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We’ve Got the Shorts (Again) – Update for September 25, 2018

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues. Today, a few short takes from last week’s federal criminal news…

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CASE SHORTS

Hobbs Act Robbery “Violent Crime” in Another Circuit: The 1st Circuit last week held that Hobbs Act robbery is a crime of violence under 18 USC 924(c), a statute that sets extra punishment for carrying or using a gun during a crime of violence. The Circuit joins a number of others that have reached the same conclusion.

United States v. Garcia-Ortiz, Case No. 16-1405 (1st Cir. Sept. 17, 2018)

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bathsalt180925DEA Takes a “Bath” in Analogue Case: In a case full of organic chemistry and implications for the regulatory state, the 6th Circuit held that the DEA rules criminalizing the possession of a “positional isomer” of a banned drug require the rule of lenity to be applied. The rule of lenity is a principle of criminal statutory interpretation that requires a court to apply any unclear or ambiguous law in the manner most favorable to the defendant. In this case, the defendant was tried for possessing ethylone, which under the DEA definition was a “positional isomer” of butylone, a scheduled drug. The problem was that under one of several accepted scientific definitions of “positional isomer,” ethylone is not a positional isomer of butylone at all. The Court ruled that where there was more than one definition, and the DEA rules were unclear what definition was to apply, the defendant gets the benefit of the less restrictive definition under the rule of lenity.

United States v. Phifer, Case No. 17-10397 (6th Cir. Sept. 21, 2018)

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Motion Claiming Juror Lied About Her Background is Structural Error: A couple of guys being tried for a pot-growing operation discovered after the trial that one juror’s son had been convicted of being a marijuana trafficker, a fact the juror concealed on her jury questionnaire. When the defendants raised the juror problem in a motion for new trial, the district court ruled there was no proof of prejudice resulting from of the juror’s false statement, because the overwhelming evidence would have convicted the defendants anyway. The 1st Circuit reversed, ruling that a biased juror would “deprive defendants of ‘basic protections’ without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence.” Thus, it is what is known as a “structural error.” Generally, a constitutional error that does not contribute to the verdict is considered harmless, which means the defendant is not entitled to reversal. However, a structural error, one which “affects the framework within which the trial proceeds,” as defined in Arizona v. Fulminante, defies harmless error analysis. When a structural error is raised on direct review, the defendant is entitled to relief without any inquiry into harm. The Circuit granted French a new trial.

United States v. French, Case No. 16-2386 (1st Cir. Sept. 17, 2018)

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polygraph180925Written Judgment Cannot Add Anything to Terms Imposed at Sentencing: Lincoln R. Washington was sentenced on a conviction for failure to register as a sex offender. In the judgment form entering his sentence into the record, the district court added a supervised release term that Linc submit to polygraph testing, a requirement the court had not mentioned at the sentencing hearing. The 2nd Circuit ruled last week that imposing such a duty in the written judgment without doing so during the spoken sentence was an impermissible modification of the spoken sentence, notwithstanding the fact that the Presentence Report had made reference to the polygraph requirement.

United States v. Washington, Case No. 17-2841 (2nd Cir. Sept. 18, 2018)

LISAStatHeader2small– Thomas L. Root

They’re Ba-a-a-a-ck: While Nomination of New Justice Gets Messier, Supreme Court Gets to Work Today – Update for September 24, 2018

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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SEE YOU IN SEPTEMBER… SUPREME COURT GETS BACK TO WORK

Although the opening session of the Supreme Court is always the First Monday in October, the eight justices return to work today for the annual “long conference,” at which they consider the mass of petitions for certiorari, requests from unsuccessful lower-court litigants for review of their cases, that build up over the Court’s three-month vacation.

vacationSCOTUS180924The Court hears about 70 cases out of the roughly 7,000 petitions for review it receives each term. It has already granted certiorari to hear 38 cases and will add more to the schedule over the next few months. Thirteen of those cases raise criminal law issues. This is about average: Between 25% to 33% of cases decided by the court every year are criminal-law-related. But a few of this term’s decisions could have huge implications.

First, next month the court will consider what constitute the “generic” elements of the common law “robbery” and “burglary” offenses. The Armed Career Criminal Act “crime of violence” definition includes “burglary” as a named offense, and also any crime that “has as an element the use… or threatened use of physical force.” That normally includes robbery.

The exact “generic” definitions of burglary or robbery has split lower circuits.

In Gamble v. United States, the court will consider whether to overrule the “separate sovereigns” exception to double jeopardy. The 5th Amendment provides that “no person shall… be subject for the same offence to be twice put in jeopardy of life and limb.” The common understanding of this is that a person may not be tried twice for the same offense. But the Supreme Court has ruled for well over a century that the clause allows “separate sovereigns” to each try a single defendant for what sure sounds like the “same offense.” A state may prosecute someone for the same crime that the federal government has already tried the person for, and the other way around.

doublejeopardy180924There is no lower-court split on this question, but scholars have long criticized this “separate sovereigns” exception to the double jeopardy clause as being without support.

