On January 12, the very first Circuit organized that attempted second-degree rob under brand-new York Penal law § 160.10(2)(a) is not a “crime of violence” under the pressure clause of the career Offender Guideline, USSG §4b1.2(a)(1). See United claims v. Steed, 879 F.3d 440 (1st Cir. 2018), obtainable here.

New York Penal law § 160.00 specifies the general offense of rob as:

A human forcibly steals property and commits bolt when, in the course of committing a larceny, he supplies or threatens the instant use the physical pressure upon one more person because that the function of ...

reventing or overcoming resistance to the taking of the property or come the retention thereof immediately after the taking; or ... ompelling the owner that such building or an additional person to provide up the residential or commercial property or to communicate in various other conduct which aids in the the supervisory board of the larceny.

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One of the 4 variants of 2nd degree robbery, which to be at worry in Steed, specifies the offense as arising “when forcibly steals property,” and “n the food of the board of directors of the crime or of immediate trip therefrom, the or another participant in the crime: ... auses physical injury to any type of person that is no a participant in the crime.” N.Y. Penal legislation § 160.10(2)(a).

In Steed, the Court applied the categorical method and exhaustively examined relevant state court precedents interpreting the elements of § 160.10(2)(a) as it was standing at the time the defendant was convicted of attempting come commit the crime, which to be 2000. Relying on very first Circuit criterion holding the purse snatching was too slight a use of force to constitute a “violent felony” under the equipped Career Criminal Act, see United states v. Mulkern, 854 F.3d 87 (1st Cir. 2017) (relying on Johnson v. Joined States, 559 U.S. 133 (2010)), the very first Circuit held:

s we read the relevant new York precedents, over there is a reality probability the Steed"s conviction was for attempting to commit an violation for i beg your pardon the the very least of the plot that may have comprised that offense included “purse snatching, per se.” Santiago, 405 N.Y.S.2d in ~ 757. Together Mulkern organized that together conduct falls exterior the border of the virtually identically-worded force cause at concern there, Mulkern, 854 F.3d in ~ 93-94, we cannot speak that, under the categorical approach, Steed"s conviction to be for an violation that the force clause that the job offender guideline"s meaning of a “crime that violence” encompasses.

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Steed, 879 F.3d at 450–51.

The Court likewise considered the government’s alternative argument the attempted 2nd degree robbery to be a “crime that violence” extended by career Offender’s residual clause, USSG §4b1.2(a)(2). Because the government had conceded the the residual clause was vague under Johnson i in the district court pre Beckles v. United States, 137 S. Ct. 886 (2017), the Court used the plain error traditional of review to the government’s argument. Under the plain error rule, the Court hosted the federal government had not shown, or also argued, how a decision to let the defendant’s non-career offender intensified sentenced was standing “would dilute the ‘fairness, integrity, or public call of justice proceedings.”

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