US v. Corey Jones 15-CR-1518 Appeals Brief

15-1518-cr

To be argued by:

MATTHEW B. LARSEN

__________________________________________________________________

__________________________________________________________________

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT ___________________________________________________

UNITED STATES OF AMERICA,

Appellee,

-against-

COREY JONES,

Defendant-Appellant.

___________________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NEW YORK

(Case No. 13-cr-438, Judge Nicholas G. Garaufis)

__________________________________________________________________

BRIEF FOR APPELLANT COREY JONES __________________________________________________________________

FEDERAL DEFENDERS OF NEW YORK

APPEALS BUREAU

52 Duane Street, 10th Floor

New York, New York 10007

Tel.: (212) 417-8725

Email: [email protected]

MATTHEW B. LARSEN,

Of Counsel

__________________________________________________________________

__________________________________________________________________

i

TABLE OF CONTENTS QUESTIONS PRESENTED ...................................................................................... 1 JURISDICTIONAL STATEMENT .......................................................................... 2 STATEMENT OF THE CASE .................................................................................. 2 STATEMENT OF FACTS ........................................................................................ 3

A. Overview ............................................................................................... 3 B. The Finger Bite ...................................................................................... 4 C. The 15-Year Sentence ........................................................................... 7

SUMMARY OF ARGUMENT ...............................................................................14 ARGUMENT ...........................................................................................................15

I. The District Court Erred by Labeling Jones a Career Offender .........15

A. Standard of Review ...................................................................15 B. Jones’s New York Robbery Conviction

Does Not Trigger the Career Offender Designation .................16 1. First-Degree Robbery in New York is

Not a Categorical “Crime of Violence” ..........................17 2. The Modified Categorical Approach

Cannot be Used Here ......................................................25 C. The Erroneous Career Offender Designation

Requires a Remand ...................................................................27 II. Jones’s 15-Year Sentence is Substantively Unreasonable ..................29

A. Standard of Review ...................................................................29 B. A 15-Year Prison Sentence is Greater Than Necessary to

Adequately Punish Jones for Biting a Marshal’s Finger ..........30 CONCLUSION ........................................................................................................46

ii

TABLE OF AUTHORITIES

Page(s)

Federal Cases

Descamps v. United States,

133 S. Ct. 2276 (2013) .................................................................... 16, 17, 25, 26

Gall v. United States,

552 U.S. 38 (2007) ...................................................................................... 39, 40

Holland v. Goord,

758 F.3d 215 (2d Cir. 2014) ............................................................................. 42

In re Sealed Case,

548 F.3d 1085 (D.C. Cir. 2008) ........................................................................ 21

Johnson v. United States,

559 U.S. 133 (2010) ................................................................................... passim

Johnson v. United States,

135 S. Ct. 2551 (2015) ................................................................................ 15, 24

Mellouli v. Lynch,

135 S. Ct. 1980 (2015) ...................................................................................... 17

Stinson v. United States,

508 U.S. 36 (1993) ............................................................................................ 25

United States v. Allah,

130 F.3d 33 (2d Cir. 1997) ............................................................................... 18

United States v. Barker,

723 F.3d 315 (2d Cir. 2013) ............................................................................. 25

United States v. Beardsley,

691 F.3d 252 (2d Cir. 2012) ............................................................................. 26

United States v. Castro-Vazquez,

___ F.3d ___, 2015 WL 5172839 (1st Cir. Sept. 4, 2015) ............................... 21

iii

TABLE OF AUTHORITIES (cont.)

Page(s)

United States v. Cavera,

550 F.3d 180 (2d Cir. 2008) ............................................................................. 35

United States v. Davis,

690 F.3d 127 (2d Cir. 2012) ............................................................................. 30

United States v. Dorvee,

616 F.3d 174 (2d Cir. 2010) ....................................................................... 28, 41

United States v. Gamez,

577 F.3d 394 (2d Cir. 2008) .................................................................. 15-16, 28

United States v. Gordon,

291 F.3d 181 (2d Cir. 2002) ............................................................................. 27

United States v. Howard,

773 F.3d 519 (4th Cir. 2014) .......................................................... 37, 38, 41-42

United States v. Moore,

846 F.2d 1163 (8th Cir. 1988) .................................................................... 33, 45

United States v. Neiman,

828 F. Supp. 254 (S.D.N.Y. 1993) ................................................................... 43

United States v. Park,

758 F.3d 193 (2d Cir. 2014) ....................................................................... 29, 45

United States v. Preacely,

628 F.3d 72 (2d Cir. 2010) ......................................................................... 43-44

United States v. Rattoballi,

452 F.3d 127 (2d Cir. 2006) ....................................................................... 35, 45

United States v. Reyes,

691 F.3d 453 (2d Cir. 2012) ...................................................................... passim

iv


Page(s)

United States v. Rigas,

583 F.3d 108 (2d Cir. 2009) ............................................................................. 29

United States v. Rosales,

680 F.2d 1304 (10th Cir. 1981) .................................................................. 34, 45

United States v. Saingerard,

621 F.3d 1341 (11th Cir. 2010) .................................................................. 34, 45

United States v. Shell,

789 F.3d 335 (4th Cir. 2015) ............................................................................ 25

United States v. Spencer,

955 F.2d 814 (2d Cir. 1992) ............................................................................. 18

United States v. Wernick,

691 F.3d 108 (2d Cir. 2012) ....................................................................... 27, 28

State Cases

People v. Bennett,

592 N.Y.S.2d 918 (N.Y. App. Div. 1st Dep’t 1993) ................................... 20, 27

People v. Bennett,

631 N.Y.S.2d 834 (N.Y. App. Div. 1st Dep’t 1995) .................................. 20, 27

People v. Brown,


People v. Castillo,

8 N.Y.3d 959, 868 N.E.2d 185 (N.Y. 2007) ..................................................... 23

People v. Foster,

826 N.Y.S.2d 288 (N.Y. App. Div. 2d Dep’t 2006) ................................... 23, 27

People v. Kilpatrick,


v


Page(s)

People v. Lee,


People v. Patton,


People v. Pena,

50 N.Y.2d 400, 406 N.E.2d 1347 (N.Y. 1980) ........................................... 23, 27

People v. Safon,

560 N.Y.S.2d 552 (N.Y. App. Div. 4th Dep’t 1990) ............................ 20-21, 27

Federal Statutes and Regulations

18 U.S.C. § 924(e)(2)(B)(i) ..................................................................................... 18

18 U.S.C. § 3553(a) ......................................................................................... passim

Federal Judiciary Protection Act of 2002,

Pub. L. No. 107-273, 116 Stat. 1758 ................................................................ 44

28 C.F.R. § 541.3 ............................................................................................. 38-39

United States Sentencing Guidelines

U.S.S.G. § 4B1.1 .................................................................................................... 16

U.S.S.G. § 4B1.2(a) ......................................................................................... 17-18

U.S.S.G. § 4B1.2(b) ............................................................................................... 36

State Statutes

N.Y. Penal Law § 160.00 ........................................................................... 18, 19-20

N.Y. Penal Law § 160.15 ....................................................................................... 22

1

QUESTIONS PRESENTED

I. The district judge labeled Jones, 37, a career offender under U.S.S.G.

§ 4B1.1 given his finding that Jones’s New York conviction, for a robbery

Jones participated in when he was 16 years old, is a “crime of violence.”

New York robbery can be committed, however, without the violent force

inherent in a “crime of violence.” Thus the question:

Because New York robbery is not a categorical “crime of violence,” and

because the modified categorical approach cannot be used here, did the

judge err by deeming the robbery conviction a “crime of violence” and,

consequently, deeming Jones a career offender?

II. Is Jones’s 15-year prison sentence, for biting a U.S. marshal’s finger,

substantively unreasonable?

2

JURISDICTIONAL STATEMENT

Corey Jones appeals a final judgment of the United States District Court for

the Eastern District of New York (Hon. Nicholas G. Garaufis) rendered on April

24, 2015, and entered on May 6, 2015. A. 55.1 Jones filed a timely notice of

appeal on April 28, 2015. A. 61. The district court had jurisdiction under 18

U.S.C. § 3231, and this Court has jurisdiction under 28 U.S.C. § 1291.

STATEMENT OF THE CASE

An indictment was filed on July 24, 2013, charging Jones with one count of

assaulting a federal officer in violation of 18 U.S.C. § 111. A. 9. Jones went to

trial, where a Deputy United States Marshal testified that Jones bit his right index

finger. The jury convicted Jones.

The judge sentenced Jones to 180 months in prison, to be followed by three

years of supervised release, and ordered him to pay a special assessment of $100.

Jones is in the custody of the Bureau of Prisons, projected to be released on

July 4, 2027.

1 “A.” refers to the Appendix for Appellant Corey Jones and is followed by

the relevant page number(s). “T.” refers to the trial transcript and is followed by

the date of the proceeding and the relevant page number(s). “PSR” refers to the

presentence report and is followed by the relevant paragraph(s).

3

STATEMENT OF FACTS

A. Overview

One morning at the halfway house where he was finishing a sentence for

unlawfully possessing a firearm, Jones was called to the director’s office. He

found two Deputy United States Marshals there and was told he was being taken

back to jail on the claim of verbally threatening a staff member the night before.

