United States v. Steed

United States Court of Appeals
For the First Circuit

No. 17-1011

UNITED STATES OF AMERICA,

Appellant,

v.

VINCENT STEED,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. Nancy Torresen, U.S. District Judge]

Before

Kayatta, Selya, and Barron,
Circuit Judges.

Richard W. Murphy, Acting United States Attorney, and Julia
M. Lipez, Assistant United States Attorney, on brief for appellant.
Molly Butler Bailey and Strike, Gonzalez & Butler Bailey on
brief for appellee.

January 12, 2018
 BARRON, Circuit Judge. In this appeal, the government

challenges the 2016 sentence that Vincent Steed received for his

conviction -- following his guilty plea -- for possession with

intent to distribute Cocaine Base and Heroin in violation of

21 U.S.C. § 841(a)(1), (b)(1)(C). The District Court, in

sentencing Steed, concluded that he did not qualify as a "career

offender" under the United States Sentencing Guidelines and thus

was not subject to the sentencing enhancement that otherwise would

apply. The District Court then calculated Steed's guidelines

sentencing range on that basis, and sentenced Steed to a prison

term of 63 months, which was at the high end of the resulting

guidelines sentencing range.

The government now contends that the District Court

erred in concluding that Steed did not qualify as a "career

offender" under the Sentencing Guidelines and thus that the

District Court sentenced him based on an unduly low guidelines

sentencing range. Accordingly, the government argues that Steed's

sentence must be vacated so that Steed may be re-sentenced.

As has become common in cases of this type, we must

address a number of complexities regarding the particularities of

state law to resolve the issues on appeal. And, as has also become

common in cases of this type, such complexities of state law in

turn raise additional questions -- knotty in themselves -- about

the requirements of the federal provision that seeks to identify

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those offenders whose past violence warrants the imposition of an

enhanced sentence. After working our way through these questions,

we conclude that the government has not identified a sufficient

basis for vacating the sentence. Accordingly, we affirm the

judgment below.

I.

On June 27, 2016, in the United States District Court

for the District of Maine, Steed pleaded guilty to violating

21 U.S.C. § 841(a)(1), (b)(1)(C). The Presentence Investigation

Report ("PSR") prepared by the Probation Office recommended that

Steed be classified as a "career offender" under § 4B1.1 of the

United States Sentencing Guidelines, as set forth in the 2015

version of the United States Sentencing Guidelines Manual.

That guideline defines a "career offender" to include

those defendants who have two prior convictions, whether for a

"controlled substance offense," U.S. Sentencing Guidelines Manual

§ 4B1.1(a) (U.S. Sentencing Comm'n 2015), any "crime of violence,"

id. § 4B1.1(a), or any combination thereof. A "crime of violence"

is defined as:

[A]ny offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that[] (l)
has as an element the use, attempted use, or threatened
use of physical force against the person of another, 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.

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Id. § 4B1.2(a).

The first subpart of the language just quoted ("has as

an element the use, attempted use, or threatened use of physical

force against the person of another") is commonly referred to as

the "force clause" of the "crime of violence" definition. See

United States v. Ball, 870 F.3d 1, 3 (1st Cir. 2017). The final

clause of the second subpart ("otherwise involves conduct that

presents a serious potential risk of physical injury to another")

is known as the "residual clause" of that definition. Id.

The PSR based the conclusion that Steed was a career

offender under the guideline on his conviction in 2012 for two

counts of drug trafficking under Maine law and his conviction in

2000 for attempted robbery in the second degree under New York

law. Having determined that the drug trafficking and robbery

convictions each qualified as predicate offenses under the career

offender guideline, the PSR applied the career offender sentencing

enhancement, which resulted in the PSR identifying Steed's total

offense level under the guidelines to be 29. The PSR also

determined Steed's criminal history category to be VI. In

consequence, the PSR calculated Steed's sentencing range under the

guidelines to be 151 to 188 months of imprisonment.

The District Court thereafter held a sentencing hearing.

The District Court determined at the hearing that the variant of

second-degree robbery under New York law that Steed had been

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convicted of attempting to commit did not have as an element the

use of "violent force" under Johnson v. United States, 559 U.S.

