Attempted Second-Degree Assault (N.Y.P.L. § 120.05(7)) as a Categorical “Crime of Violence” Under U.S.S.G. § 2K2.1(a)

1. Introduction

United States v. Cooper addresses a recurring federal sentencing question: whether a prior New York assault conviction qualifies as a “crime of violence” for Guideline enhancements in firearms cases. Nasir Cooper pleaded guilty in the Southern District of New York to possessing ammunition as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The sentencing dispute centered on whether Cooper’s prior conviction for second-degree attempted assault under New York Penal Law (“N.Y.P.L.”) § 120.05(7) is a “crime of violence” under U.S.S.G. § 2K2.1(a), which would increase his base offense level.

Two issues drove the appeal:

• Preservation/waiver: whether Cooper could argue on appeal that the record did not establish he was convicted under § 120.05(7) (as opposed to another subsection).
• Merits (categorical analysis): whether § 120.05(7) (and attempt thereof) necessarily involves “physical force” as required by the Guidelines’ “crime of violence” definition.

2. Summary of the Opinion

The Second Circuit affirmed. It held:

• Cooper waived (not merely forfeited) any argument that his conviction was not under N.Y.P.L. § 120.05(7) because he repeatedly acknowledged that subsection in sentencing submissions and argument.
• Second-degree attempted assault under N.Y.P.L. § 120.05(7) is categorically a “crime of violence” for purposes of U.S.S.G. § 2K2.1(a), because it requires force capable of causing “physical pain or injury” and New York courts do not treat trivial contact (“petty slaps, shoves, kicks”) as “physical injury.”

As a result, the district court properly calculated Cooper’s base offense level as 24, yielding a 57–71 month advisory range, and the 57-month sentence was procedurally sound.

3. Analysis

3.1. Precedents Cited

The panel’s reasoning is built on three bodies of precedent: (i) sentencing procedural review, (ii) waiver/forfeiture doctrine, and (iii) the “categorical approach” plus the meaning of “physical force.”

A. Procedural reasonableness framework

• Gall v. United States, 552 U.S. 38 (2007): supplied the abuse-of-discretion standard and the definition of “procedural error,” including miscalculation of the Guidelines range. This anchored the appeal as a Guidelines-calculation dispute.

B. Waiver vs. forfeiture (preservation)

• United States v. Jackson, 346 F.3d 22 (2d Cir. 2003): distinguished waiver (“explicit abandonment”) from forfeiture (“failure to object”) and linked forfeiture to plain-error review.
• United States v. Quinones, 511 F.3d 289 (2d Cir. 2007): provided the decisive rule that tactical non-objection can be “true waiver” that “negate[s] even plain error review,” especially where a party “actively solicited” the position below.

Applying these cases, the court treated Cooper’s repeated, affirmative references to § 120.05(7) as a strategic concession to focus on the legal classification argument—thereby foreclosing a new appellate pivot to a record-sufficiency claim about the subsection.

C. Categorical approach mechanics

• United States v. Jones, 878 F.3d 10 (2d Cir. 2017): set out the categorical vs. modified categorical approach framework for prior state convictions.
• United States v. Moore, 916 F.3d 231 (2d Cir. 2019): emphasized that if a statute covers any non-qualifying conduct, it is not categorically a crime of violence.
• Descamps v. United States, 570 U.S. 254 (2013): explained when the modified categorical approach applies to divisible statutes and the limited set of “Shepard documents” (indictments, jury instructions, etc.) used to identify the relevant alternative.
• United States v. Tabb, 949 F.3d 81 (2d Cir. 2020): provided New York attempt-law elements (intent + conduct “so near” to completion that the crime would have been committed in reasonable probability).

Because Cooper conceded divisibility and waived any subsection dispute, the panel treated the predicate as fixed: § 120.05(7) (and attempt via § 110.00), analyzed categorically.

