15‐3313‐cr
United States v. Smith
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2015
No. 15‐3313‐cr
UNITED STATES OF AMERICA,
Appellee,
v.
EDWARD SMITH,
Defendant‐Appellant.
On Appeal from the United States District Court
for the Southern District of New York
ARGUED: SEPTEMBER 28, 2016
DECIDED: MARCH 8, 2018
AMENDED: JULY 19, 2018
Before: WINTER and CABRANES, Circuit Judges, and RESTANI, Judge.*
This case, in which oral argument was heard in September 2016
but which was held in abeyance pending decision first in United States
v. Jones, 878 F.3d 10 (2d Cir. 2017), then in United States v. Morales, 709
F. App’x 93 (2d Cir. 2018), presents the following questions: (1)
whether the evidence at trial was sufficient to prove possession of
crack cocaine with intent to distribute; and (2) whether the New York
offense of robbery in the second degree constitutes a “crime of
violence” as that term was defined in the United States Sentencing
Guidelines before August 1, 2016. We answer both questions in the
affirmative and therefore AFFIRM the judgment of October 7, 2015 of
the United States District Court for the Southern District of New York
(Katherine Polk Failla, Judge).
DANIEL M. TRACER, Assistant United States
Attorney (Thomas McKay and Karl Metzner,
Assistant United States Attorneys, on the
brief), for Geoffrey S. Berman, United States
Attorney for the Southern District of New
York, New York, NY, for Appellee.
* Judge Jane A. Restani, of the United States Court of International Trade,
sitting by designation.
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MATTHEW B. LARSEN, Federal Defenders of
New York Appeals Bureau, New York, NY,
for Defendant‐Appellant.
JOSÉ A. CABRANES, Circuit Judge:
This case, in which oral argument was heard in September 2016
but which was held in abeyance pending decision first in United States
v. Jones, 878 F.3d 10 (2d Cir. 2017), then in United States v. Morales, 709
F. App’x 93 (2d Cir. 2018), presents the following questions: (1)
whether the evidence at trial was sufficient to prove possession of
crack cocaine with intent to distribute; and (2) whether the New York
offense of robbery in the second degree constitutes a “crime of
violence” as that term was defined in the United States Sentencing
Guidelines (“Guidelines”) before August 1, 2016. We answer both
questions in the affirmative and therefore AFFIRM the judgment of
October 7, 2015 of the United States District Court for the Southern
District of New York (Katherine Polk Failla, Judge).
I. BACKGROUND
Defendant‐Appellant Edward Smith (“Smith”) appeals from a
District Court judgment entered on October 7, 2015 by Judge Failla. A
jury convicted Smith of being a felon in possession of a firearm and
ammunition, in violation of 18 U.S.C. § 922(g)(1), and of possession of
crack cocaine with intent to distribute, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(C). At sentencing, the District Court calculated
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Smith’s base offense level as 20. The District Court came to this result
partly by concluding that Smith had already been convicted of a
“crime of violence” as that term is defined in section 4B1.2(a) of the
Guidelines: robbery in the second degree in violation of New York
Penal Law section 160.10. The District Court then imposed a term of
one hundred twenty months’ imprisonment for each of the two
charges, the terms to run concurrently. Smith appealed.
II. DISCUSSION
A. Sufficiency of the Evidence
Smith raises two arguments on appeal. His first argument is that
the evidence presented at trial was insufficient to prove possession of
crack cocaine with intent to distribute. The officers’ testimony that
they recovered bags of crack cocaine from him at the police station
could not have been true, he argues, because he “was bleeding from
his hands on the night in question,” whereas “the baggies allegedly
recovered from [him] were bloodless.” Br. Appellant 15–16. The bags
thus could not have been “pried from his bleeding and
tightly[ ]clenched hands.” Id. at 16.
A court reviewing a conviction entered pursuant to a jury
verdict for sufficiency of the evidence must affirm the conviction if it
determines that “after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Musacchio
v. United States, 136 S. Ct. 709, 715 (2016) (emphasis in original)
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(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see also United
States v. Daugerdas, 837 F.3d 212, 221 (2d Cir. 2016).
We conclude that there was sufficient evidence to convict Smith.