133, 140 (2010) (Johnson I). Thus, the District Court reasoned

that Steed had been convicted of an offense that did not fall

within the force clause of the career offender guideline's

definition of a "crime of violence." The District Court then

bypassed the question whether that offense fell within the residual

clause of that guideline's definition of a "crime of violence"

because the government conceded that, after Johnson v. United

States, 135 S. Ct. 2551 (2015) (Johnson II), the residual clause

was unconstitutionally vague. Accordingly, the District Court

concluded that the career offender enhancement did not apply to

Steed, as he had only one prior conviction that qualified as a

conviction for a predicate offense under the career offender

guideline -- namely, his conviction under Maine law for two counts

of drug trafficking, which was a qualifying "controlled substance"

offense.

Partly in consequence of this ruling, the District Court

determined that Steed's total offense level was 19, rather than

29, as the PSR had stated. The District Court also determined

that, as the PSR had stated, Steed's criminal history category was

VI. The District Court then accepted the government's recommended

two-level reduction of Steed's total offense level. The District

Court thus calculated Steed's guidelines sentencing range to be 51

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to 63 months of imprisonment. The District Court then sentenced

Steed to a sentence at the high end of that range -- 63 months of

imprisonment.

The parties do not dispute that Steed's conviction for

two counts of drug trafficking under Maine law qualifies as a

conviction for a "controlled substance" offense under the career

offender guideline. See U.S.S.G. § 4B1.2(b). The dispute before

us therefore concerns only whether the government is right in

contending that, contrary to the District Court's ruling, Steed's

conviction for attempted second-degree robbery under New York law

qualifies as a predicate conviction under the career offender

guideline as a "crime of violence." For, if the government is

right on that point, then Steed is subject to the career offender

enhancement under that guideline.

II.

We begin with the government's contention that Steed's

2000 conviction for attempted second-degree robbery under New York

law is for an offense that "has as an element the use, attempted

use, or threatened use of physical force against the person of

another" and thus is for an offense that the force clause of the

career offender guideline's definition of a "crime of violence"

encompasses. U.S.S.G. § 4B1.2(a)(1). Our review is de novo.

United States v. Almenas, 553 F.3d 27, 31 (1st Cir. 2009).

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 A.

In assessing whether a conviction qualifies as a

predicate conviction under the force clause of the career offender

guideline's definition of a "crime of violence," we apply what is

known as the "categorical approach." United States v. Dávila-

Félix, 667 F.3d 47, 55-56 (1st Cir. 2011) (internal quotation marks

omitted). Under that approach, we consider "the statutory

definition of the offense in question, as opposed to the particular

facts underlying the conviction." Id. at 56 (quoting United States

v. Piper, 35 F.3d 611, 619 (1st Cir. 1994)); see also Taylor v.

United States, 495 U.S. 575, 602 (1990). We undertake this

analysis by focusing on the elements of the offense. Dávila-

Félix, 667 F.3d at 57. If the elements of the state statute of

conviction "encompass[] only conduct that constitutes a predicate

offense," then the conviction qualifies as a predicate conviction

under the force clause of the career offender guideline's "crime

of violence" definition. Id. at 56.

In cases where the state criminal statute at issue "sets

out one or more elements of the offense in the alternative[,]"

such that the offense is divisible into more than one offense, we

must first identify the specific offense for which the defendant

was convicted. Descamps v. United States, 133 S. Ct. 2276, 2281

(2013); United States v. Tavares, 843 F.3d 1, 10 (1st Cir. 2016),

reh'g denied, 849 F.3d 529 (1st Cir. 2017). The parties agree

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that Steed's conviction was for attempting the type of second-

degree robbery that § 160.10(2)(a) of the New York Penal Law sets

forth. Accordingly, we must determine whether Steed's conviction

for that offense categorically qualifies as a conviction for a

"crime of violence" under the force clause of the career offender

guideline's definition of that term.

B.

New York Penal Law § 160.00 sets forth the general

definition of the offense of robbery by providing that:

A person forcibly steals property and commits robbery
when, in the course of committing a larceny, he uses or
threatens the immediate use of physical force upon
another person for the purpose of . . . [p]reventing or
overcoming resistance to the taking of the property or
to the retention thereof immediately after the taking;
or . . . [c]ompelling the owner of such property or
another person to deliver up the property or to engage
in other conduct which aids in the commission of the
larceny.

