United States v. Moore

916 F.3d 231
Court of Appeals for the Second Circuit·Decided February 25, 2019·No. No. 16-1604 (L); No. 16-1624 (con); August Term, 2017·Published·Cited by 50 cases

Opinion

John M. Walker, Jr., Circuit Judge:

Defendant-Appellant Calvin Stephon Moore appeals his sentence following a guilty plea to three counts of federal bank robbery in the United States District Court for Northern District of New York (Thomas J. McAvoy, Judge ). Moore received three concurrent 135-month terms of imprisonment.

On appeal, Moore argues that the district court erred in determining that he was subject to a sentencing enhancement as a career offender under the 2015 version of the Career Offender Guidelines of the United States Sentencing Guidelines, §§ 4B1.1 -2. He argues that neither federal bank robbery nor New York robbery in the third degree are crimes of violence under U.S.S.G. § 4B1.2.

Rejecting Moore's arguments, we AFFIRM.

BACKGROUND

In October 2015, Moore pled guilty to committing the following three counts of robbery of federally insured banks in late 2014. On November 17, 2014, Moore and an accomplice robbed a branch of KeyBank in Schenectady, New York. During the robbery, Moore said, "[T]his is a hold up give me money." App'x at 37. Moore's accomplice was arrested and told the police that Moore threatened the teller by *234stating he had a gun. On November 18, 2014, Moore robbed a branch of Adirondack Bank in Utica, New York. According to a teller, Moore said, "I have a gun, I will start shooting, give me all bundles 100's and 50's." Id. at 38. He also presented a note stating that he had a gun and would shoot if necessary. The final offense occurred on December 30, 2014, when Moore robbed a branch of First Citizens Bank in Columbia, South Carolina. Moore told a teller that he had a gun and presented a note demanding money. Later that evening, South Carolina police officers received a report of a person at a Motel 6 tossing a suspicious item over a fence and into a parking lot. The item was a dye pack and several $20 bills. Officers began stopping people near the Motel 6 and asking for identification. At some point, they stopped Moore and discovered that he was wanted for federal bank robberies in New York. The officers searched his motel room pursuant to a warrant and found currency stolen earlier in the day from the Columbia branch of First Citizens Bank.

In January 2015, a federal grand jury in the Northern District of New York returned an indictment charging Moore with two counts of bank robbery "by intimidation" in violation of 18 U.S.C. § 2113(a). Id. at 11. In February 2015, a federal grand jury in the District of South Carolina returned an indictment charging Moore with one count of bank robbery "by force and violence and by intimidation" in violation of 18 U.S.C. § 2113(a). Id. at 13. Subsequently, the South Carolina case was transferred to the Northern District of New York.

In October 2015, Moore pled guilty to all three counts of federal bank robbery. The Probation Office recommended that Moore be sentenced under the Career Offender Guidelines. See U.S. Sentencing Guidelines Manual § 4B1.1(a) (U.S. Sentencing Comm'n 2015).1 Specifically, the Probation Office determined that: (1) Moore was at least 18 years old when he committed the crimes; (2) federal bank robbery is a crime of violence; and (3) Moore had two prior felony convictions for New York robbery in the third degree, New York Penal Law § 160.05, which the Probation Office considered to be crimes of violence. With adjustments for Moore's acceptance of responsibility, his offense level of 29 and criminal history category of VI yielded a Guidelines range of 151 to 188 months.

Moore objected to the Probation Office's conclusion that he was a career offender, arguing that the Supreme Court's decisions in Johnson v. United States , 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (" Johnson I "), and Johnson v. United States , --- U.S. ----, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (" Johnson II "), narrowed the definition of a crime of violence under U.S.S.G. § 4B1.2(b) in such a way that he should not be considered a career offender because neither federal bank robbery nor New York robbery in the third degree are crimes of violence. Johnson I clarified that the term "physical force" in the definition of the term "violent felony" under the Armed Career Criminal Act *235(ACCA), 18 U.S.C. § 924(e)(2)(B)(i), means "violent" force, or "force capable of causing physical pain or injury to another person." 559 U.S. at 140, 130 S.Ct. 1265. Johnson II held that the residual clause of the ACCA-which is worded identically to the 2015 version of the Career Offender Guidelines under which Moore was sentenced-was unconstitutionally void for vagueness. 135 S.Ct. at 2557.

Free access — add to your briefcase to read the full text and ask questions with AI

United States v. Moore, 916 F.3d 231 (2d Cir. 2019).

916 F.3d 231 (United States v. Moore) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

United States v. Delgado
Second Circuit, 2025
United States v. Caille
Second Circuit, 2025
United States v. Cooper
131 F.4th 127 (Second Circuit, 2025)
United States v. Barnes
Second Circuit, 2024
Roy v. United States
D. Connecticut, 2024
United States v. Seamans
Second Circuit, 2024
United States v. Mark Jordan
88 F.4th 435 (Third Circuit, 2023)
Blanco v. United States
S.D. New York, 2023
Montes v. United States
S.D. New York, 2023
Giron-Molina v. Garland
86 F.4th 515 (Second Circuit, 2023)
Debique v. Garland
58 F.4th 676 (Second Circuit, 2023)
United States v. Helm
58 F.4th 75 (Second Circuit, 2023)
Lewis v. Bradley
S.D. New York, 2022
United States v. Chappelle
41 F.4th 102 (Second Circuit, 2022)
United States v. Pastore
83 F.4th 113 (Second Circuit, 2022)
United States v. Castillo
36 F.4th 431 (Second Circuit, 2022)
United States v. Donoteo-Reyes
Second Circuit, 2022
Jimenez v. Nielsen
S.D. New York, 2022
Simon v. Republic of Hungary
District of Columbia, 2021