Argued: August 22, 2017
from the June 14, 2016, amended judgment of the District
Court for the District of Connecticut (Janet C. Hall, Chief
Judge), modifying a sentence based on a ruling that a
Connecticut first degree assault conviction was not a
"violent felony" for purposes of enhanced
sentencing under the Armed Career Criminal Act of 1984.
M. Spector, Asst. U.S. Atty., New Haven, CT (Deirdre M. Daly,
U.S. Atty., Marc H. Silverman, Asst. U.S. Atty., New Haven,
CT, on the brief), for Respondent- Appellant.
Charles F. Willson, Federal Defender's Office, Hartford,
CT, for Petitioner-Appellee.
Before: NEWMAN, LEVAL, and POOLER, Circuit Judges.
NEWMAN, CIRCUIT JUDGE.
appeal by the United States presents the narrow issue of
whether the offense of violating Connecticut's statute
punishing first degree assault, Conn. Gen. Stat. §
53a-59(a)(1), qualifies as a "violent felony" for
purposes of enhanced sentencing under the federal Armed
Career Criminal Act of 1984 ("ACCA"), 18 U.S.C.
§ 924(e). That issue turns on whether the Connecticut
statute, analyzed under the so-called "modified
categorical approach," Mathis v. United States,
136 S.Ct. 2243, 2249 (2016), has as an element what federal
law means by defining "violent felony" to require
the use of "physical force." 18 U.S.C. §
924(e)(2)(B)(i). This issue arises on an appeal from the June
14, 2016, amended judgment of the District Court for the
District of Connecticut (Janet C. Hall, Chief Judge),
modifying the sentence of Appellee Richard Villanueva. That
judgment brings up for review the District Court's June
10, 2016, ruling that Villanueva's assault offense was
not a "violent felony" for purposes of the ACCA.
we conclude that Villanueva's assault conviction
qualified as an ACCA predicate, we remand for resentencing.
ACCA authorizes a punishment of up to ten years'
imprisonment for any person who possesses a firearm after
being convicted of a felony. See 18 U.S.C.
§§ 922(g)(1), 924(a)(2). The ACCA also
requires a minimum fifteen year term of imprisonment for any
person who violates subsection 922(g) and has three previous
convictions for a "violent felony" or a
"serious drug offense." See id. §
924(e)(1). "Violent felony" is defined, as relevant
to this case, as any crime punishable by imprisonment for a
term exceeding one year that "has as an element the use
. . . of physical force against the person of another,"
id. § 924(e)(2)(B)(i), or "involves
conduct that presents a serious potential risk of physical
injury to another," id. §
924(e)(2)(B)(ii). Subsection 924(e)(2)(B)(i) is known as the
"elements clause," and the quoted portion of
subsection 924(e)(2)(B)(ii) is known as the "residual
clause." See Welch v. United States, 136 S.Ct.
1257, 1261 (2016). The "elements clause" is
sometimes called the "force clause." See,
e.g., United States v. Jones, No.
15-1518-cr, 2017 WL 3974269, at *1 (2d Cir. Sept. 11, 2017).
June 1999, Villanueva, then using the name Richard
Zebrowski, was indicted for unlawful possession of a firearm
by a convicted felon in violation of 18 U.S.C. §
922(g)(1). The indictment alleged four prior convictions, two
for narcotics violations, a third for first degree assault in
violation of Conn. Gen. Stat. 53a-59(a), and a fourth for
assault on an officer in violation of Conn. Gen. Stat.
53a-167(c). After a jury found Villanueva guilty, a
presentence report ("PSR") recommended sentencing
under the ACCA's minimum fifteen year sentence provision.
The PSR reflected that the first degree assault conviction
resulted from Villanueva's firing a gun three or four
times and hitting his victim in the shoulder. The PSR
calculated a Guidelines range of 262-327 months.
District Court concluded that each of the two narcotics
convictions was a "serious drug offense" within the
meaning of subsection 924(e)(2)(A)(ii) and at least one of
the assault convictions was a "violent felony"
within the meaning of subsection 924(e)(2)(B), without
specifying whether the elements clause or the residual clause
of that subsection applied. Because the District Court did
not specify which of the two assault convictions qualified as
a "violent felony" for purposes of the ACCA or
whether it was using the elements clause or the residual
clause, it left open the possibility that it was implicitly
using the residual clause. The Court imposed a sentence
pursuant to the ACCA of 262 months. This Court affirmed in
part and dismissed in part. United States v.
Zebrowski, 229 F.3d 1136 (2d Cir. 2000) (table).
2007, this Court affirmed a denial of Villanueva's first
motion to vacate his sentence under 28 U.S.C. § 2255.