Section 160.10 then sets forth four variants of robbery

in the second degree. N.Y. Penal Law § 160.10. Section

160.10(2)(a), which is the variant that the parties agree is

relevant here, defines that offense to occur when "when [someone]

forcibly steals property," and "[i]n the course of the commission

of the crime or of immediate flight therefrom, he or another

participant in the crime: . . . [c]auses physical injury to any

person who is not a participant in the crime." N.Y. Penal Law

§ 160.10(2)(a). Finally, New York defines an "attempt" as

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occurring when someone, "with intent to commit a crime . . .

engages in conduct which tends to effect the commission of such

crime[.]" N.Y. Penal Law § 110.00.

We set to one side the fact that Steed was convicted of

attempting to commit second-degree robbery under § 160.10(2)(a).

Doing so allows us to focus on whether this variant of second-

degree robbery is an offense that falls under the force clause.

For, if that offense does not fall under that clause, then the

offense of attempting to commit that offense does not either.

We begin our review by following the lead of the parties

and considering our recent precedent in United States v. Mulkern,

854 F.3d 87 (1st Cir. 2017). The parties recognize that Mulkern

considered a similar issue to the one that we confront here, even

though that case did not concern a potential application of the

career offender guideline.

Mulkern concerned a defendant's contention that his

prior state law conviction under Maine law for a robbery offense

did not qualify as a predicate conviction under the Armed Career

Criminal Act (ACCA). Id. at 92. Mulkern's analysis of ACCA is

relevant here because of that statute's similarities with the

career offender guideline.

ACCA penalizes those who possess firearms if they have

three or more prior convictions for a "violent felony." 18 U.S.C.

§ 924(e)(1). Moreover, ACCA's definition of a "violent felony,"

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id. § 924(e)(2)(B), contains a force clause that is worded nearly

identically to the force clause of the career offender guideline's

definition of a "crime of violence." Thus, as we have explained

before, precedents that, like Mulkern, construe the force clause

in the definition of a "violent felony" under ACCA are directly

relevant to the analysis that we must undertake in construing the

force clause of the career offender guideline's definition of a

"crime of violence." See United States v. Hart, 674 F.3d 33, 41

n.5 (1st Cir. 2012) (explaining that, because ACCA's definition of

a "violent felony" is "almost identical[]" to the Sentencing

Guidelines' definition of a "crime of violence," we have held that

"'decisions construing one term inform the construction of the

other'") (quoting United States v. Holloway, 630 F.3d 252, 254 n.1

(1st Cir. 2011)).

We explained in Mulkern that the robbery offense under

Maine law for which the defendant had been convicted in that case

required that the defendant had "use[d] physical force on another

with the intent . . . (1) to prevent or overcome resistance to the

taking of the property, or to the retention of the property" or

"(2) to compel the person in control of the property to give it up

or to engage in other conduct which aids in the taking or carrying

away of the property." 854 F.3d at 91 (quoting Me. Stat. tit.

17-A, § 651(1)). We then held that neither variant of this robbery

offense under Maine law qualified under the force clause of ACCA's

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definition of a "violent felony" because of the way that Maine

defined the robbery offense. Id. at 93-94.

In so holding, we relied on the decision of Maine's

highest court in Raymond v. State, 467 A.2d 161, 165 (Me. 1983).

There, the Maine Law Court explained that the drafters of Maine's

robbery statute, Me. Stat. tit. 17-A, § 651, "made a conscious

decision that any physical force with the intent specified in" the

relevant portion of the statute that defined that offense sufficed

to satisfy the force element of that offense. Raymond, 467 A.2d

at 165 (emphasis in original). The Maine Law Court concluded that,

in light of this statutory definition of the offense of robbery,

"a case where the victim was at the time unaware of a stealthy

taking of her purse" did not constitute a robbery, but that a purse

"snatching" effected with the requisite intent did. Id. at 164.

Raymond explained that "the mere act of snatching a purse from the

hand of a victim is a sufficient act of physical force required

for robbery," because of the amount of physical force that the act

of "snatching" necessarily requires the perpetrator to use. Id.

