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16 This is an appeal by the United States from a grant of habeas corpus

17 under 28 U.S.C. § 2255 by the United States District Court for the District of

18 Connecticut (Stefan R. Underhill, J.) in favor of petitioner Al‐Malik Fruitkwan

19 Shabazz, requiring reduction of Shabazz’s sentence. The question presented

20 by the appeal is whether the offense of robbery, as defined by Connecticut’s

21 basic robbery statute, Conn. Gen. Stat. § 53a‐133, is a “violent felony” as that

22 term is used in the Armed Career Criminal Act of 1984 (“ACCA”), 18 U.S.C. §

23 924(e). That issue turns on whether robbery, as specified in § 53a‐133, has as

24 an essential element the use or threatened use of force that is capable of

25 causing pain or injury. See Johnson v. United States, 559 U.S. 133 (2010) (“2010

26 Johnson”).

3

Shabazz was convicted in 1 2004 in the United States District Court for

2 Connecticut on one count of unlawful possession of a firearm by a convicted

3 felon, in violation of 18 U.S.C. § 922(g)(1). At the time, Shabazz had, among

4 other convictions, four prior Connecticut state‐court robbery convictions

5 under § 53a‐133. If at least three of those prior convictions were for violent

6 felonies as that term has been defined by the Supreme Court for purposes of

7 the ACCA statute, ACCA mandated a sentence of at least fifteen years

8 imprisonment. In sentencing Shabazz for the firearm violation, the district

9 court concluded that a mandatory fifteen‐year sentence was required by

10 ACCA and sentenced Shabazz to 235 months imprisonment. 1

11 Since that time, decisions of the United States Supreme Court and our

12 court have substantially altered the meaning of ACCA. Shabazz brought this

13 petition for habeas corpus contending that ACCA, as currently understood,

14 no longer applies to his robbery convictions because, he argues, one can be

15 convicted of robbery in Connecticut for a theft that does not employ force

16 capable of causing pain or injury. The district court, in a thoughtful, scholarly

1 The district court started with the mandatory minimum sentence as the

baseline and determined, based on aggravating circumstances of Shabazz’s

offense, that a sentence above that minimum was warranted.

4

opinion, agreed with Shabazz 1 and granted his petition. The court vacated his

2 prior sentence, sentenced him to 120 months imprisonment, and released him

3 from custody because he had completed service of the new sentence. The

4 cornerstone of the district court’s ruling was that robbery under § 53a‐133

5 does not necessarily involve use of force that is capable of causing pain or

6 injury.

7 The government brought this appeal, arguing that Connecticut’s core

8 robbery statute does require force (or threat of force) that is capable of causing

9 pain or injury. If the government is correct, Shabazz had at least three prior

10 violent felonies, and therefore faced a mandatory sentence of at least fifteen

11 years under ACCA.

12 We respectfully disagree with the district court’s view that

13 Connecticut’s robbery statute does not require at a minimum force that would

14 satisfy the ACCA standard. We think that the threat of force capable of

15 causing pain or injury is inherent in the crime of robbery. Accordingly, we

16 VACATE the judgment.

5

1 BACKGROUND

2 In 2005, Shabazz was convicted of one count of unlawful possession of

3 a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1). See United

4 States v. Singer, No. 3:04‐cr‐210‐1 (SRU) (doc. 1, 71). In addition to other

5 convictions, Shabazz had four prior Connecticut convictions for various

6 degrees of robbery, each of which included a conviction under § 53a‐133.

7 Robbery in Connecticut is defined under a statutory scheme that

8 includes a basic robbery offense under § 53a‐133, and additional statutes that

9 define the aggravating factors, such that all robbery convictions must include

10 a conviction under § 53a‐133, and any conviction for aggravated degrees of

11 robbery, such as first degree robbery or second degree robbery, requires an

12 additional conviction under the statute that defines the aggravating factors.

13 The basic definition of robbery under § 53a‐133 is as follows:

14 A person commits robbery when, in the course of

15 committing a larceny, he uses or threatens the immediate use of

16 physical force upon another person for the purpose of: (1)

17 Preventing or overcoming resistance to the taking of the property

18 or to the retention thereof immediately after the taking or (2)

19 compelling the owner of such property or another person to

20 deliver up the property or to engage in other conduct which aids

21 in the commission of the larceny.