D. Meaning of “physical force” and the “low hurdle” after Stokeling

• United States v. Scott, 990 F.3d 94 (2d Cir. 2021) (en banc): reaffirmed that the “physical force” requirement in the crime-of-violence definition means “force capable of causing physical pain or injury.”
• Stokeling v. United States, 586 U.S. 73 (2019): supplied the opinion’s central move. It clarified that “physical force” means force capable of causing pain or injury and can include force as small as “hitting, slapping, shoving, grabbing, pinching, biting, and hairpulling,” while rejecting attempts to demand a higher quantum of “violent” force.
• United States v. Reyes, 691 F.3d 453 (2d Cir. 2012): justified using Armed Career Criminal Act “violent felony” cases (like Stokeling) because the ACCA and Guidelines definitions are “identical in all material respects.”
• Johnson v. United States, 559 U.S. 133 (2010): invoked by Cooper for “substantial degree of force” language, but the panel—following Stokeling—treated selective adjectives as non-controlling when divorced from Johnson’s core holding.
• United States v. Castleman, 572 U.S. 157 (2014): relied on by Cooper to suggest minor force may not be “violent,” but Stokeling is cited as rejecting that reading of Castleman.

E. New York “physical injury” content and the realistic-probability check

• People v. Chiddick, 8 N.Y.3d 445 (2007): used to show New York’s “physical injury” threshold excludes trivial contact (“petty slaps, shoves, kicks and the like”).
• People v. Godfrey, 157 N.Y.S.3d 18 (1st Dep't 2021): reinforced that New York courts do not treat minor contact as “physical injury.”
• Lassend v. United States, 898 F.3d 115 (1st Cir. 2018): persuasive authority noting no New York cases obtaining § 120.05(7) convictions based on nonviolent conduct.
• United States v. Hill, 890 F.3d 51 (2d Cir. 2018): supplied the “realistic probability” lens—courts do not invalidate categorical qualification based on imaginative hypotheticals absent a realistic probability the statute is applied that way.
• Villanueva v. United States, 893 F.3d 123 (2d Cir. 2018): Cooper cited a footnote suggesting “serious physical injury” intent might be necessary; the panel treated that suggestion as untenable after Stokeling.
• United States v. Dobey, No. 18-cr-787 (LGS), 2019 WL 5205475 (S.D.N.Y. Oct. 16, 2019): a district court decision concluding § 120.05(7) is not a categorical crime of violence due to “physical injury” vs. “serious physical injury”; the panel rejected that approach in light of intervening higher authority (especially Stokeling).

3.2. Legal Reasoning

A. Waiver as a gatekeeping holding

The court first narrowed the appeal by holding that Cooper waived the “which subsection?” dispute. That matters because, if a defendant preserves a genuine uncertainty about the statutory alternative of conviction, the analysis may require consulting limited records under Descamps. Here, however, Cooper’s own filings repeatedly identified § 120.05(7), and he affirmatively argued from that premise. Under Quinones, such conduct is treated as true waiver—eliminating appellate review and effectively locking in the subsection.

B. Anchoring “crime of violence” in the Guidelines text and commentary

The court began on the federal side: U.S.S.G. § 2K2.1’s commentary incorporates the meaning of “crime of violence” from U.S.S.G. § 4B1.2(a), which includes any offense with an element requiring the “use, attempted use, or threatened use of physical force” against another person. Application Note 1 further clarifies that “crime of violence” includes “attempting to commit such offenses” (and the panel noted the current Guidelines place similar language in § 4B1.2(d)).

C. Comparing elements: § 120.05(7) “physical injury” vs. Guidelines “physical force”

The core dispute was Cooper’s attempt to elevate the federal force threshold by tying it to “serious physical injury.” The panel rejected that move as inconsistent with Scott and Stokeling, which define qualifying “physical force” as force capable of causing physical pain or injury—not necessarily “serious physical injury.”

