17‐486‐cr
United States v. Bordeaux
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2017
No. 17‐486‐cr
UNITED STATES OF AMERICA,
Appellee,
v.
ALDRIC BORDEAUX,
Defendant‐Appellant.
On Appeal from the United States District Court
for the District of Connecticut
ARGUED: MARCH 6, 2018
DECIDED: MARCH 27, 2018
Before: CABRANES and RAGGI, Circuit Judges, and VILARDO, District
Judge.*
This case presents two questions: (1) whether first‐degree
robbery in violation of Connecticut General Statutes section 53a‐
134(a)(4) qualifies as a “violent felony” under the so‐called elements
clause of the Armed Career Criminal Act of 1984 (“ACCA”), 18 U.S.C.
§ 924(e)(2)(B)(i); and (2) whether Defendant‐Appellant Aldric
Bordeaux’s three prior convictions were for offenses “committed on
occasions different from one another” within the meaning of ACCA,
id. § 924(e)(1). We answer in the affirmative to both questions and
therefore AFFIRM the February 17, 2017 judgment of the United States
District Court for the District of Connecticut (Alvin W. Thompson,
Judge).
JENNIFER R. LARAIA, Assistant United States
Attorney (Sandra S. Glover, Assistant
United States Attorney, on the brief), for John
H. Durham, United States Attorney, District
of Connecticut, New Haven, CT, for Appellee.
Judge Lawrence J. Vilardo, of the United States District Court for the
*
Western District of New York, sitting by designation.
2
BRIAN SPEARS, Spears Manning LLC,
Southport, CT, for Defendant‐Appellant.
JOSÉ A. CABRANES, Circuit Judge:
This case presents two questions: (1) whether first‐degree
robbery in violation of Connecticut General Statutes section 53a‐
134(a)(4) qualifies as a “violent felony” under the so‐called elements
clause of the Armed Career Criminal Act of 1984 (“ACCA”), 18 U.S.C.
§ 924(e)(2)(B)(i); and (2) whether Defendant‐Appellant Aldric
Bordeaux’s three prior convictions were for offenses “committed on
occasions different from one another” within the meaning of ACCA,
id. § 924(e)(1). We answer in the affirmative to both questions and
therefore AFFIRM the February 17, 2017 judgment of the United States
District Court for the District of Connecticut (Alvin W. Thompson,
Judge).
I. BACKGROUND
Defendant‐Appellant Aldric Bordeaux (“Bordeaux”) appeals
the District Court’s judgment convicting him of one count of unlawful
possession of a firearm in violation of 18 U.S.C. § 922(g)(1)1 and of
1 “It shall be unlawful for any person . . . who has been convicted in any
court of[ ] a crime punishable by imprisonment for a term exceeding one year . . .
to ship or transport in interstate or foreign commerce, or possess in or affecting
commerce, any firearm or ammunition; or to receive any firearm or ammunition
which has been shipped or transported in interstate or foreign commerce.” 18
U.S.C. § 922(g)(1).
3
ACCA, 18 U.S.C. § 924(e), after a plea of guilty with a reservation of
the right to argue to the District Court that ACCA was not applicable.
The District Court held that ACCA did apply and sentenced Bordeaux
principally to one hundred eighty months’ imprisonment.
ACCA sets a mandatory minimum sentence of fifteen years’
imprisonment for unlawful possession of a firearm under certain
conditions.2
Violent Felony. One condition is that the defendant must have
been convicted three times of committing “a violent felony or a serious
drug offense.” Id. § 924(e)(1). The definition of “violent felony”
includes “any crime punishable by imprisonment for a term exceeding
one year . . . that . . . has as an element the use, attempted use, or
threatened use of physical force against the person of another.” Id.
§ 924(e)(2)(B)(i). The clause beginning with the words “has as an
element” is known as the “elements clause.” Welch v. United States, 136
S. Ct. 1257, 1261 (2016).
Different Occasions. Another condition is that the three prior
convictions must be for offenses “committed on occasions different
from one another.” 18 U.S.C. § 924(e)(1).
2 “In the case of a person who violates section 922(g) of this title and has
three previous convictions by any court referred to in section 922(g)(1) of this title
for a violent felony or a serious drug offense, or both, committed on occasions
different from one another, such person shall be fined under this title and
imprisoned not less than fifteen years, and, notwithstanding any other provision of
law, the court shall not suspend the sentence of, or grant a probationary sentence
to, such person with respect to the conviction under section 922(g).” Id. § 924(e)(1).