One marshal decided to use force and “drove Mr. Jones into the corner.”

Both marshals then tried to force Jones’s head, and body, down. In the process,

one marshal’s hand slipped down to Jones’s mouth. “He bit me,” the 6’1” tall,

295-pound marshal said. Jones was tried for assault; the jury convicted him.

At sentencing, the judge ruled Jones was a career offender under the

United States Sentencing Guidelines based on the assault being Jones’s third

“crime of violence.” The first was a conviction for a robbery Jones participated in

20 years earlier, when he was 16. Finding Jones to be a career offender caused his

Guidelines range to increase greatly: from 37-46 months to 210-240 months.

The government called for an unspecified but “significant” sentence.

Disputing the career offender designation and citing the mitigating facts of Jones’s

life, as well as the relative harmlessness of the finger bite (the marshal “provided a

sworn affidavit of loss indicating that he has suffered no loss”), the defense argued

for a term below 37 months.

The judge revealed Jones’s punishment at the very end of the hearing:

180 months (15 years) in prison.

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B. The Finger Bite

On June 21, 2013, Jones was called to the office of Dr. Grace Terry, the

director of the Brooklyn halfway house where he was finishing a 92-month

sentence he received in the Eastern District of New York for unlawful gun

possession. PSR ¶ 3. Jones had obtained the gun to protect his daughters, who

were with him when he was shot at by gang members who considered him a snitch

for going to the police after someone in his neighborhood tried to kill him. Dist.

Ct. Docket Entry 46-1 (Jones Sent. Mem., Ex. A) at 3. As to the gun he possessed,

“[t]here is no information to suggest that the firearm was used.” PSR ¶ 28.

Jones arrived at Dr. Terry’s office to find Deputy United States Marshals

Ryan Westfield and Shawn Larson waiting for him. Jones was told he was being

taken back to prison on an allegation of verbally threatening a staff member the

night before. The claim was that several halfway house residents had been in the

cafeteria watching a basketball game and that one staff member told Jones to clean

the room up; he allegedly refused and then “grumbled,” within earshot of another

staff member, that the first staff member “need[ed] to learn how to speak to

people” and that he could “make her have a miscarriage.” Dist. Ct. Docket Entry

47-2 (Gov’t Sent. Mem., Ex. B) at 1. The allegation is unclear as to whether the

first staff member actually heard this “grumble.” Jones denied making it,

maintaining that another resident uttered the remark. A. 34.

As Deputy Westfield related at trial, Jones was “not happy with the fact that

he was being told that he was going to be sent back to prison.” T. (4/21/14) at 40-

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41. Jones said he wanted to go to his room to get his belongings, which he feared

would be stolen in his absence, id. at 66, but “Deputy Larson blocked his passage

out of the office.” Id. at 42. Though Jones refused the deputy’s requests to sit

down, id. at 44, he “didn’t try to push past Deputy Larson” or “make an attempt to

punch him or push him or contact him in any way.” Id. at 65.

Deputy Westfield suggested Jones ask “Dr. Terry [to] get one of his relatives

on the phone.” Id. at 44. He complied, and “Dr. Terry then allowed him to make a

telephone call to [] his mother.” Id.

According to Deputy Westfield, Jones was “blading his body, you know,

turning towards [the marshals] to limit his surface area in relation to [them],” and

one of his fists was “balled” as he told his mother “shit was about to get crazy.”

Id. at 45. When Jones hung up, he turned to the deputy, “shrugged his shoulders

and puffed his chest [] and said, ‘What?’” Id. at 46. Deputy Westfield then

“ordered [Jones] to take off his hat and place all of his belongings from the pockets

onto Dr. Terry’s desk,” id., but, according to the deputy, Jones “said ‘No. Let’s do

this.’” Id. at 47.

Deputy Westfield and Deputy Larson each confirmed, however, that Jones

did not move toward them. Id. at 74-75, 102.

Deputy Westfield is 6’1” tall, weighs 295 pounds and played football in high

school. Id. at 75-76. Jones is 5’7” tall and weighs 180-185 pounds. Dist. Ct.

Docket Entry 46-1 (Jones Sent. Mem., Ex. A) at 3. The deputy used a “football

drive block” and “drove Mr. Jones into the corner of the room and pinned him

6

approximately where the filing cabinet meets the wall.” T. (4/21/14) at 47. He

was “trying to gain control of [Jones’s] head” because “if you gain control of a

person’s head, you can dictate where the rest of their body goes.” Id. at 49.

Deputy Westfield had his “hand on top of [Jones’s] head trying to drive it

down into his chin, with the theory being that he would slide [down] the corner of

the wall and eventually end on his butt or fall on his back.” Id. Jones’s “upper

arms [Jones] brought in tight to his body. And his hands were flailing around

trying to resist attempts to handcuff him.” Id.

As Deputy Westfield confirmed, Jones did not punch or kick him. Id. at 77.

As Deputy Larson likewise confirmed, Jones did not punch or kick him.2 Id. at

104.

Deputy Westfield was “trying to shove [Jones’s] head down, his chin into

his chest.” Id. at 77. Deputy Larson joined in and tried, with both hands, to “push

[Jones’s] head down.” Id. at 93, 96. Deputy Westfield was “wearing a latex glove

and it slipped down the top of [Jones’s] head. And at that point [his] hand became

parallel with Mr. Jones’ mouth,” and, according to the marshal, “Mr. Jones reached

his neck out and bit down on [the marshal’s] right index finger.” Id. at 50. Deputy

Westfield felt a “sharp pain” and “turned to Deputy Larson and said, ‘He bit me.’”

Id.

2 Dr. Terry testified that “Jones was really throwing some punches” and that

he actually “hit” Deputy Larson. T. (4/21/14) at 117, 125. As noted, however, the

marshals denied this. The prosecutor concurred: “Dr. Terry thought that she saw

the defendant punch Deputy Larson and the deputies, by their own testimony, they

were never punched. . . . Was she mistaken? Yes.” T. (4/22/14) at 51.

7

Deputy Westfield claimed Jones “intentionally bit [his] finger.” Id. at 79.

Neither Deputy Larson nor Dr. Terry saw the bite happen. Id. at 93, 117. The

entire scuffle was a “relatively fast, quickly-occurring incident.” Id. at 78.

The marshals pushed Jones towards the floor and he said “I give.” They

“walked him over to a chair and handcuffed him.” Id. at 51.

When Deputy Westfield looked at his finger, he saw “puncture wounds on

either side of the finger” and “[t]here was blood.” Id. He later went to a hospital,

where he was “given a tetanus shot” and antibiotics. Id. at 55.

After he testified to this at trial, the jury convicted Jones of assault.

When later asked about restitution, Deputy Westfield “provided a sworn

affidavit of loss indicating that he has suffered no loss.” PSR ¶ 84.

C. The 15-Year Sentence

The probation officer calculated a total offense level of 15 for the assault.

PSR ¶ 17. Yet she more than doubled that, to 32, on the view that Jones is a career

offender under U.S.S.G. § 4B1.1. PSR ¶ 18. The three convictions of Jones’s for

“crimes of violence” offered to support that designation are: (1) a 1999 conviction

for a first-degree robbery in New York that Jones committed when he was 16 (PSR

¶ 22); (2) a 1999 conviction for a second-degree assault in New York that Jones

committed when he was 20 (PSR ¶ 24); and (3) the instant finger bite.

Combined with a criminal history category of VI, as mandated by the career

offender guideline, Jones’s offense level of 32 yielded a Guidelines sentence range

of 210-262 months in prison; given the 20-year statutory maximum for assault, the

8

range was adjusted to 210-240 months. PSR ¶ 74.

The defense disputed the career offender designation. Counsel argued the

instant assault conviction did not qualify because federal assault is not a “crime of

violence.” Counsel further argued the robbery conviction did not count because it

was a “youthful offender” adjudication. See Dist. Ct. Docket Entry 46 (Jones Sent.

Mem.). The defense said Jones’s offense level was 15 and that his criminal history

category was V, thus yielding a Guidelines range of 37-46 months. “Even should

the Court determine that Mr. Jones is a career offender,” counsel argued, “it would

be unjust to sentence him at that heightened guideline level.” Id. at 6.

Counsel cited the staleness of Jones’s state robbery and assault convictions

and the fact that he committed those offenses when he was, respectively, 16 and 20

years old. Id. Turning to the factors in 18 U.S.C. § 3553(a), counsel noted the

relative harmlessness of the bite and set out the mitigating facts of Jones’s life.

Born into an impoverished African American family, Jones was exposed to

lead paint as a child; he was hospitalized and later placed in special education. Id.

at 7; Id., Ex. A at 2. His father died when he was 9, which affected him greatly,

and he grew up in a violent housing project. Id., Ex. A at 2. In addition to his two

daughters, whom he effectively adopted when he was in a relationship with their

mother, Jones has a teenage son from a previous relationship. PSR ¶¶ 43, 44.

Jones has been examined by a forensic psychologist, who in addition to

interviewing Jones administered a “battery of psychological tests.” Dist. Ct.

