Physical Menace in Vermont Assault-and-Robbery Is a Crime of Violence Under the Guidelines’ Force Clause (Second Circuit Summary Order)

Physical Menace in Vermont Assault-and-Robbery Is a Crime of Violence Under the Guidelines’ Force Clause (Second Circuit Summary Order)

Case: United States v. Williams, No. 24-2696-cr (2d Cir. Sept. 30, 2025) (summary order)

Court: United States Court of Appeals for the Second Circuit

Panel: Wesley, Bianco, and Robinson, Circuit Judges

Disposition: Affirmed

Note: This is a summary order. Under FRAP 32.1 and Local Rule 32.1.1, it is citable but non-precedential.

Introduction

This appeal concerns whether a prior Vermont conviction for “assault and robbery,” Vt. Stat. Ann. tit. 13, § 608(a), qualifies as a “crime of violence” for purposes of the United States Sentencing Guidelines, thereby increasing the base offense level for a federal felon-in-possession sentence under U.S.S.G. § 2K2.1(a). The district court concluded that the prior offense was a crime of violence and applied a six-level enhancement. The Second Circuit affirmed.

Defendant-Appellant Hasan Williams pleaded guilty to 18 U.S.C. § 922(g)(1). At sentencing (under the 2023 Guidelines), the district court set the base offense level at 20 under U.S.S.G. § 2K2.1(a)(4)(A), finding that Williams’s prior Vermont “assault and robbery” conviction was a crime of violence under U.S.S.G. § 4B1.2(a)’s force clause. Williams argued on appeal that the Vermont statute is indivisible and that, even if divisible, his particular variant—simple assault by “physical menace”—does not satisfy the force clause and, in any event, the Vermont robbery offense is broader than generic robbery. The Second Circuit rejected these arguments.

The decision clarifies two key points for federal sentencing in the Second Circuit when Vermont convictions are predicates:

  • Vermont’s simple assault statute, Vt. Stat. Ann. tit. 13, § 1023(a), is divisible into three alternative elements; that divisibility carries through when § 1023(a) is incorporated into § 608(a)’s “assault and robbery.”
  • When the predicate rests on § 1023(a)(3) (simple assault by “physical menace”), the offense “has as an element the threatened use of physical force” and thus qualifies as a “crime of violence” under the Guidelines’ force clause, U.S.S.G. § 4B1.2(a)(1).

Summary of the Opinion

Applying de novo review to the Guidelines interpretation, the court held:

  • Divisibility: Vermont’s simple assault statute (§ 1023(a)) is divisible, listing three distinct alternatives—each with different elements—separated by “or.” State law confirms the alternatives are elements, not mere means. Because § 608(a) “assault and robbery” incorporates those alternatives, the predicate offense is divisible by reference to which form of simple assault it embeds.
  • Modified categorical approach: Given divisibility, the court properly consulted limited documents (here, the plea colloquy) to determine that Williams’s conviction rested on § 1023(a)(3), the “physical menace” variant.
  • Force clause satisfied: Under Vermont law, “physical menace” means “a threat, by word or act, to inflict physical injury upon another person.” Because § 1023(a)(3) criminalizes an attempt to place another in fear of imminent serious bodily injury by means of a threat, the offense has as an element the threatened use of physical force. The panel distinguished the Supreme Court’s decision in Taylor v. United States (2022) on attempted Hobbs Act robbery, explaining that § 1023(a)(3) requires an actual threat, not merely intent and a substantial step.
  • Enumerated offense clause unnecessary: Because the force clause sufficed, the court did not reach the “generic robbery” argument.

Result: The district court correctly applied § 2K2.1(a)(4)(A). Williams’s 60-month sentence and 3-year term of supervised release were affirmed.