4
The District Court held that three of Bordeaux’s prior
convictions—all three for first‐degree robbery under Connecticut
law—met these conditions.
On appeal, Bordeaux argues that the District Court erred in
applying ACCA because (a) the Connecticut‐law offense of first‐
degree robbery is not a “violent felony” as that term is defined in
federal ACCA; and (b) the three prior convictions were not for offenses
“committed on occasions different from one another” as ACCA
requires.
A district court’s determinations that a prior conviction is for a
violent felony and that prior convictions are for offenses committed on
different occasions are reviewed de novo. See United States v. Beardsley,
691 F.3d 252, 257 (2d Cir. 2012). The factual basis of these
determinations is reviewed for clear error. United States v. Brown, 629
F.3d 290, 293 (2d Cir. 2011).
II. DISCUSSION
A. Violent Felony
1. Law
Bordeaux’s first argument is that the District Court erred when
it concluded that first‐degree robbery under Connecticut law is a
violent felony within the meaning of ACCA.
To determine whether a given prior conviction is for a violent
felony, we “first identify the elements of the statute forming the basis
5
of the defendant’s conviction. In doing so, we examine what is the
minimum criminal conduct necessary for conviction under [that]
particular [state] statute.” Stuckey v. United States, 878 F.3d 62, 67 (2d
Cir. 2017) (alterations in original) (internal quotation marks and
citations omitted).
If the statute lists alternative ways for a defendant to commit an
offense, we next “look [ ] to a limited class of documents (for example,
the indictment, jury instructions, or plea agreement and colloquy) to
determine what crime, with what elements, a defendant was convicted
of.” Id. (alteration in original) (internal quotation marks omitted).
After identifying the elements of the offense, we “compare the
minimum conduct necessary for a state conviction with the conduct
that constitutes a ‘violent felony’ under the ACCA. If the state statute
sweeps more broadly—i.e., it punishes activity that the federal statute
does not encompass—then the state crime cannot count as a predicate
‘violent felony’ for the ACCA’s fifteen‐year mandatory minimum.” Id.
(emphasis added) (citation and internal quotation marks omitted).
To qualify as a violent felony under the “elements clause” of
ACCA, an offense must be defined so as to require both intent and the
use, attempted use, or threatened use of “violent force”; “violent force”
means “force capable of causing physical pain or injury to another
person.” Id. at 69 (emphasis omitted) (quoting Johnson v. United States,
559 U.S. 133, 140 (2010)). To satisfy the intent requirement, the statute
“must require that the defendant acted more than merely negligently
in committing that offense.” Id. To satisfy the violent‐force
6
requirement, the statute must require the defendant use “force capable
of causing physical pain or injury to another person.” Id. (emphasis
omitted) (quoting Johnson v. United States, 559 U.S. 133, 140 (2010)). A
state offense qualifies as a violent felony only if the minimum conduct
necessary to commit the offense satisfies both requirements.
2. Analysis
In this case, Bordeaux has three prior convictions for first‐degree
robbery under Connecticut law. The Connecticut first‐degree‐robbery
statute, Connecticut General Statutes section 53a‐134, lists alternative
ways to commit the offense, enumerated in four paragraphs;
according to the state plea‐colloquy transcript, Bordeaux was
convicted under subsection (a), paragraph (4) of the statute. The
elements of the Connecticut first‐degree‐robbery statute as it was
applied to him are therefore as follows:
“A person is guilty of robbery in the first degree when, in the
course of the commission of the crime of robbery as defined in section
53a‐133 or of immediate flight therefrom, he or another participant in
the crime . . . (4) displays or threatens the use of what he represents by
his words or conduct to be a pistol, revolver, rifle, shotgun, machine
gun or other firearm . . . .” Conn. Gen. Stat. § 53a‐134(a)(4).
The words “in the course of the commission of the crime of
robbery as defined in section 53a‐133” incorporate by cross‐reference
the elements of Connecticut’s generic definition of robbery:
7
“A person 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: (1) [p]reventing or overcoming
resistance to the taking of the property or to the retention thereof
immediately after the taking; or (2) compelling 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.” Id. § 53a‐
133 (emphasis added).
Comparing the conduct that constitutes first‐degree robbery
under these provisions with the conduct that constitutes a violent
felony under ACCA, we conclude that first‐degree‐robbery as defined
in Connecticut General Statutes section 53a‐134(a)(4) qualifies as a
violent felony within the meaning of ACCA. The first‐degree‐robbery
statute satisfies both requirements of ACCA’s elements clause: intent
and violent force.