Docket Entry 46-1 (Jones Sent. Mem., Ex. A) at 5. These tests revealed that Jones

9

has an I.Q. of 69, a score “commensurate with either mental retardation or

borderline intellectual functioning.” Id. His “basic cognitive functions are

compromised by neuropsychological factors, possibly referable to his reported

ingestion of lead paint as a child and/or to other factors such as head injury.” Id.

(Jones “has one scar on the back of his head from being hit with an ice pick.” Id.

at 2.) Testing also indicated an “acute anxiety state in the context of a mixed

personality disturbance with predominant Schizoid, Negativistic, Dependent and

likely Paranoid features.” Id. at 6. People with similar test results are “typically

mistrustful of others and tend to function on the margins of society. Under stress

Mr. Jones can develop paranoid ideas that others are attempting to harm [him], and

he may react in a moody, impulsive, angry and irritable fashion.” Id. Jones “tends

to misperceive events and to form mistaken impressions of people and the

significance of their actions. This adaptive liability is likely to result, at times, in

instances of poor judgment in which he fails to anticipate the consequences of his

actions and misconstrues what constitutes appropriate behavior.” Id. at 7.

Given this background, counsel explained, Jones’s “tendency to misperceive

events and to form mistaken impressions of people and the significance of their

actions . . . likely contributed to the offense conduct.” Dist. Ct. Docket Entry 46

(Jones Sent. Mem.) at 7. The defense sought a sentence below 37 months.

In its memorandum, the government urged an unspecified but “significant”

term of imprisonment. Dist. Ct. Docket Entry 47 (Gov’t Sent. Mem.) at 1. Saying

a “bite is a serious form of assault,” the government claimed “the risk to [Deputy

10

Westfield’s] health as well as the nature of the assault was significant and very

serious in nature.” Id. at 7. At trial, by contrast, the prosecutor conceded to the

jury that the bite to the marshal’s finger was “not the most serious wound you’ll

ever see.” T. (4/22/14) at 53. Perhaps because of this, in its sentencing memo the

government emphasized the convictions Jones had sustained some 20 years earlier.

Dist. Ct. Docket Entry 47 (Gov’t Sent. Mem.) at 7. It also urged the judge to use

Jones’s case to “send a message.” Id. at 8.

At the sentencing hearing, the parties reiterated their arguments concerning

the career offender designation. As to the term of imprisonment, defense counsel

noted that the designation, if it applied, applied “because of offenses committed,

one 21 years ago, when [Jones] was 16 years old, and one 17 years ago. Those

facts alone, I think, should give the court pause in imposing a sentence

approaching the career offender guideline simply because the man standing before

you now is 20 years removed from those acts.” A. 31. The finger bite was

“relatively minor,” and “a sentence [] approaching 20 years, I think, is

unwarranted” and would be “an unjust sentence.” A. 37.

The prosecutor repeated her claim that the finger bite was “an incredibly

serious assault.” A. 42.

When given the chance, Jones addressed Judge Garaufis at some length.

Responding first to the judge’s mentioning the infractions Jones had received in

prison while serving his 92-month sentence for unlawful gun possession (discussed

in Point II.B. below), he explained “it can be something such as an argument,

11

something minute as that, that they will write you up for a fighting shot [an

infraction] because [] you get into an argument.” A. 43. “So even if you argue

about anything, they are going to write you up for a fight.” A. 43. A “lot of them

infractions are not actually from physical fights done with hands or anything like

that. Those shots come from verbal” arguments. A. 43. Moreover, “they don’t

accommodate you for the things that you do good. I mean they only accommodate

you for the things that you do bad.” A. 44.

“What goes on in the max penitentiaries, I have been stabbed in my head. . .

. I have been stabbed a few times. . . . So it’s kind of really like hard to really

duck and dodge the situations.” A. 45. “And I’m not disputing that, yeah, I have –

I have a violent background. I have a very violent background, and it’s something

that, you know, I work my hardest into changing.” A. 46. “I have worked hard on,

trying to change. All my life I have been trying to do that.” A. 46.

Turning to the finger bite, Jones explained he “never had a problem with the

officer,” A. 46, and elaborated:

I didn’t know what I was coming to jail for. They called me down for

something that I didn’t – I didn’t even have no idea. . . . I didn’t know

what I was coming into the office for, because prior to that night I

hadn’t did nothing, you know, I didn’t do nothing. So when they was

telling me I was going back to jail, I was kind of like, don’t know a bit

of why I was coming back.

So what I was trying to explain to the marshals was, you know, I have

property upstairs, if you could just let me pack it, for my family to

come get, my mother, for my family come get it, then I’m going to go

ahead and go with y’all. Because my time – I only had until

November to max out. You know, I only had until November. So I

12

only wanted to pack my property. That’s the only stuff I owned from

coming home, that my family brought me. I mean that’s the only

property I had.

A. 46-47.

Jones continued: “I think this is something like a case where you hear me for

the first time. And I’m way bigger than this. I’m way better than this.” A. 48. “I

think a simple, you know, me saying I’m sorry is appropriate and we can move

forward. For it to [] continue on and to drag out, it’s just, it’s just harsh.” A. 48.

“I got pictures of my kids and my nieces that I ain’t ever seen. I ain’t ever seen my

kids or nieces or nephews since I been here.” A. 49. “I don’t know what you

going to do, but that’s what I got to offer you.” A. 49.

Judge Garaufis responded that Jones’s case “poses some really significant

issues. One very significant issue is respect for the law.” A. 49. Noting that he

accepted Jones’s “sincere comments about [Jones’s] life and [his] experiences in

prison,” the judge said “on this record, with your life of violating the rules, it’s

very hard to create a solution in sentencing that is not putative [sic], it’s

punishment, and that’s really the problem.” A. 49-50.

“If everybody who gets told that they have to go do something by a United

States Deputy Marshal takes the approach you did . . . , then a lot of people are

going to be placed at risk. You just can’t do it.” A. 50. “I had two deputies on the

stand, and they made it clear what they did and what they attempted to do and how

you resisted. That’s really the problem here.” A. 50. “You put people at risk who

don’t deserve to be put at risk. That’s the problem here. That’s the problem.” A.

13

51. “It’s also important that everyone understand that you can’t do this. It’s not

proper.” A. 51.

“You have a life of criminal activity that cannot be ignored and activity in

prison that cannot be ignored.” A. 51.

“I sentence you as follows: 180 months in the custody of the Attorney

General.” A. 52.

The judge then imposed a three-year term of supervised release to follow the

15-year prison term and proceeded to recite the conditions of supervision. Jones

cut in: “I don’t want to hear no more.” A. 53.

The judge continued, eventually informing Jones of his right to appeal, at

which point Jones said: “You right. I’m appealing it. You damn right. . . . He said

180. I got 15, man. Fuck this nigger. 180 figure. You racist is what you is, a

racist. You a racist. That’s what you is.” A. 54.

Jones continued and was taken out of the courtroom.

14

SUMMARY OF ARGUMENT

There are two problems with Jones’s sentence, and either warrants a remand.

First, the district judge erred by designating him a career offender under

U.S.S.G. § 4B1.1. That designation hinges on Jones’s New York robbery

conviction being a “crime of violence” under U.S.S.G. § 4B1.2. It isn’t. Such

robbery does not fall under § 4B1.2’s force clause because it can be committed

without violent force; and § 4B1.2’s residual clause, which might have applied to

New York robbery, has now been effectively invalidated by the Supreme Court.

Because Jones’s robbery conviction is not a “crime of violence,” he is not a career

offender. And because he is not a career offender, his Sentencing Guidelines range

is drastically lower than the judge thought.

Second, a 15-year prison sentence for biting a finger is shockingly high and,

as such, substantively unreasonable. The fleeting bite here caused no meaningful

harm, and Jones’s sentence exceeds those imposed for worse assaults. Though the

judge focused on Jones’s criminal record, Jones’s only act of truly serious violence

occurred nearly 20 years ago. Since then, he has struggled to overcome the

cognitive deficits that have spurred his poor judgment. And that struggle, though

unfinished, is succeeding: besides the finger bite, which occurred during a scuffle

the marshals initiated, Jones’s last definitively physical altercation was in 2008.

To send him back to prison now, for 15 more years, would undo his progress and

serve no just end. A term well below a decade and a half is adequate to punish

Jones, promote respect for the law, deter others and protect the public.

15

ARGUMENT

I. The District Court Erred by Labeling Jones a Career Offender

Jones is not a career offender: the prior conviction needed to trigger that

designation – the one for first-degree robbery in New York – does not qualify

because it is neither a “crime of violence” nor a “controlled substance offense.”

As the career offender designation erroneously inflated Jones’s Guidelines range,

he has to be resentenced.

A. Standard of Review

In district court, Jones argued he was not a career offender but did not

specifically argue the reason was that his New York robbery conviction is not a

“crime of violence.” Presumably, then, the judge’s treating that conviction as a

“crime of violence” is reviewed for plain error.3 See United States v. Gamez, 577

F.3d 394, 397 (2d Cir. 2009) (per curiam).

