United States of America v. Edward Smith

This case, in which oral argument was heard in September 2016

but which was held in abeyance pending decision first in United States

v. Jones, No. 15‐1518, __ F.3d __, slip op. (2d Cir. Oct. 5, 2017), then in

United States v. Morales, No. 14‐3661 (2d Cir. Jan. 22, 2018), presents the

following questions: (1) whether the evidence at trial was sufficient to

prove possession of crack cocaine with intent to distribute; and (2)

whether the New York offense of robbery in the second degree

constitutes a “crime of violence” as that term was defined in the United

States Sentencing Guidelines (“Guidelines”) before August 1, 2016.

The second question is one of first impression. We answer both

questions in the affirmative and therefore AFFIRM the judgment of

October 7, 2015 of the United States District Court for the Southern

District of New York (Katherine Polk Failla, Judge).

I. BACKGROUND

Defendant‐Appellant Edward Smith (“Smith”) appeals from a

District Court judgment entered on October 7, 2015 by Judge Failla. A

jury convicted Smith of being a felon in possession of a firearm and

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ammunition, in violation of 18 U.S.C. § 922(g)(1), and of possession of

crack cocaine with intent to distribute, in violation of 21 U.S.C. §§

841(a)(1), (b)(1)(C). The District Court imposed a term of one hundred

twenty months’ imprisonment for each of the two charges, the terms

to run concurrently.

Smith argues: (a) that the evidence introduced at trial was

insufficient to prove possession of crack cocaine with intent to

distribute; and (b) that the District Court miscalculated his base

offense level under the Guidelines because second‐degree robbery, in

New York law, is not a “crime of violence” as the term is defined in

the applicable version of the Guidelines.

II. DISCUSSION

A. Sufficiency of the Evidence

Smith argues that the evidence presented at trial was

insufficient to prove possession of crack cocaine with intent to

distribute. The officers’ testimony that they recovered bags of crack

cocaine from him at the police station could not have been true, he

argues, because he “was bleeding from his hands on the night in

question,” whereas “the baggies allegedly recovered from [him] were

bloodless.” Br. Appellant 15–16. The bags thus could not have been

“pried from his bleeding and tightly[ ]clenched hands.” Id. at 16.

A court reviewing a conviction entered pursuant to a jury

verdict for sufficiency of the evidence must affirm the conviction if it

determines that “after viewing the evidence in the light most favorable

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to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Musacchio

v. United States, 136 S. Ct. 709, 715 (2016) (emphasis in original)

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see also United

States v. Daugerdas, 837 F.3d 212, 221 (2d Cir. 2016).

We conclude that there was sufficient evidence to convict Smith.

The officers involved in Smith’s arrest testified at trial that they did not

search Smith until they were back at the police station because a hostile

crowd had gathered at the scene of the arrest. They also testified that

as they prepared to search Smith at the station, Smith removed

something from his pocket and clenched it in his fist. When they pried

Smith’s fist open, they discovered a plastic bag containing fourteen

smaller plastic bags of crack cocaine. Even if no blood was found on

the fourteen smaller plastic bags, the jury might reasonably have

inferred from the officers’ testimony that Smith’s hands were no

longer bleeding by the time he arrived at the police station. The jury

might also reasonably have inferred that Smith’s hands were still

bleeding but that no blood was on the smaller bags because they were

enclosed within the larger plastic bag. The government’s choice not to

introduce the larger plastic bag into evidence did not require the jury

to reject this second possible inference or to conclude that the officers’

testimony was not credible.

B. Calculation of Base Offense Level

Smith also argues that the District Court miscalculated his base

offense level under the Guidelines because robbery in the second

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degree, in violation of New York Penal Law section 160.10, is not a

“crime of violence” as the term is defined in the applicable version of

the Guidelines.

We review the District Court’s calculation for plain error

because Smith did not object to the calculation in the District Court.