Detailed Analysis

Precedents and Authorities Cited

  • Guidelines framework: U.S.S.G. §§ 2K2.1(a)(4)(A), (a)(6)(A), and 4B1.2(a) (2023). The court reiterates that § 2K2.1’s definition of “crime of violence” cross-references § 4B1.2.
  • Categorical and modified categorical approaches:
    • Mathis v. United States, 579 U.S. 500 (2016), and Descamps v. United States, 570 U.S. 254 (2013): Distinguish elements versus means and establish when a statute is divisible. If divisible, the modified categorical approach permits consulting a limited set of documents to identify the offense variant of conviction.
    • United States v. Morris, 61 F.4th 311 (2d Cir. 2023), United States v. Davis, 74 F.4th 50 (2d Cir. 2023), and United States v. Cooper, 131 F.4th 127 (2d Cir. 2025) (per curiam): Apply Mathis/Descamps in the Second Circuit, including the sequencing—identify the specific alternative of conviction, then return to the categorical analysis.
    • Stankiewicz v. Garland, 103 F.4th 119 (2d Cir. 2024): On using statutory text and state-court decisions to resolve divisibility.
  • Mens rea limits in force-clause analysis:
    • Borden v. United States, 593 U.S. 420 (2021): Offenses requiring only a mens rea of recklessness do not satisfy the force clause; negligence is even lower on the scienter spectrum (Elonis v. United States, 575 U.S. 723 (2015) (Alito, J., concurring in part, dissenting in part)). This excludes § 1023(a)(1) in its recklessness form and § 1023(a)(2) (negligence with a deadly weapon) from the force clause.
  • “Physical menace” meaning under Vermont law:
    • State v. Gagne, 148 A.3d 986, 997 (Vt. 2016): “Physical menace” is “a threat, by word or act, to inflict physical injury upon another person.”
    • State v. Francis, 561 A.2d 392 (Vt. 1989): The assault prong of § 608(a) incorporates the variants of simple assault in § 1023(a).
    • State v. Bockus, 312 A.3d 533, 543 (Vt. 2024): Describes § 1023(a)(3) as the “physical-menace element” when embedded in § 608(a), supporting their characterization as disjunctive elements.
    • Matthews v. Barr, 927 F.3d 606, 622 n.11 (2d Cir. 2019): Federal courts are bound by a state high court’s definitive interpretation of state law.
  • Attempted crimes and threats:
    • Taylor v. United States, 596 U.S. 845 (2022): Attempted Hobbs Act robbery does not categorically require “use, attempted use, or threatened use of force” because it can be committed by intent plus a substantial step; the offense lacks an element of actual or attempted force or threat. The Second Circuit distinguishes Taylor because § 1023(a)(3) requires an actual threat, not merely an attempted threat.
  • Standard of review: United States v. Washington, 103 F.4th 917, 920 (2d Cir. 2024): Factual findings for clear error; Guidelines interpretation and application de novo.

Legal Reasoning

1. The Statutory Structure and Divisibility

Vermont’s assault-and-robbery statute, § 608(a), criminalizes the combination of an assault and a taking: a person “assaults another and robs, steals, or takes” from the person or presence of the victim property subject to larceny. The “assault” component is not left undefined; per the Vermont Supreme Court, § 608(a) incorporates the three discrete forms of simple assault defined in § 1023(a):

  • § 1023(a)(1): Attempts to cause or purposely, knowingly, or recklessly causes bodily injury.
  • § 1023(a)(2): Negligently causes bodily injury with a deadly weapon.
  • § 1023(a)(3): Attempts by physical menace to put another in fear of imminent serious bodily injury.

The Second Circuit held that § 1023(a) is divisible: the statute lists alternative elements (not mere factual means) separated by “or,” each defining a different offense. Vermont court decisions, particularly Gagne and Bockus, treat the “physical menace” variant as a distinct element, confirming divisibility under Mathis and Descamps. Because § 608(a) imports those alternative elements, the compound offense is likewise divisible as to which simple-assault variant supplies the “assault” element.

With divisibility established, the court applied the modified categorical approach and relied on the plea colloquy to determine that Williams’s predicate conviction rested on § 1023(a)(3) (physical menace)—not on § 1023(a)(1) or § 1023(a)(2), which, as the parties agreed, cannot satisfy the force clause after Borden.

2. Force Clause: Threatened Use of Physical Force

To qualify as a “crime of violence” under the force clause, the offense must have “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). Two steps drove the court’s conclusion:

  • Meaning of “physical menace” under Vermont law: The Vermont Supreme Court defines “physical menace” as “a threat, by word or act, to inflict physical injury upon another person.” Thus, the statute codifies an actual threat, not merely an intention to threaten.
  • Elemental structure of § 1023(a)(3): The statute requires that the defendant “attempt[] by physical menace to put another in fear of imminent serious bodily injury.” Vermont’s model instruction (approved in Gagne) requires proof (1) that the defendant attempted to put another in fear of imminent serious bodily injury, and (2) that the defendant made a threat (by word or act) to inflict physical injury.

Because a threat to inflict physical injury is necessarily a threat to use physical force, § 1023(a)(3) includes as an element the “threatened use of physical force.” The offense thus falls squarely within § 4B1.2(a)(1).

3. Distinguishing Taylor’s “Attempted Threat” Problem

Williams invoked Taylor (attempted Hobbs Act robbery), arguing that § 1023(a)(3) similarly punishes mere intent plus a substantial step without requiring an actual threat. The court rejected that analogy. Taylor involved a federal attempt statute where the government need not prove a completed threat; by contrast, Vermont’s § 1023(a)(3) requires the State to prove an actual threat (by word or act) that is used as the means of the attempted placing of the victim in fear. In other words, § 1023(a)(3) demands a threat, not an attempted threat. That distinction is dispositive for the force clause.

4. Enumerated-Offense Clause Not Reached

Williams separately argued that Vermont’s § 608(a) is broader than generic robbery because it does not require that the assault be the instrumentality of the taking. The panel expressly declined to reach this issue, holding the case under the force clause alone.