3 At sentencing, the residual clause of the career offender guideline was still

intact. Under that clause, an offense is a “crime of violence” if it “involves

conduct that presents a serious potential risk of physical injury to another.”

U.S.S.G. § 4B1.2(a)(2). As discussed further below, New York robbery involves

“forcible stealing” and thus in certain cases will present a “serious potential risk of

physical injury.”

After sentencing, however, and also as discussed below, the Supreme Court

held the residual clause of the Armed Career Criminal Act, which is worded

identically to the residual clause of the career offender guideline, to be void for

vagueness. See Johnson v. United States, 135 S. Ct. 2551 (2015). A “decision of

the trial court that was perfectly proper when issued” – for example, deeming

Jones’s robbery conviction a “crime of violence” – “may nonetheless be

considered ‘plainly erroneous’ on appeal due to a supervening change in the law.”

United States v. Vilar, 729 F.3d 62, 71 (2d Cir. 2013).

16

Assuming it applies, however, “the plain error doctrine should not be applied

stringently in the sentencing context, where the cost of correcting an unpreserved

error is not as great as in the trial context.” Id. (citation omitted).

B. Jones’s New York Robbery Conviction Does Not Trigger the

Career Offender Designation

To qualify as a career offender under the Sentencing Guidelines, a defendant

must have “at least two prior convictions of either a crime of violence or a

controlled substance offense.” U.S.S.G. § 4B1.1(a)(3).

One of the two priors used to label Jones a career offender is his conviction

for a robbery he participated in over 20 years ago, when he was 16. He was

convicted of “Robbery in the First Degree” in New York state court. PSR ¶ 22.

To determine if prior convictions may enhance a federal sentence, courts use

the categorical approach and “may ‘look only to the statutory definitions’ – i.e., the

elements – of a defendant’s prior offenses, and not ‘to the particular facts

underlying those convictions.’” Descamps v. United States, 133 S. Ct. 2276, 2283

(2013) (emphasis in original; citation omitted). “If the relevant statute has the

same elements as the ‘generic’ [federal] crime,” id., then the statute is a categorical

match with the federal offense and triggers the sentence enhancement. “But if the

statute sweeps more broadly than the generic crime, a conviction under that law

cannot count as [a qualifying] predicate, even if the defendant actually committed

the offense in its generic form. The key . . . is elements, not facts.” Id. See also

17

Mellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015) (Under the categorical approach,

the defendant’s “actual conduct is irrelevant to the inquiry.”).

In a “narrow range of cases,” what the Supreme Court has “dub[bed] the

‘modified categorical approach’” may be applied, but only if the statute is

“divisible” and only if a “limited class of documents” is available. Descamps, 133

S. Ct. at 2283-84. The “modified approach serves a limited function: It helps

effectuate the categorical analysis when a divisible statute, listing potential offense

elements in the alternative, renders opaque which element played a part in the

defendant’s conviction.” Id. at 2283. “The modified approach thus acts not as an

exception, but instead as a tool. It retains the categorical approach’s central

feature: a focus on the elements, rather than the facts, of a crime.” Id. at 2285.

As discussed below, first-degree robbery in New York is not a categorical

“crime of violence.” Further, the modified categorical approach cannot be used

here. Jones’s robbery conviction therefore is not a qualifying predicate and, there

being no other prior convictions that authorize the designation, Jones was wrongly

labeled a career offender.

1. First-Degree Robbery in New York is Not a Categorical

“Crime of Violence”

A “crime of violence” under the career offender guideline is

any offense under federal or state law, punishable by imprisonment

for a term exceeding one year, that—

18

(1) has as an element the use, attempted use, or threatened use of

physical force against the person of another [hereinafter the

“force clause”], 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 [hereinafter

the “residual clause”].

U.S.S.G. § 4B1.2(a).

Preliminarily, Jones’s argument that New York robbery is not a “crime of

violence” may seem surprising given this Court’s holding, in 1992, that attempted

New York robbery “constitutes a ‘crime of violence’ for purposes of the ‘Career

Offender’ provision of the Guidelines.” United States v. Spencer, 955 F.2d 814,

820 (2d Cir. 1992). The Spencer Court relied on § 4B1.2(a)’s force clause given

that, under “New York law, robbery is defined generally as ‘forcibly steal[ing]

property and . . . us[ing] or threaten[ing] the immediate use of physical force upon

another person.’” Id. (quoting N.Y. Penal Law § 160.00; brackets in Spencer).

“‘This court is bound by a decision of a prior panel unless and until its

rationale is overruled, implicitly or expressly, by the Supreme Court or this court

en banc.’” United States v. Allah, 130 F.3d 33, 38 (2d Cir. 1997) (citation

omitted). As this Court held in United States v. Reyes, 691 F.3d 453 (2d Cir. 2012)

(per curiam), the Supreme Court has implicitly overruled Spencer’s rationale.

In Johnson v. United States, 559 U.S. 133 (2010), the Supreme Court

addressed the force clause of the Armed Career Criminal Act (“ACCA”), codified

at 18 U.S.C. § 924(e)(2)(B)(i), which is worded identically to the force clause of

19

the career offender guideline. The Court held that “‘physical force’ means violent

force— that is, force capable of causing physical pain or injury to another person.”

Johnson, 559 U.S. at 140 (emphasis in original).

In Reyes, this Court applied Johnson to the career offender guideline: though

Johnson concerned the meaning of “violent felony” under ACCA, “ACCA’s

definition of ‘violent felony’ is identical in all material respects to U.S.S.G §

4B1.2(a)’s definition of ‘crime of violence.’” Reyes, 691 F.3d at 458 n.1. Thus, an

offense “accomplished only by ‘actually and intentionally touch[ing],’ does not

constitute a ‘crime of violence’ under U.S.S.G. § 4B1.2 because it does not involve

the ‘use of physical force,’ as that phrase is interpreted by the Supreme Court.” Id.

at 458 (brackets in Reyes). See also id. at 460 (“Even if Reyes did punch the

corrections officer in the face, he could have pleaded guilty to battery on a law

enforcement officer by simply admitting that he touched the corrections officer in

an unwanted manner. If that were the case, the conviction would rest on facts not

involving the ‘use of physical force’ and thus the offense would not be a ‘crime of

violence’ under the Guidelines.”) (citing Johnson).

The fact that an offense involves “physical force” is no longer enough to

make it a “crime of violence” under U.S.S.G. § 4B1.2(a)’s force clause. The force

must be “violent force— that is, force capable of causing physical pain or injury to

another person.” Johnson, 559 U.S. at 140 (emphasis in original).

New York robbery does not categorically fit that bill. The baseline

definition of such robbery, whatever its degree, is “forcible stealing” by means of

20

“us[ing] or threaten[ing] the immediate use of physical force upon another person.”

N.Y. Penal Law § 160.00. But the force need not be “violent force.”

For example, someone commits robbery if he and his accomplices form a

“human wall that block[s] the victim’s path as the victim attempt[s] to pursue

someone who had picked his pocket.” People v. Bennett, 631 N.Y.S.2d 834, 834

(N.Y. App. Div. 1st Dep’t 1995). “The requirement that a robbery involve the use,

or the threat of immediate use, of physical force does not mean that a weapon must

be used or displayed or that the victim must be physically injured or touched.” Id.

(citations omitted). See also People v. Patton, 585 N.Y.S.2d 431, 431 (N.Y. App.

Div. 1st Dep’t 1992) (“By blocking the victim’s passage, defendant aided in

codefendant’s retention of the property, and thereby participated in the robbery.”).

Likewise, robbery occurs if the defendant “bumped his unidentified victim,

took money, and fled while another forcibly blocked the victim’s pursuit.” People

v. Lee, 602 N.Y.S.2d 138, 139 (N.Y. App. Div. 1st Dep’t 1993). See also People

v. Bennett, 592 N.Y.S.2d 918, 918 (N.Y. App. Div. 1st Dep’t 1993) (“The evidence

at trial that undercover police officers observed the codefendant pick the victim’s

pocket after which defendant shoved the victim to prevent pursuit was sufficient to

establish the element of force.”) (citations omitted).

Similarly, someone commits robbery if he takes property and engages in a

brief tug-of-war over it: “Proof that the store clerk grabbed the hand in which

defendant was holding the money and the two tugged at each other until

defendant’s hand slipped out of the glove holding the money was sufficient to

21

prove that defendant used physical force for the purpose of overcoming the

victim’s resistance to the taking.” People v. Safon, 560 N.Y.S.2d 552, 552 (N.Y.

App. Div. 4th Dep’t 1990) (citations omitted). See also People v. Brown, 663

N.Y.S.2d 539, 540 (N.Y. App. Div. 1st Dep’t 1997) (“[D]efendant attempted to

push the complainant away with his arm, at which point a struggle ensued and

defendant dropped the [cassette] tapes during the struggle. As such, ample

evidence exists to support the jury’s finding that defendant used force.”).

Thus, whether it’s forming a human wall, bumping the victim, or engaging

in a brief tug-of-war over the property, robbery can be committed in New York

with less than “violent force.” Johnson, 559 U.S. at 140 (emphasis in original).