Raymond relied for this conclusion on the reasoning of

Commonwealth v. Jones, 283 N.E.2d 840 (Mass. 1972). In that case,

the Massachusetts Supreme Judicial Court had explained, in holding

that a purse snatching constituted a robbery under Massachusetts

law, that "where, as here, the actual force used is sufficient to

produce awareness, although the action may be so swift as to leave

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the victim momentarily in a dazed condition, the requisite degree

of force is present to make the crime robbery." Id. at 845.

In light of Raymond, we concluded in Mulkern that

"Maine's highest court recognizes that 'any physical force'

suffices to satisfy the 'physical force' element" of the offense

of robbery, because Maine defines that offense's physical force

requirement to be satisfied by a use of physical force that

suffices to produce mere awareness in the victim. Mulkern, 854

F.3d at 93 (quoting Raymond, 467 A.2d at 165) (emphasis omitted).

We thus concluded that the robbery offense at issue could, under

Maine law, be satisfied by proof of "'the mere act of snatching a

purse from the hand of a victim' . . . even if the robber never

made 'direct bodily contact' with the victim." Id. (quoting

Raymond, 467 A.2d at 164, 165).

On that basis, we then concluded that the force clause

of ACCA's definition of a "violent felony" did not encompass the

offense of robbery in Maine that was at issue. Id. at 93-94. We

reasoned that such a minimal use of force as would be required

merely to snatch a purse was too slight a use of force to constitute

force "'capable of causing physical pain or injury'" under

Johnson I. Id. at 93-94 (quoting Johnson I, 559 U.S. at 140); see

also Johnson I, 559 U.S. at 140-41 ("We think it clear that in the

context of a statutory definition of 'violent felony,' the phrase

'physical force' means violent force -- that is, force capable of

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causing physical pain or injury to another person. . . . When the

adjective 'violent' is attached to the noun 'felony,' its

connotation of strong physical force is even clearer."); accord

United States v. Ramos–González, 775 F.3d 483, 504 (1st Cir. 2015).

Against this precedential background, we turn back,

then, to the question at issue here: whether the type of robbery

that Steed was convicted of attempting to commit -- a variant of

second-degree robbery under New York law -- falls within the force

clause of the career offender guideline's definition of a "crime

of violence." The answer to this key question is one that concerns

the state of New York law as it stood at the time that Steed was

convicted of attempting to commit that crime, which was in 2000.

That is so because we apply an historical approach to determine

whether an offense categorically matches the elements of the force

clause of the definition of a "crime of violence" under the career

offender guideline. After all, that is the approach that we use

in construing the force clause of the definition of a "violent

felony" under ACCA, United States v. Faust, 853 F.3d 39, 57 (1st

Cir. 2017) (holding that categorical analysis under ACCA must be

conducted as to the state of the law at the time of the defendant's

conviction), and, as we have explained, our precedents concerning

the proper construction of ACCA's force clause inform our

construction of the career offender guideline's force clause as

well, see Hart, 674 F.3d at 41 n.5.

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 C.

The government contends that a review of the relevant

New York state court precedent shows that § 160.10(2)(a) falls

within the force clause of the career offender guideline's

definition of a "crime of violence" because that offense requires

more than the use or threatened use of "any physical force."

Mulkern, 854 F.3d at 93. And, the government contends, that

conclusion is supported by the precedent that shows that New York

law -- unlike Maine law, as Mulkern had held -- does not make a

mere purse snatching a robbery in the second degree under

§ 160.10(2)(a), and that this was the case, presumably, even as of

2000, when Steed was convicted.

The government relies for this assertion chiefly on a

relatively recent New York Court of Appeals case, People v.

Jurgins, 46 N.E.3d 1048 (N.Y. 2015). We are, of course, bound by

how a state's highest court defines a crime in that state. See

Tavares, 843 F.3d at 14. But, even setting aside the fact that

Jurgins was decided long after Steed's conviction, we do not find

Jurgins to support the government's contention about the state of

New York law at the time of that conviction. Jurgins simply

assumed, based on the representations of the parties in that case,

that a purse snatching would not qualify as a robbery under New

York law. 46 N.E.3d at 1053. For that reason, Jurgins makes no

holding with respect to the issue that we must resolve.

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 The government does also point to several New York

intermediate appellate court precedents that pre-date Steed's

conviction. These cases address the conduct that may qualify as

either second-degree or third-degree robbery under New York law.