6

ACCA specifies 1 that a person who violates 18 U.S.C. § 922(g)(1)’s

2 prohibition of possession of a firearm by a convicted felon and has three

3 previous convictions “for a violent felony” (or a serious drug offense) is

4 subject to a mandatory minimum sentence of fifteen years. 18 U.S.C. §

5 924(e)(1).2 The term “violent felony” is defined to include any crime

2 The full text of 18 U.S.C. 924(e) states: (e)(1) In the case of a person who

violates section 922(g) of this title and has three previous convictions by any

court referred to in section 922(g)(1) of this title for a violent felony or a

serious drug offense, or both, committed on occasions different from one

another, such person shall be fined under this title and imprisoned not less

than fifteen years, and, notwithstanding any other provision of law, the court

shall not suspend the sentence of, or grant a probationary sentence to, such

person with respect to the conviction under section 922(g).

(2) As used in this subsection—

(A) the term “serious drug offense” means—

(i) an offense under the Controlled Substances Act (21 U.S.C. 801

et seq.), the Controlled Substances Import and Export Act (21 U.S.C.

951 et seq.), or chapter 705 of title 46, for which a maximum term of

imprisonment of ten years or more is prescribed by law; or

(ii) an offense under State law, involving manufacturing,

distributing, or possessing with intent to manufacture or distribute, a

controlled substance (as defined in section 102 of the Controlled

Substances Act (21 U.S.C. 802), for which a maximum term of

imprisonment of ten years or more is prescribed by law;

(B) the term “violent felony” means any crime punishable by

imprisonment for a term exceeding one year, or any act of juvenile

delinquency involving the use or carrying of a firearm, knife, or

destructive device that would be punishable by imprisonment for such

term if committed by an adult, that—

7

punishable by imprisonment for a 1 term exceeding one year that falls into any

2 of three categories that are defined in clauses (i) and (ii) of § 924(e)(1)(B). The

3 first of these, known as the Force Clause, set forth in subsection (i), is the

4 subject of this appeal. It specifies that the offense “(i) has as an element the

5 use, attempted use, or threatened use of physical force against the person of

6 another.” 18 U.S.C. § 924(e)(2)(B)(i). The second and third categories, the so7

called Enumerated Felonies Clause and the Residual Clause, are set forth in

8 subsection (ii). The Enumerated Felonies Clause includes any offense that “is

9 burglary, arson, or extortion, [or] involves use of explosives.” 18 U.S.C. §

10 924(e)(2)(B)(ii). The Residual Clause includes any offense that “otherwise

11 involves conduct that presents a serious potential risk of physical injury to

12 another.” Id. In order to determine whether a prior conviction comes within

13 one of the aggravating categories, the Supreme Court ruled in Taylor v. United

(i) has as an element the use, attempted use, or threatened use of

physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or

otherwise involves conduct that presents a serious potential risk of physical

injury to another; and

(C) the term “conviction” includes a finding that a person has

committed an act of juvenile delinquency involving a violent felony.

(The language in italics has been found constitutionally invalid and may not

be used for sentencing purposes. Johnson v. United States, 135 S.Ct. 2551

(2015).)

8

States, 495 U.S. 575, 600 1 (1990), that the court must employ a “categorical

2 approach,” looking not at the facts of the defendant’s prior crimes but at the

3 statute under which he was convicted to determine whether the essential

4 elements of that statute bring the crime within the ACCA requirements.

5 In sentencing Shabazz on his 2005 conviction for unlawful gun

6 possession, the court concluded on the basis of his prior Connecticut robbery

7 convictions that he was subject to ACCA’s fifteen‐year mandatory minimum

8 sentence. The court did not explain which of the clauses of the ACCA statute

9 justified its application to his case. Shabazz timely appealed his conviction

10 without contesting the applicability of ACCA, and our court affirmed the

11 judgment by summary order. United States v. Singer, 241 F. App’x 727, 729 (2d

12 Cir. 2007).

13 Subsequent to his conviction, court decisions have altered the meaning

14 of the ACCA statute. In 2010, the Supreme Court interpreted the phrase

15 “physical force” in the Force Clause. See Johnson v. United States, 559 U.S. 133