The same is true of robbery in Puerto Rico and the District of Columbia, as

the First and D.C. Circuits have respectively concluded. See United States v.

Castro-Vazquez, ___ F.3d ___, 2015 WL 5172839, at *8 (1st Cir. Sept. 4, 2015)

(“According to Castro-Vazquez, intimidation is defined under Puerto Rico law to

include mere moral or psychological pressure, and violence is defined under Puerto

Rico law to include the slightest use of force. Either way, [Puerto Rico robbery]

would fall short of the [§ 2K2.1 and § 4B1.2] guidelines requirement that the

offense include an element of ‘physical force,’ which is defined as ‘violent force—

that is, force capable of causing physical pain or injury to another person.’”) (citing

Johnson, 559 U.S. at 140); In re Sealed Case, 548 F.3d 1085, 1089-90 (D.C. Cir.

2008) (“[B]y defining ‘force or violence’ to include the minimal level of force

necessary to obtain property ‘by sudden or stealthy seizure or snatching,’ the [D.C.

22

robbery] statute covers offenses that fail to qualify as crimes of violence under

section 4B1.2. . . . “[N]o one doubts that under the D.C. Code the ‘force and

violence’ language could have been satisfied by a minimal level of force that

would not qualify the offense as a crime of violence.”) (citation omitted).

Turning to the specific offense here – First-Degree Robbery in New York –

it too can be committed without the use or threatened use of violent force:

A person is guilty of robbery in the first degree when he forcibly steals

property and when, in the course of the commission of the crime or of

immediate flight therefrom, he or another participant in the crime:

1. Causes serious physical injury to any person who is not a

participant in the crime; or

2. Is armed with a deadly weapon; or

3. Uses or threatens the immediate use of a dangerous instrument; or

4. Displays what appears to be a pistol, revolver, rifle, shotgun,

machine gun or other firearm; except that in any prosecution

under this subdivision, it is an affirmative defense that such pistol,

revolver, rifle, shotgun, machine gun or other firearm was not a

loaded weapon from which a shot, readily capable of producing

death or other serious physical injury, could be discharged.

Nothing contained in this subdivision shall constitute a defense to

a prosecution for, or preclude a conviction of, robbery in the

second degree, robbery in the third degree or any other crime.

N.Y. Penal Law § 160.15.

As provided in subdivision (2), someone commits first-degree robbery if he

forcibly steals property (using less than “violent force”) and happens to be “armed

with a deadly weapon.” There is no requirement, however, that he use, threaten to

23

use, or display the weapon; such conduct falls under subdivisions (3) and (4). See

People v. Castillo, 8 N.Y.3d 959, 961, 868 N.E.2d 185, 186 (N.Y. 2007) (“Penal

Law § 160.15(2) is not a lesser included offense of Penal Law § 160.15(4) . . . .

Although the subdivisions of Penal Law § 160.15 share the common element of

forcible stealing, each encompasses a distinct additional element. It is irrelevant

that underlying facts may exist to support more than one subdivision.”).

In short, “it is possible to commit robbery with a deadly weapon without at

the same time displaying a gun.” People v. Kilpatrick, 531 N.Y.S.2d 262, 263

(N.Y. App. Div. 1st Dep’t 1988), abrogated on other grounds by People v. Gray,

86 N.Y.2d 10, 652 N.E.2d 919 (N.Y. 1995). See also People v. Foster, 826

N.Y.S.2d 288, 289 (N.Y. App. Div. 2d Dep’t 2006) (“The defendant’s guilt is

predicated upon the forcible taking of property, coupled with the aggravating

factor of any participant in the crime being armed with a deadly weapon.”).

As New York’s highest court explained after the enactment of subdivision

(2), “one who commits robbery while carrying a ‘deadly weapon’ upon his person

is now guilty of robbery in the first degree.” People v. Pena, 50 N.Y.2d 400, 407

n.2, 406 N.E.2d 1347, 1350 n.2 (N.Y. 1980) (emphasis omitted). A showing

“merely of possession” of a deadly weapon is all subdivision (2) requires. Id.

First-degree robbery in New York therefore is not a categorical “crime of

violence” under U.S.S.G. § 4B1.2(a)’s force clause: it can be committed by an

armed person who never uses, threatens to use, or displays the weapon, and who

commits the robbery using less than the “violent force” the clause requires.

24

Likewise, such robbery is not a categorical “crime of violence” under

U.S.S.G. § 4B1.2(a)’s residual clause. First, robbery is not one of the offenses

enumerated in § 4B1.2(a)(2) (burglary of a dwelling, arson, extortion, or a crime

involving use of explosives). Second, the remainder of the clause is worded

identically to ACCA’s residual clause, which the Supreme Court declared void for

vagueness in Johnson v. United States, 135 S. Ct. 2551 (2015). As the government

has told this Court in light of Johnson, “the United States Department of Justice

now takes the position that the guidelines’ residual clause, like the ACCA residual

clause, is void for vagueness.” United States v. Zhang et al. (2d Cir. No. 14-178),

Docket Entry 135 at 1. In Zhang, this Court remanded defendant Snell’s case for

resentencing given the government’s concession that U.S.S.G. § 4B1.2(a)’s

residual clause is void. See id., Docket Entry 142.

Because first-degree New York robbery does not categorically match

U.S.S.G. § 4B1.2(a), it is not a categorical “crime of violence.”

It is immaterial that “robbery” is listed as a “crime of violence” in

Application Note 1 of the Commentary to U.S.S.G. § 4B1.2. The commentary was

last amended in 2009 and thus before the Supreme Court’s 2010 decision in

Johnson, which effectively held that a “crime of violence” requires not just any

“physical force,” but specifically “violent force— that is, force capable of causing

physical pain or injury to another person.” Johnson, 559 U.S. at 140 (emphasis in

original). The commentary also predates the Court’s 2015 Johnson ruling, which

effectively deleted the guideline’s residual clause. The Sentencing Commission is

25

now mulling changes that would, among other things, define robbery as “the

misappropriation of property under circumstances involving immediate danger to

the person of another” and make that a “crime of violence.” See Notice of

Proposed Amendment (available at http://www.ussc.gov/sites/default/files/pdf/

amendment-process/federal-register-notices/20150811_FR_Proposed.pdf).

A guideline’s commentary “is authoritative unless it violates the

Constitution or a federal statute, or is inconsistent with, or a plainly erroneous

reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993).

If a guideline and its commentary clash, and “following one will result in violating

the dictates of the other, the Sentencing Reform Act itself commands compliance

with the guideline.” Id. at 43. That is the case here: because New York robbery is

not a “crime of violence” under the guideline itself, using the guideline’s

commentary to deem such robbery a “crime of violence” would “result in violating

the dictates of the [guideline].” Id. See also United States v. Shell, 789 F.3d 335,

340 (4th Cir. 2015) (“[T]he government skips past the text of § 4B1.2 to focus on

its commentary . . . . But it is the text, of course, that takes precedence.”).

In sum, New York robbery is not a categorical “crime of violence.”

2. The Modified Categorical Approach Cannot be Used Here

“The modified categorical approach is merely a tool for district courts to use

to ‘determine which alternative element in a divisible statute formed the basis of

the defendant’s conviction.’” United States v. Barker, 723 F.3d 315, 320 (2d Cir.

2013) (per curiam) (quoting Descamps, 133 S. Ct. at 2293).

26

Assuming New York’s first-degree robbery statute is divisible, meaning it

“‘contains disjunctive elements, some of which are sufficient for conviction [as a

“crime of violence”] and others of which are not,’” United States v. Beardsley, 691

F.3d 252, 274 (2d Cir. 2012) (citation omitted), “the modified categorical approach

allows a court to ‘determine which statutory phrase was the basis for [Jones’s]

conviction’ by consulting Shepard-approved documents from the trial record.” Id.

The modified categorical approach cannot be used here, however, because

there are no “Shepard-approved documents” to consult. Such documents are

limited “to the ‘charging document, written plea agreement, transcript of plea

colloquy, and any explicit factual finding by the trial judge to which the defendant

assented.’” Id. at 259 (quoting Shepard v. United States, 544 U.S. 13, 16, 20

(2005)). See also Descamps, 133 S. Ct. at 2281 (The “limited class of documents”

is restricted to items “such as indictments and jury instructions” used to “determine

which alternative formed the basis of the defendant’s prior conviction.”).

For his participation in a robbery when he was 16 years old, Jones was

“sentenced as a youthful offender and the case is sealed.” PSR ¶ 22. No Shepard

documents are available from which one can “‘determine which statutory phrase

[namely, which subdivision]’” of N.Y. Penal Law § 160.15 “‘was the basis for

[his] conviction.’” Beardsley, 691 F.3d at 274 (citation omitted). All that was

offered to describe the robbery was “the presentence report prepared by the New

York City Probation Office,” PSR ¶ 22, which is not a Shepard document. See

Reyes, 691 F.3d at 459 (“[A] sentencing court may not rely on a PSR’s description

27

of a defendant’s pre-arrest conduct that resulted in a prior conviction to determine

that the prior offense constitutes a ‘crime of violence’ under U.S.S.G. §

4B1.2(a)(1), even where the defendant does not object to the PSR’s description.”).

