In Shabazz v. United States, the Second Circuit (Katzmann, Leval, Berman by designation) again addressed the meaning of “violent felony” under the Armed Career Criminal Act (“ACCA”), this time under its “force clause.” As readers of this blog will recall, ACCA has been the subject of many appeals during the past year. See Jacqueline L. Bonneau & Harry Sandick, The Second Circuit Counts to Three: How One Defendant Became a Career Criminal Over the Course of an Hour (Apr. 2, 2018); Joshua Kipnees & Harry Sandick, In Split Decision, Court Again Applies Castleman To Interpret the “Force Clause” of the Armed Career Criminal Act (July 18, 2018); D. Brandon Trice & Harry Sandick, Court Regrets Allowing Successive 2255 Petition in Massey v. United States (July 16, 2018). At issue in this case was whether Shabazz’s convictions for first and second-degree robbery under Connecticut law constitute violent felonies. The Circuit held that all convictions for robbery in Connecticut inherently involve the use or threatened use of violent force, and therefore reversed the District Court’s grant of Shabazz’s habeas petition. Interestingly, the Court based its holding not on an interpretation of the elements of robbery by the Connecticut Supreme Court, but on the inherent danger of violent force associated with the act of robbery. Given the breadth of this holding, any robbery offense that is similar to the common law definition now likely qualifies as an ACCA predicate offense in the Second Circuit, perhaps cutting off future appeals arising out of convictions for robbery in other jurisdictions.
In 2005, Al-Malik Fruitkwan Shabazz—who was then going by the name Edward Singer—was found guilty of unlawfully possessing a firearm as a convicted felon. At the time of his sentencing, Shabazz already had a lengthy criminal record, which included three convictions for first-degree robbery and two convictions for second-degree robbery—all in Connecticut. Based on these convictions, the District Court and the parties assumed that Shabazz was subject to a fifteen-year mandatory minimum sentence under ACCA, which applies where a defendant has three or more previous convictions for a “violent felony.”
At that time, ACCA defined violent felony in three ways. Under the so-called “force clause,” a crime is deemed a violent felony if one of its elements is the use, attempted use, or threatened use of physical force against another person. In Johnson v. United States, 559 U.S. 133 (2010) (“2010 Johnson”), the Supreme Court held that the force clause requires not just any force, but violent force. Second, ACCA identifies certain enumerated offenses as violent felonies: burglary, arson, extortion, and any crime involving the use of explosives. Finally, as a catchall provision, the “residual clause” (soon to be rendered invalid, see below) defined violent felony as any offense that otherwise involves conduct that presents a serious potential risk of physical injury to another. In sentencing Shabazz, the District Court did not indicate which ACCA clause it relied on. It simply ruled that Shabazz was subject to a 15-year mandatory minimum sentence, and sentenced him to 19 and a half years based on aggravating factors, namely that he had threatened his victim by discharging a firearm during the course of a robbery.
After the Supreme Court invalidated the residual clause as unconstitutionally vague in Johnson v. United States, 135 S. Ct. 2551 (2015) (“2015 Johnson”), Shabazz filed a habeas petition, contending that the District Court erred in sentencing him pursuant to ACCA. His argument was twofold. First, he argued that to the extent the judge had relied on the residual clause, his sentence was illegal under 2015 Johnson. Second, to the extent the judge had relied on the force clause, his sentence was illegal under 2010 Johnson because first and second-degree robbery under Connecticut law do not require the use or threatened use of violent force.
The District Court agreed. It began by describing the offense of robbery under Connecticut law. Connecticut recognizes a basic form of robbery, as well as first and second-degree versions if certain aggravating factors are present. A person commits the basic offense of robbery if
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 to deliver up the property or to engage in other conduct which aids in the commission of the larceny.
Notably, this basic version requires the use of “physical force” but does not expressly require violent force. The crime is elevated to second-degree robbery if certain aggravating factors are present—for example, being aided by another person or intimidating a bank employee. The crime becomes first-degree robbery if the defendant causes serious physical injury, is armed with a deadly weapon, or uses or threatens to use a deadly instrument.
Next, the District Court turned to whether Connecticut robbery requires the use or threatened use of violent force, such that a conviction for robbery constitutes a predicate offense under ACCA. In deciding that issue, the District Court employed the categorical approach, meaning it looked not to Shabazz’s actual conduct but rather the minimum criminal conduct necessary for conviction. The categorical approach has long been endorsed by the Supreme Court as the proper method for determining whether a prior conviction qualifies under ACCA, although a recent Second Circuit decision questioned this approach under a similar force clause in 18 U.S.C. § 924(c). See Michael D. Schwartz & Harry Sandick, Despite Recent Supreme Court Precedent, and in a Departure from the “Categorical Approach,” Circuit Affirms Conviction Under Section 924(c) (Oct. 5, 2018).
The District Court first held that the basic form of Connecticut robbery does not require the use of violent force, relying on several decisions of Connecticut state courts upholding robbery convictions based on “fairly low levels of force,” such as pushing a cashier away from an open cash register. It next turned to Shabazz’s convictions for second-degree robbery. Because the record was unclear as to which aggravating factor elevated Shabazz’s robbery convictions to second-degree status, the District Court focused on the least violent aggravating factor: being aided by another person. It concluded that one could be aided by another person without using violent force. Finally, the District Court considered Shabazz’s convictions for first-degree robbery. Here, the record indicated that Shabazz’s conviction was based on the aggravating factor that he had been in possession of a deadly weapon at the time of the robbery. The District Court reasoned that mere possession of a deadly weapon does not necessarily involve the use or threatened use of the weapon.
