cases).
First, the Government argues that West’s motion fails to satisfy the threshold standard for a second or successive motion under 28 U.S.C. § 2255. "l`hat _standa'rd, in relevant part, authorizes a district court to entertain a second or successive § 2255 motion only when the applicant shows that the claim relies on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” ld. § 2255(h)(2); See also i`cl. § 2244(b)(2)(A). The Government contends that West has failed to carry his threshold burden to show that his motion in _fact “relies” upon .]o/mson 2015. [cl. § 2255(h)(2). That conclusion follows the Government asserts because West has not demonstrated that his mandatory minimum sentence was indeed rendered pursuant to ACCA’s now-invalid residual clause, as opposed to the constitutionally permissible elements clause.
Second, the Government argues that West’s motion runs afoul of t_he one-year statute of limitations period applicable to §2255 motions See l`cl. §2255(1'). When a habeas petitioner asserts a challenge based upon a right “newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review,” the one- year limitations period begins running on “the date on which the right asserted was initially recognized by the Supreme Court.” [cl. § 2255(1)(3). "fhe Government concedes that Jo/mson 2015 triggered a new one-year period for the filing of § 2255 motions see U.S.’s Opp’n 16; West’s initial post-Johnson 2015 petition, moreover, was filed within that one-year period. See generally Pet.’s 1\/lot. Notwithstanding those considerations the Government maintains that West’s claim is untimely because, without demonstrating
that he was sentenced pursuant to the residual clause (as opposed to the elements clause),
West cannot show that his claim is “in fact predicated on” Jolmson 2015’s invalidation of the residual clause. U.S.’s Opp’n 17.4 1
As the above discussion indicates the Government’s procedural arguments arc largely premised on West’s alleged failure to demonstrate that he was sentenced pursuant to the now-defunct residual clause (as opposed to the elements clause). Whether and to what extent a defendant must make that showing to overcome procedural objections under § 2244 and § 2255 is a question that has divided courts fielding the influx of post- Jolmsorz 2015 habeas petitions
On one side of the issue, several courts_including some of my colleaguesihave held that, to overcome the various procedural hurdles applicable to collateral habeas challenges a post-.]r)/a/isorz 2015 habeas petitioner need only show that his sentence “may have been predicated on application of the now-void residual clause.” Unz'ied Sl'ales v. Winstorr, 850 F.3d 677, 682 (4th Cir. 2017) (emphasis added); see also, e.g., Uni'lea’ Stales v. Geozos 870 F.3d 890, 896 (9th Cir. 2017); Booker, 240 F. Supp'. 3d at 169; Um'tea’ Stales v. W[lsorz, 249 l". Supp. 3d 305, 311-13 (D.D.C. 2017); U/'zlr‘ecl States v. Buller, 253 F. Supp. 3d 133, 140-41 (D.D.C. 2017). Under that framework, for which
West advocates a sentencing court’s “silence regarding the basis of the defendant’s
4 /-\s an alternative to its statutory procedural arguments the Government also argues that any .]oli/iso/r 2015 claim by West should be dismissed as procedurally defaulted Under the procedural default doctrine, a court typically may not consider “an argument made on collateral review that was not made on direct appeal, unless the defendant shows cause and prejudice." Ur/ilec/SIa/e.\' v. Hug/ies 514 F.3d 15, 17 (D.C. Cir. 2008). A number of my colleagues have convincingly rejected similar procedural default arguments by the Government in the context of post-./olm.s'on 2015 §2255 motions See, e.g., Um'/ea’ Sta/es v. Bm/er, 253 F. Supp. 3d 133, 141-42 (D.D.C. 2017); Um`tec/ Slates v. Wils'o)r, 249 F. Supp. 3d 305, 314-15 (D.D.C. 2017); Booker, 240 F. Supp. 3d at 170-71. 1 agree with their thorough analyses and thus will not spill any additional ink rejecting the Government’s claim ofprocedural default.
sentence” is “construed . . . in the petitioner’s favor." Dimoll v. Um'lecl Slates 881 1"`.3d 232, 240 n.6 (1st Cir. 2018) (citing ]n re Clzance, 831 F.3d 1335, 1341 (1lth Cir. 2016)). Such a rule is necessary, according to the courts that have adopted it, to avoid an “absurd” scheme under which “certain criminal defendants would be barred from raising an otherwise cognizable claim under Jol/mson (2015) because thc sentencing judge did not specify which clause she was relying on at a time when that was not required.” Baller, 253 F. Supp. 3d at 140 (internal quotation marks omitted). “'l`o require more,” some courts have cautioned, “would render Jolmson reliefvirtually impossible to obltain.” Booker, 240 F. Supp. 3d at 169 (internal quotation marks omittcd).
