us v. corey jones 15-cr-1518 appeals brief
TRANSCRIPT
15-1518-cr
To be argued by:
MATTHEW B. LARSEN
__________________________________________________________________
__________________________________________________________________
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT ___________________________________________________
UNITED STATES OF AMERICA,
Appellee,
-against-
COREY JONES,
Defendant-Appellant.
___________________________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK
(Case No. 13-cr-438, Judge Nicholas G. Garaufis)
__________________________________________________________________
BRIEF FOR APPELLANT COREY JONES __________________________________________________________________
FEDERAL DEFENDERS OF NEW YORK
APPEALS BUREAU
52 Duane Street, 10th Floor
New York, New York 10007
Tel.: (212) 417-8725
Email: [email protected]
MATTHEW B. LARSEN,
Of Counsel
__________________________________________________________________
__________________________________________________________________
i
TABLE OF CONTENTS QUESTIONS PRESENTED ...................................................................................... 1 JURISDICTIONAL STATEMENT .......................................................................... 2 STATEMENT OF THE CASE .................................................................................. 2 STATEMENT OF FACTS ........................................................................................ 3
A. Overview ............................................................................................... 3 B. The Finger Bite ...................................................................................... 4 C. The 15-Year Sentence ........................................................................... 7
SUMMARY OF ARGUMENT ...............................................................................14 ARGUMENT ...........................................................................................................15
I. The District Court Erred by Labeling Jones a Career Offender .........15
A. Standard of Review ...................................................................15 B. Jones’s New York Robbery Conviction
Does Not Trigger the Career Offender Designation .................16 1. First-Degree Robbery in New York is
Not a Categorical “Crime of Violence” ..........................17 2. The Modified Categorical Approach
Cannot be Used Here ......................................................25 C. The Erroneous Career Offender Designation
Requires a Remand ...................................................................27 II. Jones’s 15-Year Sentence is Substantively Unreasonable ..................29
A. Standard of Review ...................................................................29 B. A 15-Year Prison Sentence is Greater Than Necessary to
Adequately Punish Jones for Biting a Marshal’s Finger ..........30 CONCLUSION ........................................................................................................46
ii
TABLE OF AUTHORITIES
Page(s)
Federal Cases
Descamps v. United States,
133 S. Ct. 2276 (2013) .................................................................... 16, 17, 25, 26
Gall v. United States,
552 U.S. 38 (2007) ...................................................................................... 39, 40
Holland v. Goord,
758 F.3d 215 (2d Cir. 2014) ............................................................................. 42
In re Sealed Case,
548 F.3d 1085 (D.C. Cir. 2008) ........................................................................ 21
Johnson v. United States,
559 U.S. 133 (2010) ................................................................................... passim
Johnson v. United States,
135 S. Ct. 2551 (2015) ................................................................................ 15, 24
Mellouli v. Lynch,
135 S. Ct. 1980 (2015) ...................................................................................... 17
Stinson v. United States,
508 U.S. 36 (1993) ............................................................................................ 25
United States v. Allah,
130 F.3d 33 (2d Cir. 1997) ............................................................................... 18
United States v. Barker,
723 F.3d 315 (2d Cir. 2013) ............................................................................. 25
United States v. Beardsley,
691 F.3d 252 (2d Cir. 2012) ............................................................................. 26
United States v. Castro-Vazquez,
___ F.3d ___, 2015 WL 5172839 (1st Cir. Sept. 4, 2015) ............................... 21
iii
TABLE OF AUTHORITIES (cont.)
Page(s)
United States v. Cavera,
550 F.3d 180 (2d Cir. 2008) ............................................................................. 35
United States v. Davis,
690 F.3d 127 (2d Cir. 2012) ............................................................................. 30
United States v. Dorvee,
616 F.3d 174 (2d Cir. 2010) ....................................................................... 28, 41
United States v. Gamez,
577 F.3d 394 (2d Cir. 2008) .................................................................. 15-16, 28
United States v. Gordon,
291 F.3d 181 (2d Cir. 2002) ............................................................................. 27
United States v. Howard,
773 F.3d 519 (4th Cir. 2014) .......................................................... 37, 38, 41-42
United States v. Moore,
846 F.2d 1163 (8th Cir. 1988) .................................................................... 33, 45
United States v. Neiman,
828 F. Supp. 254 (S.D.N.Y. 1993) ................................................................... 43
United States v. Park,
758 F.3d 193 (2d Cir. 2014) ....................................................................... 29, 45
United States v. Preacely,
628 F.3d 72 (2d Cir. 2010) ......................................................................... 43-44
United States v. Rattoballi,
452 F.3d 127 (2d Cir. 2006) ....................................................................... 35, 45
United States v. Reyes,
691 F.3d 453 (2d Cir. 2012) ...................................................................... passim
iv
TABLE OF AUTHORITIES (cont.)
Page(s)
United States v. Rigas,
583 F.3d 108 (2d Cir. 2009) ............................................................................. 29
United States v. Rosales,
680 F.2d 1304 (10th Cir. 1981) .................................................................. 34, 45
United States v. Saingerard,
621 F.3d 1341 (11th Cir. 2010) .................................................................. 34, 45
United States v. Shell,
789 F.3d 335 (4th Cir. 2015) ............................................................................ 25
United States v. Spencer,
955 F.2d 814 (2d Cir. 1992) ............................................................................. 18
United States v. Wernick,
691 F.3d 108 (2d Cir. 2012) ....................................................................... 27, 28
State Cases
People v. Bennett,
592 N.Y.S.2d 918 (N.Y. App. Div. 1st Dep’t 1993) ................................... 20, 27
People v. Bennett,
631 N.Y.S.2d 834 (N.Y. App. Div. 1st Dep’t 1995) .................................. 20, 27
People v. Brown,
663 N.Y.S.2d 539 (N.Y. App. Div. 1st Dep’t 1997) .................................. 21, 27
People v. Castillo,
8 N.Y.3d 959, 868 N.E.2d 185 (N.Y. 2007) ..................................................... 23
People v. Foster,
826 N.Y.S.2d 288 (N.Y. App. Div. 2d Dep’t 2006) ................................... 23, 27
People v. Kilpatrick,
531 N.Y.S.2d 262 (N.Y. App. Div. 1st Dep’t 1988) .................................. 23, 27
v
TABLE OF AUTHORITIES (cont.)
Page(s)
People v. Lee,
602 N.Y.S.2d 138 (N.Y. App. Div. 1st Dep’t 1993) .................................. 20, 27
People v. Patton,
585 N.Y.S.2d 431 (N.Y. App. Div. 1st Dep’t 1992) .................................. 20, 27
People v. Pena,
50 N.Y.2d 400, 406 N.E.2d 1347 (N.Y. 1980) ........................................... 23, 27
People v. Safon,
560 N.Y.S.2d 552 (N.Y. App. Div. 4th Dep’t 1990) ............................ 20-21, 27
Federal Statutes and Regulations
18 U.S.C. § 924(e)(2)(B)(i) ..................................................................................... 18
18 U.S.C. § 3553(a) ......................................................................................... passim
Federal Judiciary Protection Act of 2002,
Pub. L. No. 107-273, 116 Stat. 1758 ................................................................ 44
28 C.F.R. § 541.3 ............................................................................................. 38-39
United States Sentencing Guidelines
U.S.S.G. § 4B1.1 .................................................................................................... 16
U.S.S.G. § 4B1.2(a) ......................................................................................... 17-18
U.S.S.G. § 4B1.2(b) ............................................................................................... 36
State Statutes
N.Y. Penal Law § 160.00 ........................................................................... 18, 19-20
N.Y. Penal Law § 160.15 ....................................................................................... 22
1
QUESTIONS PRESENTED
I. The district judge labeled Jones, 37, a career offender under U.S.S.G.
§ 4B1.1 given his finding that Jones’s New York conviction, for a robbery
Jones participated in when he was 16 years old, is a “crime of violence.”
New York robbery can be committed, however, without the violent force
inherent in a “crime of violence.” Thus the question:
Because New York robbery is not a categorical “crime of violence,” and
because the modified categorical approach cannot be used here, did the
judge err by deeming the robbery conviction a “crime of violence” and,
consequently, deeming Jones a career offender?
II. Is Jones’s 15-year prison sentence, for biting a U.S. marshal’s finger,
substantively unreasonable?
2
JURISDICTIONAL STATEMENT
Corey Jones appeals a final judgment of the United States District Court for
the Eastern District of New York (Hon. Nicholas G. Garaufis) rendered on April
24, 2015, and entered on May 6, 2015. A. 55.1 Jones filed a timely notice of
appeal on April 28, 2015. A. 61. The district court had jurisdiction under 18
U.S.C. § 3231, and this Court has jurisdiction under 28 U.S.C. § 1291.
STATEMENT OF THE CASE
An indictment was filed on July 24, 2013, charging Jones with one count of
assaulting a federal officer in violation of 18 U.S.C. § 111. A. 9. Jones went to
trial, where a Deputy United States Marshal testified that Jones bit his right index
finger. The jury convicted Jones.
The judge sentenced Jones to 180 months in prison, to be followed by three
years of supervised release, and ordered him to pay a special assessment of $100.
