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Richmond, VA - Criminal defense lawyer represented defendant with attempted bank robbery and one count of bank robbery charges.

In 2017, Hammond pleaded guilty to one count of attempted bank robbery and one
count of bank robbery, both in violation of 18 U.S.C. § 2113(a). Before sentencing, the
probation officer prepared a presentence report, which included a summary of
Hammond’s criminal history. The criminal history showed that Hammond previously
had been convicted of North Carolina common law robbery, and of New York firstdegree robbery, in violation of New York Penal Law § 160.15.
Based on these convictions, the probation officer recommended that the district
court impose the career offender sentencing enhancement under Guidelines § 4B1.1(a).
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Applying this enhancement, the probation officer calculated a Guidelines range of
between 151 and 188 months’ imprisonment. Hammond contends that without the career
offender enhancement, his advisory sentencing range would have been between 84 and
105 months’ imprisonment.
Hammond objected to his classification as a career offender, arguing that his
conviction for New York first-degree robbery did not qualify as a crime of violence under
the Guidelines.1
The district court rejected Hammond’s argument and imposed a
sentence of 168 months’ imprisonment, followed by three years of supervised release.
Hammond now appeals.
II.
Hammond advances the same argument on appeal that he raised in the district
court. Thus, we consider whether the offense of New York first-degree robbery, in
violation of New York Penal Law § 160.15, qualifies as a crime of violence within the
meaning of Guidelines § 4B1.1. This question presents an issue of law, which we review
de novo. United States v. Jenkins, 631 F.3d 680, 682 (4th Cir. 2011).
A.
Before addressing Hammond’s arguments, we begin with an overview of the
Guidelines’ career offender enhancement. Under Guidelines § 4B1.1, a defendant
1 Because we have concluded that North Carolina common law robbery “qualifies
as ‘robbery,’ as that term is used in U.S.S.G. § 4B1.2(a)(2),” Hammond concedes that his
conviction for North Carolina common law robbery qualifies as a predicate offense under
the Guidelines. See United States v. Gattis, 877 F.3d 150, 160 (4th Cir. 2017).
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qualifies as a career offender if he has “at least two prior felony convictions for either a
crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a)(3). A “crime
of violence” is defined as any state or federal offense punishable by imprisonment for a
term exceeding one year, that
(1) has as an element the use, attempted use, or threatened use of physical
force against the person of another [the force clause], or
(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a
forcible sex offense, robbery, arson, extortion or the use or unlawful
possession of a firearm . . . or explosive material [the enumerated
offense clause].
Id. § 4B1.2(a).
We focus our analysis on the force clause of subparagraph (1) set forth above,
because that clause provides the most direct route to answering the question before us.
To determine whether a conviction for a state offense is a crime of violence under the
force clause, we apply the “categorical approach.” United States v. Gardner, 823 F.3d
793, 802 (4th Cir. 2016). Under that approach, the state crime necessarily must have as
an element the “use, attempted use, or threatened use of physical force against the person
of another” to qualify as a crime of violence under the force clause. U.S.S.G. §
4B1.2(a)(1). The Supreme Court has interpreted the term “physical force” as “violent
force—that is, force capable of causing physical pain or injury to another person.”
Johnson v. United States, 559 U.S. 133, 140 (2010). If the elements of the state offense
can be satisfied by “de minimis physical contact,” the offense does not qualify
categorically as a crime of violence. See United States v. Burns-Johnson, 864 F.3d 313,
316 (4th Cir. 2017).
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In making this assessment, we review the elements of the offense and “the
minimum conduct necessary for a violation” as defined by state law. See Gardner, 823
F.3d at 803 (citation omitted). To determine the “minimum conduct” required for the
state offense, this Court must ensure that there is “a realistic probability, not a theoretical
possibility, that a state would actually punish that conduct.” United States v. Doctor, 842
F.3d 306, 308 (4th Cir. 2016) (internal quotation marks and citation omitted). With this
framework in mind, we turn to consider Hammond’s arguments.
B.
Hammond raises two arguments in support of his contention that New York firstdegree robbery does not constitute a crime of violence. He contends (1) that New York
robbery, regardless of degree, does not include as an element the use of violent physical
force as defined by the Supreme Court, and (2) that New York first-degree robbery in
particular can be committed without the use of any force. We address each argument in
turn.
