18‐0019
United States of America v. Kouwanii Brunstorff
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 ASUMMARY ORDER@).
A PARTY CITING 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 15th day of January, two thousand nineteen.
PRESENT: DENNIS JACOBS,
GUIDO CALABRESI,
Circuit Judges,
JED S. RAKOFF,*
District Judge.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
KOUWANII BRUNSTORFF,
Petitioner ‐ Appellant,
‐v.‐ 18‐0019
UNITED STATES OF AMERICA,
Respondent ‐ Appellee.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
* Judge Jed S. Rakoff, United States District Court for the Southern District of New York, sitting by designation.
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FOR RESPONDENT‐APPELLEE: ANTHONY E. KAPLAN, Assistant United
States Attorney (Marc H. Silverman, Assistant
United States Attorney, on the brief), for John
H. Durham, United States Attorney for the
District of Connecticut, New Haven, CT.
FOR PETITIONER‐APPELLANT: JEFFREY KESTENBAND, The Kestenband
Law Firm LLC, Glastonbury, CT.
Appeal from a judgment of the United States District Court for the District of
Connecticut (Burns, J. and Shea, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Kouwanii Brunstorff appeals the denial of his successive (second) 28 U.S.C. §
2255 petition challenging application of the enhanced penalties in the Armed Career
Criminal Act (the “ACCA”). He argues that he may renew his petition for collateral
relief because the Supreme Court declared the residual clause of the ACCA
unconstitutional in Johnson v. United States, 135 S. Ct. 2551 (2015) (“2015 Johnson”),
and because the district court may have relied on that clause when sentencing him. He
also argues that his prior convictions are not categorically violent felonies under the
ACCA’s force clause. We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
1. A “second or successive” § 2255 motion is procedurally barred unless it relies
on “a new rule of constitutional law, made retroactive to cases on collateral review by
the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h)(2).
Brunstorff satisfies this standard only if he “was sentenced in violation of the new
constitutional rule announced in [2015 Johnson], which held that the ACCA’s residual
clause was unconstitutionally vague.” Massey v. United States, 895 F.3d 248, 252 (2d
Cir. 2018) (per curiam). We assume without deciding that Brunstorff was sentenced
using the ACCA’s residual clause and that his successive habeas petition is not
procedurally barred.
2. Brunstorff next argues that his prior offenses‐‐his 1994 convictions for robbery
in the first degree, in violation of N.Y. Penal Law § 160.15(4); and his 1999 convictions
for assault in the second degree, in violation of N.Y. Penal Law § 120.05(2), and
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attempted assault in the second degree, in violation of N.Y. Penal Law §§ 110 and
120.05(2)‐‐are not categorically crimes of violence. We review questions of law relating
to the application of a federal sentencing enhancement de novo. United States v.
Beardsley, 691 F.3d 252, 257 (2d Cir. 2012).
We have held that robbery in any degree is a crime of violence under the force
clause of the 2014 Sentencing Guidelines because all degrees of robbery in New York
require “forcible stealing.” United States v. Pereira‐Gomez, 903 F.3d 155, 166 (2d Cir.
2018). Because the force clause of the ACCA contains the same relevant wording as the
force clause of the Sentencing Guidelines, robbery in any degree in New York is also a
crime of violence under the ACCA’s force clause. See Belk v. United States, 743 F.
App’x 481, 482 (2d Cir. 2018) (“Pereira‐Gomez compels us to conclude that New York
robbery in any degree also satisfies the ACCA’s ‘force clause.’”). Accordingly,
Brunstorff’s 1994 convictions for robbery in the first degree count as (at least) one
categorically violent crime.
Brunstorff’s 1999 assault and attempted assault convictions are also categorically
crimes of violence under United States v. Walker, which held that attempted second
degree assault under N.Y. Penal Law § 120.05(2) is a violent felony under the ACCA’s
force clause. 442 F.3d 787, 787‐89 (2d Cir. 2006) (per curiam). Brunstorff argues that
Walker no longer controls after the Supreme Court’s ruling that violent felonies under
the ACCA require the use of “violent force.” Johnson v. United States, 559 U.S. 133, 140
(2010) (emphasis in original). But Walker held that “[t]o (attempt to) cause physical
injury by means of a deadly weapon or dangerous instrument is necessarily to (attempt
to) use ‘physical force,’ on any reasonable interpretation of that term.” 442 F.3d at 788
(quoting 18 U.S.C. § 924(e)(2)(b)(i)) (emphasis added).
We have considered all of Brunstorff’s other arguments and find them to be
without merit. The judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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