United States v. Shabazz, 2d Cir. Jan. 2, 2019 (Leval, C.J.)
In an extraordinary opinion that was nominally about a particular state robbery statute, the Second Circuit indicated that any robbery crime under the law of any state will qualify as a “violent felony” under the Armed Career Criminal Act (“ACCA”) “force clause,” 18 U.S.C. § 924(e)(2)(B)(i).
The habeas petitioner in Shabazz had previously been convicted under Connecticut’s basic robbery statute, Conn. Gen. Stat § 53a-133, which provides that:
A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.
On its face, the statute does not require the application of “violent force,” as required for ACCA predicates under Johnson v. United States, 559 U.S. 133 (2010). However, the Court determined that the use—or at least the threatened use—of violent force is “inherent in the crime of robbery.”
Looking beyond the particulars of the Connecticut statute (and the manner in which that statute has been interpreted by the Connecticut appellate courts), Judge Leval’s opinion noted that “[s]cholars of the criminal law underline the inherent potential for physical harm to the victim as the explanation why robbery developed as, and continues to be treated as, an aggravated felony[.]” Robbery is considered a felony in every jurisdiction, according to the Court, “because it presents the real danger of immediate serious physical harm to the victim.” This is so because even if a “robber” (regardless of how that term is defined under a particular state law) may use minimal force to accomplish the taking of a victim’s property, “those face-to-face circumstances inherently carry an implicit threat of escalation, perhaps because of the victim’s predictable reaction, capable of resulting in physical harm.”
Beyond its application to Conn. Gen. Stat. § 53a-133, this opinion seems to signal an abandonment of the “categorical approach” as it applies to the analysis of specific state statutes and the insertion of the general term “robbery” as an enumerated offense that will always qualify as an ACCA predicate.