1.
Hammond first argues that New York robbery does not qualify categorically as a
crime of violence, because the offense does not require the use of violent physical force
“capable of causing physical pain or injury to another person.” Johnson, 559 U.S. at 140.
He contends that New York courts have interpreted New York’s robbery statutes to
require only de minimis force, such as “mere snatching.” We disagree with Hammond’s
argument.
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At the outset, we note that this Court, in an unpublished decision, recently
concluded that New York second- and third-degree robbery constitute violent felonies
under the identically-worded force clause of the Armed Career Criminal Act (ACCA), 18
U.S.C. § 924(e). United States v. Bowles, 733 F. App’x 699, 702 (4th Cir. 2018).
Because unpublished decisions may constitute persuasive, but not binding, authority, we
independently examine the New York statutes. See Collins v. Pond Creek Mining Co.,
468 F.3d 213, 219 (4th Cir. 2006).
New York has divided its robbery offense into three distinct statutes (the New
York robbery statutes), each involving an increasing degree of culpable conduct. N.Y.
Penal Law §§ 160.00-160.15; see People v. Miller, 661 N.E.2d 1358, 1360-61 (N.Y.
1995). All the New York robbery statutes, however, require the same element of force,
namely, “forcible stealing.” See N.Y. Penal Law § 160.00. Stated differently, the “core
crime” of New York robbery, irrespective of degree, is defined as “forcibly steal[ing]
property.” Id.; Miller, 661 N.E.2d at 1360 (“The essence of the [New York] crime of
robbery is forcible stealing.”). Accordingly, if “forcible stealing” requires the use of
“force capable of causing physical pain or injury,” Johnson, 559 U.S. at 140, the New
York robbery statutes all qualify as predicate offenses under the Guidelines’ force clause.
A person “forcibly steals property” under New York law when
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
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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.
N.Y. Penal Law § 160.00 (emphasis added). Although “physical force” in this context is
not defined, New York law gives common-law terms their common-law meanings, unless
context suggests otherwise. People v. King, 463 N.E.2d 601, 603 (N.Y. 1984). “Physical
force” as used to define robbery under the common law has “long been understood to
require violent force or intimidation of violent force.” Perez v. United States, 885 F.3d
984, 988-89 (6th Cir. 2018) (citations omitted). Thus, the plain language of the New
York robbery statutes suggests that the use or threat of violent physical force is required
for all degrees of the offense. See United States v. Pereira-Gomez, 903 F.3d 155, 165 (2d
Cir. 2018) (“By its plain language . . . New York’s robbery statute includes as an element
the use of violent force.”).
This interpretation is supported by New York case law applying the New York
robbery statutes. New York courts have interpreted “forcible stealing” to require
“significantly more [force] than mere unwanted physical contact.” People v. Curet, 683
N.Y.S.2d 602, 603 (N.Y. App. Div. 1998); see People v. Chatman, 833 N.Y.S.2d 794,
795 (N.Y. App. Div. 2007) (affirming second-degree robbery conviction when the
defendant pushed the victim aside and entered her vehicle, later breaking the victim’s
hold by driving away); People v. Dixon, 648 N.Y.S.2d 1009, 1010 (N.Y. App. Div. 1996)
(concluding that evidence that a victim “experienced pain in her neck and suffered a
scratch” as a result of the defendant pulling the victim’s necklaces was sufficient to
support the defendant’s conviction for third-degree robbery). Indeed, New York courts
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consistently have reversed robbery convictions when the taking at issue was committed
without the use or threat of significant physical force. See, e.g., People v. Dobbs, 805
N.Y.S.2d 734, 735-36 (N.Y. App. Div. 2005) (affirming reduction in charge from thirddegree robbery to petit larceny because there was “no indication” that the victim was
threatened or injured by the defendant); People v. Middleton, 623 N.Y.S.2d 298, 299
(N.Y. App. Div. 1995) (reversing a third-degree robbery conviction when the victim was
not “intimidated, knocked down, struck, or injured”). Thus, we do not discern any
material difference between the amount of force required under the New York robbery
statutes and the violent physical force necessary to satisfy the Guidelines’ force clause.