Jones is in the custody of the Bureau of Prisons, projected to be released on
July 4, 2027.
1 “A.” refers to the Appendix for Appellant Corey Jones and is followed by
the relevant page number(s). “T.” refers to the trial transcript and is followed by
the date of the proceeding and the relevant page number(s). “PSR” refers to the
presentence report and is followed by the relevant paragraph(s).
3
STATEMENT OF FACTS
A. Overview
One morning at the halfway house where he was finishing a sentence for
unlawfully possessing a firearm, Jones was called to the director’s office. He
found two Deputy United States Marshals there and was told he was being taken
back to jail on the claim of verbally threatening a staff member the night before.
One marshal decided to use force and “drove Mr. Jones into the corner.”
Both marshals then tried to force Jones’s head, and body, down. In the process,
one marshal’s hand slipped down to Jones’s mouth. “He bit me,” the 6’1” tall,
295-pound marshal said. Jones was tried for assault; the jury convicted him.
At sentencing, the judge ruled Jones was a career offender under the
United States Sentencing Guidelines based on the assault being Jones’s third
“crime of violence.” The first was a conviction for a robbery Jones participated in
20 years earlier, when he was 16. Finding Jones to be a career offender caused his
Guidelines range to increase greatly: from 37-46 months to 210-240 months.
The government called for an unspecified but “significant” sentence.
Disputing the career offender designation and citing the mitigating facts of Jones’s
life, as well as the relative harmlessness of the finger bite (the marshal “provided a
sworn affidavit of loss indicating that he has suffered no loss”), the defense argued
for a term below 37 months.
The judge revealed Jones’s punishment at the very end of the hearing:
180 months (15 years) in prison.
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B. The Finger Bite
On June 21, 2013, Jones was called to the office of Dr. Grace Terry, the
director of the Brooklyn halfway house where he was finishing a 92-month
sentence he received in the Eastern District of New York for unlawful gun
possession. PSR ¶ 3. Jones had obtained the gun to protect his daughters, who
were with him when he was shot at by gang members who considered him a snitch
for going to the police after someone in his neighborhood tried to kill him. Dist.
Ct. Docket Entry 46-1 (Jones Sent. Mem., Ex. A) at 3. As to the gun he possessed,
“[t]here is no information to suggest that the firearm was used.” PSR ¶ 28.
Jones arrived at Dr. Terry’s office to find Deputy United States Marshals
Ryan Westfield and Shawn Larson waiting for him. Jones was told he was being
taken back to prison on an allegation of verbally threatening a staff member the
night before. The claim was that several halfway house residents had been in the
cafeteria watching a basketball game and that one staff member told Jones to clean
the room up; he allegedly refused and then “grumbled,” within earshot of another
staff member, that the first staff member “need[ed] to learn how to speak to
people” and that he could “make her have a miscarriage.” Dist. Ct. Docket Entry
47-2 (Gov’t Sent. Mem., Ex. B) at 1. The allegation is unclear as to whether the
first staff member actually heard this “grumble.” Jones denied making it,
maintaining that another resident uttered the remark. A. 34.
As Deputy Westfield related at trial, Jones was “not happy with the fact that
he was being told that he was going to be sent back to prison.” T. (4/21/14) at 40-
5
41. Jones said he wanted to go to his room to get his belongings, which he feared
would be stolen in his absence, id. at 66, but “Deputy Larson blocked his passage
out of the office.” Id. at 42. Though Jones refused the deputy’s requests to sit
down, id. at 44, he “didn’t try to push past Deputy Larson” or “make an attempt to
punch him or push him or contact him in any way.” Id. at 65.
Deputy Westfield suggested Jones ask “Dr. Terry [to] get one of his relatives
on the phone.” Id. at 44. He complied, and “Dr. Terry then allowed him to make a
telephone call to [] his mother.” Id.
According to Deputy Westfield, Jones was “blading his body, you know,
turning towards [the marshals] to limit his surface area in relation to [them],” and
one of his fists was “balled” as he told his mother “shit was about to get crazy.”
Id. at 45. When Jones hung up, he turned to the deputy, “shrugged his shoulders
and puffed his chest [] and said, ‘What?’” Id. at 46. Deputy Westfield then
“ordered [Jones] to take off his hat and place all of his belongings from the pockets
onto Dr. Terry’s desk,” id., but, according to the deputy, Jones “said ‘No. Let’s do
this.’” Id. at 47.
Deputy Westfield and Deputy Larson each confirmed, however, that Jones
did not move toward them. Id. at 74-75, 102.
Deputy Westfield is 6’1” tall, weighs 295 pounds and played football in high
school. Id. at 75-76. Jones is 5’7” tall and weighs 180-185 pounds. Dist. Ct.
Docket Entry 46-1 (Jones Sent. Mem., Ex. A) at 3. The deputy used a “football
drive block” and “drove Mr. Jones into the corner of the room and pinned him
6
approximately where the filing cabinet meets the wall.” T. (4/21/14) at 47. He
was “trying to gain control of [Jones’s] head” because “if you gain control of a
person’s head, you can dictate where the rest of their body goes.” Id. at 49.
Deputy Westfield had his “hand on top of [Jones’s] head trying to drive it
down into his chin, with the theory being that he would slide [down] the corner of
the wall and eventually end on his butt or fall on his back.” Id. Jones’s “upper
arms [Jones] brought in tight to his body. And his hands were flailing around
trying to resist attempts to handcuff him.” Id.
As Deputy Westfield confirmed, Jones did not punch or kick him. Id. at 77.
As Deputy Larson likewise confirmed, Jones did not punch or kick him.2 Id. at
104.
Deputy Westfield was “trying to shove [Jones’s] head down, his chin into
his chest.” Id. at 77. Deputy Larson joined in and tried, with both hands, to “push
[Jones’s] head down.” Id. at 93, 96. Deputy Westfield was “wearing a latex glove
and it slipped down the top of [Jones’s] head. And at that point [his] hand became
parallel with Mr. Jones’ mouth,” and, according to the marshal, “Mr. Jones reached
his neck out and bit down on [the marshal’s] right index finger.” Id. at 50. Deputy
Westfield felt a “sharp pain” and “turned to Deputy Larson and said, ‘He bit me.’”
Id.
2 Dr. Terry testified that “Jones was really throwing some punches” and that
he actually “hit” Deputy Larson. T. (4/21/14) at 117, 125. As noted, however, the
marshals denied this. The prosecutor concurred: “Dr. Terry thought that she saw
the defendant punch Deputy Larson and the deputies, by their own testimony, they
were never punched. . . . Was she mistaken? Yes.” T. (4/22/14) at 51.
7
Deputy Westfield claimed Jones “intentionally bit [his] finger.” Id. at 79.
Neither Deputy Larson nor Dr. Terry saw the bite happen. Id. at 93, 117. The
entire scuffle was a “relatively fast, quickly-occurring incident.” Id. at 78.
The marshals pushed Jones towards the floor and he said “I give.” They
“walked him over to a chair and handcuffed him.” Id. at 51.
When Deputy Westfield looked at his finger, he saw “puncture wounds on
either side of the finger” and “[t]here was blood.” Id. He later went to a hospital,
where he was “given a tetanus shot” and antibiotics. Id. at 55.
After he testified to this at trial, the jury convicted Jones of assault.
When later asked about restitution, Deputy Westfield “provided a sworn
affidavit of loss indicating that he has suffered no loss.” PSR ¶ 84.
C. The 15-Year Sentence
The probation officer calculated a total offense level of 15 for the assault.
PSR ¶ 17. Yet she more than doubled that, to 32, on the view that Jones is a career
offender under U.S.S.G. § 4B1.1. PSR ¶ 18. The three convictions of Jones’s for
“crimes of violence” offered to support that designation are: (1) a 1999 conviction
for a first-degree robbery in New York that Jones committed when he was 16 (PSR
¶ 22); (2) a 1999 conviction for a second-degree assault in New York that Jones
committed when he was 20 (PSR ¶ 24); and (3) the instant finger bite.
Combined with a criminal history category of VI, as mandated by the career
offender guideline, Jones’s offense level of 32 yielded a Guidelines sentence range
of 210-262 months in prison; given the 20-year statutory maximum for assault, the
8
range was adjusted to 210-240 months. PSR ¶ 74.
The defense disputed the career offender designation. Counsel argued the
instant assault conviction did not qualify because federal assault is not a “crime of
violence.” Counsel further argued the robbery conviction did not count because it
was a “youthful offender” adjudication. See Dist. Ct. Docket Entry 46 (Jones Sent.
Mem.). The defense said Jones’s offense level was 15 and that his criminal history
category was V, thus yielding a Guidelines range of 37-46 months. “Even should
the Court determine that Mr. Jones is a career offender,” counsel argued, “it would
be unjust to sentence him at that heightened guideline level.” Id. at 6.
Counsel cited the staleness of Jones’s state robbery and assault convictions
and the fact that he committed those offenses when he was, respectively, 16 and 20
years old. Id. Turning to the factors in 18 U.S.C. § 3553(a), counsel noted the
relative harmlessness of the bite and set out the mitigating facts of Jones’s life.