Other courts have adopted a more stringent threshold rule under which a post- ./ohnsori 2015 habeas petitioner “bears the burden of establishing that it isimore likely lhaa not that he was sentenced solely pursuant to ACCA’s residual clause.” Dimoz‘t, 881 F.3d at 243 (emphasis added) (dismissing Jolirisoa 2015 claim as untimely); see also Beeman v. Um`tecl Stales, 871 F.3d 1215, 1223-25 (11th Cir. 2017) (dismissing ./o/iasorz 2015 claim because petitioner “1"ailed to prove_that it was more likely than not-he in fact was sentenced as an armed career criminal under the residual clause”); Uni`tecl States v. Waslii)'igtaa, 890 F.3d 891, 896 (10th Cir. 2018) (rejecting argument that defendant need only show that the “district court Coala' have relied on the residual clause” and instead holding that “the burden is on the defendant to show by a preponderance of the evidence_i.e., that it is more likely than not_his claim relies on Johasoa” (emphasis added)). Courts taking that approach have done so in view of the fact that their
precedents interpreting the Antiterrorism and Effective Death Penalty Act (“/\liDP/\”)
place the burden ofproof and production on post-conviction petitioners See Dimorr, 881 13`.3d at 240; Beemaa, 871 F.3d at 1222-23; Wasliiagion, 890 11`".3d at 895. According to those courts adopting a contrary rule that “treat|:s:| ./olinsoa claimants differently than all other § 2255 movants claiming a constitutional violation” would lead to arbitrary results Beeman, 871 F.3d at 1224. lt would also turn §2255’s burden of proof on its head, thereby “undercut[ting] an animating principle of AEDPA: the presumption of finality.” Dimott, 881 F.3d at 240.
ln my view, the latter approach, under which a post-.]o/msoa 2015 habeas petitioner bears the burden of showing by a preponderance of the evidence that h_e was sentenced pursuant to the residual clause, is more consistent with the ‘fclear limits established by Congress for when federal post-conviction petitions may be entertained by the federal courts.” lcl. at 241. Allowing petitioners to evade Al§ll)l’/-\’s procedural requirements by pointing to a “mere possibility” that their claims turn on Jolmsoii 2015 cannot be squared with the statutory text of § 2244(b), under which a habeas “app_licant must actually ‘show’ that the claim satisfies the standard” for second or successive petitions Ia'. at 240; see Tyler, 533 U.S. at 661 n.3 (alteration omitted). Nor does such an approach accord with the “presumption of linality and legality” thatattaches to judgments and sentences following the process of direct review. Dimoll, 881 F.3d at 241 (citing 1a re Moore, 830 13`.3d 1268, 1272 (11th Cir. 2016) (internal quotation marks omitted) (quoting Barefoot v. Eslelle, 463 U.S. 880, 887 (1983)).