Another case, Timbs v. Indiana, addresses the “no excessive fines” provision in the 8th Amendment. When Tyson Timbs was convicted in Indiana of selling four grams of heroin, the state forfeited his $42,000 Land Rover because it had been used to transport the drugs. The Indiana Supreme Court refused to “impose federal obligations on the State that the federal government itself has not mandated.” A persistent split on the question, involving at least 18 states’ courts and two federal courts of appeals, led to a grant of certiorari.

Other criminal cases include Gundy v. United States, to be argued next week, that asks whether Congress’ delegation of authority to the attorney general to set sex-offender regulations, including deciding whether to retroactively apply the criminal statute, violate the Constitution’s “nondelegation” principle?

The Court’s decision to hear Gundy case came as a surprise. The Justices have not invalidated a congressional delegation in over 80 years, and all federal appellate courts addressing the issue have concluded that the delegation was proper. At least four Justices, the number needed to grant certiorari, however, thought the issue worth considering, clearing the way for a potential major assault on the modern administrative state, which is shaped by countless congressional delegations of authority to agencies.

On the merits, Mr. Gundy has a strong claim. For a delegation to be proper, Congress must provide an “intelligible principle” to guide the delegated decision, which as Chief Justice John Marshall stated in 1825 should merely “fill up the details” of a law’s application. With SORNA, Congress simply directed the attorney general to decide the retroactivity question — hardly a detail, as it affected half a million people and has required significant federal prosecutorial resources.

Two others include Nielsen v. Preap, asking whether a criminal alien exempt from otherwise mandatory detention if, after the person is released from criminal custody, the Department of Homeland Security does not immediately take the person into custody, and Garza v. Idaho, asking whether prejudice is presumed when a defense lawyer was instructed by the defendant to file an appeal but the lawyer did not file an appeal because the plea agreement contained an appeal waiver?

The Democrats react to Brett Kavanaugh... Regardless of your political persuasion, it's a safe bet you would not want to be judged by some of the crap you pulled off in high school.
The Democrats react to Brett Kavanaugh… Regardless of your political persuasion, it’s a safe bet you would not want to be judged by some of the crap you pulled off in high school.

Of course, the big Supreme Court story this week is whether Judge Brett Kavanaugh’s confirmation as the ninth Supreme Court justice will occur, or whether he will be shot down over claims he groped a girl as a drunken teenager 30 years ago. With a second accuser – albeit one with a shaky recall about an incident when Kavanaugh was a college freshman – reportedly coming forward, the nomination is looking shakier than ever.

SCOTUSBlog.com, Criminal cases in the October 2018 term: A law professor’s dream (Sept. 18, 2018)

Sentencing Law and Policy, Strange Bedfellows at the Supreme Court (Sept. 17, 2018)

– Thomas L. Root

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When a Whacko Defense Theory Is No Defense At All – Update for September 21, 2018

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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3RD CIRCUIT RULES PREJUDICE NEED NOT BE SHOWN IN ATTORNEY INEFFECTIVENESS CASE

Most post-conviction motions brought under 28 USC 2254 or 2255 fail, especially the ones that claim that the defendant’s lawyer was ineffective. It is not that hard proving that the lawyer screwed up. That happens all the time. Instead, the problem is that the defendant has to show that if the lawyer had not messed up, there is a reasonable chance that things would have turned out different.

nuns170427This “prejudice” showing is what trips up most such motions. After all, if a busload of nuns passing by saw you run out of the bank with a sack of money and a gun, it is pretty tough to convince the court that you would have been acquitted if only your lawyer had called your mother to the stand to swear you were at home helping her bake cookies.

The problem with post-conviction prejudice showings is what a 3rd Circuit decision last week so noteworthy. In August 2006, Gary Moses shot Lawson Hunt in Philadelphia. Hearing the shots, Jeff Workman ran to the victim, saw Gary and opened fire at him. One of Jeff’s bullets ricocheted off a solid object and struck the victim in the chest, who died (but of which shot no one was sure).

Jeff and Gary were both charged with first-degree murder. Before trial, Jeff’s lawyer told him that he could not be convicted, because the victim was already dead when Jeff’s bullet hit him. At trial, Jeff’s lawyer built his whole case on that fact, arguing to the jury that Jeff could not be found guilty because you cannot murder a dead man.

Except it was not a fact. The only evidence in the case record showed that the victim was still alive when Jeff’s bullet struck him. Jeff’s lawyer ignored this inconvenient fact. The jury did not. It convicted Jeff but acquitted Gary.

