In United States v. Smith, No. 15-3313-cr, the Second Circuit (Winter, Cabranes, Restani, sitting by designation) held that New York second-degree robbery is a “crime of violence” under § 4B1.2(a) of the 2014 United States Sentencing Guidelines. As the panel acknowledged, Smith follows directly from United States v. Jones (2d Cir. Oct. 5, 2017), covered here and here, which held that New York first-degree robbery is a crime of violence under the same Guidelines provision because the official commentary lists robbery as a crime of violence, and New York generically defines first-degree robbery to include as an element the taking of property from another person, or person’s immediate presence, by force or intimidation. The panel reasoned that the rationale of Jones was “directly applicable” because New York second-degree robbery has the same element involving the use of force or intimidation.
Although Smith (and Jones) specifically address the 2014 version of the Guidelines, their holdings likely extend to the current version as well. In a footnote, the Court noted that while the relevant language has since changed, “the replacement language expressly names ‘robbery’ as one of the crimes of violence,” in line with the official commentary to the 2014 Guidelines. Thus, the Guidelines continue to recognize robbery as a crime of violence, and New York first- and second-degree robbery continue to fall within the generic definition. This case evidently lacked the procedural history and offender-specific circumstances that were present in Jones, which led Judge Calabresi to decry the sentence there as “little short of absurd” and resulted in the Jones sentence being remanded for reconsideration in the interests of justice.