The opinion
18-2063-cr (L)
United States v. Brown
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2020
Nos. 18-2063-cr, 18-2220-cr
UNITED STATES OF AMERICA,
Appellee-Cross-Appellant,
v.
JEROME BROWN, also known as JAMEL BROWN,
Defendant-Appellant-Cross-Appellee.
On Appeal from the United States District Court
for the Southern District of New York
ARGUED: MAY 14, 2019
DECIDED: JUNE 24, 2021
Before: CABRANES, Circuit Judge, and STANCEU, Judge *†
1
ROBERT SOBELMAN (Karl Metzner, on the
brief), Assistant United States Attorneys, for
Audrey Strauss, United States Attorney for
the Southern District of New York, New
York, NY, for Appellee-Cross-Appellant.
COLLEEN P. CASSIDY, Counsel, Appeals
Bureau, Federal Defenders of New York,
Inc., New York, NY, for Defendant-Appellant-
Cross-Appellee.
Per Curiam:
This case presents three questions: (1) whether the rulings at
trial of the United States District Court for the Southern District of
* Judge Timothy C. Stanceu, Judge of the United States Court of
International Trade, sitting by designation.
† United States Circuit Judge Peter W. Hall died before the filing of this
opinion; the appeal is being decided by the remaining members of the panel, who
are in agreement, in accordance with Second Circuit Internal Operating Procedure
E(b). See 28 U.S.C. § 46(d); cf. United States v. Desimone, 140 F.3d 457, 458 (2d Cir.
1998).
2
New York (Kimba M. Wood, Judge) deprived Defendant-Appellant-
Cross-Appellee Jerome Brown (“Brown”) of his right to a fair trial;
(2) whether it was reversible plain error to convict Brown for felony
possession of a firearm in violation of 18 U.S.C. § 992(g)(1) in the
absence of trial evidence that he knew of his status as a convicted felon;
and (3) whether the District Court, in sentencing Brown, erroneously
held that Brown’s prior conviction under N.Y. Penal Law (“NYPL”)
§ 120.05(1) was not a predicate “crime of violence” under the so-called
force clause of the Career Offender Guideline of the United States
Sentencing Guidelines (“Guidelines” or “U.S.S.G.”)
§ 4B1.2(a)(1). For the reasons stated in a summary order filed
simultaneously with this opinion, we hold that (1) the challenged
rulings of the District Court at trial were not an abuse of discretion,
and (2) although it was clearly erroneous not to require the
government to prove that Brown knew of his status as a felon, that
error does not warrant reversal. In this opinion, we hold that, contrary
to the conclusion of the District Court, NYPL § 120.05(1) is a “crime of
violence” under U.S.S.G. § 4B1.2(a)(1) in light of our recent decision in
United States v. Scott, 990 F.3d 94, 99 (2d Cir. 2021) (en banc).
Accordingly, we AFFIRM the District Court’s July 9, 2018 judgment as
to Brown’s conviction and REMAND the cause to the District Court
for resentencing.
3
I. BACKGROUND 1
On June 4, 2017, officers of the New York City Police
Department went to the lobby of an apartment complex in the Bronx
in response to a complaint of disorderly conduct and found Brown
holding what appeared to be a marijuana cigarette. According to the
officers, they saw what appeared to be a bulge on the right side of his
waist. The officers searched Brown, finding in his waistband what was
later identified as a stolen and loaded Glock pistol. 2 The officers then
arrested Brown and discovered more than a dozen individually
wrapped packets of marijuana on Brown’s person.
Brown was indicted on one count of possessing a firearm after
being convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). In
2017, Brown went to trial, and was convicted after the jury returned a
verdict of guilty. Brown’s prior felony conviction, from 2008, was for
attempted assault in the second degree in violation of NYPL
§ 120.05(1). In sentencing Brown, the District Court disagreed with the
conclusion of the United States Probation Office (“Probation Office”)
that Brown’s prior conviction under NYPL
§ 120.05 was a conviction for a “crime of violence” as defined in the
1 The following statement of facts is drawn from the indictment (Appellant’s
Appendix (“A.”) 16), the transcript of Brown’s trial (A. 45-393; 398-539), and the
District Court’s opinion dated July 25, 2018 (A. 540-546), United States v. Brown, 322
F. Supp. 3d 459, 464 (S.D.N.Y. 2018), and is undisputed unless stated otherwise.
2At trial, a witness for Brown testified that the police did not find the gun
in Brown’s pants but pulled it out of a bag lying on the floor at some distance from
Brown. A. 287-89.