See Johnson, 559 U.S. at 142 (recognizing that violent force requires more than “a mere
unwanted touching”).
Contrary to Hammond’s contention, the great weight of New York authority
establishes that the act of merely “snatching” property from a victim does not amount to
“forcibly steal[ing] property” from a person. See, e.g., People v. Chessman, 429
N.Y.S.2d 224, 227-29 (N.Y. App. Div. 1980) (holding that a purse snatching when the
victim “did not feel anything on her body” did not constitute third-degree robbery under
New York law); People v. Davis, 418 N.Y.S.2d 127, 128 (N.Y. App. Div. 1979)
(concluding that a purse snatching did not amount to third-degree robbery in the absence
of evidence that the victim “was injured or was in danger of injury”). Indeed, the New
York Court of Appeals recently stated that “a taking ‘by sudden or stealthy seizure or
snatching,’” such as “pickpocketing” or “jostling” a victim, is insufficient to support a
conviction for New York second-degree robbery. People v. Jurgins, 46 N.E.3d 1048,
9
1052-53 (N.Y. 2015). Based on the foregoing, we conclude that all the New York
robbery statutes have as an element the use or threatened use of violent physical force
sufficient to satisfy the force clause of Guidelines § 4B2.1(a)(1).2

Notably, none of the decisions on which Hammond relies suggests a different
result. Hammond first cites to a decision in which a defendant and a victim had “tugged
at each other” until the defendant was able to pull his hand away. People v. Safon, 560
N.Y.S.2d 552, 552 (N.Y. App. Div. 1990). The court in Safon concluded that the
interaction between the defendant and the victim was sufficient to uphold a conviction for
New York third-degree robbery. Id.
We recognize that an offense that requires only a “slight degree of force” does not
qualify as a crime of violence under the Guidelines’ force clause. See United States v.
Winston, 850 F.3d 677, 685 (4th Cir. 2017) (internal quotation marks and citation
omitted). Nonetheless, the Supreme Court has emphasized that, to constitute a crime of
violence, a state offense need only require force that is “capable of causing physical pain
or injury,” such as a “slap in the face.” Johnson, 559 U.S. at 140, 143 (emphasis added).
If a slap constitutes enough physical force to satisfy Johnson, we cannot say that a pull,
2 We note that our conclusion is consistent with the majority of courts of appeals
to consider whether the New York robbery statutes require, as an element, the use or
threatened use of violent physical force. See United States v. Pereira-Gomez, 903 F.3d
155, 166 (2d Cir. 2018) (concluding that New York second-degree robbery qualifies as a
crime of violence under Section 2L1.2 of the Guidelines); United States v. Williams, 899
F.3d 659, 663-65 (8th Cir. 2018) (same); Perez, 855 F.3d at 989 (holding that New York
second-degree robbery qualifies as a violent felony for purposes of the ACCA). But see
United States v. Steed, 879 F.3d 440, 448-50 (1st Cir. 2018) (concluding that New York
second-degree robbery is not a crime of violence under Guidelines § 4B2.1(a)).
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powerful enough to break a person’s grip, would not be “capable of causing physical
pain.”3
Id. at 140.
Hammond next cites to a New York state case in which the defendant and three
others “formed a human wall that blocked the victim’s path as the victim attempted to
pursue” the defendant, who had “picked” the victim’s “pocket,” People v. Bennett, 631
N.Y.S.2d 834, 834 (N.Y. App. Div. 1995), and to another case in which the defendant
physically “block[ed] the victim’s passage,” People v. Patton, 585 N.Y.S.2d 431, 431
(N.Y. App. Div. 1992). Hammond contends that because there was no actual force
employed against the victims in those cases, yet the defendants were convicted of New
York second-degree robbery, the decisions in Bennett and Patton demonstrate that
“forcible stealing” can be committed without any use or threatened use of force.
Hammond, however, minimizes the defendants’ conduct in those cases. In Patton,
the defendant not only blocked the victim’s path, but “persistently shoved [the victim]
back” multiple times. Id. The codefendant in that case also stole the victim’s gold chain
by “yank[ing]” it from the victim’s neck, “scratching the victim and tearing his shirt.” Id.
