16-2882
United States v. Rios
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 1st day of December, two thousand seventeen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
RAYMOND J. LOHIER, JR.,
CHRISTOPHER F. DRONEY,
Circuit Judges.
UNITED STATES OF AMERICA,
Appellee,
v. No. 16-2882
JOSE RIOS,
Defendant-Appellant.
For Defendant-Appellant: Donald DuBoulay, Law Office of Donald
DuBoulay, New York, NY.
For Appellee: Emily Berger, Melody Wells, Assistant
United States Attorneys, for Bridget M.
Rohde, Acting United States Attorney for
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the Eastern District of New York, Brooklyn,
NY.
Appeal from an amended judgment of the United States District Court for the Eastern
District of New York (Amon, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the amended judgment of the district court is AFFIRMED.
Defendant-Appellant Jose Rios appeals from a sentence and final judgment of conviction
entered on August 18, 2016, by the United States District Court for the Eastern District of New
York (Amon, J.). We assume the parties’ familiarity with the underlying facts, procedural
history, and issues on appeal.
Rios was convicted of being a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g) on September 3, 2009. At sentencing on December 10, 2010, the district court found
that Rios’ three prior convictions under New York law (second degree assault, attempted second
degree burglary, and attempted third degree burglary) constituted “violent felonies” under the
“residual” clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), and
sentenced Rios to the mandatory minimum of 15 years’ incarceration. As relevant to the instant
appeal, Rios’ conviction for second degree assault under N.Y. Penal Law § 120.05(2) required a
showing that “[w]ith intent to cause physical injury to another person, he cause[d] such injury to
such person or to a third person by means of a deadly weapon or a dangerous instrument.”
Rios filed a petition for post-conviction relief pursuant to 28 U.S.C. § 2255, alleging
various errors not relevant to this appeal. See Motion, Rios v. United States, No. 13-cv-5577,
ECF No. 1 (E.D.N.Y. Oct. 7, 2013). While Rios’ petition was pending, the Supreme Court held
the ACCA’s “residual” clause void for vagueness in United States v. Johnson, 135 S. Ct. 2551,
2563 (2015) (Johnson 2015). The district court thereafter sua sponte ordered Rios to be
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resentenced because, as the Government conceded, Rios’ conviction for attempted third-degree
burglary no longer qualified as a violent felony.
The Probation Office prepared two addenda to its previously issued Presentence
Investigation Report (“PSR”) recalculating Rios’ base offense level. In particular, Probation
determined that Rios’ conviction for second degree assault constitutes a “crime of violence”
under § 2K2.1(a)(4)(A) of the Guidelines, which define the term separately as “any offense
under federal or state law . . . that . . . has as an element the use, attempted use, or threatened use
of physical force against the person of another.” U.S.S.G. § 4B1.2(a)(1). Probation accordingly
calculated his base offense level as 20.
Rios objected to Probation’s calculation of his base offense level in his sentencing
memorandum and at sentencing, arguing that the Supreme Court held in Johnson v. United
States, 559 U.S. 133 (2010) (Johnson 2010) that a crime of violence requires the use of “violent”
physical force, and that the relevant second degree assault statute requires no such showing.
Instead, Rios contended that he “could bump into the individual, push him, shove him, not
violently, he could fall on a dangerous instrument, and he could be convicted of that offense.”
The district court held that Rios’ argument was foreclosed by this Court’s decision in
United States v. Walker, 442 F.3d 787, 787-89 (2d Cir. 2006) (per curiam), where we held that
second degree assault under N.Y. Penal Law § 120.05(2) constitutes a “violent felony” under
§ 924(e)(2)(b)(i) of the ACCA. Since the definition of a “violent felony” is materially identical to
that of a “crime of violence,” the district court concluded that the calculation of Rios’ base
offense level under § 2K2.1(a)(4)(A) was proper. The district court accordingly held that Rios’
total offense level was 24 and his Guidelines range was 100 to 120 months. After considering the
sentencing factors enumerated at 18 U.S.C. § 3553(a), the district court re-sentenced Rios to 110
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months. The amended judgment was entered on August 18, 2016, and Rios timely filed his
notice of appeal that same day.
Rios argues on appeal that the district court erred in finding that our decision in Walker
controls the outcome of this dispute. Specifically, Rios asserts that there is “circumstantial
evidence” that the Walker court applied a definition of physical force that does not require the
use of violence, and that the Supreme Court rejected such a definition in Johnson 2010. Rios thus
contends that Walker was effectively overturned and this Court can reach the issue of whether
second degree assault constitutes a “crime of violence” under § 2K2.1(a)(4)(A) and
§ 4B1.2(a)(1) of the Guidelines. Rios urges that we should rule that it does not, pursuant to the
“categorical approach,” because in his view even a minimal use of force is sufficient to cause the
“physical injury” necessary for a second degree assault because the physical injury element is
satisfied where a victim suffered a subjective physical injury and a dangerous weapon was
tangentially involved.
“In reviewing Guidelines calculations, we apply a de novo standard to legal conclusions
and we accept the sentencing court’s factual findings unless they are clearly erroneous.” United
States v. Walker, 595 F.3d 441, 443 (2d Cir. 2010) (citing United States v. Sero, 520 F.3d 187,
189 (2d Cir. 2008); United States v. Guang, 511 F.3d 110, 122 (2d Cir. 2007)). “Whether a prior
conviction qualifies as a predicate offense warranting a sentencing enhancement is a matter of
law that we review de novo.” Id. (citing United States v. Savage, 542 F.3d 959, 964 (2d Cir.
2008)).
Given that the parties do not dispute the issue, we assume without deciding that this
Court’s two-step “modified categorical approach” applies to determine whether a conviction
under N.Y. Penal Law § 120.05(2) constitutes a crime of violence under the Sentencing
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Guidelines. Under the first step of this approach, we determine “whether the statute of the prior
conviction criminalizes conduct that falls exclusively within the federal definition of a predicate
offense.” Id. If the statute of conviction criminalizes certain conduct that does not fall within the
Guidelines’ definition of a crime of violence, we proceed to the second step, under which “the
government must demonstrate that the conviction ‘necessarily’ rested on facts identifying the
conviction as one for a ‘crime of violence.’” United States v. Reyes, 691 F.3d 453, 458 (2d Cir.
2012) (quoting Walker, 595 F.3d at 444)).
We agree with the district court that Walker continues to control the outcome of this
dispute. Rios’ speculation about the definition of “physical force” employed by the Walker court
is belied by the plain text of the decision, which states that “[t]o . . . cause physical injury by
means of a deadly weapon or dangerous instrument is necessarily to . . . use ‘physical force,’ on
any reasonable interpretation of that term.” 442 F.3d at 788 (emphasis added). We therefore
conclude that Walker remains controlling law and dictates that a conviction under N.Y. Penal
Law § 120.05(2) constitutes a “crime of violence” under § 2K2.1(a)(4)(A) of the Guidelines.
We have considered all of Rios’ contentions on appeal and have found in them no basis
to vacate the district court’s amended judgment and remand for re-sentencing. For the reasons
stated herein, the amended judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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United States v. Rios
Combined Opinion