On the New York side, § 120.05(7) requires intent to cause “physical injury” (defined as “impairment of physical condition or substantial pain”) and causing such injury; attempt requires intent plus conduct dangerously near completion (Tabb). The panel then used New York Court of Appeals guidance (People v. Chiddick) to show “physical injury” excludes trivial touching: “petty slaps, shoves, kicks” do not qualify. That doctrinal constraint matters because it aligns New York’s “physical injury” threshold with Stokeling’s conception of force capable of causing pain or injury and avoids the hypothetical world where minimal contact produces a felony assault conviction.

D. “Realistic probability” and the absence of counterexamples

The court emphasized that Cooper could not produce New York cases applying § 120.05(7) to nonviolent conduct; the First Circuit in Lassend v. United States likewise found none. Under United States v. Hill, categorical analysis is not defeated by imaginative hypotheticals; the defendant must show a realistic probability of non-qualifying application. The panel found none.

E. Disposing of Johnson/Castleman arguments through Stokeling

Cooper’s reliance on United States v. Castleman and adjectives in Johnson v. United States was treated as foreclosed by Stokeling, which rejected reading Castleman to narrow “physical force” and rejected “cherry picking” Johnson’s descriptive language to demand more than force capable of causing pain or injury.

3.3. Impact

• Guidelines calculations in firearm cases: The holding directly affects U.S.S.G. § 2K2.1(a) base offense level determinations for defendants with N.Y.P.L. § 120.05(7) (and attempt) priors, making it substantially more likely they will be treated as having a “crime of violence.”
• Attempt predicates: By leaning on the Guidelines’ explicit inclusion of attempts and New York’s “dangerously near” attempt standard, the decision strengthens the government’s position that New York attempt convictions can qualify where the completed offense qualifies.
• “Physical injury” vs. “serious physical injury” disputes: The opinion signals that, at least post-Stokeling, arguments that “physical injury” is categorically too low a threshold for “physical force” will face steep headwinds—especially where the state’s own case law excludes trivial contact.
• Appellate strategy and waiver: The waiver ruling is a practical warning: defendants who affirmatively characterize their statute of conviction in district court risk losing the ability to challenge that characterization on appeal, even under plain-error review.
• Institutional alignment: By citing Lassend v. United States, the Second Circuit aligns itself with at least one other circuit’s assessment of § 120.05(7), promoting inter-circuit consistency in federal sentencing treatment of this New York offense.

4. Complex Concepts Simplified

• “Crime of violence” (Guidelines): A term used to trigger higher Guideline ranges. Relevant here is the “force clause”: the offense must have an element requiring the use/attempted use/threatened use of “physical force” against a person.
• Categorical approach: The court looks only to the statute’s legal elements, not what the defendant actually did. If the statute can be violated in a way that does not involve qualifying force, it fails categorically.
• Modified categorical approach / divisible statute: If a statute lists alternative crimes (different subsections with different elements), courts may consult a limited record set to identify which alternative was the conviction—then apply the categorical approach to that alternative.
• Waiver vs. forfeiture: Forfeiture is an accidental failure to object (often reviewed for “plain error” on appeal). Waiver is an intentional relinquishment (often not reviewable at all).
• “Physical force” after Stokeling: Not “force likely to cause severe injury,” but force capable of causing pain or injury. The threshold is comparatively low.
• Realistic probability test: To show a statute is overbroad, it is usually not enough to invent a hypothetical. The defendant should point to real cases (or other persuasive evidence) showing the statute has actually been applied to non-qualifying conduct.

5. Conclusion

United States v. Cooper establishes (and, within the Second Circuit, cements) that N.Y.P.L. § 120.05(7) attempted assault is categorically a “crime of violence” under U.S.S.G. § 2K2.1(a), rejecting the contention that the federal force clause implicitly demands “serious physical injury.” The decision relies on Stokeling’s low force threshold, New York’s own limitation of “physical injury” to more-than-trivial harm, and the absence of realistic nonviolent applications. Separately, it underscores that defendants who affirmatively accept a statute-of-conviction characterization in the district court may waive the ability to contest it on appeal.