16 (2010) (“2010 Johnson”). The Supreme Court reasoned that because the term

17 “physical force” occurred “in the context of a statutory definition of ‘violent

18 felony,’” the physical force invoked by the statute needed to be “violent

9

force—that is, force capable of causing physical 1 pain or injury to another

2 person.” Id. at 140 (emphasis in original). Therefore, in order for a previous

3 conviction to qualify as an ACCA predicate under the Force Clause, the

4 statutory definition of the crime must require force capable of causing

5 physical pain or injury to another person, or the threat of such force. Id. Then,

6 in 2015, in Johnson v. Unites States, 153 S. Ct. 2551 (2015) (“2015 Johnson”), the

7 Supreme Court struck down ACCA’s Residual Clause, finding it to be

8 unconstitutionally vague.

9 After 2015 Johnson, Shabazz brought this petition, arguing that his

10 sentence must be set aside because, to the extent the application of ACCA

11 might have depended on the Residual Clause, that clause has since been

12 invalidated, and to the extent it might have depended on the Force Clause,

13 that would have been improper because the crime of robbery as defined by

14 § 53a‐133 can be committed by use of force that is not sufficient to cause pain

15 or injury.

16 The issue before the district court was whether any three of Shabazz’s

17 prior Connecticut robbery convictions were obtained under a statute that

10

required as an essential element 1 the use or threat of force capable of causing

2 pain or injury.

3 On January 3, 2017, the district court issued a written ruling granting

4 Shabazz’s § 2255 motion and vacating his sentence. The court ruled that

5 simple robbery under § 53a‐133, without aggravating factors, does not qualify

6 as an ACCA predicate because the crime can be committed by use of levels of

7 force so slight that they are not capable of causing pain or injury. Thus,

8 notwithstanding that two of Shabazz’s convictions for first degree robbery

9 qualified as crimes of violence because the aggravating factor necessarily

10 involved violent force, his other robbery convictions did not require violence.

11 Having only two, and not three, prior violent felonies, Shabazz did not

12 qualify for mandatory sentencing under ACCA.3 The government brought

13 this appeal.

14 DISCUSSION

3 The district court, in adjudicating Shabazz’s petition under § 2255,

concluded that, in passing Shabazz’s sentence in 2005, it had probably relied,

at least in part, on the now‐unconstitutional Residual Clause to determine

that ACCA’s mandatory sentencing provision applied. If the elements of

§ 53a‐133 require violent force, ACCA’s sentencing provision mandatorily

applied to Shabazz under the Force Clause, so that even if the sentencing

court had erroneously relied on the Residual Clause, the error was harmless.

11

The government contends that 1 robbery under § 53a‐133 requires force

2 capable of causing pain or injury, so that, regardless of whether Shabazz was

3 convicted of aggravating factors, each of his Connecticut robbery convictions

4 qualifies as a violent felony within the meaning of ACCA’s Force Clause.

5 Employing the categorical approach mandated by Taylor, 495 U.S. at 600; see

6 also Mathis v. United States, 136 S. Ct. 2243, 2248‐49 (2016) (outlining the

7 categorical approach); Descamps v. United States, 570 U.S. 254, 257 (2013)

8 (same), courts identify “the minimum criminal conduct necessary for

9 conviction under a particular statute.” United States v. Acosta, 470 F.3d 132, 135

10 (2d Cir. 2006). “The reviewing court ‘cannot go behind the offense as it was

11 charged to reach [its] own determination as to whether the underlying facts’

12 qualify the offense as,” in this case, a violent felony. Hill, 890 F.3d at 55

13 (quoting Ming Lam Sui v. INS, 250 F.3d 105, 117‐18 (2d Cir. 2001)).