The officers involved in Smith’s arrest testified at trial that they did not
search Smith until they were back at the police station because a hostile
crowd had gathered at the scene of the arrest. They also testified that
as they prepared to search Smith at the station, Smith removed
something from his pocket and clenched it in his fist. When they pried
Smith’s fist open, they discovered a plastic bag containing fourteen
smaller plastic bags of crack cocaine. Even if no blood was found on
the fourteen smaller plastic bags, the jury might reasonably have
inferred from the officers’ testimony that Smith’s hands were no
longer bleeding by the time he arrived at the police station. The jury
might also reasonably have inferred that Smith’s hands were still
bleeding but that no blood was on the smaller bags because they were
enclosed within the larger plastic bag. The government’s choice not to
introduce the larger plastic bag into evidence did not require the jury
to reject this second possible inference or to conclude that the officers’
testimony was not credible.
B. Calculation of Base Offense Level
Smith also argues that the District Court miscalculated his base
offense level under the Guidelines because robbery in the second
degree, in violation of New York Penal Law section 160.10, is not a
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“crime of violence” as the term is defined in the applicable version of
section 4B1.2(a) of the Guidelines.1
Because Smith did not object to the calculation in the District
Court, we review the District Court’s calculation for plain error,
although we apply that standard less “stringently” in sentencing cases.
United States v. Gamez, 577 F.3d 394, 397 (2d Cir. 2009).
The applicable version of section 4B1.2(a) defines “crime of
violence” to include “any offense under federal or state law,
punishable by imprisonment for a term exceeding one year, that—(1)
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.” U.S. Sentencing Guidelines Manual § 4B1.2(a) (U.S. Sentencing
Comm’n 2014). Paragraph (1) is commonly known as the “force
1 The applicable version of the Guidelines is the version in effect on the day
the defendant is sentenced. See 18 U.S.C. § 3553(a)(4)(A)(ii) (2012); United States v.
Jones, 878 F.3d 10, 21 n.3 (2d Cir. 2017). Smith was sentenced on October 1, 2015. See
App. Appellant 633–713 (transcript of sentencing). The applicable Guidelines
Manual is therefore the 2014 version, which remained in effect until November 1,
2015. Compare U.S. Sentencing Guidelines Manual i (U.S. Sentencing Comm’n 2014)
(indicating that the 2014 version incorporates amendments to the Guidelines up
through the amendments effective November 1, 2014), with U.S. Sentencing
Guidelines Manual i (U.S. Sentencing Comm’n 2015) (indicating that the 2015 version
incorporates amendments to the Guidelines up through the amendments effective
November 1, 2015).
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clause”; the part of paragraph (2) beginning with “or otherwise
involves” is commonly known as the “residual clause.”2
We have already held that every degree of New York robbery is
a crime of violence under the residual clause of section 4B1.2(a)(2) as
that clause was worded at the time of Smith’s sentencing. See United
States v. Dove, 884 F.3d 138, 152 (2d Cir. 2018) (applying the identically
worded U.S. Sentencing Guidelines Manual § 4B1.2(a)(2) (U.S.
Sentencing Comm’n 2013)). The District Court’s calculation was
therefore not erroneous, and it is not necessary to consider whether
New York second‐degree robbery is a crime of violence under the force
clause of section 4B1.2(a)(1).
III. CONCLUSION
In summary, we hold:
(1) the evidence presented at Smith’s trial was sufficient to prove
possession of crack cocaine with intent to distribute; and
2 The residual clause was removed from the Guidelines effective August 1,
2016 because the United States Sentencing Commission had determined the phrase
to be unconstitutionally vague in light of the Supreme Court’s decision in Johnson
v. United States, 135 S. Ct. 2551 (2015). See Jones, 878 F.3d at 14 n.1. The Supreme
Court had held in Johnson that the identically worded residual clause of the Armed
Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague.
Johnson, 135 S. Ct. at 2554. The Guidelines residual clause has since been held,
however, to be constitutional. Beckles v. United States, 137 S. Ct. 886, 892 (2017). Our
holding thus applies only to sentencing decisions made under the Guidelines in
effect before August 1, 2016.
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(2) because the New York offense of robbery in the second
degree constitutes a crime of violence within the meaning of
the residual clause of United States Sentencing Guidelines
section 4B1.2(a)(2) in effect when Smith was sentenced on
October 1, 2015, the District Court’s calculation of Smith’s
base offense level was not erroneous.
We AFFIRM the District Court’s judgment of October 7, 2015.
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