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United States v. Moore

United States Court of Appeals, Second Circuit

February 25, 2019

United States of America, Appellee,
v.
Calvin Stephon Moore, Defendant-Appellant.

          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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