Born into an impoverished African American family, Jones was exposed to
lead paint as a child; he was hospitalized and later placed in special education. Id.
at 7; Id., Ex. A at 2. His father died when he was 9, which affected him greatly,
and he grew up in a violent housing project. Id., Ex. A at 2. In addition to his two
daughters, whom he effectively adopted when he was in a relationship with their
mother, Jones has a teenage son from a previous relationship. PSR ¶¶ 43, 44.
Jones has been examined by a forensic psychologist, who in addition to
interviewing Jones administered a “battery of psychological tests.” Dist. Ct.
Docket Entry 46-1 (Jones Sent. Mem., Ex. A) at 5. These tests revealed that Jones
9
has an I.Q. of 69, a score “commensurate with either mental retardation or
borderline intellectual functioning.” Id. His “basic cognitive functions are
compromised by neuropsychological factors, possibly referable to his reported
ingestion of lead paint as a child and/or to other factors such as head injury.” Id.
(Jones “has one scar on the back of his head from being hit with an ice pick.” Id.
at 2.) Testing also indicated an “acute anxiety state in the context of a mixed
personality disturbance with predominant Schizoid, Negativistic, Dependent and
likely Paranoid features.” Id. at 6. People with similar test results are “typically
mistrustful of others and tend to function on the margins of society. Under stress
Mr. Jones can develop paranoid ideas that others are attempting to harm [him], and
he may react in a moody, impulsive, angry and irritable fashion.” Id. Jones “tends
to misperceive events and to form mistaken impressions of people and the
significance of their actions. This adaptive liability is likely to result, at times, in
instances of poor judgment in which he fails to anticipate the consequences of his
actions and misconstrues what constitutes appropriate behavior.” Id. at 7.
Given this background, counsel explained, Jones’s “tendency to misperceive
events and to form mistaken impressions of people and the significance of their
actions . . . likely contributed to the offense conduct.” Dist. Ct. Docket Entry 46
(Jones Sent. Mem.) at 7. The defense sought a sentence below 37 months.
In its memorandum, the government urged an unspecified but “significant”
term of imprisonment. Dist. Ct. Docket Entry 47 (Gov’t Sent. Mem.) at 1. Saying
a “bite is a serious form of assault,” the government claimed “the risk to [Deputy
10
Westfield’s] health as well as the nature of the assault was significant and very
serious in nature.” Id. at 7. At trial, by contrast, the prosecutor conceded to the
jury that the bite to the marshal’s finger was “not the most serious wound you’ll
ever see.” T. (4/22/14) at 53. Perhaps because of this, in its sentencing memo the
government emphasized the convictions Jones had sustained some 20 years earlier.
Dist. Ct. Docket Entry 47 (Gov’t Sent. Mem.) at 7. It also urged the judge to use
Jones’s case to “send a message.” Id. at 8.
At the sentencing hearing, the parties reiterated their arguments concerning
the career offender designation. As to the term of imprisonment, defense counsel
noted that the designation, if it applied, applied “because of offenses committed,
one 21 years ago, when [Jones] was 16 years old, and one 17 years ago. Those
facts alone, I think, should give the court pause in imposing a sentence
approaching the career offender guideline simply because the man standing before
you now is 20 years removed from those acts.” A. 31. The finger bite was
“relatively minor,” and “a sentence [] approaching 20 years, I think, is
unwarranted” and would be “an unjust sentence.” A. 37.
The prosecutor repeated her claim that the finger bite was “an incredibly
serious assault.” A. 42.
When given the chance, Jones addressed Judge Garaufis at some length.
Responding first to the judge’s mentioning the infractions Jones had received in
prison while serving his 92-month sentence for unlawful gun possession (discussed
in Point II.B. below), he explained “it can be something such as an argument,
11
something minute as that, that they will write you up for a fighting shot [an
infraction] because [] you get into an argument.” A. 43. “So even if you argue
about anything, they are going to write you up for a fight.” A. 43. A “lot of them
infractions are not actually from physical fights done with hands or anything like
that. Those shots come from verbal” arguments. A. 43. Moreover, “they don’t
accommodate you for the things that you do good. I mean they only accommodate
you for the things that you do bad.” A. 44.
“What goes on in the max penitentiaries, I have been stabbed in my head. . .
. I have been stabbed a few times. . . . So it’s kind of really like hard to really
duck and dodge the situations.” A. 45. “And I’m not disputing that, yeah, I have –
I have a violent background. I have a very violent background, and it’s something
that, you know, I work my hardest into changing.” A. 46. “I have worked hard on,
trying to change. All my life I have been trying to do that.” A. 46.
Turning to the finger bite, Jones explained he “never had a problem with the
officer,” A. 46, and elaborated:
I didn’t know what I was coming to jail for. They called me down for
something that I didn’t – I didn’t even have no idea. . . . I didn’t know
what I was coming into the office for, because prior to that night I
hadn’t did nothing, you know, I didn’t do nothing. So when they was
telling me I was going back to jail, I was kind of like, don’t know a bit
of why I was coming back.
So what I was trying to explain to the marshals was, you know, I have
property upstairs, if you could just let me pack it, for my family to
come get, my mother, for my family come get it, then I’m going to go
ahead and go with y’all. Because my time – I only had until
November to max out. You know, I only had until November. So I
12
only wanted to pack my property. That’s the only stuff I owned from
coming home, that my family brought me. I mean that’s the only
property I had.
A. 46-47.
Jones continued: “I think this is something like a case where you hear me for
the first time. And I’m way bigger than this. I’m way better than this.” A. 48. “I
think a simple, you know, me saying I’m sorry is appropriate and we can move
forward. For it to [] continue on and to drag out, it’s just, it’s just harsh.” A. 48.
“I got pictures of my kids and my nieces that I ain’t ever seen. I ain’t ever seen my
kids or nieces or nephews since I been here.” A. 49. “I don’t know what you
going to do, but that’s what I got to offer you.” A. 49.
Judge Garaufis responded that Jones’s case “poses some really significant
issues. One very significant issue is respect for the law.” A. 49. Noting that he
accepted Jones’s “sincere comments about [Jones’s] life and [his] experiences in
prison,” the judge said “on this record, with your life of violating the rules, it’s
very hard to create a solution in sentencing that is not putative [sic], it’s
punishment, and that’s really the problem.” A. 49-50.
“If everybody who gets told that they have to go do something by a United
States Deputy Marshal takes the approach you did . . . , then a lot of people are
going to be placed at risk. You just can’t do it.” A. 50. “I had two deputies on the
stand, and they made it clear what they did and what they attempted to do and how
you resisted. That’s really the problem here.” A. 50. “You put people at risk who
don’t deserve to be put at risk. That’s the problem here. That’s the problem.” A.
13
51. “It’s also important that everyone understand that you can’t do this. It’s not
proper.” A. 51.
“You have a life of criminal activity that cannot be ignored and activity in
prison that cannot be ignored.” A. 51.
“I sentence you as follows: 180 months in the custody of the Attorney
General.” A. 52.
The judge then imposed a three-year term of supervised release to follow the
15-year prison term and proceeded to recite the conditions of supervision. Jones
cut in: “I don’t want to hear no more.” A. 53.
The judge continued, eventually informing Jones of his right to appeal, at
which point Jones said: “You right. I’m appealing it. You damn right. . . . He said
180. I got 15, man. Fuck this nigger. 180 figure. You racist is what you is, a
racist. You a racist. That’s what you is.” A. 54.
Jones continued and was taken out of the courtroom.
14
SUMMARY OF ARGUMENT
There are two problems with Jones’s sentence, and either warrants a remand.
First, the district judge erred by designating him a career offender under
U.S.S.G. § 4B1.1. That designation hinges on Jones’s New York robbery
conviction being a “crime of violence” under U.S.S.G. § 4B1.2. It isn’t. Such
robbery does not fall under § 4B1.2’s force clause because it can be committed
without violent force; and § 4B1.2’s residual clause, which might have applied to
New York robbery, has now been effectively invalidated by the Supreme Court.
Because Jones’s robbery conviction is not a “crime of violence,” he is not a career
offender. And because he is not a career offender, his Sentencing Guidelines range
is drastically lower than the judge thought.
Second, a 15-year prison sentence for biting a finger is shockingly high and,
as such, substantively unreasonable. The fleeting bite here caused no meaningful
harm, and Jones’s sentence exceeds those imposed for worse assaults. Though the
judge focused on Jones’s criminal record, Jones’s only act of truly serious violence
occurred nearly 20 years ago. Since then, he has struggled to overcome the
cognitive deficits that have spurred his poor judgment. And that struggle, though
unfinished, is succeeding: besides the finger bite, which occurred during a scuffle
the marshals initiated, Jones’s last definitively physical altercation was in 2008.
To send him back to prison now, for 15 more years, would undo his progress and
serve no just end. A term well below a decade and a half is adequate to punish
Jones, promote respect for the law, deter others and protect the public.
15
ARGUMENT
I. The District Court Erred by Labeling Jones a Career Offender
Jones is not a career offender: the prior conviction needed to trigger that
designation – the one for first-degree robbery in New York – does not qualify
because it is neither a “crime of violence” nor a “controlled substance offense.”
As the career offender designation erroneously inflated Jones’s Guidelines range,
he has to be resentenced.