4
Career Offender Guideline, U.S.S.G. § 4B1.2(a)(1). The Probation
Office’s conclusion would have yielded a base offense level of 20 for
Brown’s instant crime of conviction. 3 Instead, the District Court
reasoned that NYPL § 120.05(1) was not a “crime of violence” because
there was a “realistic possibility” that a violation thereof could be
committed by omission. 4 The District Court thus assigned Brown a
base offense level of 14, which, with applicable enhancements,
resulted in a total offense level of 18—four levels lower than the total
offense level of 22 calculated by the Probation Office. This offense
level, along with Brown’s criminal history category of IV, resulted in
an advisory Guidelines range of 41 to 51 months of imprisonment. The
District Court sentenced Brown to a below-Guidelines term of 27
months of imprisonment, to be followed by two years of supervised
release. Brown is currently serving his sentence.
Brown appealed his conviction, contending (1) that the District
Court’s erroneous rulings at trial deprived him of his right to a fair
trial and (2) that it was reversible plain error to convict him without
evidence that he knew of his status as a felon at the time he possessed
the firearm. 5 The government cross-appealed, arguing that the District
Court erroneously held that NYPL § 120.05(1) is not a “crime of
violence” and therefore miscalculated Brown’s base offense level.
3 See U.S.S.G. § 2K2.1(a)(4)(A).
4 Brown, 322 F. Supp. 3d at 464.
As noted above, we address Brown’s arguments on appeal in a separate
5
summary order filed simultaneously.
5
II. DISCUSSION
We review de novo a district court’s determination as to whether
a particular offense is a “crime of violence” under the Guidelines. 6
Under the so-called force clause of the Career Offender Guideline, a
“crime of violence” is “any offense under federal or state law,
punishable by imprisonment for a term exceeding one year” that “has
as an element the use, attempted use, or threatened use of physical
force against the person of another.” U.S.S.G. § 4B1.2(a)(1). We conduct
a categorical inquiry to determine whether a particular offense is a
crime of violence by looking only to the elements of the stated offense;
that is, we look not to the actual facts of the convicted defendant’s
crime, but “to the minimum he might have done and still been
convicted.” 7
In United States v. Scott, this Court, sitting en banc, made clear
that a predicate offense is to be categorically recognized as a “crime of
violence” under U.S.S.G. § 4B1.2(a)(1) where conviction requires that
the defendant “intentionally caus[e] at least serious physical injury—
crimes necessarily involving a use of force—. . . whether committed by
acts of omission or by acts of commission.” 8
Here, Brown’s predicate crime was a violation of NYPL
§ 120.05(1). A person is guilty of second-degree assault under that
6 United States v. Scott, 990 F.3d 94, 104 (2d Cir. 2021) (en banc).
7 Scott, 990 F.3d at 99 (2d Cir. 2021).
8 Id. at 110 (emphasis added).
6
statute if, “[w]ith the intent to cause serious physical injury to another
person, he causes such injury to such person or to a third person.”
Recently in Thompson v. Garland, we applied Scott to hold that NYPL
§ 120.05(1) requires the intentional causation of serious physical injury
and is therefore a “crime of violence” under 18 U.S.C. § 16(a). 9 Because
the language of “U.S.S.G. § 4B1.2’s Force Clause is identical to . . . the
definition of ‘crime of violence’ under 18 U.S.C. § 16(a),” this Court is
“guided by its . . . [18 U.S.C.] § 16(a) jurisprudence” in interpreting
U.S.S.G. § 4B1.2(a)(1). 10 We thus conclude that Brown’s predicate
crime, which was a violation of NYPL § 120.05(1), is a “crime of
violence” under the force clause of U.S.S.G. § 4B1.2(a)(1).
Because the District Court did not have the benefit of our
decision in Scott, it erroneously concluded that Brown’s violation of
NYPL § 120.05(1) did not qualify as a predicate crime of violence under
the Career Offender Guideline and consequently miscalculated
Brown’s offense level. We therefore remand the cause to the District
Court for resentencing.
III. CONCLUSION
To summarize, we hold that NYPL § 120.05(1) is a “crime of
violence” under the force clause of U.S.S.G. § 4B1.2(a)(1). For the
foregoing reasons and for the reasons stated in the summary order
accompanying this opinion, we AFFIRM the District Court’s July 9,
9 994 F.3d 109, 111-12 (2d Cir. 2021).
10 United States v. Tabb, 949 F.3d 81, 84 (2d Cir. 2020).
7
2018 judgment as to Brown’s conviction and REMAND the cause to
the District Court for resentencing.
8