On January 31, 2019, the Second Circuit issued a per curiam decision in United States v. Thrower (Wesley, Chin, and Cote, by designation) reversing a 2017 judgment from the Eastern District of New York that reduced the defendant’s sentence from 180 months to 120 months, which resulted in the defendant’s immediate release. The district court issued that order after concluding that Thrower’s prior New York convictions for robbery in the third degree and attempted robbery in the third degree do not qualify as predicate “violent felonies” under the Armed Career Criminal Act (“ACCA”). The Second Circuit concluded that those determinations were incorrect, vacated the district court’s judgment, and remanded with instructions that the district court reinstate Thrower’s original mandatory 180-month sentence.
Thrower was convicted in 2005 of possessing a firearm while having been previously convicted of a “violent felony,” in violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court found that Thrower qualified as an “armed career criminal” under the ACCA and was therefore subject to a mandatory minimum sentence of 180 months because he had at least three prior “violent felony” convictions. At the time, the district court found that Thrower’s criminal history included five convictions for robbery, attempted robbery, burglary, and larceny. Nevertheless, it did not specify which of those prior convictions comprised the three predicate “violent felonies” for ACCA purposes or which ACCA clauses (the force clause, the enumerated-offense clause, or the residual clause) it relied on for that finding.
After the Supreme Court struck down the ACCA’s residual clause in Johnson v. United States, 135 S. Ct. 2551 (2015) and held that its Johnson decision applied retroactively in Welch v. United States, 136 S. Ct. 1257 (2016), Thrower filed a habeas petition challenging the ACCA sentence enhancement that he received. The district court ultimately agreed with Thrower that his prior New York convictions for robbery in the third degree and attempted robbery in the third degree were not violent felonies under the ACCA’s force clause. With the residual clause rendered unconstitutional and with neither party contending that the enumerated-offenses clause applied, the district court therefore found that the ACCA enhancement did not apply in light of the government’s concession that one of Thrower’s other prior convictions could not constitute a predicate offense after the invalidation of the ACCA’s residual clause.
The Court noted that under the ACCA’s force clause a “violent felony” included any crime punishable by a term of imprisonment greater than one year that has as an element “the use, attempted use, or threatened use of physical force” against another person. As explained in Johnson, “physical force” means force capable of causing physical pain or injury to another person. The Supreme Court recently clarified in its 5-4 decision in Stokeling v. United States that force that would overcome a victim’s resistance was sufficient to meet the ACCA’s standard for “physical force.”
With respect to his conviction for robbery in the third degree, Thrower argued that it did not constitute a “violent felony” because the requisite force can be less than something capable of causing physical pain or injury. The Court rejected this contention, noting that the plain language of the New York robbery statute aligned with the ACCA’s definition of a “violent felony.” The Court also observed that both the New York statute and the ACCA’s force clause were modeled on the common law definition of robbery. Accordingly, it held that the New York statute did not define force in a way that would be less than what is required under the ACCA.
The Court also rejected Thrower’s contention that a conviction in New York for attempted robbery in the third degree did not qualify as a “violent felony” under the ACCA because a person purportedly could be convicted of that crime solely based on an attempted threat to use physical force. Again, the Court said that New York’s robbery statute “by its own terms” matched the ACCA definition of a “violent felony.” In support of that conclusion, the Court noted that a predicate offense under the ACCA would include those that have as an element the “attempted use” of physical force, which would require conduct amount to a substantial step toward commission of the underlying crime. Similarly, the Court observed that under New York law an attempt crime requires the perpetrator to take a step that brings him “dangerously near” to committing the underlying crime.
The Circuit’s decision exemplifies the low ACCA threshold for prior convictions involving the use of force, particularly as that interpretation has been reinforced by the Supreme Court’s recent Stokeling decision. In Stokeling, the Supreme Court noted that a perpetrator uses “physical force” and/or “violence” where he uses sufficient force to overcome a victim’s resistance in the commission of a robbery. The Supreme Court noted that the act of stealing a pin from a victim’s hair would involve “force” if the victim lost a hair in the process. In Thrower, the Second Circuit noted that the act of blocking a victim’s pursuit after a theft (presumably by merely standing in the victim’s way) would be sufficient to constitute “force” consistent with Stokeling’s interpretation of the ACCA. Although the Supreme Court’s decision in Johnson cabined the scope of the ACCA by ruling its residual clause unconstitutionally vague, the Stokeling and Thrower decisions serve as a stark reminder that the ACCA’s reach under the force clause remains quite broad. If the often-harsh sentencing consequences of the ACCA are to be limited, it would appear that such further limiting must be done through legislation rather than through judicial decision-making.