"l`o be sure, requiring post-Jolmsorz 2015 petitioners to supportias opposed to
merely assert_the conclusion that they were likely sentenced pursuant to lthe residual
clause will result in fewer successful collateral challenges But “|`t:|hat the burden is less friendly to petitioners” than the one West prefers “does not make it unequal” or otherwise improper, Dimozl, 881 F.3d at 242, especially “in light of society’s legitimate interest in the finality ofjudgments,” Uriilea’ Siates v. Zakas, 793 F. Supp. 2d 77, 80 (D.'D.C. 2011); cf Beemari, 871 F.3d at 1224 (“lt is no more arbitrary to have the movant lose in a § 2255 proceeding because of a silent record than to have the Government lose because of one. What would be arbitrary is to treat Jo/msoa claimants differently than all other §2255 movants claiming a constitutional violation.”). l\/loreover, as the Tenth Circuit has noted, post-Jolinsorz 2015 petitioners are not without means to carry their burden; rather, the “relevant background legal environment that existed at the time of the def`endant’s sentencing” will often be of use in determining “whether the district court relied on the residual clause in sentencing.” Washiriglori, 890 1"`*`.3d at 896 (internal quotation marks omitted) (quoting Uriiz‘ea' Slales v. Saycler, 871 F.3d 1122, 1128-30 (10th Cir. 2017)); see also Beeman, 871 F.3d at 1224 n.4 (noting the kinds of direct and circumstantial evidence that may be used to show whether a defendant was sentenced under the residual clause). l»lere, West acknowledges that the available sentencing-stage documents including the parties’ sentencing memoranda and the Presentence lnvestigation Report, do not specify the ACCA provision upon which his sentence was based. See Pet.’s
Suppl. l\/lot. 3-4.5 Unfortunately for West, moreover, a review of the “relevant
5 /-\s defendant notes in his supplemental motion, the sentencing transcript was unavailable at the time of the parties’ briefing in this case. Following the filing of the instant motion and the associated opposition and reply briefs however, the Court Reporters’ office was able to locate t.he sentencing transcript The Court’s review of that transcript confirms that neither the parties nor the Court cited any particular provision of ACCA during the sentencing proceedings
background legal environment that existed at the time of [hisj sentencing” undermines rather than supports the argument that he was likely sentenced under the residual clause. Wasliinglon, 890 F.3d at 896 (internal quotation marks omitted). flow so?
As of the time of West’s sentencing, our Circuit’s precedents characterized § 924(e)(2)(13) as setting forth “two subcategories of prior criminal conduct: First,l there are felonies against the person that have as an element the use or threat of physical force; and, second, there are felonies against properly (sueh as burglary, arson, extortion, etc.) that present a serious potential risk of physical iiijury.” Unitea’Stales v. MaI/i_is_, 963 F.2d 399, 405 (D.C. Cir. 1992). Given that precedent, it is unsurprising that, prior to West’s sentencing, assault and robbery convictions were often analyzed under the elements clause~not the residual clause. See, e.g., ia’. at 408 (analyzing D.C. Code robbery under ACCA’s elements clause); Unilecl Slates v. Willia/ns, 358 13.3d 956, 965-66 (D.C. Cir. 2004) (same); cf Unitea’ Slates v. Hill, 131 1'*`.3d 1056, 1062-63 (D.C., Cir. 1997) (referencing elements clause of Guidelines in discussion of whether attempted robbery conviction was crime of violence). ln such a situation, where neither the sentencing record nor the governing precedents at the time of sentencing support the conclusion that a sentence was rendered pursuant to the residual elause_, West, as “the party with the burden|:,] loses.” Bee/nan, 871 F.3d at 1224. Thus because West has failed to show that he was more likely than not sentenced under the residual clause rather than the elements clause, his asserted reliance on Jolinson 2015 is insufficient to excuse him from the
procedural requirements of§ 2244 and § 2255.
Recognizing the unsettled state of the law on the showing required by post- .]olznson 2015 habeas petitioners however, 1 decline to dispose of West’s petition solely on the procedural grounds advanced by the Government Cf. Unilea' Slales v. Hic/cs, 285 F. Supp. 3d 150, 154 (D.D.C. 2018) (concluding that “§ 2255 motion must be dismissed as untimely” but explaining why, “[e]ven ifnot untiinely,” the motion “would fail on the merits”); Gewin v. Doa’rill, 779 F. Supp. 2d 27, 43 (D.D.C. 2011) (diseussing “why, even assuming the petitions were not procedurally barred, they would fail on the merits”). lnstead, as explained below, even assuming that West’s motion satisfies the relevant procedural requirements the motion fails on the merits
B. Merits of West’s § 2255 Motion
ln his supplemental motion, West asserts that his prior New Jersey assault and robbery convictions do not qualify as violent felonies under the elements lclause'. lele therefore claims that, following Jolinson 2015’s invalidation of the residual clause, he no longer qualifies for ACCA’s 15-year mandatory minimum sentence. Unfortunately for West, 1 disagree. Before explaining why, it is necessary to provide a brief overview of the framework f"or evaluating West’s prior convictions
'1`o determine whether a prior conviction qualifies as a “violent felony” under ACCA, “courts use what has become known as the ‘categorical approach."’ Desca/nps v, Unitea’ Slai‘es, 570 U.S. 254, 257 (2013). Under that approach, courts determine whether a defendant’s prior offense of conviction constitutes a “violent felony” for purposes of` ACCA by looking solely to the elements of the offense, as opposed to the defendant’s
actual conduct. See Mai‘liis v. Unitea’ Slales, 136 S. Ct. 2243, 2248-49 (2016); see also
.]o/inson 2015, 135 S. Ct. at 2557. ln other words if` the statutory elements of thc offense criminalize conduct beyond that which ACCA covers then, under the categorical approach, the offense does not qualify as a “violent felony”_even if, in committing the of`f`ense, the defendant clearly engaged in violent cona'act.f) n
ln this case, the upshot of the categorical approach is this: lf the least serious conduct criminalized by the New .lersey assault and robbery statutes does not involve “the use, attempted use, or threatened use of physical force against the person of another,” 18 U.S.C. §924(e)(2)(13)(i), that offense categorically does not qualify as a “violent feloiiy” under ACCA. See Descamps, 570 U.S. at 261.7 With that rule in mind, l now examine West’s prior convictions for New .1ersey aggravated assault and robbery.