State intermediate appellate court precedents are

certainly potentially relevant to our present inquiry. But the

precedents on which the government relies do not suffice to support

its contention. Those cases find there to have been a robbery

under New York law based on the use of seemingly greater force

than was necessary to prove robbery under the Maine robbery statute

considered in Mulkern. See, e.g., People v. Bennett, 631 N.Y.S.2d

834, 834 (N.Y. App. Div. 1995) (creation of a "human wall" was

sufficient force for second-degree robbery); People v. Lee, 602

N.Y.S.2d 138, 139 (N.Y. App. Div. 1993) (a "bump" and "forcibly

block[ing]" the victim's pursuit was sufficient force for second-

degree robbery); see also People v. Safon, 560 N.Y.S.2d 552, 552

(N.Y. App. Div. 1990) (tugging money was sufficient force for

third-degree robbery); cf. United States v. Moncrieffe, 167 F.

Supp. 3d 383, 404-05 (E.D.N.Y.), appeal withdrawn, No. 16-965 (July

31, 2016) (discussing cases). But, even if the government is right

that bumping, tugging, and forming a wall constitute conduct that

falls within the force clause of the provision of the career

offender guideline that defines a "crime of violence," but see

United States v. Childers, 2017 WL 2559858 at 10 (D. Me. June 6,

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2017); Moncrieffe, 167 F. Supp. 3d at 406; United States v.

Johnson, 220 F. Supp. 2d 264, 272 (E.D.N.Y. 2016), these precedents

do not rule out the possibility that less significant uses or

threatened uses of force, including purse snatching, could have

been used to commit a robbery under § 160.10(2)(a) as of the time

of Steed's 2000 conviction. Thus, these precedents, in and of

themselves, do not suffice to support the government's cause.

As it happens, there are precedents that the government

does not reference but that pre-date Steed's 2000 conviction and

that directly address whether the act of snatching property falls

within New York's definition of robbery either in the second or

the third degree. We thus must consider these precedents. If

they indicate that, as of 2000, a snatching may have constituted

a second-degree robbery under § 160.10(2)(a), then Steed's

conviction would not be one for an offense that falls within the

force clause. For there need be only "'a realistic probability

. . . that the [state] would apply its statute . . .'" to include

that minimal conduct in order for the state statutory offense to

fall outside the force clause. United States v. Ellison, 866 F.3d

32, 38 (1st Cir. 2017) (quoting Gonzales v. Duenas-Alvarez, 549

U.S. 183, 193 (2007)) (alteration in original).

A number of these precedents do favor the government's

position that snatching does not constitute robbery in the second

degree under § 160.10(2)(a) and did not do so prior to Steed's

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conviction. See People v. Middleton, 623 N.Y.S.2d 298 (N.Y. App.

Div. 1995) (holding that a purse snatching where the victim was

not "intimidated, knocked down, struck, or injured" did not

constitute third-degree robbery); People v. Chessman, 429 N.Y.S.2d

224, 227 (N.Y. App. Div. 1980) (concluding that a purse snatching

where the victim "did not feel anything on her body" would not

constitute third-degree robbery); People v. Davis, 418 N.Y.S.2d

127, 128 (N.Y. App. Div. 1979) (modifying judgment of third-degree

robbery where there was no evidence the victim was in danger or

saw the defendant approach her). But, not all of them do. In

particular, People v. Lawrence, 617 N.Y.S.2d 769 (N.Y. App. Div.

1994), suggests that, at least as of 1994, New York third-degree

robbery included purse snatching.

Lawrence held that the defendant committed a robbery in

the third degree in "snatching" a purse because the court was "'not

persuaded that [the] defendant engaged in a nonphysical,

unobtrusive snatching' of the victim's purse." Id. at 770 (quoting

People v. Rivera, 554 N.Y.S.2d 115, 116 (N.Y. App. Div. 1990))

(emphasis added). Lawrence indicates that a snatching not unlike

one that would qualify as a robbery under the statute considered

in Mulkern, 854 F.3d at 93, could be considered physical and

obtrusive enough to constitute a robbery in New York, at least in

the third degree, even if a mere "stealthy taking," see Raymond,

467 A.2d at 164, can never be a robbery. After all, although such

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a snatching would involve no bodily contact with the victim, it

could involve the use of just enough force to "produce awareness,

although the action may be so swift as to leave the victim

momentarily in a dazed condition." Mulkern, 854 F.3d at 92–93

(citing Jones, 283 N.E.2d at 845).