See United States v. Hargrett, 156 F.3d 447, 451 (2d Cir. 1998). Plain error

exists when: “(1) there is an error; (2) the error is clear or obvious,

rather than subject to reasonable dispute; (3) the error affected the

appellant’s substantial rights, which in the ordinary case means it

affected the outcome of the district court proceedings; and (4) the error

seriously affects the fairness, integrity[,] or public reputation of

judicial proceedings.” United States v. Marcus, 560 U.S. 258, 262 (2010)

(internal quotation marks and brackets omitted). In the review of a

sentence, however, the plain error standard is not applied

“stringently,” since “the cost of correcting an unpreserved error is not

as great as in the trial context.” United States v. Gamez, 577 F.3d 394, 397

(2d Cir. 2009).

At the time of Smith’s sentencing, the Guidelines defined “crime

of violence” as “any offense under federal or state law, 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, or (2) is burglary of a dwelling, arson,

or extortion, involves use of explosives, or otherwise involves conduct

that presents a serious potential risk of physical injury to another.”

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Guidelines Manual § 4B1.2(a) (U.S. Sentencing Comm’n 2014).1

Paragraph (1) is known as the “force clause”; the part of paragraph (2)

beginning with “or otherwise involves” is known as the “residual

clause.” The residual clause was removed from the Guidelines

effective August 1, 2016 because the United States Sentencing

Commission had determined the phrase to be unconstitutionally

vague in light of the Supreme Court’s decision in Johnson v. United

States, 135 S. Ct. 2551 (2015). See United States v. Jones, No. 15‐1518, __

F.3d __, slip op. at 7 n.1 (2d Cir. Oct. 5, 2017). The Supreme Court had

held in Johnson that the identically worded residual clause of the

Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), was

unconstitutionally vague. Johnson, 135 S. Ct. at 2554. The Guidelines

residual clause has since been held, however, to be constitutional.

Beckles v. United States, 137 S. Ct. 886, 892 (2017).

The District Court calculated Smith’s base offense level as 20. To

come to this result it first found, tacitly, that Smith’s conviction in this

federal proceeding for unlawful possession of a firearm and

1 The applicable version of the Sentencing Guidelines is the version in effect

on the day the defendant is sentenced. See 18 U.S.C. § 3553(a)(4)(A)(ii) (2012); United

States v. Jones, No. 15‐1518, __ F.3d __, slip op. at 10 n.3 (2d Cir. Oct. 5, 2017). Smith

was sentenced on October 1, 2015. See App. Appellant 633–713 (transcript of

sentencing). The applicable Guidelines Manual is therefore the 2014 version, which

remained in effect until November 1, 2015. Compare Guidelines Manual i (U.S.

Sentencing Comm’n 2014) (indicating that the 2014 version incorporates

amendments to the Guidelines up through the amendments effective November 1,

2014), with Guidelines Manual i (U.S. Sentencing Comm’n 2015) (indicating that the

2015 version incorporates amendments to the Guidelines up through the

amendments effective November 1, 2015).

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ammunition followed a conviction on March 30, 2005 for robbery in

the second degree in violation of New York Penal Law section 160.10.

It then implicitly concluded that second‐degree robbery met the

definition of a crime of violence in section 4B1.2(a) of the Guidelines.

The applicable provision of the Guidelines, section 2K2.1(a)(4)(A),

therefore fixed Smith’s base offense level at 20.

We have not yet decided whether the New York offense of

second‐degree robbery is a crime of violence under either the force

clause or the residual clause of section 4B1.2(a) of the Guidelines in

effect when Smith was sentenced.

We have recently held, however, that the New York offense of

first‐degree robbery is a crime of violence under the then‐applicable

residual clause of section 4B1.2(a) of the Guidelines. Jones, __ F.3d __.