1. New Jersey Aggravated Assault Convictions
As should be familiar by now, ACCA’s elements clause defines a “violent felony”
as one that “has as an element the use, attempted use, or threatened use of`physical force
6 l\/lany jurists have questioned the propriety of the categorical approach, noting that it ‘“l`oi'ces judges into an alternative reality” under which “repeat offenders often avoid sentencing enhancements for their violent crimes.” Un/'/ea’ Srales v. Cliapman, 866 F.3d 129, 137-38 (3d Cir. 2017) (.lordan, .1., concurring); see also id. (collecting cases questioning categorical approach); Mallris, 136 S. Ct. at 2267- 71 (Alito, .l., dissenting) (categorical approach “calls for sentencingjudges to delve into pointless abstract questions’7 and “has increasingly led to results that Congress could not have intended”). ln view ol" West’s actual conduct as reported in the PSR_conduct that involved pummeling an individual in the head five times with a sawed off shot gun, beating a fellow inmate in the face, and forcefully removing jewelry from a victim, see PSR 1111 24-26_this case provides yet another troubling example of how the categorical approach requires judges to “ignore facts already known and instead proceed with eyes shut,” Clia‘i)/nan, 866 F.3d at 138 (Jordan, J., concurring). 1
7'l`here is one wrinkle when applying this general rule. When a court is “dealing with a so-called ‘divisible’ statute,” it must “employ the ‘modifred categorical approach’ to determine which alternative crime the defendant committed.” Um`led Srates v. Realrick, 841 F.3d 478, 482 (D.C. Cir. 2()16). To do so, the court “look[s] beyond the statute ‘to a limited class of documents (for example, the indictment, jury instructions or plea agreement and colloquy) to determine what crime, with what elements the defendant was convicted of.’” Ia’. (internal quotation marks and alteration omitted) (quoting Malliis, 136 S. Ct. at 2249). Upon confirming the statutory provision under which a defendant was convicted, the court proceeds to apply the categorical approach to that crime.
against the person of another.” 18 U.S.C. §924(e)(2)(B)(i). West argues that his convictions for New .lersey second- and third-degree aggravated assault do not qualify as violent felonies under that provision. Pet.’s Suppl. l\/lot. 16-18.8 West’s argument is premised on the fact that l\lew Jersey second-degree and third-degree aggravated assault can be violated with a mens rea of recklessness la’. at 17. Relying heavily upon the analysis ofa few of my district court colleagues West argues that a “reckless application of force is not sufficient to constitute the ‘use’ of physical force” under the elements clause. [a'. (internal quotation marks omitted); see also Supplement to Reply l\/lcm. Supp. l\/Iot. & Suppl. Mot. to Vacate Judgment Under 28 U.S.C. § 2255, at 1 [Dkt. # 68] (noting that “multiple district courts in this circuit have rejected the Government’s argument that a reckless mens rea is sufficient for a crime to qualify as a ‘violent felony’ under the elements clause”).