Intent. Connecticut’s generic definition of robbery, which is
incorporated by cross‐reference into the definition of first‐degree
robbery, satisfies ACCA’s intent requirement. To commit robbery of
any degree under Connecticut law, the perpetrator must use or
threaten to use force “for the purpose” of accomplishing one of two
specified objectives—not merely negligently. Id. § 53a‐133. He or she
must possess “an intent to force or intimidate the victims to yield their
property so as to permit its taking or retention” by the perpetrator,
State v. Torres, 847 A.2d 1022, 1029 (Conn. App. Ct. 2004) (internal
quotation marks omitted).
8
Violent Force. Subsection (4) of the Connecticut first‐degree‐
robbery statute requires the threatened use of violent force. The
subsection requires that the perpetrator either “threaten[ ] the use” of
a firearm or “display[ ]” a firearm. Even mere “display” of a firearm
during a larceny or immediately thereafter necessarily implies a threat
to commit violence.3
Bordeaux counters that in some circumstances a defendant may
commit first‐degree robbery under Connecticut law without violent
force. He relies on two Connecticut cases to support his argument. In
State v. Moore, 64 A.3d 787 (Conn. App. Ct. 2013), the defendant robbed
a bank by passing a note to a bank employee that read, “Give cash. I
have gun.” Id. at 789. In State v. Lopez, 889 A.2d 254 (Conn. App. Ct.
2006), the defendant was found to have verbally threatened the
robbery victim that he would use a firearm. Id. at 259–60. Bordeaux
stresses that “neither of the defendants . . . actually possessed a firearm
. . . [;] their convictions were based solely on their words.” Br. Def.‐
Appellant 44. This argument does not help Bordeaux’s case, however,
because even a mere threat to use a firearm that one does not in fact
have still qualifies as the “threatened use of physical force” within the
meaning of ACCA. 18 U.S.C. § 924(e)(2)(B)(i).
3 Bordeaux argues that the degree of force required to satisfy the generic
definition of robbery under Connecticut law does not qualify as violent force within
the meaning of ACCA. But since the first‐degree‐robbery statute’s own language
satisfies the definition of violent force under ACCA, we do not need to examine the
generic definition separately.
9
B. Different Occasions
1. Law
Bordeaux’s other argument is that the District Court erred when
it concluded that his three prior convictions were for offenses
committed, as ACCA requires, “on occasions different from one
another.” Id. § 924(e)(1).
Under our precedents, a defendant’s prior convictions are
deemed convictions for offenses “committed on occasions different
from one another,” id., only if the defendant committed the offenses in
distinct “criminal episodes.” United States v. Towne, 870 F.2d 880, 889–
91 (2d Cir. 1989); see also United States v. Rideout, 3 F.3d 32, 34–35 (2d
Cir. 1993).
To apply the criminal‐episode standard appropriately, we look
to both the text and the history of ACCA.
Text. We start with the ordinary meaning of the word
“occasions” in the statute. See, e.g., Hayden v. Pataki, 449 F.3d 305, 314–
15 (2d Cir. 2006) (en banc). As used in this context, “occasion” often
has the sense of an occurrence that takes place at a particular time. See,
e.g., Oxford English Dictionary v. “occasion, n.1,” section (III)(b)(8) (2d
ed. 1989) (“A particular casual occurrence or juncture; a case of
something happening; the time, or one of the times, at which
something happens; a particular time marked by some occurrence or
by its special character.”); Webster’s Third International Dictionary v.
“occasion,” section (4)(a) (1976) (“[A] particular occurrence:
10
happening, incident.”). But the word often evokes, more broadly, the
totality of circumstances giving rise to an opportunity. This broader
sense is the primary definition of the word in the Oxford English
Dictionary. See Oxford English Dictionary, supra, section (I)(a)(1) (“A
falling together or juncture of circumstances favourable or suitable to
an end or purpose, or admitting of something being done or effected;
an opportunity.”); cf. Webster’s Third International Dictionary, supra,
para. (1) (“[A] situation or set of circumstances favorable to a
particular purpose or development: a timely chance.”).
