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United States v. Rabb

United States Court of Appeals, First Circuit

October 30, 2019

UNITED STATES OF AMERICA, Appellee,
v.
DEJUAN RABB, a/k/a SLIM, Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. George Z. Singal, U.S. District Judge]

          Syrie Davis Fried, with whom Good Schneider Cormier & Fried was on brief, for appellant.

          Julia M. Lipez, Assistant United States Attorney, with whom Halsey B. Frank, United States Attorney, was on brief, for appellee.

          Before Barron, Selya, and Boudin, Circuit Judges.

          BARRON, CIRCUIT JUDGE.

         DeJuan Rabb brings this appeal to challenge the 2018 sentence that he received after pleading guilty in the United States District Court for the District of Maine to possession with intent to distribute furanyl fentanyl and cocaine base in violation of 21 U.S.C. § 841(a)(1) and for the distribution of furanyl fentanyl, also in violation of 21 U.S.C. § 841(a)(1). Rabb contends that the District Court erred in concluding that he was a "career offender" under the 2016 version of the United States Sentencing Guidelines Manual ("Guidelines"), see U.S.S.G. §§ 4B1.1, 4B1.2(a)(2), based on his 2000 New York state law robbery conviction. We agree with Rabb and thus vacate and remand for resentencing.

         I.

         The Guidelines define a "career offender" to be an individual over eighteen years of age at the time of the offense of conviction whose offense of conviction is at least their third felony conviction -- whether state or federal -- for either a "crime of violence" or a "controlled substance offense" or a combination thereof. U.S.S.G. § 4B1.1(a) (U.S. Sentencing Comm'n 2016). The Guidelines define a "crime of violence," in turn, as a felony that:

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2)is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).

U.S.S.G § 4B1.2(a) (emphasis added).

         The first clause in the "crime of violence" definition is known as the "elements clause," or the "force clause." The second clause is commonly referred to as the "enumerated offenses clause," as it lists a series of crimes, "robbery" among them. U.S.S.G §§ 4B1.2, 4B1.1(a) (2016).

         The United States Probation Office's Second Revised Presentence Investigation Report ("PSR") in Rabb's case found that he had the requisite number of prior felony convictions to be a "career offender" under the Guidelines. The PSR found that he had committed a "controlled substance offense" based on his 2014 conviction under New York state law for criminal possession of a controlled substance in the third degree. The PSR also found that he had committed a "crime of violence" based on his 2000 conviction for second-degree robbery in violation of New York Penal Law §160.10(1).[1]

         The PSR specifically determined that his 2000 New York state law robbery conviction was for a "crime of violence" because the enumerated offenses clause of the "crime of violence" definition in the Guidelines included "robbery." The PSR relied on that clause after concluding that the force clause did not apply in light of our ruling in United Statesv. Steed, 879 F.3d 440 (1st Cir. 2018). There, we held that it was reasonably probable that, as of 2000, a robbery of the type for which Rabb was convicted encompassed even a purse snatching committed by means so sudden that the victim was merely made aware of the perpetrator's presence. We ...


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