A. Standard of Review
In district court, Jones argued he was not a career offender but did not
specifically argue the reason was that his New York robbery conviction is not a
“crime of violence.” Presumably, then, the judge’s treating that conviction as a
“crime of violence” is reviewed for plain error.3 See United States v. Gamez, 577
F.3d 394, 397 (2d Cir. 2009) (per curiam).
3 At sentencing, the residual clause of the career offender guideline was still
intact. Under that clause, an offense is a “crime of violence” if it “involves
conduct that presents a serious potential risk of physical injury to another.”
U.S.S.G. § 4B1.2(a)(2). As discussed further below, New York robbery involves
“forcible stealing” and thus in certain cases will present a “serious potential risk of
physical injury.”
After sentencing, however, and also as discussed below, the Supreme Court
held the residual clause of the Armed Career Criminal Act, which is worded
identically to the residual clause of the career offender guideline, to be void for
vagueness. See Johnson v. United States, 135 S. Ct. 2551 (2015). A “decision of
the trial court that was perfectly proper when issued” – for example, deeming
Jones’s robbery conviction a “crime of violence” – “may nonetheless be
considered ‘plainly erroneous’ on appeal due to a supervening change in the law.”
United States v. Vilar, 729 F.3d 62, 71 (2d Cir. 2013).
16
Assuming it applies, however, “the plain error doctrine should not be applied
stringently in the sentencing context, where the cost of correcting an unpreserved
error is not as great as in the trial context.” Id. (citation omitted).
B. Jones’s New York Robbery Conviction Does Not Trigger the
Career Offender Designation
To qualify as a career offender under the Sentencing Guidelines, a defendant
must have “at least two prior convictions of either a crime of violence or a
controlled substance offense.” U.S.S.G. § 4B1.1(a)(3).
One of the two priors used to label Jones a career offender is his conviction
for a robbery he participated in over 20 years ago, when he was 16. He was
convicted of “Robbery in the First Degree” in New York state court. PSR ¶ 22.
To determine if prior convictions may enhance a federal sentence, courts use
the categorical approach and “may ‘look only to the statutory definitions’ – i.e., the
elements – of a defendant’s prior offenses, and not ‘to the particular facts
underlying those convictions.’” Descamps v. United States, 133 S. Ct. 2276, 2283
(2013) (emphasis in original; citation omitted). “If the relevant statute has the
same elements as the ‘generic’ [federal] crime,” id., then the statute is a categorical
match with the federal offense and triggers the sentence enhancement. “But if the
statute sweeps more broadly than the generic crime, a conviction under that law
cannot count as [a qualifying] predicate, even if the defendant actually committed
the offense in its generic form. The key . . . is elements, not facts.” Id. See also
17
Mellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015) (Under the categorical approach,
the defendant’s “actual conduct is irrelevant to the inquiry.”).
In a “narrow range of cases,” what the Supreme Court has “dub[bed] the
‘modified categorical approach’” may be applied, but only if the statute is
“divisible” and only if a “limited class of documents” is available. Descamps, 133
S. Ct. at 2283-84. The “modified approach serves a limited function: It helps
effectuate the categorical analysis when a divisible statute, listing potential offense
elements in the alternative, renders opaque which element played a part in the
defendant’s conviction.” Id. at 2283. “The modified approach thus acts not as an
exception, but instead as a tool. It retains the categorical approach’s central
feature: a focus on the elements, rather than the facts, of a crime.” Id. at 2285.
As discussed below, first-degree robbery in New York is not a categorical
“crime of violence.” Further, the modified categorical approach cannot be used
here. Jones’s robbery conviction therefore is not a qualifying predicate and, there
being no other prior convictions that authorize the designation, Jones was wrongly
labeled a career offender.
1. First-Degree Robbery in New York is Not a Categorical
“Crime of Violence”
A “crime of violence” under the career offender guideline is
any offense under federal or state law, punishable by imprisonment
for a term exceeding one year, that—
18
(1) has as an element the use, attempted use, or threatened use of
physical force against the person of another [hereinafter the
“force clause”], or
(2) is burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another [hereinafter
the “residual clause”].
U.S.S.G. § 4B1.2(a).
Preliminarily, Jones’s argument that New York robbery is not a “crime of
violence” may seem surprising given this Court’s holding, in 1992, that attempted
New York robbery “constitutes a ‘crime of violence’ for purposes of the ‘Career
Offender’ provision of the Guidelines.” United States v. Spencer, 955 F.2d 814,
820 (2d Cir. 1992). The Spencer Court relied on § 4B1.2(a)’s force clause given
that, under “New York law, robbery is defined generally as ‘forcibly steal[ing]
property and . . . us[ing] or threaten[ing] the immediate use of physical force upon
another person.’” Id. (quoting N.Y. Penal Law § 160.00; brackets in Spencer).
“‘This court is bound by a decision of a prior panel unless and until its
rationale is overruled, implicitly or expressly, by the Supreme Court or this court
en banc.’” United States v. Allah, 130 F.3d 33, 38 (2d Cir. 1997) (citation
omitted). As this Court held in United States v. Reyes, 691 F.3d 453 (2d Cir. 2012)
(per curiam), the Supreme Court has implicitly overruled Spencer’s rationale.
In Johnson v. United States, 559 U.S. 133 (2010), the Supreme Court
addressed the force clause of the Armed Career Criminal Act (“ACCA”), codified
at 18 U.S.C. § 924(e)(2)(B)(i), which is worded identically to the force clause of
19
the career offender guideline. The Court held that “‘physical force’ means violent
force— that is, force capable of causing physical pain or injury to another person.”
Johnson, 559 U.S. at 140 (emphasis in original).
In Reyes, this Court applied Johnson to the career offender guideline: though
Johnson concerned the meaning of “violent felony” under ACCA, “ACCA’s
definition of ‘violent felony’ is identical in all material respects to U.S.S.G §
4B1.2(a)’s definition of ‘crime of violence.’” Reyes, 691 F.3d at 458 n.1. Thus, an
offense “accomplished only by ‘actually and intentionally touch[ing],’ does not
constitute a ‘crime of violence’ under U.S.S.G. § 4B1.2 because it does not involve
the ‘use of physical force,’ as that phrase is interpreted by the Supreme Court.” Id.
at 458 (brackets in Reyes). See also id. at 460 (“Even if Reyes did punch the
corrections officer in the face, he could have pleaded guilty to battery on a law
enforcement officer by simply admitting that he touched the corrections officer in
an unwanted manner. If that were the case, the conviction would rest on facts not
involving the ‘use of physical force’ and thus the offense would not be a ‘crime of
violence’ under the Guidelines.”) (citing Johnson).
The fact that an offense involves “physical force” is no longer enough to
make it a “crime of violence” under U.S.S.G. § 4B1.2(a)’s force clause. The force
must be “violent force— that is, force capable of causing physical pain or injury to
another person.” Johnson, 559 U.S. at 140 (emphasis in original).
New York robbery does not categorically fit that bill. The baseline
definition of such robbery, whatever its degree, is “forcible stealing” by means of
20
“us[ing] or threaten[ing] the immediate use of physical force upon another person.”
N.Y. Penal Law § 160.00. But the force need not be “violent force.”
For example, someone commits robbery if he and his accomplices form a
“human wall that block[s] the victim’s path as the victim attempt[s] to pursue
someone who had picked his pocket.” People v. Bennett, 631 N.Y.S.2d 834, 834
(N.Y. App. Div. 1st Dep’t 1995). “The requirement that a robbery involve the use,
or the threat of immediate use, of physical force does not mean that a weapon must
be used or displayed or that the victim must be physically injured or touched.” Id.
(citations omitted). See also People v. Patton, 585 N.Y.S.2d 431, 431 (N.Y. App.
Div. 1st Dep’t 1992) (“By blocking the victim’s passage, defendant aided in
codefendant’s retention of the property, and thereby participated in the robbery.”).
Likewise, robbery occurs if the defendant “bumped his unidentified victim,
took money, and fled while another forcibly blocked the victim’s pursuit.” People
v. Lee, 602 N.Y.S.2d 138, 139 (N.Y. App. Div. 1st Dep’t 1993). See also People
v. Bennett, 592 N.Y.S.2d 918, 918 (N.Y. App. Div. 1st Dep’t 1993) (“The evidence
at trial that undercover police officers observed the codefendant pick the victim’s
pocket after which defendant shoved the victim to prevent pursuit was sufficient to
establish the element of force.”) (citations omitted).
Similarly, someone commits robbery if he takes property and engages in a
brief tug-of-war over it: “Proof that the store clerk grabbed the hand in which
defendant was holding the money and the two tugged at each other until
defendant’s hand slipped out of the glove holding the money was sufficient to
21
prove that defendant used physical force for the purpose of overcoming the
victim’s resistance to the taking.” People v. Safon, 560 N.Y.S.2d 552, 552 (N.Y.
App. Div. 4th Dep’t 1990) (citations omitted). See also People v. Brown, 663
N.Y.S.2d 539, 540 (N.Y. App. Div. 1st Dep’t 1997) (“[D]efendant attempted to
push the complainant away with his arm, at which point a struggle ensued and
defendant dropped the [cassette] tapes during the struggle. As such, ample
evidence exists to support the jury’s finding that defendant used force.”).