In sum, the modified categorical approach cannot be used here because no

Shepard documents concerning Jones’s robbery conviction are available.

C. The Erroneous Career Offender Designation Requires a Remand

“An error in calculating the Guidelines range is . . . a procedural error that

normally will require resentencing.” United States v. Wernick, 691 F.3d 108, 113-

14 (2d Cir. 2012). An “unobjected-to miscalculation of a defendant’s Guidelines

range constitutes procedural error” and “satisf[ies] the first plain error prong (that

there is error).” Id. at 117.

Second, the error here was plain, meaning “‘clear’ or ‘obvious’ at the time of

appellate consideration.” United States v. Gordon, 291 F.3d 181, 193 (2d Cir.

2002) (citation omitted). Since 2012, it has been clear that the career offender

guideline’s force clause requires “violent force.” See Reyes, 691 F.3d at 458-60 &

n.1 (citing Johnson, 559 U.S. at 140). Since the 1990s, however, it has been clear

that New York robbery – including first-degree robbery – can be committed

without “violent force.” See Pena, Kilpatrick, Foster, Bennett, Patton, Lee, Safon,

Brown. Such robbery therefore is not a “crime of violence” under the guideline’s

force clause. Nor does it fall within the residual clause, which the Supreme Court

effectively deleted in its 2015 Johnson ruling. As Jones’s robbery conviction

clearly is not a “crime of violence,” he was wrongly designated a career offender.

28

As to prejudice, Jones’s “substantial rights were affected by the district

court’s error because, although he was given a below-Guidelines sentence, the

advisory Guidelines range, which was the starting point for the district court’s

determination of the sentence it imposed, would have been significantly lower”

absent the miscalculation. Gamez, 577 F.3d at 401. See also United States v.

Dorvee, 616 F.3d 174, 181 (2d Cir. 2010) (“‘[A]n incorrect calculation of the

applicable Guidelines range will taint not only a Guidelines sentence, if one is

imposed, but also a non-Guidelines sentence, which may have been explicitly

selected with what was thought to be the applicable Guidelines range as a frame of

reference.’”) (citation omitted); Reyes, 691 F.3d at 460 (“The district court’s error

in sentencing Reyes as a career offender on this record affected his substantial

rights because it resulted in an elevated offense level under the Guidelines.”).

Finally, an “error resulting in a significantly overstated advisory Guidelines

range seriously affect[s] the fairness and integrity of the proceedings.” Gamez,

577 F.3d at 401. See also Wernick, 691 F.3d at 118 (“Given the dramatic impact

on the Guidelines calculation, with the resulting possibility that the error resulted

in the defendant’s being imprisoned for a longer time, and the relatively low cost

of correcting the miscalculation, we believe that failure to notice the error would

adversely affect the public perception of the fairness of judicial proceedings.”).

In conclusion, Jones was mistakenly designated a career offender. That

mistake drastically increased his Guidelines range and warrants a remand for

resentencing without the career offender designation.

29

II. Jones’s 15-Year Sentence is Substantively Unreasonable

“It is well settled that ‘[n]othing . . . prevents us from reaching both the

procedural and substantive reasonableness of the sentence in the course of an

appeal where we find both types of error.’” United States v. Park, 758 F.3d 193,

199 n.26 (2d Cir. 2014) (per curiam) (citation omitted).

A. Standard of Review

This Court’s “substantive review of a sentence is akin to review under an

‘abuse-of-discretion’ standard.” Id. at 199. A sentence is unreasonable if it

“‘cannot be located within the range of permissible decisions,’” id. at 200 (citation

omitted), meaning it is “‘shockingly high, shockingly low, or otherwise

unsupportable as a matter of law.’” Id. (citation omitted).

“In determining whether a sentence shocks the judicial conscience or is

otherwise unsupportable, we use as our ‘lodestar the parsimony clause of 18

U.S.C. § 3553(a), which directs sentencing courts to impose a sentence sufficient,

but not greater than necessary, to comply with the factors set out in 18 U.S.C. §

3553(a)(2).’” Id. (internal punctuation and citation omitted).

“A reviewing court should not avoid its duty to apply these general

standards of review simply because of its respect for an experienced and capable

trial judge.” Id. “To say that a sentence is ‘substantively unreasonable’ is not to

say that ‘no reasonable person’ would have imposed such a sentence. . . .

[R]easonable individuals can make unreasonable decisions on occasion.” United

States v. Rigas, 583 F.3d 108, 123 n.5 (2d Cir. 2009).

30

B. A 15-Year Prison Sentence is Greater Than Necessary to

Adequately Punish Jones for Biting a Marshal’s Finger

Judge Garaufis, a reasonable person, made an unreasonable decision in

sentencing Jones to 15 years in prison for biting Deputy Westfield’s finger.

The first sentencing factor is “the nature and circumstances of the offense.”

18 U.S.C. § 3553(a)(1). The conduct here was almost not a crime at all.

Jones did not move toward the marshals, initiate physical contact or punch

or kick them. T. (4/21/14) at 47, 74-75, 77, 102, 104. Finger bite aside, he simply

struggled to resist being handcuffed. See id. at 49 (Deputy Westfield: “[H]is hands

were flailing around trying to resist attempts to handcuff him.”), 77 (Deputy

Westfield: “He was moving [his hands] so not to be taken into custody, to reduce

our chances of handcuffing him.”), 92 (Deputy Larson: “I attempted to handcuff

one of his arms that he managed to get up, and he pulled his arm back.”).

Such resistance, without an attempt or threat to injure, is not an assault. See

United States v. Davis, 690 F.3d 127, 137 (2d Cir. 2012) (reversing assault

conviction because evidence “showed only that Davis ran from a DEA agent and,

when ultimately tackled to the ground, struggled against being handcuffed,” “did

not punch or attack anyone,” and simply “was ‘using his muscles to avoid having

the hands forced behind his back to be cuffed’”).

Jones was convicted because of the bite. But as the prosecutor conceded to

the jury, the finger bite caused “not the most serious wound you’ll ever see.” T.

(4/22/14) at 53. Photos taken 15 minutes after the bite, see T. (4/21/14) at 52,

and admitted as trial exhibits, confirm this:

31

32

33

Though the prosecutor claimed at sentencing that the finger bite was “an

incredibly serious assault,” A. 42, the record shows otherwise. Besides the bite

causing a minor and non-permanent injury, Deputy Westfield was not sidelined:

he resumed his duties after being treated and “provided a sworn affidavit of loss

indicating that he has suffered no loss because of the instant offense.” PSR ¶ 84.

Moreover, the bite did not result from a calculated plan to assault a federal

officer, but from a confused and frustrated man’s resistance to being taken back to

prison on the relative eve of his release. See A. 46-47 (“I never had a problem with

the officer. . . . I didn’t know what I was coming to jail for. . . . I only had until

November to max out. You know, I only had until November.”).

Confusion and frustration do not excuse biting a marshal, but “the nature and

circumstances of the offense” reveal an assault of relatively low severity.

In another bite prosecution, for example, the defendant was a federal inmate

who “kneed [a correctional officer] in the groin twice” and “bit[] him on the left

knee and hip.” “He also bit [another officer] on the right leg, holding his mouth

against the bite from five to seven seconds.” United States v. Moore, 846 F.2d

1163, 1165 (8th Cir. 1988). He knew he was HIV-positive and admitted “he had

‘wanted to hurt them bad, wanted to kill the bastards.’ He also said that he ‘hopes

the wounds that he inflicted on the officers when he bit them were bad enough that

they get the disease that he has.’” Id. He received “concurrent five-year prison

terms.” Id. at 1166.

In United States v. Smith (S.D.N.Y. No. 13-cr-846), the defendant “bit [a

34

federal agent’s] hand, leaving a bite mark and causing [him] to experience pain.

The defendant then informed multiple federal agents that he had a communicable

lifethreatening illness. That information was subsequently confirmed by a health

care professional who tested the defendant for that life-threatening illness.” Id.,

Docket Entry 45 at 2. “Additionally, on the evening of the arrest, while he was

being held in a federal detention facility, the defendant attempted to strike a federal

officer through the bars of his cell with a piece of bent metal, obtained by

smashing his metal bed frame against the wall and recovering one of the smashed

pieces.” Id. at 3. Smith, facing a Guidelines range of 37-46 months in prison, id.

at 1, was sentenced to time served. See Docket Entry 48.

In United States v. Rosales, 680 F.2d 1304 (10th Cir. 1981), the defendant

was a federal inmate who “threatened and took a swing at Officer Hyde. When

officers sought to restrain and handcuff Rosales, Rosales bit Hyde severely on the

wrist. The officers subdued and handcuffed Rosales. As they began to escort him

to his cell, Rosales renewed his assault – in the form of kicking, spitting, and

swearing – and took a second bite, this time of Officer Gerth’s upper arm.” Id. at

1305. He was “sentenced to concurrent two-year terms.” Id.

Even a defendant who committed a far worse assault than Jones – he

“punched an officer and bit off a portion of the officer’s little finger,” United States

v. Saingerard, 621 F.3d 1341, 1342 (11th Cir. 2010) (emphasis added) – received a

lesser sentence than Jones: 135 months. See United States v. Saingerard (S.D.Fla.

