Summary
This Second Circuit per curiam opinion affirms the district court's sentencing judgment against Nasir Cooper, who pleaded guilty to possessing ammunition as a convicted felon. On appeal, Cooper challenged the district court's determination that his prior New York conviction for second-degree attempted assault categorically constituted a "crime of violence" under the U.S. Sentencing Guidelines. The court held that Cooper waived any argument regarding the specific subsection of the New York Penal Law under which he was convicted and concluded that the statute requires physical force sufficient to qualify as a crime of violence under U.S.S.G. § 2K2.1(a). Accordingly, the court affirmed the district court's calculation of Cooper's base offense level and sentence.
Topics
Practice areas
Questions Presented
- Whether the district court erred in finding that Cooper’s prior conviction for second‑degree attempted assault under N.Y.P.L. § 120.05(7) is a crime of violence under U.S.S.G. § 2K2.1(a).
Holdings
- A conviction for second‑degree attempted assault under N.Y.P.L. § 120.05(7) categorically constitutes a crime of violence for purposes of U.S.S.G. § 2K2.1(a).
Key quotations
“The term “crime of violence” means any offense ... that ... has an element the use, attempted use, or threatened use of physical force against the person of another.” (at 127)
“Force as small as hitting, slapping, shoving, grabbing, pinching, biting, and hairpulling all qualify as physical force because none of those actions bears any real resemblance to mere offensive touching, and all are capable of causing physical pain or injury.” (at 127)
Factual background
In November 2020 Cooper fired multiple shots in the Bronx and was arrested with a round of ammunition. He later pleaded guilty to possessing ammunition as a felon. He also had two prior felony convictions, including a second‑degree attempted assault under N.Y.P.L. § 120.05(7) for striking a uniformed officer while confined.
Procedural history
Cooper was convicted in the Southern District of New York of possessing ammunition as a felon (18 U.S.C. § 922(g)(1)) after a guilty plea and sentenced to 57 months. The district court also treated his prior New York conviction for second‑degree attempted assault (N.Y.P.L. § 120.05(7)) as a crime of violence under U.S.S.G. § 2K2.1(a), raising his base offense level to 24. Cooper appealed the sentencing determination.