Thus, whether it’s forming a human wall, bumping the victim, or engaging
in a brief tug-of-war over the property, robbery can be committed in New York
with less than “violent force.” Johnson, 559 U.S. at 140 (emphasis in original).
The same is true of robbery in Puerto Rico and the District of Columbia, as
the First and D.C. Circuits have respectively concluded. See United States v.
Castro-Vazquez, ___ F.3d ___, 2015 WL 5172839, at *8 (1st Cir. Sept. 4, 2015)
(“According to Castro-Vazquez, intimidation is defined under Puerto Rico law to
include mere moral or psychological pressure, and violence is defined under Puerto
Rico law to include the slightest use of force. Either way, [Puerto Rico robbery]
would fall short of the [§ 2K2.1 and § 4B1.2] guidelines requirement that the
offense include an element of ‘physical force,’ which is defined as ‘violent force—
that is, force capable of causing physical pain or injury to another person.’”) (citing
Johnson, 559 U.S. at 140); In re Sealed Case, 548 F.3d 1085, 1089-90 (D.C. Cir.
2008) (“[B]y defining ‘force or violence’ to include the minimal level of force
necessary to obtain property ‘by sudden or stealthy seizure or snatching,’ the [D.C.
22
robbery] statute covers offenses that fail to qualify as crimes of violence under
section 4B1.2. . . . “[N]o one doubts that under the D.C. Code the ‘force and
violence’ language could have been satisfied by a minimal level of force that
would not qualify the offense as a crime of violence.”) (citation omitted).
Turning to the specific offense here – First-Degree Robbery in New York –
it too can be committed without the use or threatened use of violent force:
A person is guilty of robbery in the first degree when he forcibly steals
property and when, in the course of the commission of the crime or of
immediate flight therefrom, he or another participant in the crime:
1. Causes serious physical injury to any person who is not a
participant in the crime; or
2. Is armed with a deadly weapon; or
3. Uses or threatens the immediate use of a dangerous instrument; or
4. Displays what appears to be a pistol, revolver, rifle, shotgun,
machine gun or other firearm; except that in any prosecution
under this subdivision, it is an affirmative defense that such pistol,
revolver, rifle, shotgun, machine gun or other firearm was not a
loaded weapon from which a shot, readily capable of producing
death or other serious physical injury, could be discharged.
Nothing contained in this subdivision shall constitute a defense to
a prosecution for, or preclude a conviction of, robbery in the
second degree, robbery in the third degree or any other crime.
N.Y. Penal Law § 160.15.
As provided in subdivision (2), someone commits first-degree robbery if he
forcibly steals property (using less than “violent force”) and happens to be “armed
with a deadly weapon.” There is no requirement, however, that he use, threaten to
23
use, or display the weapon; such conduct falls under subdivisions (3) and (4). See
People v. Castillo, 8 N.Y.3d 959, 961, 868 N.E.2d 185, 186 (N.Y. 2007) (“Penal
Law § 160.15(2) is not a lesser included offense of Penal Law § 160.15(4) . . . .
Although the subdivisions of Penal Law § 160.15 share the common element of
forcible stealing, each encompasses a distinct additional element. It is irrelevant
that underlying facts may exist to support more than one subdivision.”).
In short, “it is possible to commit robbery with a deadly weapon without at
the same time displaying a gun.” People v. Kilpatrick, 531 N.Y.S.2d 262, 263
(N.Y. App. Div. 1st Dep’t 1988), abrogated on other grounds by People v. Gray,
86 N.Y.2d 10, 652 N.E.2d 919 (N.Y. 1995). See also People v. Foster, 826
N.Y.S.2d 288, 289 (N.Y. App. Div. 2d Dep’t 2006) (“The defendant’s guilt is
predicated upon the forcible taking of property, coupled with the aggravating
factor of any participant in the crime being armed with a deadly weapon.”).
As New York’s highest court explained after the enactment of subdivision
(2), “one who commits robbery while carrying a ‘deadly weapon’ upon his person
is now guilty of robbery in the first degree.” People v. Pena, 50 N.Y.2d 400, 407
n.2, 406 N.E.2d 1347, 1350 n.2 (N.Y. 1980) (emphasis omitted). A showing
“merely of possession” of a deadly weapon is all subdivision (2) requires. Id.
First-degree robbery in New York therefore is not a categorical “crime of
violence” under U.S.S.G. § 4B1.2(a)’s force clause: it can be committed by an
armed person who never uses, threatens to use, or displays the weapon, and who
commits the robbery using less than the “violent force” the clause requires.
24
Likewise, such robbery is not a categorical “crime of violence” under
U.S.S.G. § 4B1.2(a)’s residual clause. First, robbery is not one of the offenses
enumerated in § 4B1.2(a)(2) (burglary of a dwelling, arson, extortion, or a crime
involving use of explosives). Second, the remainder of the clause is worded
identically to ACCA’s residual clause, which the Supreme Court declared void for
vagueness in Johnson v. United States, 135 S. Ct. 2551 (2015). As the government
has told this Court in light of Johnson, “the United States Department of Justice
now takes the position that the guidelines’ residual clause, like the ACCA residual
clause, is void for vagueness.” United States v. Zhang et al. (2d Cir. No. 14-178),
Docket Entry 135 at 1. In Zhang, this Court remanded defendant Snell’s case for
resentencing given the government’s concession that U.S.S.G. § 4B1.2(a)’s
residual clause is void. See id., Docket Entry 142.
Because first-degree New York robbery does not categorically match
U.S.S.G. § 4B1.2(a), it is not a categorical “crime of violence.”
It is immaterial that “robbery” is listed as a “crime of violence” in
Application Note 1 of the Commentary to U.S.S.G. § 4B1.2. The commentary was
last amended in 2009 and thus before the Supreme Court’s 2010 decision in
Johnson, which effectively held that a “crime of violence” requires not just any
“physical force,” but specifically “violent force— that is, force capable of causing
physical pain or injury to another person.” Johnson, 559 U.S. at 140 (emphasis in
original). The commentary also predates the Court’s 2015 Johnson ruling, which
effectively deleted the guideline’s residual clause. The Sentencing Commission is
25
now mulling changes that would, among other things, define robbery as “the
misappropriation of property under circumstances involving immediate danger to
the person of another” and make that a “crime of violence.” See Notice of
Proposed Amendment (available at http://www.ussc.gov/sites/default/files/pdf/
amendment-process/federal-register-notices/20150811_FR_Proposed.pdf).
A guideline’s commentary “is authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a plainly erroneous
reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993).
If a guideline and its commentary clash, and “following one will result in violating
the dictates of the other, the Sentencing Reform Act itself commands compliance
with the guideline.” Id. at 43. That is the case here: because New York robbery is
not a “crime of violence” under the guideline itself, using the guideline’s
commentary to deem such robbery a “crime of violence” would “result in violating
the dictates of the [guideline].” Id. See also United States v. Shell, 789 F.3d 335,
340 (4th Cir. 2015) (“[T]he government skips past the text of § 4B1.2 to focus on
its commentary . . . . But it is the text, of course, that takes precedence.”).
In sum, New York robbery is not a categorical “crime of violence.”
2. The Modified Categorical Approach Cannot be Used Here
“The modified categorical approach is merely a tool for district courts to use
to ‘determine which alternative element in a divisible statute formed the basis of
the defendant’s conviction.’” United States v. Barker, 723 F.3d 315, 320 (2d Cir.
2013) (per curiam) (quoting Descamps, 133 S. Ct. at 2293).
26
Assuming New York’s first-degree robbery statute is divisible, meaning it
“‘contains disjunctive elements, some of which are sufficient for conviction [as a
“crime of violence”] and others of which are not,’” United States v. Beardsley, 691
F.3d 252, 274 (2d Cir. 2012) (citation omitted), “the modified categorical approach
allows a court to ‘determine which statutory phrase was the basis for [Jones’s]
conviction’ by consulting Shepard-approved documents from the trial record.” Id.
The modified categorical approach cannot be used here, however, because
there are no “Shepard-approved documents” to consult. Such documents are
limited “to the ‘charging document, written plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trial judge to which the defendant
assented.’” Id. at 259 (quoting Shepard v. United States, 544 U.S. 13, 16, 20
(2005)). See also Descamps, 133 S. Ct. at 2281 (The “limited class of documents”
is restricted to items “such as indictments and jury instructions” used to “determine
which alternative formed the basis of the defendant’s prior conviction.”).
For his participation in a robbery when he was 16 years old, Jones was
“sentenced as a youthful offender and the case is sealed.” PSR ¶ 22. No Shepard
documents are available from which one can “‘determine which statutory phrase
[namely, which subdivision]’” of N.Y. Penal Law § 160.15 “‘was the basis for
[his] conviction.’” Beardsley, 691 F.3d at 274 (citation omitted). All that was
offered to describe the robbery was “the presentence report prepared by the New
York City Probation Office,” PSR ¶ 22, which is not a Shepard document. See
Reyes, 691 F.3d at 459 (“[A] sentencing court may not rely on a PSR’s description
27
of a defendant’s pre-arrest conduct that resulted in a prior conviction to determine
that the prior offense constitutes a ‘crime of violence’ under U.S.S.G. §
4B1.2(a)(1), even where the defendant does not object to the PSR’s description.”).