That motion raised no issue relating to the ACCA.
February 13, 2013, the District Court entered an amended
judgment to reflect the fact that Villanueva's name had
been legally changed from Zebrowski. The sentence of 262
months remained unchanged.
2015, the Supreme Court ruled that the "residual
clause" of the ACCA was unconstitutionally vague.
See Johnson v. United States, 135 S.Ct. 2551, 2557
then filed in this Court, pursuant to 28 U.S.C. §
2244(b)(3)(A), a motion for leave to file in the District
Court a second motion under 28 U.S.C. § 2255, relying on
Johnson. This Court granted the motion, concluding
that Villanueva had made "a prima facie showing"
that his two assault convictions are not violent felonies
"under any provision of the ACCA that remains in effect
after Johnson." We instructed the District
Court to "determine whether the assault convictions
remain proper ACCA predicates after Johnson, and
what evidence may be considered in making that
10, 2016, the District Court granted Villanueva's second
section 2255 motion and vacated his sentence. See
Villanueva v. United States, 191 F.Supp.3d 178 (D. Conn.
2016). In a carefully considered opinion, the Court first
said "that it is more likely than not that [Villanueva]
was sentenced under ACCA's Residual Clause,"
id. at 184, which led to the Court's conclusion
that he had "shown by a preponderance of the evidence
that the court [had] sentenced him under the Residual Clause,
and not the Elements Clause," see id. at 188.
Court then rejected the Government's contention that the
error of using the residual clause was harmless because it
was not a structural error. See id. at 190. The
Court then stated that it need not rest on its structural
error determination because, even on harmless error review,
the error was not harmless. See id. This conclusion
rested on the Court's determination, which is at the
heart of the pending appeal, that neither of Villanueva's
assault convictions qualified as ACCA predicates because
neither was a "violent felony" for lack of a
required element of the use of physical force. See
id. at 191-98.
14, 2016, the Court resentenced Villanueva. First, the Court
recalculated his Sentencing Guidelines range to be 63-78
recognizing that Villanueva had served more than the ten-year
maximum term for a violation of subsection 922(g)(1) without
an ACCA enhancement, the Court resentenced him to time served
and placed him on supervised release. A second amended
judgment was entered the same day.
Government seeks review of the District Court's June 10
ruling, made reviewable by entry of the second amended
judgment on June 14.
Government contends that each of Villanueva's two assault
convictions was a "violent felony" within the
meaning of the elements clause of ACCA, 18 U.S.C. §
924(e)(2)(B)(i). Villanueva contends that neither assault
conviction was a "violent felony."
elements clause defines a "violent felony,"
required for enhanced punishment, to include a crime that
"has as an element the use, attempted use, or threatened
use of physical force against the person of another."
Id. The Supreme Court has stated that, for purposes
of the elements clause, "the phrase 'physical
force' means violent force--that is, force
capable of causing physical pain or injury to another
person." (Curtis) Johnson v. United States, 559
U.S. 133, 140 (2010) (emphasis in original). So the issue on this
appeal is whether either of the statutes defining
Villanueva's two assault offenses includes, as an
element, the use of violent force. We confine our
consideration to the first degree assault conviction under
Conn. Gen. Stat. § 53a-59(a)(1).
Connecticut first degree assault provision has two
subdivisions. The first states:
A person is guilty of assault in the first degree when: (1)
With intent to cause serious physical injury to another
person, he causes such injury to such person or to a third
person by means of a deadly weapon or a dangerous instrument.
Conn. Gen. Stat. § 53a-59(a)(1).
definition provisions are relevant to our inquiry:
"Serious physical injury" means physical injury
which creates a substantial risk of death, or which causes
serious disfigurement, serious impairment of health or
serious loss or impairment of the function of any bodily
Conn. Gen. Stat. § 53a-3(4).
"Dangerous instrument" means any instrument,
article or substance which, under the circumstances in which
it is used or attempted or threatened to be used, is capable
of causing death or serious physical injury . . . ."
Conn. Gen. Stat. § 53a-3(7).
Supreme Court has instructed that in determining whether a
state criminal statute qualifies as an ACCA predicate
offense, courts are to use the so-called "categorical
approach," and, when the state statute has subdivisions,
courts are to use the so-called "modified categorical
approach." See Descamps v. United States, 133
S.Ct. 2276, 2281 (2013). Under these approaches, "courts
identify the minimum criminal conduct necessary for
conviction under a particular statute" and "look
only to the statutory definitions-i.e., the
elements-of [the] . . . offense, and not to the
particular [underlying] facts." United ...