No. 08-20534), Docket Entry 82.

35

In contrast to these cases, the assault here involved no punching, kicking,

kneeing, dismemberment, death threats or attempts to transmit a disease. And

though Deputy Westfield said it hurt when Jones bit him, the finger bite did no

meaningful harm to the 6’1” tall, 295-pound marshal. The record belies the

prosecutor’s claim of this being “an incredibly serious assault,” which is a view

that, notably, the district judge did not endorse. In short, the “nature and

circumstances of the offense” do not support a 15-year sentence.

The next factor is “the history and characteristics of the defendant.” §

3553(a)(1). The judge focused on this, telling Jones: “You have a life of criminal

activity that cannot be ignored and activity in prison that cannot be ignored.” A.

51. Though a judge may of course “rel[y] upon the history and characteristics of

the defendant,” in some cases “those considerations are neither sufficiently

compelling nor present to the degree necessary to support the sentence imposed.”

United States v. Rattoballi, 452 F.3d 127, 137 (2d Cir. 2006), abrogated on other

grounds as noted in United States v. Cavera, 550 F.3d 180, 191 (2d Cir. 2008) (en

banc). That’s the situation here.

Jones has seven prior convictions. The first is for a robbery he participated

in over 20 years ago, when he was 16: he and a friend took another teen’s jacket.

PSR ¶22. The second conviction is for Jones unlawfully possessing a gun when he

was 19 years old. PSR ¶ 23. The third is for assault and is by far the most serious:

two days after he turned 20, Jones shot a man whose leg was consequently

amputated. PSR ¶ 24. The fourth conviction is for Jones possessing, also when

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20, about half a gram of crack cocaine.4 PSR ¶ 25. For these four offenses, Jones

was sentenced on the same day in 1999 to concurrent terms not exceeding five

years. The fifth conviction is for disorderly conduct when Jones was 27; he served

15 days in jail. PSR ¶ 26. The sixth is for misdemeanor assault: when 27, Jones

punched a man in the face and served 20 days in jail. PSR ¶ 27. The seventh

conviction is for unlawful gun possession at age 28; as explained above, Jones had

the gun to protect his daughters and “[t]here is no information to suggest that the

firearm was used.” PSR ¶ 28. For this offense, Jones was sentenced to 92 months

(over 7½ years) in prison. PSR ¶ 28.

Most of Jones’s priors are for things he did between 17 and 21 years ago.

The remaining convictions, themselves between 9 and 10 years old, are for scuffles

and possessing a gun that was never used. This record does not support

imprisoning Jones for 15 years because now, nearly a decade after his last offense,

he fleetingly bit a marshal’s finger.

4 Jones was convicted of “Criminal Possession Narcotic in the Fourth Degree”

in New York Supreme Court on June 16, 1999. PSR ¶ 25. “A person is guilty of

criminal possession of a controlled substance in the fourth degree when he

knowingly and unlawfully possesses . . . [one or more specific drugs in specific

minimum amounts].” N.Y. Penal Law § 220.09 (1999).

Because § 220.09 criminalizes only simple possession of drugs, it is not a

“controlled substance offense” under the career offender guideline. Such an

offense involves the “manufacture, import, export, distribution, or dispensing of a

controlled substance,” or possessing drugs “with intent to manufacture, import,

export, distribute, or dispense.” U.S.S.G. § 4B1.2(b). See also United States v.

Pearson, 77 F.3d 675, 676 (2d Cir. 1996) (§ 220.09 is not such an offense).

37

Also notable is that Jones committed most of his offenses between the ages

of 16 and 20. Though he was not strictly a “juvenile” when he committed each of

them, “youth is a ‘mitigating factor derive[d] from the fact that the signature

qualities of youth are transient; as individuals mature, the impetuousness and

recklessness that may dominate in younger years can subside.’” United States v.

Howard, 773 F.3d 519, 532 (4th Cir. 2014) (quoting Roper v. Simmons, 543 U.S.

551, 570 (2005)) (punctuation in Howard).

And subside in Jones they did, if incompletely. In the nearly two decades

since Jones, then 20 years old, “fired several shots at an adult male” and struck him

in his leg, PSR ¶ 24, Jones has never used a weapon. “I’m not disputing that, yeah,

I have – I have a violent background. I have a very violent background,” Jones

explained at sentencing, but “it’s something that, you know, I work my hardest into

changing.” A. 46. “I have worked hard on, trying to change. All my life I have

been trying to do that.” A. 46.

This process of change is unfinished; it’s also especially difficult for Jones

given his “borderline intellectual functioning” and the fact that his “basic cognitive

functions are compromised by neuropsychological factors, possibly referable to his

reported ingestion of lead paint as a child and/or to other factors such as head

injury.” Dist. Ct. Docket Entry 46-1 (Jones Sent. Mem., Ex. A) at 5. Jones’s

“tend[ency] to misperceive events and to form mistaken impressions of people and

the significance of their actions” results in “instances of poor judgment in which he

fails to anticipate the consequences of his actions and misconstrues what

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constitutes appropriate behavior.” Id. at 7. “The results of psychological

assessment indicate that Corey Jones is a man with both serious cognitive and

emotional handicaps.” Id.

Nonetheless, in the nearly 20 years since Jones used a weapon, the poor

judgment he’s struggled to overcome has waned: from shooting someone, to

punching someone in the face, to biting someone’s finger. Jones might “never be

mistaken for a model citizen, but [one] cannot ignore the fact that most of his

serious criminal convictions occurred when he was [roughly] eighteen years old.”

Howard, 773 F.3d at 531. Jones’s priors do not support the 15-year sentence.

Neither do the infractions he received while serving the 92-month term.

As Jones sought to explain, they “can be [for] something such as an argument,

something minute as that, that they will write you up for a fighting shot because []

you get into an argument.” A. 43. “So even if you argue about anything, they are

going to write you up for a fight.” A. 43. A “lot of them infractions are not

actually from physical fights done with hands or anything like that. Those shots

come from verbal” arguments. A. 43.

The relevant regulations appear to bear this out. Though Jones received

infractions for “Fighting with Another Person,” PSR ¶ 28, such misconduct is not

defined as involving a physical confrontation. See 28 C.F.R. § 541.3. And an

inmate who does not actually “fight,” but who “refus[es] to obey an order which

furthers a fight would be charged [with] Fighting.” Id. Where “serious physical

injury has been attempted or accomplished,” it is classified as code-101 Assault.

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Id. And where “less serious physical injury or contact has been attempted or

accomplished by an inmate,” it is classified as code-224 Assault. Id. Jones’s only

assault infractions were for the less serious “Assaulting Without Serious Injury,”

PSR ¶ 28, which, for all the record reveals, may have involved nothing more than

simple “contact” or attempted “contact” with another person.

In any event, some larger points are plain: (1) Jones’s last assault infraction

was in 2008 (PSR p. 9); (2) in the 5 years spanning 2008 to 2013, he was involved

in only 4 (likely verbal) “fights” (PSR pp. 9-10); and (3) had Jones committed a

truly serious offense while jailed, he would have been prosecuted in court and/or

not released early to serve the end of his 92-month sentence at a halfway house.

See Bureau of Prisons Program Statement No. 7310.04 at 11 (“Inmates who pose a

significant threat to the community” are ineligible for release to halfway houses.

“Examples are inmates with repeated, serious institution rule violations, a history

of repetitive violence, escape, or association with violent or terrorist

organizations.”) (available at http://www.bop.gov/policy/progstat/7310_004.pdf).

A sentencing judge “‘consider[s] every convicted person as an individual

and every case as a unique study in the human failings that sometimes mitigate,

sometimes magnify, the crime and the punishment to ensue.’” Gall v. United

States, 552 U.S. 38, 52 (2007) (quoting Koon v. United States, 518 U.S. 81, 113

(1996)). Jones’s “human failings” mitigate his crime: despite his “serious

cognitive and emotional handicaps,” Dist. Ct. Docket Entry 46-1 (Jones Sent.

Mem., Ex. A) at 7, the arc of his life has bent toward better behavior, not worse.

40

The next factor is the need for the sentence to “reflect the seriousness of the

offense, to promote respect for the law, and to provide just punishment for the

offense.” § 3553(a)(2)(A).

As set out above, the “seriousness of the offense” is relatively low: rather

than punch, kick or dismember Deputy Westfield, Jones fleetingly bit his finger.

The slight injury caused the marshal no meaningful harm.

The district judge said “[o]ne very significant issue is respect for the law,”

A. 49, but “‘a sentence of imprisonment may work to promote not respect, but

derision, of the law if the law is viewed as merely a means to dispense harsh

punishment without taking into account the real conduct and circumstances.’”

Gall, 552 U.S. at 54 (citation omitted).

The judge was concerned about potential dangers to U.S. marshals – “You

put people at risk who don’t deserve to be put at risk. That’s the problem here.