In Jones, we noted that the official commentary on section 4B1.2 of the

2014 version of the Guidelines—also the relevant version in this case—

explicitly names robbery as a crime of violence. See id., slip op. at 15–

16; see also Guidelines Manual § 4B1.2 application note 1, at para. 2

(“‘Crime of violence’ includes murder, manslaughter, kidnapping,

aggravated assault, forcible sex offenses, robbery, arson, extortion,

extortionate extension of credit, and burglary of a dwelling.”). We also

noted that an official Guidelines commentary provision is controlling

unless it “(1) conflict[s] with a federal statute, (2) violate[s] the

Constitution, or (3) [is] plainly erroneous or inconsistent with the

Guidelines provision[ it] purport[s] to interpret.” Jones, slip op. at 16

(citing Stinson v. United States, 508 U.S. 36, 45 (1993)). None of these

exceptions applied in Jones. Id. at 16. We then confirmed that the

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meaning of “robbery” in the Guidelines commentary encompassed the

offense of first‐degree robbery within the meaning of New York law.

We did so in part by finding that the first element of the New York

first‐degree‐robbery statute fell within the generic definition of

robbery in all American jurisdictions. Compare N.Y. Penal Law § 160.15

(“A person is guilty of robbery in the first degree when he forcibly

steals property . . . .”), with Jones, slip op. at 17 (“[A]ll fifty states define

robbery, essentially, as the taking of property from another person or

from the immediate presence of another person by force or by

intimidation.” (emphasis omitted) (quoting United States v. Walker, 595

F.3d 441, 446 (2d Cir. 2010)). We concluded that the New York offense

of first‐degree robbery constituted a crime of violence under the

residual clause of section 4B1.2(a)(2) of the Guidelines. See Jones, slip

op. at 16–17, 19.

The rationale of Jones is directly applicable to this case. In New

York law, the first element of second‐degree robbery is the same as the

first element of first‐degree robbery. Compare N.Y. Penal Law § 160.10

(“A person is guilty of robbery in the second degree when he forcibly

steals property . . . .”), with id. § 160.15 (“A person is guilty of robbery

in the first degree when he forcibly steals property . . . .”). The first

elements of both provisions, taken on their own, bring these offenses

within the scope of the generic definition of robbery that we discussed

in Jones. It is thus unnecessary to consider the differences between the

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other elements of the first‐degree‐robbery statute and the other

elements of the second‐degree‐robbery statute.2

For these reasons we hold that the New York offense of robbery

in the second degree is within the meaning of “crime of violence” as

defined in section 4B1.2(a) of the Guidelines that were in effect when

Smith was sentenced.3 The District Court’s calculation of Smith’s base

offense level was therefore not erroneous.

III. CONCLUSION

In summary, we hold as follows:

(1) the evidence presented at Smith’s trial was sufficient to prove

possession of crack cocaine with intent to distribute; and

(2) because the New York offense of robbery in the second

degree constitutes a crime of violence within the meaning of

the United States Sentencing Guidelines in effect when Smith

2 Smith argues that second‐degree robbery cannot qualify as a crime of

violence under the force clause of section 4B1.2(a)(1) of the Guidelines. See Br.

Appellant 22–27. But because we concluded in Jones that first‐degree robbery

qualified as a crime of violence under the residual clause, and because we see no

relevant difference between New York’s first‐ and second‐degree‐robbery statutes,

it is not necessary to address Smith’s argument about the force clause.

3 As we noted above, the residual clause was replaced with different

language as of August 1, 2016. Our holding thus applies only to sentencing

decisions made under the Guidelines in effect before that date. See supra text

following note 1. We note, however, that the replacement language expressly

names “robbery” as one of the crimes of violence. See Guidelines Manual § 4B1.2(a)(2)

(U.S. Sentencing Comm’n 2016).

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was sentenced on October 1, 2015, the District Court’s

calculation of Smith’s base offense level was not erroneous.

We AFFIRM the District Court’s judgment of October 7, 2015.