Based on these rulings, Shabazz was left with only two ACCA predicate convictions, one shy of implicating the fifteen-year mandatory minimum sentence. Accordingly, the District Court granted Shabazz’s habeas petition and resentenced him to 120 months’ imprisonment. Because Shabazz had been in prison for more than 120 months at that point, he was released from custody, pending the Government’s appeal.
The Court’s Decision
On appeal, the Government argued that Shabazz was indeed subject to ACCA because at least four of his previous convictions for robbery constitute violent felonies under the force clause. It advanced two arguments. First, it contended that, even under 2010 Johnson, ACCA requires only that an offense involve a level of force slightly above an unwanted touch, and that the District Court had imposed too high a burden. Second, it argued that the District Court had misinterpreted decisions of Connecticut state courts, and that in fact Connecticut law required more than minimal force to make out a robbery offense.
The Court did not directly address the Government’s arguments, and approached the issue from a somewhat different angle. It began its analysis by noting that Connecticut’s definition of robbery is essentially the same as most other states’ and is consistent with the common-law definition. Rather than addressing the elements of first and second-degree robbery, the Court focused its attention on the basic offense of robbery under Connecticut law. As discussed, the offense requires that the defendant used or threatened the immediate use of physical force upon another person, but does not explicitly require violent force. The issue, as framed by the Court, was whether the use or threatened use of non-violent force during a robbery inherently carries with it the use or threatened use of violent force.
The Court then explained that robbery has historically been considered an aggravated felony, specifically an aggravated form of larceny. This is because the taking of property from another, against their will and through the use or threat of force, inevitably carries with it the capability to cause pain or injury to the victim. The Court’s analysis in this regard was guided by two criminal law treatises. The Court noted that legal scholars have long recognized the dangerous confrontation inherent in robbery, as opposed to mere larceny where a “stealthy thief” carries away a victim’s property in secret. Moreover, unlike larceny, a robbery carries with it an implicit threat of escalation because the victim can be expected to react with fear or anger to the dangerous situation he or she has been placed in. Thus, the Court concluded, even assuming robbery under Connecticut law can be accomplished through the use or threat of minimal force, such robbery still constitutes a violent felony because it necessarily involves the use or threatened use of violent force.
The Court reversed the District Court’s grant of Shabazz’s habeas petition, and reinstated his original 235-month sentence. As a result of the Court’s holding, all convictions for robbery under Connecticut law now constitute violent felonies for purposes of ACCA. As for Mr. Shabazz, he must return to prison and complete the remainder of his original sentence.
The Court’s decision represents the Circuit’s latest expansion of ACCA’s application to robbery convictions. Last April, the Court held in United States v. Bordeaux that a conviction for first-degree robbery under Connecticut law was a crime of violence under ACCA where the aggravating factor was the display or threatened use of a firearm. See Jacqueline L. Bonneau & Harry Sandick, The Second Circuit Counts to Three: How One Defendant Became a Career Criminal Over the Course of an Hour (Apr. 2, 2018) Earlier, the Court extended the definition of violent crime to some convictions for first-degree robbery in New York, Stuckey v. United States, and to Hobbs Act robbery under federal law, United States v. Hill. See Jason Vitullo & Harry Sandick, Hobbs Act Robbery a Categorical “Crime of Violence” and Predicate to Federal “Murder-by-Firearm” Statute (Aug. 3, 2016). But Shabazz represents perhaps the broadest holding yet, as it relies on the inherent danger associated with robbery rather than the specific elements of the offense under Connecticut law or interpretive decisions of Connecticut state courts. After Shabazz, it now seems unlikely that any robbery conviction will escape the label of ACCA predicate offense in the Second Circuit.
It is noteworthy that the panel reached its conclusion relying exclusively on legal scholarship concerning the historical understanding of common-law robbery. The Court’s holding apparently turned not on the specific meaning of Connecticut statutory law (the Court assumed that robbery could be committed with minimal force under Connecticut law) but on its interpretation of the ACCA requirement (as construed in 2010 Johnson) that the offense involve the use or threatened use of violent force. This approach is potentially in tension with decisions of other Circuits holding that ACCA is inapplicable if a state’s robbery offense can be committed with a minimal degree of force. For example, in United States v. Mulkern, 854 F.3d 87 (1st Cir. 2017), the First Circuit held that robbery under Maine law is not an ACCA predicate because it could be accomplished by the use of minimal force, such as snatching a purse from the hand of a victim. The Fourth Circuit reached a similar conclusion in United States v. Winston, 850 F.3d 677 (4th Cir. 2017), noting that common-law robbery in Virginia could be committed through the use of even a “slight degree of violence.” While these decisions rest on interpretations of other states’ law, it is difficult—perhaps impossible—to square them with Shabazz’s holding that “the use or threat of even minimal force on another person in aid of the theft of that person’s property . . . is inherently capable of causing pain or injury,” and therefore “qualifies as an ACCA predicate.” These varying approaches may well invite review by the Supreme Court, to resolve a split in how robbery convictions are analyzed under ACCA.
The Future of ACCA
ACCA is a complicated statute, whose application varies significantly depending on where a defendant is sentenced and the state of the defendant’s previous convictions. The ambiguities of the statute have produced a near-constant stream of litigation, including the filing of numerous habeas petitions after each major ACCA-related decision. Over the last ten years, the Supreme Court has averaged one ACCA-related case each term, in addition to several cases concerning language similar to that in ACCA—for example, in the United States Sentencing Guidelines and in the immigration context. In October Term 2018 alone, the Supreme Court has heard or will hear three appeals involving ACCA. The uncertainties surrounding the application of ACCA are frustrating to judges and practitioners alike, and are no doubt even more perplexing to defendants potentially facing a fifteen-year mandatory prison sentence. These cases should serve as a signal to lawmakers to consider amendments to the statute whereby the possession of firearms by felons can be deterred and punished without the uncertainty that has thus far defined ACCA’s existence.