In sum, the modified categorical approach cannot be used here because no
Shepard documents concerning Jones’s robbery conviction are available.
C. The Erroneous Career Offender Designation Requires a Remand
“An error in calculating the Guidelines range is . . . a procedural error that
normally will require resentencing.” United States v. Wernick, 691 F.3d 108, 113-
14 (2d Cir. 2012). An “unobjected-to miscalculation of a defendant’s Guidelines
range constitutes procedural error” and “satisf[ies] the first plain error prong (that
there is error).” Id. at 117.
Second, the error here was plain, meaning “‘clear’ or ‘obvious’ at the time of
appellate consideration.” United States v. Gordon, 291 F.3d 181, 193 (2d Cir.
2002) (citation omitted). Since 2012, it has been clear that the career offender
guideline’s force clause requires “violent force.” See Reyes, 691 F.3d at 458-60 &
n.1 (citing Johnson, 559 U.S. at 140). Since the 1990s, however, it has been clear
that New York robbery – including first-degree robbery – can be committed
without “violent force.” See Pena, Kilpatrick, Foster, Bennett, Patton, Lee, Safon,
Brown. Such robbery therefore is not a “crime of violence” under the guideline’s
force clause. Nor does it fall within the residual clause, which the Supreme Court
effectively deleted in its 2015 Johnson ruling. As Jones’s robbery conviction
clearly is not a “crime of violence,” he was wrongly designated a career offender.
28
As to prejudice, Jones’s “substantial rights were affected by the district
court’s error because, although he was given a below-Guidelines sentence, the
advisory Guidelines range, which was the starting point for the district court’s
determination of the sentence it imposed, would have been significantly lower”
absent the miscalculation. Gamez, 577 F.3d at 401. See also United States v.
Dorvee, 616 F.3d 174, 181 (2d Cir. 2010) (“‘[A]n incorrect calculation of the
applicable Guidelines range will taint not only a Guidelines sentence, if one is
imposed, but also a non-Guidelines sentence, which may have been explicitly
selected with what was thought to be the applicable Guidelines range as a frame of
reference.’”) (citation omitted); Reyes, 691 F.3d at 460 (“The district court’s error
in sentencing Reyes as a career offender on this record affected his substantial
rights because it resulted in an elevated offense level under the Guidelines.”).
Finally, an “error resulting in a significantly overstated advisory Guidelines
range seriously affect[s] the fairness and integrity of the proceedings.” Gamez,
577 F.3d at 401. See also Wernick, 691 F.3d at 118 (“Given the dramatic impact
on the Guidelines calculation, with the resulting possibility that the error resulted
in the defendant’s being imprisoned for a longer time, and the relatively low cost
of correcting the miscalculation, we believe that failure to notice the error would
adversely affect the public perception of the fairness of judicial proceedings.”).
In conclusion, Jones was mistakenly designated a career offender. That
mistake drastically increased his Guidelines range and warrants a remand for
resentencing without the career offender designation.
29
II. Jones’s 15-Year Sentence is Substantively Unreasonable
“It is well settled that ‘[n]othing . . . prevents us from reaching both the
procedural and substantive reasonableness of the sentence in the course of an
appeal where we find both types of error.’” United States v. Park, 758 F.3d 193,
199 n.26 (2d Cir. 2014) (per curiam) (citation omitted).
A. Standard of Review
This Court’s “substantive review of a sentence is akin to review under an
‘abuse-of-discretion’ standard.” Id. at 199. A sentence is unreasonable if it
“‘cannot be located within the range of permissible decisions,’” id. at 200 (citation
omitted), meaning it is “‘shockingly high, shockingly low, or otherwise
unsupportable as a matter of law.’” Id. (citation omitted).
“In determining whether a sentence shocks the judicial conscience or is
otherwise unsupportable, we use as our ‘lodestar the parsimony clause of 18
U.S.C. § 3553(a), which directs sentencing courts to impose a sentence sufficient,
but not greater than necessary, to comply with the factors set out in 18 U.S.C. §
3553(a)(2).’” Id. (internal punctuation and citation omitted).
“A reviewing court should not avoid its duty to apply these general
standards of review simply because of its respect for an experienced and capable
trial judge.” Id. “To say that a sentence is ‘substantively unreasonable’ is not to
say that ‘no reasonable person’ would have imposed such a sentence. . . .
[R]easonable individuals can make unreasonable decisions on occasion.” United
States v. Rigas, 583 F.3d 108, 123 n.5 (2d Cir. 2009).
30
B. A 15-Year Prison Sentence is Greater Than Necessary to
Adequately Punish Jones for Biting a Marshal’s Finger
Judge Garaufis, a reasonable person, made an unreasonable decision in
sentencing Jones to 15 years in prison for biting Deputy Westfield’s finger.
The first sentencing factor is “the nature and circumstances of the offense.”
18 U.S.C. § 3553(a)(1). The conduct here was almost not a crime at all.
Jones did not move toward the marshals, initiate physical contact or punch
or kick them. T. (4/21/14) at 47, 74-75, 77, 102, 104. Finger bite aside, he simply
struggled to resist being handcuffed. See id. at 49 (Deputy Westfield: “[H]is hands
were flailing around trying to resist attempts to handcuff him.”), 77 (Deputy
Westfield: “He was moving [his hands] so not to be taken into custody, to reduce
our chances of handcuffing him.”), 92 (Deputy Larson: “I attempted to handcuff
one of his arms that he managed to get up, and he pulled his arm back.”).
Such resistance, without an attempt or threat to injure, is not an assault. See
United States v. Davis, 690 F.3d 127, 137 (2d Cir. 2012) (reversing assault
conviction because evidence “showed only that Davis ran from a DEA agent and,
when ultimately tackled to the ground, struggled against being handcuffed,” “did
not punch or attack anyone,” and simply “was ‘using his muscles to avoid having
the hands forced behind his back to be cuffed’”).
Jones was convicted because of the bite. But as the prosecutor conceded to
the jury, the finger bite caused “not the most serious wound you’ll ever see.” T.
(4/22/14) at 53. Photos taken 15 minutes after the bite, see T. (4/21/14) at 52,
and admitted as trial exhibits, confirm this:
31
32
33
Though the prosecutor claimed at sentencing that the finger bite was “an
incredibly serious assault,” A. 42, the record shows otherwise. Besides the bite
causing a minor and non-permanent injury, Deputy Westfield was not sidelined:
he resumed his duties after being treated and “provided a sworn affidavit of loss
indicating that he has suffered no loss because of the instant offense.” PSR ¶ 84.
Moreover, the bite did not result from a calculated plan to assault a federal
officer, but from a confused and frustrated man’s resistance to being taken back to
prison on the relative eve of his release. See A. 46-47 (“I never had a problem with
the officer. . . . I didn’t know what I was coming to jail for. . . . I only had until
November to max out. You know, I only had until November.”).
Confusion and frustration do not excuse biting a marshal, but “the nature and
circumstances of the offense” reveal an assault of relatively low severity.
In another bite prosecution, for example, the defendant was a federal inmate
who “kneed [a correctional officer] in the groin twice” and “bit[] him on the left
knee and hip.” “He also bit [another officer] on the right leg, holding his mouth
against the bite from five to seven seconds.” United States v. Moore, 846 F.2d
1163, 1165 (8th Cir. 1988). He knew he was HIV-positive and admitted “he had
‘wanted to hurt them bad, wanted to kill the bastards.’ He also said that he ‘hopes
the wounds that he inflicted on the officers when he bit them were bad enough that
they get the disease that he has.’” Id. He received “concurrent five-year prison
terms.” Id. at 1166.
In United States v. Smith (S.D.N.Y. No. 13-cr-846), the defendant “bit [a
34
federal agent’s] hand, leaving a bite mark and causing [him] to experience pain.
The defendant then informed multiple federal agents that he had a communicable
lifethreatening illness. That information was subsequently confirmed by a health
care professional who tested the defendant for that life-threatening illness.” Id.,
Docket Entry 45 at 2. “Additionally, on the evening of the arrest, while he was
being held in a federal detention facility, the defendant attempted to strike a federal
officer through the bars of his cell with a piece of bent metal, obtained by
smashing his metal bed frame against the wall and recovering one of the smashed
pieces.” Id. at 3. Smith, facing a Guidelines range of 37-46 months in prison, id.
at 1, was sentenced to time served. See Docket Entry 48.
In United States v. Rosales, 680 F.2d 1304 (10th Cir. 1981), the defendant
was a federal inmate who “threatened and took a swing at Officer Hyde. When
officers sought to restrain and handcuff Rosales, Rosales bit Hyde severely on the
wrist. The officers subdued and handcuffed Rosales. As they began to escort him
to his cell, Rosales renewed his assault – in the form of kicking, spitting, and
swearing – and took a second bite, this time of Officer Gerth’s upper arm.” Id. at
1305. He was “sentenced to concurrent two-year terms.” Id.
Even a defendant who committed a far worse assault than Jones – he
“punched an officer and bit off a portion of the officer’s little finger,” United States
v. Saingerard, 621 F.3d 1341, 1342 (11th Cir. 2010) (emphasis added) – received a
lesser sentence than Jones: 135 months. See United States v. Saingerard (S.D.Fla.
