Whether robbery in the third degree under New York Penal Law § 160.05 categorically qualifies as a 'violent felony' under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)

QUESTIONS PRESENTED Subdivision 1 of New York’s Penal Law § 70.02 lists by class (from Class B to Class E) all Penal Law offenses defined as “violent felony” offenses; subdivision 2 specifies the authorized sentence for offenses listed in each class. New York Penal Law § 70.04 provides for mandatory enhanced sentences for repeat violent felony offenders. Only New York’s aggravated robbery offenses -robbery in the first degree under Penal Law § 160.15, and robbery in the second degree under Penal Law § 160.10 -are listed as “violent felony” offenses in Penal Law § 70.02. Robbery in the third degree under Penal Law § 160.05 and attempted robbery in the third degree are not included in § 70.02, and, therefore, both are categorically not deemed “violent felony” offenses by New York. The questions presented are: 1. Does robbery in the third degree under New York Penal Law § 160.05 categorically qualify as a “violent felony’ under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)? 2. Does attempted robbery in the third degree under New York Penal Law §§ 110.00 and 160.05 categorically qualify as a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)? 3. In determining whether a state statute qualifies as an ACCApredicate offense under “the elements clause” of 18 U.S.C. § i 924(e)(2)(B)(i), is the analysis of the categorical approach as explained in Decamps v. United States, 570 U.S. 254 (2013), and Mathis v. United States, 136 S. Ct. 2243 (2016), confined to an “elements-based inquiry” based on the text of the statute, or does the “realistic probability test” suggested in Gonzales v. DuenasAlvarez, 549 U.S. 183, 193 (2007), put the burden on the defendant to demonstrate the facts and theory behind his own prior conviction or the conviction of another person in order to show that, in fact, one has been prosecuted for and convicted of the offense at issue without proof of one of the three elements listed in 18 U.S.C. §924(e)(2)(B)G@) -— ie, “the use”, “the attempted use”, or the “threatened use” of physical force against the person of another?