That’s the problem.” A. 51 – yet facing risk is necessarily part of a U.S. marshal’s

job. See T. (4/21/14) at 34-35, 77, 81-82 (detailing the training U.S. marshals

receive, including “training concerning the use of force,” “training to take control

of somebody” and training regarding “noncompliance of a prisoner”).

This plainly does not license people to assault marshals, but the punishment

for such an assault must be calibrated to “the real conduct and circumstances” at

issue, Gall, 552 U.S. at 54, rather than the manifold conceivable risks inherent in a

job in law enforcement.

41

The “real conduct and circumstances” here involve an impaired man who,

when told he was being taken back to prison just as liberty was coming into sight,

reacted not by attacking or trying to kill his jailers but simply by resisting arrest

and, in the process of a struggle the marshals initiated, biting one of their fingers.

A “just punishment for th[is] offense” is not a decade and a half in prison.

The next factor is the need for the sentence to “afford adequate deterrence to

criminal conduct.” § 3553(a)(2)(B). The goal here is “adequate” deterrence, not

maximum possible deterrence. The judge said it was “important that everyone

understand that you can’t do this,” A. 51, yet he gave no reason why a sentence of

15 years was the minimum required to “adequately” deter Jones and others from

biting marshals’ fingers. See Dorvee, 616 F.3d at 184 (finding district judge

“ignored the parsimony clause” and imposed unreasonable sentence where he

“offered no clear reason why the [chosen] sentence, as opposed to some lower

sentence, was required to deter an offender like [the defendant]”). “Adequate”

deterrence can be achieved here with a sentence far below 15 years.

Next is the need for the sentence to “protect the public from further crimes

of the defendant.” § 3553(a)(2)(C). Again, the parsimony clause requires “a

sentence sufficient, but not greater than necessary,” to do this. § 3553(a). Again,

however, the judge gave no reason why a sentence well under 15 years wouldn’t

suffice to protect the public from hypothetical future crimes Jones might commit.

As detailed, the trajectory of Jones’s life has been toward less crime; indeed,

“studies demonstrate that the risk of recidivism is inversely related to an inmate’s

42

age.” Howard, 773 F.3d at 533. A decade and a half in prison is much “greater

than necessary” to protect the public.

The next factor is the need for the sentence to “provide the defendant with

needed educational or vocational training, medical care, or other correctional

treatment in the most effective manner.” § 3553(a)(2)(D). Considering Jones’s

“borderline intellectual functioning” and his “compromised” cognitive functions,

which cause him to “misperceive events and to form mistaken impressions of

people” and exercise “poor judgment,” Dist. Ct. Docket Entry 46-1 (Jones Sent.

Mem., Ex. A) at 5, 7, imprisonment is not at all “the most effective manner” of

furthering his rehabilitation. § 3553(a)(2)(D).

On the contrary, prison exacerbates his deficits: there are “‘very real dangers

in prison life which may result from violence or intimidation,’” Holland v. Goord,

758 F.3d 215, 225 (2d Cir. 2014) (quoting Ponte v. Real, 471 U.S. 491, 495

(1985)), and, as Jones told the judge, “it’s kind of really like hard to really duck

and dodge the situations that you are going to get in.” A. 45. Prison is “hostile all

the time.” A. 46. The judge “accept[ed]” Jones’s “sincere comments about [his]

life and [his] experiences in prison” and agreed with Jones that “it is not easy to be

a prisoner and to deal with other prisoners, to deal with authority figures,”

especially “because of issues that [Jones] had when [he] w[as] a child.” A. 49.

Given this, and given the judge’s discretion to sentence Jones to anywhere

between 0 and 20 years’ incarceration, a reasonable sentence was a prison term

well below 15 years to be followed by supervised release requiring intensive

43

counseling to further aid Jones’s progress away from crime. Sending Jones back to

prison for a decade and a half is the opposite of providing for his rehabilitation “in

the most effective manner.”

The next factor is “the kinds of sentences available.” § 3553(a)(3). As the

probation officer noted, the judge could have imposed a 5-year sentence of

probation, see PSR ¶77, or a much lower term of imprisonment to be followed by

three years of supervised release. PSR ¶ 75. And a condition of any supervision

could have been that Jones receive intensive, frequent and long-term counseling to

further his rehabilitation. See United States v. Neiman, 828 F. Supp. 254, 255 &

256 (S.D.N.Y. 1993) (rejecting sentence of imprisonment, “which would [have]

interfere[d] with rather than enhance[d] Neiman’s prospect for rehabilitation,” in

favor of “probation for five years, with conditions including confinement to his

home for ten months beginning 30 days from the date of sentence, continuation of

psychiatric counselling, community service and restitution”).

Next is the Sentencing Guidelines range: the “applicable category of offense

committed by the applicable category of defendant as set forth in the guidelines.”

§ 3553(a)(4)(A). This Court has made it “‘emphatically clear that the Guidelines

are guidelines— that is, they are truly advisory.’” United States v. Preacely, 628

F.3d 72, 79 (2d Cir. 2010) (citation omitted). Likewise clear is that the career

offender guideline should not necessarily be followed in every case where it

technically applies: sometimes a district judge can give “inappropriate and

overriding weight to the Career Offender Guideline.” Id. at 80.

44

This can happen even where, as here, the judge imposes a below-Guidelines

sentence: “On a superficial level, Jamar Preacely seems to have gotten a break.

The Sentencing Guidelines recommended a sentence of at least 188 months in

prison, and the district court . . . sentenced him to just half that. . . . On closer

examination, however, the guideline recommendation used by the district court as

a baseline . . . appears distinctly inflated.” Id. at 83 (Lynch, J., concurring).

So too here: applying the career offender guideline caused the low end of

Jones’s range to balloon from 37 to 210 months. And this happened only because,

over 20 years ago, Jones and a friend robbed another teenager of his jacket.

One hasn’t “gotten a break” by receiving a below-Guidelines sentence

where, as here, the range is wildly overstated in the first place.

The last relevant factor is the “need to avoid unwarranted sentence

disparities among defendants with similar records who have been found guilty of

similar conduct.” § 3553(a)(6).

Jones has not found another case of a person being sentenced as a career

offender for biting a U.S. marshal’s finger. Yet his 15-year sentence, which is

three-quarters the statutory maximum,5 dwarfs those imposed for worse assaults.

See Smith (S.D.N.Y. No. 13-cr-846), Docket Entry 45 at 2-3 (time served for

defendant who knew he had a communicable life-threatening illness and “bit [a

federal agent’s] hand, leaving a bite mark,” and who “attempted to strike a federal

5 Before November 2, 2002, the statutory maximum for assaulting a U.S.

marshal was 10 years. It was then increased to 20 years. See Federal Judiciary

Protection Act of 2002, Pub. L. No. 107-273, § 11008(b)(2), 116 Stat. 1758.

45

officer through the bars of his cell with a piece of bent metal”); Moore, 846 F.2d at

1165 (5-year sentence (half the statutory maximum) for inmate who knew he was

HIV-positive and bit two guards, “‘wanted to hurt them bad, wanted to kill the

bastards,’” and “also said that he ‘hopes the wounds that he inflicted on the officers

when he bit them were bad enough that they get the disease that he has’”); Rosales,

680 F.2d at 1305 (2-year sentence (one-fifth the statutory maximum) for inmate

who bit a guard “severely on the wrist” and another on the “upper arm” in addition

to “kicking, spitting, and swearing”).

Jones’s sentence even exceeds the 135-month term (just over half the

statutory maximum) for someone who “punched an officer and bit off a portion of

the officer’s little finger.” Saingerard, 621 F.3d at 1342 (emphasis added).

Especially as compared to these lesser sentences for conduct worse than

Jones’s, his 15-year prison term is far greater than necessary.

* * *

In assessing the substance of a defendant’s punishment, this Court asks

“whether the length of the sentence is reasonable in light of the factors outlined in

18 U.S.C. § 3553(a).” Rattoballi, 452 F.3d at 132.

Here, none of the § 3553(a) factors supports imprisoning Jones for 15 years.

“After considering the record as a whole,” id. at 137, the unavoidable conclusion is

that the decade-and-a-half sentence for biting Deputy Westfield’s finger is

“shockingly high.” Park, 758 F.3d at 200.

46

CONCLUSION

The Court should vacate Jones’s sentence and remand this matter for

resentencing.

Respectfully submitted,

FEDERAL DEFENDERS OF NEW YORK

APPEALS BUREAU

DATED: October 28, 2015 s/ Matthew B. Larsen

MATTHEW B. LARSEN

Assistant Federal Defender

52 Duane Street, 10th Floor

New York, NY 10007

Tel.: (212) 417-8725

Email: [email protected]

47

CERTIFICATE OF COMPLIANCE

I certify that this brief complies with Federal Rule of Appellate Procedure

32(a) in that it consists of 11,670 words set in Times New Roman 14-point type.


MATTHEW B. LARSEN

48

CERTIFICATE OF SERVICE

I certify that on October 28, 2015, I filed the foregoing brief with the Clerk

of the United States Court of Appeals for the Second Circuit by means of the

CM/ECF system. I further certify that counsel for appellee is a registered user of

the CM/ECF system and that service was accomplished through that system.


MATTHEW B. LARSEN

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