonstrate that the district judge’s error in sentencing
him as a career offender based on his first‐degree robbery conviction
“is plain[,] . . . affects [his] substantial rights[, and] seriously affects
the fairness, integrity, or public reputation of judicial proceedings.”
Gamez, 577 F.3d at 397.
We turn to the question of whether the district court’s error
was plain when it enhanced Jones’s sentence as a career criminal
under the Career Offender Guideline. In Reyes, we applied Johnson’s 20 15‐1518‐cr
analysis to conclude that the Florida offense of battery of a law
enforcement officer was not necessarily a “crime of violence” as that
term is used in the Career Offender Guideline. Id. While Reyes
analyzed the similarity of the Florida statute at issue in that case to
the Florida statute at issue in Johnson, Reyes also established that
Johnson’s definition of “physical force” in the ACCA applies to the
determination of what constitutes a “crime of violence” within the
meaning of the Career Offender Guideline. See Reyes, 691 F.3d at
458‐60. Because Reyes is binding precedent and makes clear that
Johnson’s definition of “violent felony” is relevant to a determination
of what constitutes a “crime of violence” under the Career Offender
Guideline, any error that results from failing to apply Johnson to the
Career Offender Guideline’s definition of “crime of violence” is
plain.
The final two elements of the plain error test are
straightforward. Jones’s classification as a career offender raised his
Guidelines sentencing range from between 37 and 46 months to
between 210 and 240 months. This is sufficient to establish that the
error both “affected his substantial rights” and “seriously affected
the fairness and integrity of the judicial proceedings.” See Reyes, 691
F.3d at 460 (“The district courtʹs error in sentencing [the defendant]
as a career offender . . . affected his substantial rights because it
resulted in an elevated offense level under the Guidelines.”); Gamez, 21 15‐1518‐cr
577 F.3d at 401 (“[E]rror resulting in a significantly overstated
advisory Guidelines range seriously affected the fairness and
integrity of the proceedings.”). Jones therefore has satisfied the
elements of the plain error review and we must remand for
resentencing.
VI. The Proceedings on Remand
We hold here that using the categorical approach a first‐
degree robbery conviction for “forcible stealing” by a defendant
“armed with a deadly weapon,” § 160.15(2), cannot serve as a
predicate conviction for a career offender enhancement pursuant to
the Career Offender Guideline because it is possible that a
conviction under that particular subsection would be for conduct
that did not rise to the level of violent force required by Johnson.
Our holding does not apply to the other subdivisions of § 160.15.
Therefore, on remand, if the government can demonstrate under the
modified categorical approach, see Descamps, 133 S. Ct. at 2284‐85,
that Jones was convicted of first‐degree robbery under § 160.15(1),
(3), or (4), and the court finds that a conviction under the relevant
subsection is a conviction for a crime of violence within the meaning
of the Career Offender Guideline, Jones may still be sentenced as a
career offender based on his first‐degree robbery conviction. 22 15‐1518‐cr
VII. The Substantive Reasonableness of Jones’s Sentence
Because we hold that the district court plainly erred in
sentencing Jones as a career offender based on its conclusion that a
conviction for first‐degree robbery is necessarily a conviction for a
“crime of violence” within the Career Offender Guideline and
remand for resentencing on that basis, we need not address Jones’s
argument that his sentence was substantively unreasonable.
CONCLUSION
For the reasons stated above, we VACATE the sentence of the
district court and REMAND for resentencing in accordance with this
opinion.