Submitted: March 27, 2018
Appeal
from the United States District Court for the Northern
District of New York. No. 1:15-cr-27-1 - Thomas J. McAvoy,
District Judge.
Defendant-Appellant
Calvin Stephon Moore appeals his sentence following a guilty
plea to three counts of federal bank robbery in the United
States District Court for Northern District of New York
(Thomas J. McAvoy, Judge). Moore received three
concurrent 135-month terms of imprisonment.
On
appeal, Moore argues that the district court erred in
determining that he was subject to a sentencing enhancement
as a career offender under the 2015 version of the Career
Offender Guidelines of the United States Sentencing
Guidelines, §§ 4B1.1-2. He argues that neither
federal bank robbery nor New York robbery in the third degree
are crimes of violence under U.S.S.G. § 4B1.2.
Rejecting
Moore's arguments, we AFFIRM.
Grant
C. Jaquith, United States Attorney for the Northern District
of New York (Michael S. Barnett and Steven D. Clymer,
Assistant United States Attorneys, on the brief), Syracuse,
NY, for Appellee.
Lisa
A. Pebbles, Federal Public Defender for the Northern District
of New York (Molly Corbett and James P. Egan, Assistant
Federal Public Defenders, on the brief), Albany, NY, for
Defendant-Appellant.
Before: Katzmann, Chief Judge, Walker and Pooler, Circuit
Judges.
John
M. Walker, Jr., Circuit Judge
Defendant-Appellant
Calvin Stephon Moore appeals his sentence following a guilty
plea to three counts of federal bank robbery in the United
States District Court for Northern District of New York
(Thomas J. McAvoy, Judge). Moore received three
concurrent 135-month terms of imprisonment.
On
appeal, Moore argues that the district court erred in
determining that he was subject to a sentencing enhancement
as a career offender under the 2015 version of the Career
Offender Guidelines of the United States Sentencing
Guidelines, §§ 4B1.1-2. He argues that neither
federal bank robbery nor New York robbery in the third degree
are crimes of violence under U.S.S.G. § 4B1.2.
Rejecting
Moore's arguments, we AFFIRM.
BACKGROUND
In
October 2015, Moore pled guilty to committing the following
three counts of robbery of federally insured banks in late
2014. On November 17, 2014, Moore and an accomplice robbed a
branch of KeyBank in Schenectady, New York. During the
robbery, Moore said, "[T]his is a hold up give me
money." App'x at 37. Moore's accomplice was
arrested and told the police that Moore threatened the teller
by stating he had a gun. On November 18, 2014, Moore robbed a
branch of Adirondack Bank in Utica, New York. According to a
teller, Moore said, "I have a gun, I will start
shooting, give me all bundles 100's and 50's."
Id. at 38. He also presented a note stating that he
had a gun and would shoot if necessary. The final offense
occurred on December 30, 2014, when Moore robbed a branch of
First Citizens Bank in Columbia, South Carolina. Moore told a
teller that he had a gun and presented a note demanding
money. Later that evening, South Carolina police officers
received a report of a person at a Motel 6 tossing a
suspicious item over a fence and into a parking lot. The item
was a dye pack and several $20 bills. Officers began stopping
people near the Motel 6 and asking for identification. At
some point, they stopped Moore and discovered that he was
wanted for federal bank robberies in New York. The officers
searched his motel room pursuant to a warrant and found
currency stolen earlier in the day from the Columbia branch
of First Citizens Bank.
In
January 2015, a federal grand jury in the Northern District
of New York returned an indictment charging Moore with two
counts of bank robbery "by intimidation" in
violation of 18 U.S.C. § 2113(a). Id. at 11. In
February 2015, a federal grand jury in the District of South
Carolina returned an indictment charging Moore with one count
of bank robbery "by force and violence and by
intimidation" in violation of 18 U.S.C. § 2113(a).
Id. at 13. Subsequently, the South Carolina case was
transferred to the Northern District of New York.
In
October 2015, Moore pled guilty to all three counts of
federal bank robbery. The Probation Office recommended that
Moore be sentenced under the Career Offender Guidelines.
See U.S. Sentencing Guidelines Manual §
4B1.1(a) (U.S. Sentencing Comm'n 2015).[1] Specifically, the
Probation Office determined that: (1) Moore was at least 18
years old when he committed the crimes; (2) federal bank
robbery is a crime of violence; and (3) Moore had two prior
felony convictions for New York robbery in the third degree,
New York Penal Law § 160.05, which the Probation Office
considered to be crimes of violence. With adjustments for
Moore's acceptance of responsibility, his offense level
of 29 and criminal history category of VI yielded a
Guidelines range of 151 to 188 months.
Moore
objected to the Probation Office's conclusion that he was
a career offender, arguing that the Supreme Court's
decisions in Johnson v. United States, 559 U.S. 133
(2010) ("Johnson I"), and Johnson v.
United States, 135 S.Ct. 2551 (2015) ("Johnson
II"), narrowed the definition of a crime of
violence under U.S.S.G. § 4B1.2(b) in such a way that he
should not be considered a career offender because neither
federal bank robbery nor New York robbery in the third degree
are crimes of violence. Johnson I clarified that the
term "physical force" in the definition of the term
"violent felony" under the Armed Career Criminal
Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(i), means
"violent" force, or "force capable of causing
physical pain or injury to another person." 559 U.S. at
140. Johnson II held that the residual clause of the
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