14 Connecticut’s statute defines robbery essentially as it is understood in

15 the common law and largely throughout the United States, as requiring the

16 use or threat of force to take property from the person of another without the

17 person’s consent. Robbery has consistently been treated as an aggravated

18 form of larceny because the taking of property from the person of another

12

against the victim’s will by 1 force or threat of force is inevitably capable of

2 causing physical harm to the victim, regardless of whether the force actually

3 employed in the taking of the property is by itself sufficient to cause pain or

4 injury. Scholars of the criminal law underline the inherent potential for

5 physical harm to the victim as the explanation why robbery developed as,

6 and continues to be treated as, an aggravated felony, generally carrying

7 harsher punishments than other forms of larceny. See 3 W. LaFave,

8 Substantive Criminal Law § 20.3, p. 221 (3d ed. 2017) (“Robbery, a common9

law felony, and today everywhere a statutory felony regardless of the amount

10 taken, may be thought of as aggravated larceny—misappropriation of

11 property under circumstances involving a danger to the person as well as a danger

12 to property—and thus deserving of a greater punishment than that provided

13 for larceny. Robbery consists of all six elements of larceny . . . plus two

14 additional requirements: [(1)] that the property be taken from the person or

15 presence of the other and [(2)] that the taking be accomplished by means of

16 force or putting in fear.”) (emphasis added); see also id. at 222 n.4 (“Robbery

17 may be considered a greater crime than the sum of the two lesser crimes of

18 larceny and assault (or battery). As stated in Model Penal Code § 222.1,

13

Comment at 98 (1980): . 1 . . [T]he robber may be distinguished from the

2 stealthy thief by the hardihood that enables him to carry out his purpose in

3 the presence of his victim and over his opposition—obstacles that might deter

4 ordinary sneak thieves and that justify the feeling of special danger evoked by

5 robbery.”) (emphasis added); E. Podgor, P. Henning, and N. Cohen, Mastering

6 Criminal Law, p. 215 (2d ed. 2015) (“Robbery, often punished by a lengthy

7 prison term, is an aggravated form of larceny. The offense entails a larceny

8 coupled with the use of force or a threat of violence to dispossess the victim of

9 the property. Robbery is deemed a very serious crime, a felony in every

10 jurisdiction, because it presents the real danger of immediate serious physical harm

11 to the victim. . . . Because the actual or potential bodily harm is the primary

12 concern with robbery, it occurs irrespective of the value of the items taken.”)

13 (emphasis added).

14 Notwithstanding a robber’s actual use of minimal force (that would not

15 in itself cause pain or injury) to take property from the person of another

16 against the victim’s will, those face‐to‐face circumstances inherently carry an

17 implicit threat of escalation, perhaps because of the victim’s predictable

18 reaction, capable of resulting in physical harm. Therefore, even such minimal

14

force, when employed in a taking 1 of property from the person of another,

2 inherently implicates a realistic threat of causing pain or injury, so that the

3 crime qualifies as an ACCA predicate under 2010 Johnson.4 We therefore

4 conclude that the district court erred in its belief that, because the crime of

5 robbery could be committed through the actual use of minimal physical force,

6 it should not be deemed to fall within the category of a crime capable of

7 causing pain or injury.

8 We conclude that the use or threat of even minimal force on another

9 person in aid of the theft of that person’s property, as required by § 53a‐133, is

10 inherently capable of causing pain or injury, with the consequence that any

11 violation of § 53a‐133 qualifies as an ACCA predicate. Shabazz had three or

4 We note that the Supreme Court, in a very recent decision, see United States

v. Stitt, 139 S. Ct. 399 (2018), considered whether two state burglary statutes

covering entry into vehicles designed or adapted for overnight

accommodation categorically fit within the generic definition of “burglary” in

the Enumerated Felonies Clause. In holding in the affirmative and

distinguishing from earlier cases, Stitt relied in significant part on the

“inherently dangerous” nature of such burglaries because they create a more

significant likelihood of in‐person confrontation than burglaries of premises

that are less likely to be occupied. See id. at 406‐07. Because, among other

reasons, the statutes in question applied exclusively to a category of

burglaries more likely to result in a violent confrontation, the Court held that

they fit the enumerated felony of burglary.

15

more such ACCA 1 predicates. ACCA therefore mandated that he be sentenced

2 to no less than fifteen years imprisonment.

3 Accordingly, we VACATE the district court’s judgment. The district

4 court’s judgment on Shabazz’s petition vacated his original sentence,

5 substituting the court’s new, lesser sentence. The effect of our ruling vacating

6 that judgment is to reinstate the original sentence.

8 For the foregoing reasons, the district court’s judgment vacating

9 Shabazz’s sentence is VACATED, with the consequence that the original

10 sentence is reinstated.