History. The legislative and statutory history of ACCA provides
additional guidance about the meaning of “occasions.” Cf. American
Broadcasting Cos. v. Aereo, Inc., 134 S. Ct. 2498, 2505–06 (2014) (using
legislative history to clarify statutory purpose). ACCA was intended,
according to its sponsor, to protect the public from “career
criminals”—that is to say, from “a limited number of repeat offenders”
who “often have no lawful employment” and whose “full‐time
occupation is crime for profit.” H.R. Rep. No. 98‐1073, at 3 (1984)
(quoting Sen. Arlen Specter), reprinted in 1984 U.S.C.C.A.N. 3661,
3662–63. Despite the purpose of the statute, the original text of ACCA
did not specify that the defendant had to commit multiple crimes over
a lengthy career, however. Instead of requiring, as ACCA now does,
that the defendant have committed several crimes “on occasions
different from one another,” the original statute required only that the
defendant have “three previous convictions” for certain offenses. Pub.
L. No. 98‐473, § 1802, 98 Stat. 1837, 2185 (1984). The addition to ACCA
of the phrase “committed on occasions different from one another”
11
resulted from the original decision of the United States Court of
Appeals for the Eighth Circuit in United States v. Petty, 798 F.2d 1157
(8th Cir. 1986), vacated and remanded, 481 U.S. 1034 (1987), reheard on
remand, 828 F.2d 2 (8th Cir. 1987). In Petty, the Eighth Circuit originally
imposed ACCA’s mandatory minimum sentence on a defendant who
had six previous convictions for simultaneously robbing six people at
a restaurant. See 798 F.2d at 1159–60. The Solicitor General confessed
error in a petition to the Supreme Court for a writ of certiorari, arguing
that Congress had intended ACCA to apply only to defendants whose
convictions had arisen from distinct “criminal episodes,” not to a
defendant who had been convicted on several counts for the same
event. 828 F.2d at 3. In response, Congress adopted the Solicitor
General’s construction of the statute by adding the words “committed
on occasions different from one another.” See Minor and Technical
Criminal Law Amendments Act of 1988, § 7056, Pub. L. No. 100‐690,
102 Stat. 4181, 4395, 4402 (1988); 134 Cong. Rec. 13,780, 13,782–83 (1988)
(analysis submitted by cosponsor Sen. Robert Byrd).
In keeping with this analysis of text and history, our precedents
addressing the criminal‐episode standard have tried to distinguish
between the defendant who simply commits several offenses in a
connected chain of events and the defendant who is targeted by
ACCA—someone who commits multiple crimes separated by
substantial effort and reflection. We therefore understand “occasions”
in its broader sense, as the conjuncture of circumstances that provides
an opportunity to commit a crime. We consider not only whether a
defendant has committed different crimes at different times, but also
12
the other circumstances of the crimes, such as whether the defendant
committed the crimes against different victims and whether the
defendant committed the crimes by going to the effort of traveling
from one area to another. See United States v. Daye, 571 F.3d 225, 237
(2d Cir. 2009), abrogated on other grounds by Johnson v. United States, 135
S. Ct. 2551 (2015); Rideout, 3 F.3d at 34–35. Moreover, we consider
whether the defendant had a realistic opportunity for substantial
reflection between offenses “during which time he could have chosen
to end his criminal activity.” Rideout, 3 F.3d at 35.
When we apply the criminal‐episode standard, we are
permitted to consider only the sources approved by the Supreme
Court in Taylor v. United States, 495 U.S. 575 (1990), and Shepard v.
United States, 544 U.S. 13 (2005). United States v. Dantzler, 771 F.3d 137,
139 (2d Cir. 2014). These sources include “the charging document,
written plea agreement, transcript of plea colloquy, [and] analogous
materials.” Id. at 141.
2. Analysis
Applying the criminal‐episode standard to this case, we
conclude that Bordeaux’s three prior convictions were for offenses
committed as part of three different episodes. The District Court
therefore did not err when it concluded that the convictions were for
offenses committed on different occasions.
13
The facts as found by the District Court are the following.4
Bordeaux was a member of a group that committed three robberies in
Bridgeport, Connecticut against different victims on the night of
November 24, 2009. The first robbery took place near 848 Wood
Avenue at about 10:00 p.m., the second near the intersection of Grand
Street and Lexington Avenue at about 10:15 p.m., and the third
robbery near 246 Federal Street at about 10:55 p.m. The District Court
took notice that the distances between the first and second and the
second and third robberies were a little less and a little more than one‐
half mile, respectively. These facts persuade us that Bordeaux
committed his three crimes in separate episodes. The lapse of time
between the first and second and the second and third crimes was
fairly short, a circumstance that should perhaps favor our treating the
three offenses as parts of a single episode. The significant distances
between the crimes, however, suggest that Bordeaux had to go to a
degree of effort to get from one site to the next. Taken together, the
time lapse and the distances provided Bordeaux an opportunity to
reflect and change course, if he had wanted to do so. Cf. Rideout, 3 F.3d
at 33 (reporting that the defendant had gone to the effort of making a
twenty‐ to thirty‐minute drive across a county line to get from the site
of the first offense to the site of the second one).