Unfortunately for West, his argument is foreclosed by our Circuit’s recent opinion
in Unitecl States v. Haig/il, No. 16-3123, 2018 WL 3077534 (D.C. Cir. .1une 22, 2018). ln
3 At the time of West’s New Jersey convictions New ilersey defined second-degree and third- degree aggravated assault, respectively, as follows:
b. Aggravated assault A person is guilty of aggravated assault ifhe:
(1) /-\ttempts to cause serious bodily injury to another, or causes such injury purposely or knowingly under circumstances manifesting extreme indifference to the value'of human life recklessly causes such injury; or . . .
(7) Attempts to cause significant bodily injury to another or causes significant bodily injury purposely or knowingly or, under circumstances manifesting extreme indifference to the value of human life recklessly causes such significant bodily injury . . . .
N.J.S.A. §2C:l2-1(b); see icl. §2C:12-1(b)(13); l)et.’s Suppl. l\/lot. 16-17 & n.l 1. 'l"he`llnited States agrees with West that, based on that statutory laiiguage, a “corivicti<)ri for second-degree or third-degree aggravated assault in New Jersey can be sustained by proof of reckless conduct alone." U.S.`s Opp’n 19.
Haiglit, .ludge Kavanaugh, joined by Chief.ludge Garland and .ludge Srinivasan, squarely confronted and rejected the argument that an assault that “can bel committed recklessly . . . does not categorically require the use ofviolent force ‘against the person of another’ within the meaning of ACCA.” Ia'. at "‘6-7, slip op. at 14. Relying on the Supreme Court’s 2016 decision in Voi`sine v. Uni'lea’ Slates, 136 S. Ct. 2272,' which held that reckless assaults qualify as “the use or attempted use of physical f`orce” under 18 U.S.C. §921(a)(33)(A)(ii), ia’. at 2278, our Circuit concluded that “[ajs long as a defendant’s use of force is not accidental or involuntary, it is ‘naturally described as an active employment of force," regardless of whether it is reckless knowing, or intentional.” Haig/il, 2018 WL 3077534, at *7, slip op. at 15 (quoting Voisine, 136 S. Ct. at 2279).9 That holding controls here: West’s convictions for New _lcrscy sceond- and third-degree aggravated assault qualify as violent felonies under ACCA"s elements elause, notwithstanding the fact that those offenses may be committed with a mens rea of recklessness10
° ln so holding, otrr Circuit joined “four other courts of appeals that have addressed the isstie either in the ACCA context or in the equivalent Guidelines ‘crime of violence` context.” liciig/'il, 2018 Wla 3077534, at *7, slip op. at 15-16 (citing Uniled Slales v. Mendez-I*Ienriai/ez, 847 li.3d 214, 220-22 (5th Cir. 2017); Uni'reclSlales v. Verwie/)e, 874 F.3d 258, 262 (6th Cir. 2017); Un/`leclSIa/es v. /i`ogg, 836 F.3d 951, 956 (8th Cir. 2016); Unilea’S/ates v. Pam, 867 F.3d 1191, 1207-08 (10th Cir. 2017)).
10 ln his reply brief, West argues for the first time, that the assault statute’s “requirement that a defendant ‘cause serious or significant bodily injury’ simply does not constitute a requirement that the defendant ‘use, attempt to use, or threaten to use violent physical f`orce.”’ Reply l\/lem. Support Pet.’s l\/lot. & Suppl. l\/lot. 39 (internal quotation marks omitted) [Dkt. # 671; see id. 33 n.13. Not only is that argument f`orfeited, see lelarr/'.s'on v. (Q[Iic'e /frehi`leel o/`(,'apilol, 68 l"`. Supp. 3d 174, 183 (D.D.C. 2014) (collecting cases), it is unpersuasive West has not credibly articulated how, in the context of an aggravated assaall statute, there is “zi realistic probability” that a defendant would be convicted of causing “serious” or “significant” “bodily injury to another” without also applying force to that person. Mo)»icri`e/_"e v. Holder, 569 U.S. 184, 191 (2013); see UnileclS/ales v. Horlon, 461 F. App’x 179, 184 (3d Cir. 2012) (New Jersey assault statute “requires as an element ofthe offense, the use of force sufficient to cause physical pain or injury”). To the extent, moreover, that West relies on a distinction between direct and indirect uses of force, that argument too runs headlong into the reasoning of the Hai`glil Court, which
2. New Jersey Robbcrv Conviction
West argues that he is entitled to relief for a second, independent reason. According to West, his New .lersey second-degree robbery conviction does not qualify as a “violent felony” under the elements clause, as interpreted in (Cnrtis) Jolins'on v. Unitea’ States, 559 U.S. 133 (2010), because the statutory section under which he was convicted requires only the use of de minimis_as opposed to “violent”_physical force. lPet.’s Suppl. l\/lot. 19-20 (quoting (Ciirlis) Jolznson, 559 U.S. at 140).