Moreover, in People v. Santiago, 402 N.E.2d 121 (N.Y.

1980), which was decided more than a decade before Lawrence, an

intermediate appellate court considered whether a defendant who

was on a moving train and had snatched a purse from a victim

standing on a subway platform had thereby committed a robbery in

the second degree under § 160.10(2)(a). People v. Santiago, 405

N.Y.S.2d 752, 753 (N.Y. App. Div. 1978) aff'd, 402 N.E.2d at 121.

In the course of addressing that issue, the intermediate appellate

court canvassed the relevant precedents in New York and other

states -- including the decision by the Massachusetts Supreme

Judicial Court in Jones on which the Maine Law Court in Raymond

had relied in finding a purse snatching to constitute a robbery.

Santiago, 405 N.Y.S.2d at 757; see Raymond, 467 A.2d at 164 (citing

Jones, 283 N.E.2d at 845). That court concluded from this review

that it appeared to be an open question under New York law whether

"purse snatching, per se, constitutes a robbery" under New York

law. Santiago, 405 N.Y.S.2d at 757.

That court ultimately determined that there was no need

to resolve that issue definitively because "there was sufficient

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evidence to support a jury finding that the victim resisted by

clinging to her purse and that the overcoming of this resistance,

through the use of the overwhelming momentum of the train,

constituted a robbery by any definition of that term." Id. And,

on appeal, the New York Court of Appeals affirmed the intermediate

appellate court's ruling in a one paragraph decision that also did

not resolve the issue of whether purse snatching per se constitutes

a robbery. Santiago, 402 N.E.2d at 121. But, in light of the

intermediate appellate court's opinion, it appears that, as of the

time of Santiago, it was an open question under New York law as to

whether second-degree robbery under § 160.10(2)(a) encompassed

purse snatchings like those that Maine counts as robberies.

To be sure, neither the third-degree robbery offense at

issue in Lawrence nor the robbery offense at issue in Mulkern

required, as second-degree robbery under § 160.10(2)(a) does, that

the defendant or another participant in the crime "[i]n the course

of the commission of the crime or of immediate flight therefrom

. . . [c]ause[] physical injury to any person who is not a

participant in the crime." N.Y. Penal Law § 160.10(2)(a). And

the government contends that this injury requirement means that

this variant of second-degree robbery in New York on its face

requires the use of more force (or threatened force) than a robbery

offense like the one at issue in Mulkern, which could be committed

by a mere snatching.

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 But, it appears that, at least prior to Steed's 2000

conviction, this injury requirement would not in and of itself

have ruled out a snatching from qualifying as a robbery in the

second degree under § 160.10(2)(a). A 1997 intermediate appellate

court precedent from New York had ruled that an injury that

occurred when the victim of the offense fell while chasing the

perpetrator satisfied the injury requirement under § 160.10(2)(a),

as long as such injury could be "foreseen as being reasonably

related to the acts of the accused." People v. Brown, 653 N.Y.S.2d

301, 303 (N.Y. App. Div. 1997). That is significant because

Lawrence indicated that, as of 2000, a snatching that engendered

awareness of the theft in the victim constituted a robbery in the

third degree. See Lawrence, 617 N.Y.S.2d at 770. It thus would

appear that such a snatching, by producing awareness, would have

made it reasonably foreseeable that the victim would have given

chase and thus that any resulting injury that victim suffered while

doing so would have been reasonably foreseeable. As a result, the

injury requirement would not appear to have precluded snatchings

from constituting robberies under § 160.10(2)(a), at least as of

the time of Steed's conviction, if, as Lawrence indicates, such

snatchings would otherwise have constituted robberies under that

provision. And that conclusion would be consistent with, though

not required by, the intermediate appellate court decision in

Santiago. 405 N.Y.S.2d at 757.