Bordeaux objects that the District Court’s findings of fact relied
in part on a police report, a source that the Supreme Court’s decisions
4 These facts, agreed on by the prosecution and defense, can be found in the
transcript of Bordeaux’s plea colloquy in Connecticut state court. See App. 76–79,
81–82, 242.
14
in Taylor, 495 U.S. 575, and Shepard, 544 U.S. 13, did not allow the
District Court to consider. We acknowledge that the District Court
relied on a police report to find the time of the second robbery, which
it set at around 10:15 p.m. See Ruling on Objection to Enhancement
Under the Armed Career Criminal Act at 15 & n.2, United States v.
Bordeaux, No. 3:15‐cr‐00018 (AWT) (D. Conn. Feb. 14, 2017), ECF No.
129. We do not think that the District Court’s finding that fifteen
minutes elapsed between the first and second robberies was clearly
erroneous, however. According to the transcript of the state‐court plea
colloquy—one of the sources that we may indeed consider under
Taylor and Shepard—the prosecution and defense agreed that the
second robbery had taken place at 10:15 p.m. See Sentencing
Memorandum Exhibit B (Plea Transcript) at 1, 10–11, id. (Aug. 29,
2016), ECF No. 99‐2.
Bordeaux also objects that the prosecution did not prove5 that
one robbery had ended before the next one began. In theory, he asserts,
one of his accomplices could have stayed behind to guard the victim
while the other members of the group traveled on to the next robbery
site. In support of this argument he refers to United States v. Barbour,
750 F.3d 535 (6th Cir. 2014). In Barbour, the defendant and some
accomplices had robbed one victim in front of a convenience store and
another victim inside the store. Id. at 537. The district court in Barbour
held the defendant’s convictions for the robberies qualified as
The government bears the burden of proving by a preponderance of the
5
evidence that particular convictions qualify as separate criminal episodes for the
purpose of applying ACCA. See Dantzler, 771 F.3d at 145.
15
convictions committed on separate occasions for the purpose of
applying ACCA. See id. On appeal, the defendant argued that the
prosecution had failed to prove that one robbery had ended before the
other began, since in theory some of the perpetrators could have still
been guarding the first victim while others went inside to rob the
second victim. Id. at 538. The United States Court of Appeals for the
Sixth Circuit agreed with the defendant. It held that the government
had not met its burden of proving that the first and second robberies
had been committed on different occasions because there was no
evidence in the record about what the defendant’s codefendants were
doing during each robbery. See id. at 541, 546.
We do not think that Barbour is germane to this case, however.
As the state‐court plea‐colloquy transcript in our case indicates,
Bordeaux and state prosecutors agreed that the three Bridgeport
robberies had taken place at distinct times: about 10:00 p.m., about
10:15 p.m., and about 10:55 p.m. There was also other evidence in the
transcript from which the District Court could infer that none of
Bordeaux’s accomplices had stayed behind at one site while the others
moved on to the other sites. We note in particular that the first and
second victims are recorded as having called the police around the
times at which the first and second robberies took place respectively.
This evidence suggests that neither victim was held under guard after
being robbed. We therefore conclude that the District Court did not
16
clearly err when it found that the robberies had taken place—that is,
had started and ended—at distinct times.6
III. CONCLUSION
In summary, we hold as follows:
(1) the District Court correctly concluded that first‐degree
robbery in violation of Connecticut General Statutes section
53a‐134(a)(4) qualifies as a “violent felony” under the
elements clause of ACCA; and
(2) the District Court correctly concluded that Bordeaux’s three
prior convictions were for offenses “committed on occasions
different from one another” within the meaning of ACCA.
We therefore AFFIRM the District Court’s judgment of
February 17, 2017.
6 Bordeaux makes the related argument that the District Court
impermissibly shifted, from the prosecution to the defense, the burden of proving
that each successive robbery had ended before the next one began. To support this
argument, he quotes a remark made by the District Court. See Br. Def.‐Appellant 61
(quoting App. 119, ll. 10–15). Reading the remark in context, we conclude that the
District Court did not actually shift the burden of proof to the defense.
17