rfhe parties agree that this Court should apply the modified categorical approach to determine the provision of the New rlersey robbery statute under which West was convicted. See ial. at 19; U.S.’s Opp’n 28. Applying the modified categorical analysis both sides also agree that West was convicted under N..I.S.A. §2C:15-1(a)(1). `”l"hat provision specifies that a person is guilty of second-degree robbery “if`, in the course of committing a theft, he: (1) lnflicts bodily injury or uses force upon another.” N..l.S.A. §2C:15-1(a)(1). Although the parties debate whether subsection (a)(l) sets forth two means by which an individual can commit robbery or instead two separate elements l need not resolve that dispute here. That is because, even applying then categorical approach to the “least of the[]” means of committing second-degree robbery specified by
subsection (a)(l)_namely, "'us[ingj force upon another,” Pet.’s Suppl. l\/lot. 20; N.rl.S.A.
rejected the notion that there was “any such distinction between direct and indirect force in the language of the statute or in the relevant preecdcnts” Hai'gli/, 2018 Wla 3077534, at *6, slip op. at 13. For all of those reasons l decline West’s invitation to engage in “the kind of creative speculation the Supreme Court has proscribed” by adopting his belated argument based on the New .lersey assault statute’s bodily injury requirement Rea’ri'ek, 841 l'".3d at 485.
§2C:15-1(a)(1)~1 conclude that subsection (a)(l) satisfies ACCA’s elements clause. How so?
West’s argument with respect to his New _lersey second-degree robbery conviction relies on the Supreme Court’s decision in (Cnrtis) Jolinson. 1n that case, the Supreme Court held that the term “force” as used in ACCA’s elements clause “means violent forceithat is force capable of causing physical pain or injury to another person.” 559 U.S. at 140. ln so holding, the Court distinguished “f`orce” as used in ACCA from the “more specialized legal usage of the word ‘f`orce,”’ which “describl:ed|,one of the elements of the common-law crime of battery” and could be “satisfied by even the slightest offensive touching.” [a’. at 139. Applying its definition of force, the Supreme Court concluded that a conviction for simple battery under Florida law, which required “proof of only the slightest unwanted physical touch,” did not satisfy ACCA’s elements clause. [a’. at 136-37, 145.
flere, West argues that the second-degree robbery subsection under which he was convicted requires only a showing of a'e minimis force and therefore does not satisfy the elements clause as interpreted by (Cartis) Jo/inson.ll 1 agree with the Government, however, that the premise of West’s argument is incorrect: As interpreted by the New Jersey Supreme Court, subsection (a)(l) does not permit a second-degree robbery
conviction to be obtained based on a defendant’s use of mere a’e mini/nis force. Rather,
" The question whether a robbery that may be committed with only “slight" lforce satisfies ('(',`i/rlis) Jolinson’s reading ofthe elements clause will be argued before the Supreme Court later this year. See Siokeling v. Unilec/Slales, 138 S. Ct. 1438 (l\/lem.) (2018). As discussed below, however, l conclude that New lersey’s second-degree robbery statute, as interpreted by the New .lersey Supreme Court, requires more than mere de minimis or “slight” force.
as explained at length in New ./ersey v. Sein, 590 A.2d 665 (1\1.11. 1991), subsection (a)(l) was intended to cover more forceful takings of property than those prohibited by the state"s theft statute. The Sein Court noted that although “[s]oine jurisdictions have construed the term ‘force’ as used in the state’s robbery statute” to require only “the amount ofpliysical energy necessary to take the property,"` New .1erscy’s robbery statute does not reflect that approach. la’. at 667-68. 'l`lie statute instead “adoptls:l the majority rule,” under which a “secret or sudden taking of property from the owner without putting him in fear and without open violence is deemed larceny, but if there be struggle to keep it or any violence or disruption, the taking is robbery.” [a’. at 668, 670 (internal quotation marks and alteration omitted).
