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Perez v. United States

United States Court of Appeals, Sixth Circuit

March 26, 2018

Moises Perez, Petitioner-Appellant,
v.
United States of America, Respondent-Appellee.

          Argued: March 15, 2018

          Appeal from the United States District Court for the Northern District of Ohio at Cleveland. Nos. 1:14-cr-00312; 1:16-cv-02434-Patricia A. Gaughan, District Judge.

         ARGUED:

          Claire C. Curtis, FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant.

          Brian M. McDonough, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

         ON BRIEF:

          Claire C. Curtis, FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant.

          Brian M. McDonough, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

          Before: MERRITT, SUTTON, Circuit Judges, and CLELAND, District Judge. [*]

          OPINION

          SUTTON, CIRCUIT JUDGE

         Moises Perez pleaded guilty to being a felon in possession of a firearm. The court deemed Perez an armed career criminal and sentenced him to 210 months. Our court affirmed the sentence. Perez filed this § 2255 motion, claiming his prior conviction for New York second degree robbery should not have qualified as a predicate violent felony under the Armed Career Criminal Act. The district court denied relief. Because the state robbery offense requires the defendant to "use[] or threaten[] the immediate use of physical force upon another person, " N.Y. Penal Law §§ 160.00, 160.10, and because that offense includes "as an element the use, attempted use, or threatened use of physical force against the person of another" under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), we affirm.

         I.

         On January 27, 2015, Moises Perez pleaded guilty to being a felon in possession of firearms and ammunition. See 18 U.S.C. § 922(g)(1). The Armed Career Criminal Act imposes a mandatory minimum sentence for defendants convicted of violating § 922(g) who have three prior convictions for violent felonies or serious drug offenses. Id. § 924(e)(1). The presentence report identified five predicate offenses: (1) a 1987 New York conviction for second degree robbery, (2) a 2003 Ohio conviction for attempted intimidation, (3) a 2003 Ohio conviction for attempted felonious assault, (4) a 2011 Ohio conviction for burglary, and (5) a 2011 Ohio conviction for attempted felonious assault. The district court agreed that the five prior convictions qualified and sentenced Perez to 210 months. We affirmed. United States v. Perez, 667 Fed.Appx. 543 (6th Cir. 2016) (per curiam).

         Perez seeks post-conviction relief on the ground that the district court imposed a sentence "in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255. He claims that three of his predicate offenses (Ohio attempted intimidation, Ohio burglary, and New York second degree robbery) do not qualify because they turned on the residual clause of ACCA, which the Supreme Court invalidated on vagueness grounds. Johnson v. United States, 135 S.Ct. 2551 (2015). The government concedes that the two Ohio convictions no longer qualify but maintains that the New York robbery conviction remains a violent felony under ACCA's elements clause. The district court agreed, concluding that the New York robbery conviction amounted to a crime of violence. Perez appealed.

         II.

         Any "violent felony" trek requires some preparation for the climb.

         What part of the Armed Career Criminal Act applies? If a defendant has "three previous convictions . . . for a violent felony or a serious drug offense, " ACCA imposes a mandatory minimum 15-year sentence. 18 U.S.C. § 924(e)(1). A felony qualifies as "violent, " among other ways, if it "has as an element the use, attempted use, or threatened use of ...


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