Second Circuit - Categorical Approach

United States v. Tabb, 949 F.3d 81 (2d Cir. 2020). New York second-degree attempted assault is a crime of violence under the force clause of §4B1.2. A conviction under 21 U.S.C. § 846 is a controlled substance offense under §4B1.2 even though the text of the guideline does not include conspiracies. The language in Application Note 1 does not conflict with the text of §4B1.2 and does not expand the definitions in the guideline.

United States v. Nikolla, 950 F.3d 51 (2d Cir. 2020). Threatening violence in furtherance of an extortion plan in violation of 18 U.S.C. § 1951(a) is a crime of violence under 18 U.S.C. § 924(c)(3).

United States v. Scott, 954 F.3d 74 (2d Cir. 2020). New York first-degree manslaughter is not violent felony under the force clauses of the ACCA and the career offender guideline. The statute can be violated by “an omission despite a duty to act,” which is complete inaction with the intent to cause serious physical injury. In addition, the statute does not match generic murder, manslaughter, or aggravated assault under the enumerated offenses clause of the career offender guideline.

United States v. Thompson, 961 F.3d 545 (2d Cir. 2020). New York attempted sale of a controlled substance in the fifth degree is not a felony drug offense triggering a § 851 enhancement. The state crime is not a categorical match to § 802(44)’s definition of felony drug offense because New York regulates hCG, a pregnancy hormone, which is not included in the federal analog under § 802(44).

Nunez v. United States, 954 F.3d 465 (2d Cir. 2020). The Supreme Court’s decision in United States v. Johnson, 153 S. Ct. 2551 (2015) (holding that the ACCA’s residual clause was unconstitutionally vague), did not itself recognize that the residual clause contained in the pre-Booker Guidelines was unconstitutionally vague and thus does not trigger a different (and much later) limitations period for raising this claim in a § 2255 motion.

Gray v. United States, 980 F.3d 264 (2d Cir. 2020). Assaulting a federal officer, in violation of 18 U.S.C. § 111(b), is a crime of violence under § 924(c).

United States v. Scott, 990 F.3d 94 (2d Cir. 2021) (en banc) . New York first-degree manslaughter is a violent felony under the ACCA and a crime of violence under §4B1.2. While the statute includes manslaughter committed by omission, “the knowing or intentional causation of bodily injury necessarily involves the use of physical force.”

Collier v. United States, 989 F.3d 212 (2d Cir. 2021). Attempted federal bank robbery in violation of 18 U.S.C. § 2113(a) is a crime of violence under § 924(c). Attempt requires the intent to commit each element of the substantive crime, and the substantive crime requires here “force and violence” or “intimidation.”

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