COLEMAN v. UNITED STATES (2019)

SUMMARY ORDER

Tajie Coleman appeals from an order entered on May 3, 2017, denying his motion to vacate his sentence pursuant to 28 U.S.C. § 2255. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

Coleman is currently serving a fifteen-year mandatory minimum sentence based on three prior New York state convictions for robbery in the third degree, attempted robbery in the second degree, and attempted robbery in the third degree, which the district court determined all qualified as violent felony convictions under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). Coleman argues that this Court should vacate his sentence because the force sufficient to establish the New York robbery crimes of which he was convicted falls well short of the “violent force ․ capable of causing physical pain or injury” required to satisfy ACCA’s elements clause. Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). Coleman has conceded, however, that his argument is foreclosed by this Court’s recent decision in United States v. Pereira-Gomez, which stated that all degrees of New York robbery and attempted robbery qualify as crimes of violence under the November 1, 2014 edition of the U.S. Sentencing Guidelines, see 903 F.3d 155, 166 (2d Cir. 2018). That Guideline and ACCA use identical language to describe the violence component. Compare 18 U.S.C. § 924(e)(2)(B) (defining a violent felony as any crime punishable by imprisonment for more than one year that “has as an element the use, attempted use, or threatened use of physical force against the person of another”) with Application Note 1(B)(iii) of Section 2L1.2 of the November 2014 U.S. Sentencing Guidelines (defining a crime of violence to include any state law offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another”).

We have considered all of petitioner’s remaining contentions on appeal and have found in them no basis for reversal. Accordingly, the order of the district court denying petitioner’s motion to vacate his sentence is AFFIRMED.