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 Accordingly, as we read the relevant New York

precedents, there is a realistic probability that Steed's

conviction was for attempting to commit an offense for which the

least of the acts that may have constituted that offense included

"purse snatching, per se." Santiago, 405 N.Y.S.2d at 757. As

Mulkern held that such conduct falls outside the scope of the

nearly identically-worded force cause at issue there, Mulkern, 854

F.3d at 93-94, we cannot say that, under the categorical approach,

Steed's conviction was for an offense that the force clause of the

career offender guideline's definition of a "crime of violence"

encompasses. We note in this regard that other courts have held

that the force clause fails to encompass second-degree robbery in

New York. Childers, 2017 WL 2559858 at 10; Moncrieffe, 167

F. Supp. 3d at 406; Johnson, 220 F. Supp. 3d at 272. We thus see

no error in the District Court's conclusion that Steed's conviction

was not for an offense that falls within the force clause of

§ 4B1.2(a) of the United States Sentencing Guidelines.

III.

We turn, then, to the government's alternative argument.

Here, the government contends that Steed's conviction was for an

offense that, even if not covered by the force clause of the career

offender guideline's definition of a "crime of violence," is

covered by that definition's residual clause. U.S.S.G.

§ 4B1.2(a)(2). But, we do not agree.

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 A.

As an initial matter, Steed argues that the government

waived this argument when it conceded that the residual clause was

unconstitutional under Johnson II. As the government points out,

however, there has been a "significant change[] in the legal

landscape" since Steed's sentencing. Shortly after the District

Court sentenced Steed, the Supreme Court decided Beckles v. United

States, 137 S. Ct. 886 (2017). In that case, the Court held that

the residual clause of the career offender guideline's definition

of "crime of violence" -- at least insofar as the career offender

guideline was no longer mandatory -- was not unconstitutionally

vague. Id. at 892. And, in the wake of Beckles, as the government

also notes, we have repeatedly rejected the argument that the

government may not invoke the residual clause to argue that a

defendant's prior conviction qualifies as a "crime of violence"

under the career offender guideline merely because the government

conceded prior to Beckles that the residual clause was

unconstitutionally vague under Johnson II. See Ball, 870 F.3d at

3; United States v. Thompson, 851 F.3d 129, 131 (1st Cir. 2017)

(per curiam); United States v. Gonsalves, 859 F.3d 95, 114 n.9

(1st Cir. 2017) ("Although the government conceded in its brief

that the Guidelines' residual clause was unconstitutionally vague,

this court is not bound by the government's concession, which,

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while understandable before Beckles, turned out to be incorrect."

(internal citation omitted)).

There is a wrinkle, however. Each of the post-Beckles

cases in which we declined to hold the government to its earlier

concession concerned an appeal by the defendant who was challenging

his sentence for being too harsh. Here, by contrast, the

government brings the appeal, and the government does so in order

to subject the defendant to a more severe sentence than he had

received. But even if we assume that, notwithstanding this

wrinkle, the government is not bound by its concession below, the

government's argument still fails under the demanding standard of

review that the government concedes that we must apply. In that

regard, we note that, ordinarily, the question of whether a

conviction is for a "crime of violence" under the residual clause

is one of law, for which our review would be de novo when the issue

has been properly preserved below. See United States v. Soto-

Rivera, 811 F.3d 53, 56 (1st Cir. 2016). But, here, the government

asks us to review the question only for plain error because of its

pre-Beckles concession that the residual clause was

unconstitutionally vague.

Given the government's concession regarding the proper

standard of review and our general rule that "a party who neglects

to call a looming error to the trial court's attention" is subject

to plain error review, United States v. Sánchez–Berríos, 424 F.3d

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65, 73 (1st Cir. 2005), we apply the plain error standard of

review. Accordingly, the government faces the "onerous burden" of

showing "(1) that an error occurred (2) which was clear and obvious

and which not only (3) affected the [party's] substantial rights,

but also (4) seriously impaired the fairness, integrity, or public

reputation of judicial proceedings." United States v. Ríos-

Hernández, 645 F.3d 456, 458, 462 (1st Cir. 2011) (quoting United

States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).

Significantly, as the Court explained in United States

v. Olano, 507 U.S. 725 (1993), plain error review:

[I]s permissive, not mandatory. If the forfeited error
is plain and affects substantial rights, the court of
appeals has authority to order correction, but is not
required to do so . . . . a plain error affecting
substantial rights does not, without more, satisfy the
[fourth prong of the plain error test], for otherwise
the discretion afforded by [plain error review] would be
illusory.