No. 08-20534), Docket Entry 82.
35
In contrast to these cases, the assault here involved no punching, kicking,
kneeing, dismemberment, death threats or attempts to transmit a disease. And
though Deputy Westfield said it hurt when Jones bit him, the finger bite did no
meaningful harm to the 6’1” tall, 295-pound marshal. The record belies the
prosecutor’s claim of this being “an incredibly serious assault,” which is a view
that, notably, the district judge did not endorse. In short, the “nature and
circumstances of the offense” do not support a 15-year sentence.
The next factor is “the history and characteristics of the defendant.” §
3553(a)(1). The judge focused on this, telling Jones: “You have a life of criminal
activity that cannot be ignored and activity in prison that cannot be ignored.” A.
51. Though a judge may of course “rel[y] upon the history and characteristics of
the defendant,” in some cases “those considerations are neither sufficiently
compelling nor present to the degree necessary to support the sentence imposed.”
United States v. Rattoballi, 452 F.3d 127, 137 (2d Cir. 2006), abrogated on other
grounds as noted in United States v. Cavera, 550 F.3d 180, 191 (2d Cir. 2008) (en
banc). That’s the situation here.
Jones has seven prior convictions. The first is for a robbery he participated
in over 20 years ago, when he was 16: he and a friend took another teen’s jacket.
PSR ¶22. The second conviction is for Jones unlawfully possessing a gun when he
was 19 years old. PSR ¶ 23. The third is for assault and is by far the most serious:
two days after he turned 20, Jones shot a man whose leg was consequently
amputated. PSR ¶ 24. The fourth conviction is for Jones possessing, also when
36
20, about half a gram of crack cocaine.4 PSR ¶ 25. For these four offenses, Jones
was sentenced on the same day in 1999 to concurrent terms not exceeding five
years. The fifth conviction is for disorderly conduct when Jones was 27; he served
15 days in jail. PSR ¶ 26. The sixth is for misdemeanor assault: when 27, Jones
punched a man in the face and served 20 days in jail. PSR ¶ 27. The seventh
conviction is for unlawful gun possession at age 28; as explained above, Jones had
the gun to protect his daughters and “[t]here is no information to suggest that the
firearm was used.” PSR ¶ 28. For this offense, Jones was sentenced to 92 months
(over 7½ years) in prison. PSR ¶ 28.
Most of Jones’s priors are for things he did between 17 and 21 years ago.
The remaining convictions, themselves between 9 and 10 years old, are for scuffles
and possessing a gun that was never used. This record does not support
imprisoning Jones for 15 years because now, nearly a decade after his last offense,
he fleetingly bit a marshal’s finger.
4 Jones was convicted of “Criminal Possession Narcotic in the Fourth Degree”
in New York Supreme Court on June 16, 1999. PSR ¶ 25. “A person is guilty of
criminal possession of a controlled substance in the fourth degree when he
knowingly and unlawfully possesses . . . [one or more specific drugs in specific
minimum amounts].” N.Y. Penal Law § 220.09 (1999).
Because § 220.09 criminalizes only simple possession of drugs, it is not a
“controlled substance offense” under the career offender guideline. Such an
offense involves the “manufacture, import, export, distribution, or dispensing of a
controlled substance,” or possessing drugs “with intent to manufacture, import,
export, distribute, or dispense.” U.S.S.G. § 4B1.2(b). See also United States v.
Pearson, 77 F.3d 675, 676 (2d Cir. 1996) (§ 220.09 is not such an offense).
37
Also notable is that Jones committed most of his offenses between the ages
of 16 and 20. Though he was not strictly a “juvenile” when he committed each of
them, “youth is a ‘mitigating factor derive[d] from the fact that the signature
qualities of youth are transient; as individuals mature, the impetuousness and
recklessness that may dominate in younger years can subside.’” United States v.
Howard, 773 F.3d 519, 532 (4th Cir. 2014) (quoting Roper v. Simmons, 543 U.S.
551, 570 (2005)) (punctuation in Howard).
And subside in Jones they did, if incompletely. In the nearly two decades
since Jones, then 20 years old, “fired several shots at an adult male” and struck him
in his leg, PSR ¶ 24, Jones has never used a weapon. “I’m not disputing that, yeah,
I have – I have a violent background. I have a very violent background,” Jones
explained at sentencing, but “it’s something that, you know, I work my hardest into
changing.” A. 46. “I have worked hard on, trying to change. All my life I have
been trying to do that.” A. 46.
This process of change is unfinished; it’s also especially difficult for Jones
given his “borderline intellectual functioning” and the fact that his “basic cognitive
functions are compromised by neuropsychological factors, possibly referable to his
reported ingestion of lead paint as a child and/or to other factors such as head
injury.” Dist. Ct. Docket Entry 46-1 (Jones Sent. Mem., Ex. A) at 5. Jones’s
“tend[ency] to misperceive events and to form mistaken impressions of people and
the significance of their actions” results in “instances of poor judgment in which he
fails to anticipate the consequences of his actions and misconstrues what
38
constitutes appropriate behavior.” Id. at 7. “The results of psychological
assessment indicate that Corey Jones is a man with both serious cognitive and
emotional handicaps.” Id.
Nonetheless, in the nearly 20 years since Jones used a weapon, the poor
judgment he’s struggled to overcome has waned: from shooting someone, to
punching someone in the face, to biting someone’s finger. Jones might “never be
mistaken for a model citizen, but [one] cannot ignore the fact that most of his
serious criminal convictions occurred when he was [roughly] eighteen years old.”
Howard, 773 F.3d at 531. Jones’s priors do not support the 15-year sentence.
Neither do the infractions he received while serving the 92-month term.
As Jones sought to explain, they “can be [for] something such as an argument,
something minute as that, that they will write you up for a fighting shot because []
you get into an argument.” A. 43. “So even if you argue about anything, they are
going to write you up for a fight.” A. 43. A “lot of them infractions are not
actually from physical fights done with hands or anything like that. Those shots
come from verbal” arguments. A. 43.
The relevant regulations appear to bear this out. Though Jones received
infractions for “Fighting with Another Person,” PSR ¶ 28, such misconduct is not
defined as involving a physical confrontation. See 28 C.F.R. § 541.3. And an
inmate who does not actually “fight,” but who “refus[es] to obey an order which
furthers a fight would be charged [with] Fighting.” Id. Where “serious physical
injury has been attempted or accomplished,” it is classified as code-101 Assault.
39
Id. And where “less serious physical injury or contact has been attempted or
accomplished by an inmate,” it is classified as code-224 Assault. Id. Jones’s only
assault infractions were for the less serious “Assaulting Without Serious Injury,”
PSR ¶ 28, which, for all the record reveals, may have involved nothing more than
simple “contact” or attempted “contact” with another person.
In any event, some larger points are plain: (1) Jones’s last assault infraction
was in 2008 (PSR p. 9); (2) in the 5 years spanning 2008 to 2013, he was involved
in only 4 (likely verbal) “fights” (PSR pp. 9-10); and (3) had Jones committed a
truly serious offense while jailed, he would have been prosecuted in court and/or
not released early to serve the end of his 92-month sentence at a halfway house.
See Bureau of Prisons Program Statement No. 7310.04 at 11 (“Inmates who pose a
significant threat to the community” are ineligible for release to halfway houses.
“Examples are inmates with repeated, serious institution rule violations, a history
of repetitive violence, escape, or association with violent or terrorist
organizations.”) (available at http://www.bop.gov/policy/progstat/7310_004.pdf).
A sentencing judge “‘consider[s] every convicted person as an individual
and every case as a unique study in the human failings that sometimes mitigate,
sometimes magnify, the crime and the punishment to ensue.’” Gall v. United
States, 552 U.S. 38, 52 (2007) (quoting Koon v. United States, 518 U.S. 81, 113
(1996)). Jones’s “human failings” mitigate his crime: despite his “serious
cognitive and emotional handicaps,” Dist. Ct. Docket Entry 46-1 (Jones Sent.
Mem., Ex. A) at 7, the arc of his life has bent toward better behavior, not worse.
40
The next factor is the need for the sentence to “reflect the seriousness of the
offense, to promote respect for the law, and to provide just punishment for the
offense.” § 3553(a)(2)(A).
As set out above, the “seriousness of the offense” is relatively low: rather
than punch, kick or dismember Deputy Westfield, Jones fleetingly bit his finger.
The slight injury caused the marshal no meaningful harm.
The district judge said “[o]ne very significant issue is respect for the law,”
A. 49, but “‘a sentence of imprisonment may work to promote not respect, but
derision, of the law if the law is viewed as merely a means to dispense harsh
punishment without taking into account the real conduct and circumstances.’”
Gall, 552 U.S. at 54 (citation omitted).
The judge was concerned about potential dangers to U.S. marshals – “You
put people at risk who don’t deserve to be put at risk. That’s the problem here.
That’s the problem.” A. 51 – yet facing risk is necessarily part of a U.S. marshal’s
job. See T. (4/21/14) at 34-35, 77, 81-82 (detailing the training U.S. marshals
receive, including “training concerning the use of force,” “training to take control
of somebody” and training regarding “noncompliance of a prisoner”).
