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United States v. Henry

United States District Court, W.D. Kentucky, Louisville Division

December 10, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
HASSAN HENRY, Defendant.

          MEMORANDUM OPINION

          David J. Hale, Judge

         Defendant Hassan Henry pleaded guilty to being a felon in possession of a firearm. (Docket No. 31; see D.N. 1) In preparing the presentence investigation report, the U.S. Probation Office concluded that Henry qualified as an armed career criminal based on four of his prior convictions. Two of those convictions were disputed: Henry argued that his convictions for Florida robbery and Kentucky second-degree robbery were not “violent felon[ies]” within the meaning of the Armed Career Criminal Act (ACCA). (D.N. 33, 44) The Court heard argument during the sentencing hearing on December 10, 2018. Consistent with its ruling on the record of that hearing, the Court issues this Memorandum Opinion to further explain its conclusion that the ACCA does not apply here.

         I.

         Under the ACCA,

[t]he term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that--
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]

18 U.S.C. § 924(e)(2)(B). Because robbery is not an enumerated offense and the statute's residual clause (“or otherwise involves conduct that presents a serious potential risk of physical injury to another”) has been held unconstitutional by the United States Supreme Court, Johnson v. United States, 135 S.Ct. 2551 (2015), only the use-of-force prong is at issue here.

         To determine whether an offense “has as an element the use, attempted use, or threatened use of physical force against the person of another, ” the Court applies the categorial approach, looking not to the facts underlying the conviction but instead to the “statutory definition of the state offense, ” as well as state courts' interpretation of that offense. Perez v. United States, 885 F.3d 984, 987 (6th Cir. 2018); see Id. at 989 (examining state courts' interpretation of New York robbery); Johnson v. United States, 559 U.S. 133, 138 (2010) (“We are . . . bound by the Florida Supreme Court's interpretation of state law, including its determination of the elements of [the Florida statute at issue].”). The Supreme Court has explained that in the ACCA context, “the phrase ‘physical force' means violent force-that is, force capable of causing physical pain or injury to another person. Johnson, 559 U.S. at 140 (citation omitted); see Id. (“Even by itself, the word ‘violent' in § 924(e)(2)(B) connotes a substantial degree of force. When the adjective ‘violent' is attached to the noun ‘felony,' its connotation of strong physical force is even clearer.” (internal citations omitted)). A prior conviction qualifies as a violent felony only if “the least forceful conduct generally criminalized under the statute . . . . involves violent physical force.” Perez, 885 F.3d at 987. Here, neither conviction qualifies.

         II.

         A. Florida Robbery

         The parties appeared to agree that Henry was convicted under Fla. Stat. § 812.13. (See D.N. 33, PageID # 95-96; D.N. 43, PageID # 158) At the time of Henry's conviction in 1992, that statute defined robbery as

the taking of money or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking ...

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