FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. George Z. Singal, U.S. District Judge]
Davis Fried, with whom Good Schneider Cormier & Fried was
on brief, for appellant.
M. Lipez, Assistant United States Attorney, with whom Halsey
B. Frank, United States Attorney, was on brief, for appellee.
Barron, Selya, and Boudin, Circuit Judges.
BARRON, CIRCUIT JUDGE.
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.
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).
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).
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
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