3 We disagree with Hammond’s argument that this Court’s decisions in Winston,
850 F.3d 677, and Gardner, 823 F.3d 793, require a different result here. In Winston and
Gardner, we considered whether Virginia’s and North Carolina’s respective common law
robbery crimes constituted “violent felonies” under the ACCA. See Winston, 850 F.3d at
685; Gardner, 823 F.3d at 803-04. Based on each states’ interpretation of its own
robbery offense, we concluded that each respective crime could be committed without the
force required by the Supreme Court. See Winston, 850 F.3d at 685; Gardner, 823 F.3d
at 803-04. We conduct the same analysis in the present case, applying the same legal
standards. That we reach a different conclusion based on New York courts’
interpretation of the New York robbery statutes does not create a tension among our
cases.
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Taken as a whole, the conduct at issue in Patton plainly involved the use or threatened
use of violent physical force.
With respect to Bennett, Hammond correctly observes that the defendant in that
case did not use actual force against the victim. Nonetheless, Hammond fails to
recognize that the defendant’s action with others of forming the “human wall” involved
the “threatened use of physical force.” See Bennett, 631 N.Y.S.2d at 834. Stated
differently, the actions of the defendant and his accomplices involved a threat of violent
force that dissuaded the victim from attempting to break through the human wall or
otherwise to pursue the defendant. Accord Pereira-Gomez, 903 F.3d at 166; Perez, 885
F.3d at 989-90. Because the Guidelines’ force clause includes the “threatened use of
physical force,” U.S.S.G. § 4B2.1(a)(1), the cases on which Hammond relies involve a
degree of threatened force sufficient to come within the scope of the Guidelines’ career
offender enhancement.
2.
In a related argument, Hammond contends that, regardless of New York’s
statutory definition of robbery, New York first-degree robbery is not a crime of violence
because that statute can be violated by merely possessing, without displaying, a deadly
weapon. See N.Y. Penal Law § 160.15(2) (“A person is guilty of robbery in the first
degree when he forcibly steals property and when . . . [he] is armed with a deadly
weapon.”). However, Hammond misconstrues New York’s first-degree robbery statute.
As we have explained, the New York robbery statutes all require that the
prosecution prove the same element of “forcible stealing.” See People v. Gordon, 16
12
N.E.3d 1178, 1183-84 (N.Y. 2014). A person is guilty of New York first-degree robbery
when he “forcibly steals property,” as defined in New York Penal Law § 160.00, and his
conduct satisfies one of four additional aggravating circumstances, such as being armed
with a deadly weapon.4
See N.Y. Penal Law § 160.15. Thus, anyone convicted of New
York first-degree robbery necessarily has been convicted of “us[ing] or threaten[ing] the
immediate use of physical force upon another person.” Id. § 160.00; see Miller, 661
N.E.2d at 1360-62.
The aggravating factors necessary to commit New York first-degree robbery do
not eliminate the “core” physical force element of New York robbery, but merely elevate
the crime based on additional culpable conduct. See Miller, 661 N.E.2d at 1360-61; see
also Perez, 885 F.3d at 988. Accordingly, because all the New York robbery statutes
require the same element of violent physical force or threatened violent force, New York
first-degree robbery qualifies as a crime of violence under Guidelines § 4B1.2(a)(1).5
4 The other aggravating circumstances are when the defendant: (1) “[c]auses
serious physical injury to any person who is not a participant in the crime;” (2) “[u]ses or
threatens the immediate use of a dangerous instrument;” or (3) displays certain types of
operable firearms. N.Y. Penal Law § 160.15.
5 For the same reason, we reject Hammond’s contention that we must apply the
modified categorical approach to New York’s first-degree robbery statute. The modified
categorical approach is not required when each of the crimes into which a statute may be
divided constitutes a crime of violence. See United States v. Cabrera-Umanzor, 728 F.3d
347, 352 (4th Cir. 2013) (citing Descamps v. United States, 570 U.S. 254, 264 (2013)).
Because we conclude that all subsections of New York first-degree robbery qualify as
crimes of violence, we need not apply the modified categorical approach.

Outcome: For these reasons, we hold that Hammond’s conviction for New York first-degree
robbery qualifies as a crime of violence under the force clause of Guidelines §
4B1.2(a)(1).6

We therefore affirm the district court’s judgment.

AFFIRMED

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