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Aceshunn BROWN, Petitioner-Appellee, v. UNITED STATES of America, Respondent-Appellant.
SUMMARY ORDER
The government appeals from an order entered on May 31, 2017, and amended judgment entered on June 1, 2017, that (1) granted Aceshunn Brown’s second and successive motion under 28 U.S.C. § 2255, (2) reduced his sentence from the mandatory minimum of 180 months to time served, and (3) ordered his immediate release from prison. We assume the parties’ familiarity with the underlying facts, procedural history, and arguments on appeal, to which we refer only as necessary to explain our decision to reverse the District Court’s grant of Brown’s § 2255 motion, vacate the amended judgment, and remand the cause for the District Court to reinstate Brown’s original sentence.
The government argues that the District Court erred in concluding that Brown’s two prior convictions for the New York offense of attempted second-degree robbery, in violation of New York Penal Law §§ 160.10 and 110, did not qualify as “violent felon[ies]” under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). We review de novo the District Court’s ruling on this question. See United States v. Brown, 629 F.3d 290, 294 (2d Cir. 2011) (per curiam).
The recent Supreme Court decision in Stokeling v. United States, ––– U.S. ––––, 139 S.Ct. 544, ––– L.Ed.2d –––– (2019), and our recent decisions in United States v. Thrower, 914 F.3d 770 (2d Cir. 2019) (per curiam), and United States v. Pereira-Gomez, 903 F.3d 155 (2d Cir. 2018), resolve this case in the government’s favor. In Stokeling, the Supreme Court held that the “the term ‘physical force’ in the ACCA encompasses the degree of force necessary to commit common-law robbery”—it is “the amount of force necessary to overcome a victim’s resistance.” 139 S.Ct. at 555. In Thrower, we held that New York robbery in the first and third degrees, “which like every degree of robbery in New York require[ ] the common law element of ‘forcible stealing,’ ” are “violent felon[ies]” under the ACCA. 914 F.3d at 776. We further held in Pereira-Gomez that all degrees of New York robbery, including attempted robbery, qualify as “crimes of violence” under the 2014 Sentencing Guidelines’ nearly identical force clause. 903 F.3d at 166; compare U.S.S.G. § 2L1.2, cmt. n.1(b)(iii) (2014), with 18 U.S.C. § 924(e)(2)(B)(i).
In light of these decisions, it is evident that Brown’s prior convictions under New York law for attempted second-degree robbery qualify as violent felonies under the ACCA.1 Accordingly, the District Court erred in granting Brown’s § 2255 motion and reducing his sentence to time served.
* * *
We therefore REVERSE the District Court’s grant of Brown’s § 2255 motion, VACATE the amended judgment, and REMAND the cause for the District Court to reinstate Brown’s original sentence.
FOOTNOTES
1. In light of this disposition, we do not reach the government’s arguments that Brown’s claim for relief under § 2255 is procedurally barred.
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Docket No: No. 17-1943
Decided: February 14, 2019
Court: United States Court of Appeals, Second Circuit.
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