This plainly does not license people to assault marshals, but the punishment
for such an assault must be calibrated to “the real conduct and circumstances” at
issue, Gall, 552 U.S. at 54, rather than the manifold conceivable risks inherent in a
job in law enforcement.
41
The “real conduct and circumstances” here involve an impaired man who,
when told he was being taken back to prison just as liberty was coming into sight,
reacted not by attacking or trying to kill his jailers but simply by resisting arrest
and, in the process of a struggle the marshals initiated, biting one of their fingers.
A “just punishment for th[is] offense” is not a decade and a half in prison.
The next factor is the need for the sentence to “afford adequate deterrence to
criminal conduct.” § 3553(a)(2)(B). The goal here is “adequate” deterrence, not
maximum possible deterrence. The judge said it was “important that everyone
understand that you can’t do this,” A. 51, yet he gave no reason why a sentence of
15 years was the minimum required to “adequately” deter Jones and others from
biting marshals’ fingers. See Dorvee, 616 F.3d at 184 (finding district judge
“ignored the parsimony clause” and imposed unreasonable sentence where he
“offered no clear reason why the [chosen] sentence, as opposed to some lower
sentence, was required to deter an offender like [the defendant]”). “Adequate”
deterrence can be achieved here with a sentence far below 15 years.
Next is the need for the sentence to “protect the public from further crimes
of the defendant.” § 3553(a)(2)(C). Again, the parsimony clause requires “a
sentence sufficient, but not greater than necessary,” to do this. § 3553(a). Again,
however, the judge gave no reason why a sentence well under 15 years wouldn’t
suffice to protect the public from hypothetical future crimes Jones might commit.
As detailed, the trajectory of Jones’s life has been toward less crime; indeed,
“studies demonstrate that the risk of recidivism is inversely related to an inmate’s
42
age.” Howard, 773 F.3d at 533. A decade and a half in prison is much “greater
than necessary” to protect the public.
The next factor is the need for the sentence to “provide the defendant with
needed educational or vocational training, medical care, or other correctional
treatment in the most effective manner.” § 3553(a)(2)(D). Considering Jones’s
“borderline intellectual functioning” and his “compromised” cognitive functions,
which cause him to “misperceive events and to form mistaken impressions of
people” and exercise “poor judgment,” Dist. Ct. Docket Entry 46-1 (Jones Sent.
Mem., Ex. A) at 5, 7, imprisonment is not at all “the most effective manner” of
furthering his rehabilitation. § 3553(a)(2)(D).
On the contrary, prison exacerbates his deficits: there are “‘very real dangers
in prison life which may result from violence or intimidation,’” Holland v. Goord,
758 F.3d 215, 225 (2d Cir. 2014) (quoting Ponte v. Real, 471 U.S. 491, 495
(1985)), and, as Jones told the judge, “it’s kind of really like hard to really duck
and dodge the situations that you are going to get in.” A. 45. Prison is “hostile all
the time.” A. 46. The judge “accept[ed]” Jones’s “sincere comments about [his]
life and [his] experiences in prison” and agreed with Jones that “it is not easy to be
a prisoner and to deal with other prisoners, to deal with authority figures,”
especially “because of issues that [Jones] had when [he] w[as] a child.” A. 49.
Given this, and given the judge’s discretion to sentence Jones to anywhere
between 0 and 20 years’ incarceration, a reasonable sentence was a prison term
well below 15 years to be followed by supervised release requiring intensive
43
counseling to further aid Jones’s progress away from crime. Sending Jones back to
prison for a decade and a half is the opposite of providing for his rehabilitation “in
the most effective manner.”
The next factor is “the kinds of sentences available.” § 3553(a)(3). As the
probation officer noted, the judge could have imposed a 5-year sentence of
probation, see PSR ¶77, or a much lower term of imprisonment to be followed by
three years of supervised release. PSR ¶ 75. And a condition of any supervision
could have been that Jones receive intensive, frequent and long-term counseling to
further his rehabilitation. See United States v. Neiman, 828 F. Supp. 254, 255 &
256 (S.D.N.Y. 1993) (rejecting sentence of imprisonment, “which would [have]
interfere[d] with rather than enhance[d] Neiman’s prospect for rehabilitation,” in
favor of “probation for five years, with conditions including confinement to his
home for ten months beginning 30 days from the date of sentence, continuation of
psychiatric counselling, community service and restitution”).
Next is the Sentencing Guidelines range: the “applicable category of offense
committed by the applicable category of defendant as set forth in the guidelines.”
§ 3553(a)(4)(A). This Court has made it “‘emphatically clear that the Guidelines
are guidelines— that is, they are truly advisory.’” United States v. Preacely, 628
F.3d 72, 79 (2d Cir. 2010) (citation omitted). Likewise clear is that the career
offender guideline should not necessarily be followed in every case where it
technically applies: sometimes a district judge can give “inappropriate and
overriding weight to the Career Offender Guideline.” Id. at 80.
44
This can happen even where, as here, the judge imposes a below-Guidelines
sentence: “On a superficial level, Jamar Preacely seems to have gotten a break.
The Sentencing Guidelines recommended a sentence of at least 188 months in
prison, and the district court . . . sentenced him to just half that. . . . On closer
examination, however, the guideline recommendation used by the district court as
a baseline . . . appears distinctly inflated.” Id. at 83 (Lynch, J., concurring).
So too here: applying the career offender guideline caused the low end of
Jones’s range to balloon from 37 to 210 months. And this happened only because,
over 20 years ago, Jones and a friend robbed another teenager of his jacket.
One hasn’t “gotten a break” by receiving a below-Guidelines sentence
where, as here, the range is wildly overstated in the first place.
The last relevant factor is the “need to avoid unwarranted sentence
disparities among defendants with similar records who have been found guilty of
similar conduct.” § 3553(a)(6).
Jones has not found another case of a person being sentenced as a career
offender for biting a U.S. marshal’s finger. Yet his 15-year sentence, which is
three-quarters the statutory maximum,5 dwarfs those imposed for worse assaults.
See Smith (S.D.N.Y. No. 13-cr-846), Docket Entry 45 at 2-3 (time served for
defendant who knew he had a communicable life-threatening illness and “bit [a
federal agent’s] hand, leaving a bite mark,” and who “attempted to strike a federal
5 Before November 2, 2002, the statutory maximum for assaulting a U.S.
marshal was 10 years. It was then increased to 20 years. See Federal Judiciary
Protection Act of 2002, Pub. L. No. 107-273, § 11008(b)(2), 116 Stat. 1758.
45
officer through the bars of his cell with a piece of bent metal”); Moore, 846 F.2d at
1165 (5-year sentence (half the statutory maximum) for inmate who knew he was
HIV-positive and bit two guards, “‘wanted to hurt them bad, wanted to kill the
bastards,’” and “also said that he ‘hopes the wounds that he inflicted on the officers
when he bit them were bad enough that they get the disease that he has’”); Rosales,
680 F.2d at 1305 (2-year sentence (one-fifth the statutory maximum) for inmate
who bit a guard “severely on the wrist” and another on the “upper arm” in addition
to “kicking, spitting, and swearing”).
Jones’s sentence even exceeds the 135-month term (just over half the
statutory maximum) for someone who “punched an officer and bit off a portion of
the officer’s little finger.” Saingerard, 621 F.3d at 1342 (emphasis added).
Especially as compared to these lesser sentences for conduct worse than
Jones’s, his 15-year prison term is far greater than necessary.
* * *
In assessing the substance of a defendant’s punishment, this Court asks
“whether the length of the sentence is reasonable in light of the factors outlined in
18 U.S.C. § 3553(a).” Rattoballi, 452 F.3d at 132.
Here, none of the § 3553(a) factors supports imprisoning Jones for 15 years.
“After considering the record as a whole,” id. at 137, the unavoidable conclusion is
that the decade-and-a-half sentence for biting Deputy Westfield’s finger is
“shockingly high.” Park, 758 F.3d at 200.
46
CONCLUSION
The Court should vacate Jones’s sentence and remand this matter for
resentencing.
Respectfully submitted,
FEDERAL DEFENDERS OF NEW YORK
APPEALS BUREAU
DATED: October 28, 2015 s/ Matthew B. Larsen
MATTHEW B. LARSEN
Assistant Federal Defender
52 Duane Street, 10th Floor
New York, NY 10007
Tel.: (212) 417-8725
Email: [email protected]
47
CERTIFICATE OF COMPLIANCE
I certify that this brief complies with Federal Rule of Appellate Procedure
32(a) in that it consists of 11,670 words set in Times New Roman 14-point type.
DATED: October 28, 2015 s/ Matthew B. Larsen
MATTHEW B. LARSEN
48
CERTIFICATE OF SERVICE
I certify that on October 28, 2015, I filed the foregoing brief with the Clerk
of the United States Court of Appeals for the Second Circuit by means of the
CM/ECF system. I further certify that counsel for appellee is a registered user of
the CM/ECF system and that service was accomplished through that system.
DATED: October 28, 2015 s/ Matthew B. Larsen
MATTHEW B. LARSEN