Against that backdrop, the Sein decision makes clear that the “f"orce” clause of subsection (a)(l) covers “only those” takings “that involve some degree of force to 'wresl the object from the victim.” [cl. at 669 (internal quotation marks omitted). “To ‘wrest,”’ the Sein Court goes on to explain, “is to ‘pull, force, or move by violent wringing or twisting movements.”’ [a'. (emphasis added) (quoting Wel)ster’s Tliira’ New linei”national Diclionary 2640 (1971)). ln enacting subsection (a)(l) ofthe robbery statute, then, the New Jersey “Legislature apparently determined that the violence associated with ‘wresting’ is deserving of more severe punishment” than any force associated with the “simple snatching or sudden taking ofproperty from the person of another.” [cl, (internal
quotation marks omitted); see also New .]ersey v. Farraa’, 753 A.2d 648, 654'(1\1..1. 2000)
(New Jersey robbery statute “addrcsses the criminal who is prone to use violence” to take a person’s property (emphasis added) (internal quotation marks omitted)). '2
Ultimately, the Sein Court held that a defendant’s “sudden snatching of a purse from the grasp of its owner,” during which the defendant used no force other than that required to slide the purse” from under the victim’s arm, did not “involve the type of f`orce” required to support a conviction under the robbery statute. 590 A.2d at 666. Subsequent New .lersey cases applying the teachings of Sein confirm that convictions under the robbery statute require an “elevate[d]” showing of force as compared to convictions under the theft statute. [a’. Compare New Jersey v. Pannisco, 75'0 A.2d 107, 111-14 (N.J. Super. Ct. App. Div. 2000) (evidence that the defendant, while in his vehicle, “grabbed” victim’s purse and “accelerat[edj the gas,” thereby “dragging or pulling the victim[],” was sufficient to sustain robbery convictions), abrogated on ollier grounds by New Jersey v. Hill, 868 A.2d 290 (1\1..1. 2005); New ./ersey v. Balclwin, 2015 WL 8547003, at *2 (1\1..1. Super. Ct. App. Div. Dec. 14, 2015) (upholding robbery conviction where victim testified that defendant’s “grabbing motion pulled her out of the
car” and “spun her around”) (brackets omitted); New Jersey ex rel. Q.M., 2013 WL
12 New ./ersey v. Sewe//, 603 A.2d 21 (N..l. 1992), upon which West relies is not to the contrary. ln Sewe/l, the New Jcrsey Supreme Court examined the mens rea showing necessary to sustain a conviction under subsection (a)(l). See ia’. lt did not analyze the amount of`_/oree required under subsection (a)(l). lndeed, the evidence in Sewel/ “support[edj a finding that all threc” victims of defendant’s actions “su'ffered ‘bodily injury”’ as defined by New Jersey statute. [a'. at 22.
The circuit cases cited by West are also unavailing As the Government points out, the statutes at issue in those cases cover lesser degrees of force than does subsection (a)(l). See, e.g., Unilea’ Siales v. Winslon, 850 F.3d 677, 685 (4th Cir. 2017) (Virginia common law robbery, which “encompass[es] a range of a’e minimis con/acl by a defeiidaiit,” does not satisfy elements clause (emphasis added)); Unilecl Slales v. Eason, 829 F.3d 633, 640-42 (8th Cir. 2016) (Arl
69245, at *3 (1\1..1. Super. Ct. App. Div. Jan. 8, 2013) (suf`ficient evidencc'to establish robbery where defendant “slapped the employee in f`urtherance" of theft from store); New Jersey v. Horton, 2007 WL 506455, at *3 (N.J. Super. Ct. App. Div. ll`eb. 20, 2007) (victim’s testimony that “defendant pushed her shoulder and engaged in a tug of war for her purse” and only secured purse “after the strap on her bag broke” was sufficient to support robbery conviction), with New Jersey v. Smalls, 708 A.2d 737, 739-40 (N..l. Super. Ct. App. Div. 1998) (evidence that defendant "‘bumpl'ed:|” victim’s “jacket pocket” in the course of taking her wallet was not “sufficient evidence of force to_ raise’i pick pocket offense from theft “to a second degree robbery”).