Id. at 735-37 (internal citations and alterations omitted). And,

we conclude, the government has failed to make the required showing

under the fourth prong of the plain error standard. Accordingly,

we conclude that the government's argument under the residual

clause fails.

B.

The parties start with the first two prongs of the plain

error standard and vigorously dispute whether it is a clear or

obvious error to conclude that the residual clause of the career

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offender guideline's definition of a "crime of violence" does not

encompass an attempt to commit this type of second-degree robbery

under New York law. The parties do so chiefly by contesting

whether the offense of robbery at issue in this case matches the

generic definition of robbery, as robbery is one of the offenses

listed in the Application Note to the career offender guideline.

U.S.S.G. § 4B1.2, comment. (n.1); see also Ball, 870 F.3d at 5

(holding that the offense listed in the Application Note may be

treated "as additional enumerated offenses").1

We do not need to resolve this dispute, however. In

order to meet the plain error standard, the government must show

that the error, in addition to being clear or obvious, affected

the government's substantial rights -- prong three -- and

"seriously impaired the fairness, integrity, or public reputation

of judicial proceedings" -- prong four. Ríos-Hernández, 645 F.3d

at 462. But, the government does not expressly address either the

third or fourth prongs of the plain error standard. And even if

we assume that the government has impliedly satisfied the third

prong by identifying the significant difference in the sentencing

range that it contends should have been applied relative to the

one that was applied, the government's failure to make any express

1The parties also dispute whether New York's definition of
attempt falls within the generic definition of attempt.

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argument as to the fourth prong of the plain error standard is

more problematic.

We are aware of no precedent in which we have addressed

whether a sentencing error that favors the defendant, if not

corrected so that a much harsher sentence may be imposed, would

impair the "fairness, integrity, or public reputation of judicial

proceedings." Id. Some courts of appeals have said that

"sentencing errors raised by the government on appeal require

correction because failure to correct such errors may damage the

reputation of the judicial system by allowing district courts to

sentence without regard to the law." United States v. Gordon, 291

F.3d 181, 194 (2d Cir. 2002) (citing United States v. Barajas–

Nunez, 91 F.3d 826, 833 (6th Cir. 1996)). Another has looked to

the difference in the length of the sentence imposed and the

correct sentence to determine whether that difference is

significant enough to create a "miscarriage of justice" if the

error is not corrected. United States v. Posters ‘N’ Things Ltd.,

969 F.2d 652, 663 (8th Cir. 1992), aff'd 511 U.S. 513 (1994). And

the Fifth Circuit has declined to correct even clear and obvious

errors when "refusal to remedy the error would provide a future

incentive to the government to raise all available arguments

below." Gordon, 291 F.3d at 194 (citing United States v. Garcia–

Pillado, 898 F.2d 36, 39–40 (5th Cir. 1990)); United States v.

Rodriguez, 15 F.3d 408, 416-17 (5th Cir. 1994).

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 But, regarding which standard we should apply, the

government makes no argument at all. Nor does the government argue

why, under whichever test we might apply, a decision to let this

sentence stand -- following the government's express concession as

to its lawfulness below -- would impair the "fairness, integrity,

or public reputation of judicial proceedings," Ríos-Hernández, 645

F.3d at 462, such that remand so that a new and harsher sentence

may be imposed is required.

Given the defendant's interest in repose that is

implicated, and the fact that our refusal to permit resentencing

here appears unlikely to be the precipitating cause for the

government to decline to make concessions based on its own best

guess (wrong though it may turn out to be) as to what the

Constitution requires, we do not see how the government could be

said to have satisfied its burden under the fourth prong by not

even addressing it. Thus, we hold that the government has failed

to meet its burden of showing plain error by failing -- in a

situation in which the claimed sentencing error does not obviously

impair the fairness, integrity, or public reputation of the

underlying judicial proceeding -- to make any argument as to how

the fourth prong of that demanding standard is met. See United

States v. Savarese, 385 F.3d 15, 22-23 (1st Cir. 2004) (rejecting

defendant's sentencing challenge where defendant had not raised

the issue below and had not met the fourth prong of the plain error

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test on appeal); see also United States v Zannino, 895 F.2d 1, 17

(1st Cir. 1990) (holding that undeveloped arguments are waived).

IV.

Accordingly, the sentence is affirmed.

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