NY Robbery Is Crime of Violence Under Force Clause

USv. Hammond: Hammond pleaded guilty to bank robbery and attempted bank robbery. In the PSR he was designated as a career offender, based in part on a prior conviction for first-degree robbery in New York. He objected to that classification, arguing that the NY robbery was not a crime of violence. The district court disagreed, overruled the objection, and imposed a sentence of 168 months in prison, in the middle of the Guideline range.

On appeal the Fourth Circuit affirmed. It focused on whether the robbery was a crime of violence under the force clause, rather than whether it matched the generic “robbery” offense set forth in the Guidelines, as that “provides the most direct route to answering the question before us.” Looking to NY law, the court noted that all variants of robbery “require the same element of force, namely, ‘forcible stealing’” which requires the use or threatened “immediate use of physical force upon another person.” Because “physical force” for common-law robbery purposes always meant “violent force or intimidation of violent force,” is met the force requirement under the clause. The court noted it was joining the majority side of a circuit split on this issue, but I think in the wake of Stokeling the split’s been resolved.