Thus in contrast to the state statute at issue in (Cnrtis) Joltnson, subsection (a)(l) requires more than “nominal contact” or “the slightest offensive touching.” `559 U.S. at 138-39. As the Sein decision emphasizes a conviction for robbery under subsection (a)(l)’s force clause will stand only when there has been a showing of an “ele_vat[ed:'|” use of force by the defendant Sein, 590 A.2d at 666. Specifically, to be found guilty of robbery under subsection (a)(l), a defendant must have engaged in the “vio_lence associated with ‘wresting”’#that is “pull[ing], forc[ingj, or mov[ingl by violent wringing or twisting movements”_something from the victim. Icl. at 669 (emphasis added) (internal quotation marks omitted).
ln my view, subsection (a)(l)’s prohibition of those types of “violent. . . movements” “exerted ‘upon another,”’ ia’., covers “violent force;that is force capable of causing physical pain or injury to another person”ias required by /-\CCA"s elements
clause, (Cartis) Jolinson, 559 U.S. at 140. Compare ia’. at 139 (definition of force
includes among other things “strength or energy; active power; vigor"' (cmphasis added) (internal quotation marks omitted)), with Sewell, 603 A.2d at 27 (forcc required by robbery statute is the degree of “physical power or strength required to overcome physical resistance to taking of`property” (cmphasis added)). Adhering to the New .l_erscy Supreme Court’s interpretation of the state’s robbery statute, 1 therefore conclude that subsection (a)(l) of the statute “meets the definition of ‘violent felony’ in 18 U.S.C. §924(e)(2)(13)(i).” (Curtis) Johnson, 559 U.S. at 138; see also Ba/cer v. Unitecl States, No. 3:16-cv-367, 2018 WL 3037430, at *4-5 (W.D.N.C. June 19, 2018) (concluding that New .1ersey’s second-degree robbery statute “rcquire[s] sufficient physical force to qualify as a violent felony under ACCA”); cf Unitea’ States v. Garcia, 877 1".3d 944, 950-54 (10th Cir. 2017) (l\lew l\/fexico robbery statute, which is “distinct from larceny
because it requires and is designed to punish, the element of force,’ is violent felony
under elements clause (internal quotation marks omitted)). For that reason, 1 reject
West’s argument based on his New Jersey second-degree robbery conviction.13
13 1\/1y conclusion on this score finds additional support in (Ci/r/is) ./ohnson itself, which observes that Black’s Law Dictionary defines “‘physical force’ as ‘l"orce consisting in a physical act, esp a vio/enl ael clireetea' against a ro/)l)ery victim.”’ 559 U.S. at 139 (cmphasis added) (brackets omitted); e/.' (,'aslleman, 134 S. Ct. at 1421 (Scalia, J., concurring) (“hitting, slapping, shoving, grabbing, pinching, biting and hair pulling” are all “capable of causing physical pain or injury" (alterations omitted) (citing (Czirtis) ./'ohnson, 559 U.S. at 143)). Some courts have nonetheless concluded that certain robbery statutes requiring more than cie minimis acts of force do not satisfy the elements clause’s force requirementl See, e.g., Unilea'S/ates v. Wa//on, 881 F.3d 768, 773-74 (9th Cir. 2018) (Alabama robbery conviction based on evidence that defendant “pushed or shoved [victim] back into a corncr” did not reflect sufficient level of“force” to satisfy elements clause); Unite
CONCLUS[ON
For the foregoing reasons West’s prior convictions for New .lersey second-degree aggravated assault, third-degree aggravated assault, and second-degree robbery qualify as violent felonies under ACCA’s elements clause. As such, West’s prior convictions render him subject to ACCA’s 15-year mandatory minimum, notwithstanding Johnson 2015’s invalidation of the residual clause. West has therefore failed to demonstrate his entitlement to sentencing relief under 28 U.S.C. §2255, and the Court accordingly DENIES his pending motions to vacate and correct his sentence. An Order consistent
with this decision accompanies this 1\/Iemorandum Opinion.
titan
Rici-iARti-,LJQEON United States District Judge