Impact and Implications

Immediate Sentencing Consequences

  • Within the Second Circuit, Vermont § 608(a) predicates that rest on § 1023(a)(3) will support a § 2K2.1(a)(4)(A) enhancement as crimes of violence under the force clause. That elevates the base offense level for felon-in-possession cases from 14 to 20, materially affecting advisory ranges.
  • Recklessness and negligence cannot qualify under the force clause after Borden. Thus, § 1023(a)(1) (insofar as it allows reckless infliction) and § 1023(a)(2) (negligent infliction with a deadly weapon) are non-qualifiers under the force clause.

Broader Litigation Strategy

  • Divisibility is key: The defense must scrutinize Shepard documents to see whether the prior Vermont conviction was under § 1023(a)(1) or (a)(2) (which would not qualify under the force clause) rather than under § 1023(a)(3). Conversely, the government will seek to establish that the conviction rested on the physical menace alternative.
  • Enumerated robbery issues remain open: The panel did not resolve whether § 608(a) matches generic robbery in the Guidelines’ enumerated-offenses clause. Future cases may address whether Vermont’s assault-and-robbery requires that the assault facilitate the taking, a common locus of “generic robbery” disputes.
  • Persuasive but non-precedential: Though citable under FRAP 32.1, this summary order is not precedential. Still, it provides a clear roadmap for district courts in the Second Circuit and persuasive authority elsewhere on the “physical menace” question.

Potential Cross-Context Effects

  • Immigration and other federal contexts: While “crime of violence” definitions vary across statutes and contexts, the court’s element-by-element analysis and reliance on state-court definitions of “physical menace” may be persuasive in analogous analyses (e.g., removability or categorical matches in other federal statutes). Parties should remain attentive to context-specific definitions.

Complex Concepts, Simplified

  • Categorical approach: Courts compare the elements of the prior offense to the elements required by the federal definition. The actual facts of what the defendant did are irrelevant; only the legal elements of the offense matter.
  • Divisible statute: A statute is “divisible” if it lists alternative elements—effectively creating multiple crimes in one statute. If divisible, courts can use a limited set of documents (e.g., indictment, plea colloquy, jury instructions) to identify which statutory alternative formed the basis of the conviction.
  • Modified categorical approach: The method used when a statute is divisible to pinpoint the specific alternative of conviction before returning to the categorical analysis.
  • Force clause (Guidelines): An offense is a “crime of violence” if it has as an element the use, attempted use, or threatened use of physical force against another person.
  • Mens rea limits after Borden: Offenses that can be committed with a mens rea of recklessness or negligence do not meet the force clause’s requirement of purposeful or knowing conduct.
  • “Physical menace” under Vermont law: A threat—by words or actions—to inflict physical injury on another person. Under § 1023(a)(3), that threat is the required means by which the defendant attempts to place another in fear of imminent serious bodily injury.
  • Taylor distinction: Attempted Hobbs Act robbery does not require the government to prove a threat, only intent plus a substantial step. Vermont’s § 1023(a)(3), by contrast, requires an actual threat as an element, satisfying the force clause.

Key Takeaways

  • Vermont’s simple assault statute, § 1023(a), is divisible into three distinct elements; that divisibility carries into the § 608(a) “assault and robbery” offense.
  • Where the predicate rests on § 1023(a)(3) (physical menace), “assault and robbery” categorically qualifies as a “crime of violence” under U.S.S.G. § 4B1.2(a)(1)’s force clause.
  • Offenses under § 1023(a)(1) (recklessness) and § 1023(a)(2) (negligence) do not satisfy the force clause after Borden.
  • Taylor’s rule about attempted Hobbs Act robbery does not undermine crimes that require an actual threat as an element; § 1023(a)(3) requires such a threat.
  • The Second Circuit did not reach the enumerated-offense (“generic robbery”) argument; that issue remains open for future cases involving § 608(a).
  • Although non-precedential, the order offers a detailed, citable (and likely influential) analysis for Vermont predicates in federal sentencing.

Conclusion

In affirming the sentence, the Second Circuit provides a carefully structured application of the categorical and modified categorical approaches to a common Vermont predicate. By holding that “assault and robbery” anchored in § 1023(a)(3) (physical menace) contains as an element a threat to use physical force, the panel confirms the availability of the § 2K2.1(a)(4)(A) enhancement for § 922(g) defendants with that specific prior conviction. The decision also underscores the continuing importance of divisibility analysis post-Mathis/Descamps, the constraints of Borden on recklessness and negligence predicates, and a careful parsing of Taylor where an actual threat is an element.

For practitioners, the lesson is twofold: examine Vermont records closely to identify the precise § 1023(a) variant underlying § 608(a) convictions, and litigate the presence (or absence) of an elemental threat. While the opinion does not settle whether § 608(a) matches generic robbery, it substantially clarifies the force-clause pathway—and will likely shape sentencing litigation in the Second Circuit whenever “physical menace” is at issue.

Case Details

Year: 2025
Court: Court of Appeals for the Second Circuit

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