The 3rd Circuit last week ruled that Jeff’s lawyer gave substandard assistance that pervaded the whole proceeding. But normally, that’s not enough. Jeff was obligated to prove that if his lawyer had advanced a defense based on the facts in the case, Jeff might have been acquitted. Now how can he prove something like that?

Killtodeath180921The 3rd Circuit said that under the circumstances of the case, Jeff didn’t need to show prejudice. In United States v. Cronic, the Supreme Court held back in 1984 that “if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of 6th Amendment rights that makes the adversary process itself presumptively unreliable.” Employing the Cronic holding, the 3rd Circuit ruled that Jeff need not show any prejudice:

Trial counsel’s failure to present a case on behalf of Workman or to modify his theory of the case to account for, if not rebut with evidence, the testimony offered by the Commonwealth, represents a near-total failure on the part of trial counsel to contest the Commonwealth’s case. This is not to say that the decisions not to call a rebuttal expert on a defendant’s behalf or to decline to call fact witnesses in a defendant’s case-in-chief are inherently unreasonable. Here, however, they clearly derived not from a legitimate and reasonable trial strategy but from trial counsel’s failure to understand what was happening in the case in which he was ostensibly participating. The Commonwealth sought to prove that Workman killed Hunt, but Workman’s counsel sought only to prove his chosen theory seemingly without regard for the facts in evidence. This deprived Workman of his 6th Amendment right to counsel.

Jeff will get a new trial, where exactly how the victim was killed to death will be addressed.

Workman v. Superintendent, Albion SCI, Case No. 16-1969 (3rd Cir. Sept. 11, 2018)

– Thomas L. Root

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Two Circuits Split on Whether Conspiracy to Be Violent Is Itself Violent – Update for September 20, 2018

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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TWO CIRCUITS SPLIT ON HOBBS ACT CONSPIRACY AS VIOLENT CRIME

Two more federal circuits last week joined the chorus of appellate courts holding that a Hobbs Act robbery supports a conviction under 18 USC 924(c) for using a gun during crimes of violence, but they split on whether a conspiracy to commit Hobbs Act robbery is itself violent.

violence180508The 2nd Circuit continues to hold that the conspiracy to commit a violent crime is also a violent crime. The 5th Circuit, however, ruled that a conspiracy to commit Hobbs Act robbery can only be violent under the 924(c) residual clause, and it held that the residual clause is unconstitutionally vague in light of last April’s Supreme Court decision in Sessions v. Dimaya.

The split may set up a Supreme Court decision on conspiracy as a violent crime down the road, but probably not in the 2018-2019 term, which starts in two weeks.

United State v. Barrett, Case No. 14-2641-cr (2nd Cir. Sept. 10, 2018)

United State v. Davis, Case No. 16-10330 (5th Cir. Sept. 7, 2018)

– Thomas L. Root

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After Making the Mess, Trump Tries to Clean It Up – Update for September 19, 2018

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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WHITE HOUSE TRYING TO BRING ORDER TO CHAOTIC CLEMENCY PROCESS

Since President Trump granted executive clemency to former federal inmate Alice Johnson, thousands of federal inmates have been trying to get their clemency petitions in front of President Trump through celebrities, sports figures, elected officials and raw appeals to his better nature.

chaos180920After the Johnson pardon, Trump himself put out a sort of cattle call for clemency applications – even inviting professional football players to send him names rather than protest the criminal justice system by kneeling during the national anthem. But, with the White House meeting two weeks ago, the White House has started an attempt to instill some discipline to the process as part of what Trump reportedly hopes will become a signature piece of his efforts at criminal justice reform.

“We were very critical of the process as it stands,” said attendee Brittany Barnett, a Dallas lawyer who heads pro-clemency Buried Alive Project. “We definitely can’t keep doing these one-offs and it can’t just be celebrity endorsements.”

Law professors Rachel Barkow and Mark Osler told the meeting the president should abolish the Dept. of Justice Office of the Pardon Attorney. Obama relied on that office to process more than 20,000 applications through his clemency initiative, ultimately cutting sentences for 1,715 people but leaving town with a record 11,355 petitions pending.

Clemency experts say bureaucracy and poor planning stifled the program’s ability to free many more. Out of 13,000 people denied between 2014 and 2017, thousands appeared to be worthy candidates—at least on paper, according to a 2017 analysis by the U.S. Sentencing Commission.

The independent analysis found that more than 2,500 of the inmates who were denied appeared to meet all of the guidelines for the types of cases the DOJ claimed to prioritize. The guidelines were supposed to prioritize nonviolent, low-level offenders who served at least ten years in prison, did not have significant criminal history, demonstrated good conduct in prison, and had no history of violence.

slot161208But in fact, the Commission found, only 3% of drug offenders who appeared to meet all of the DOJ’s criteria actually received clemency. Conversely, only 5%of the people who did receive clemency appeared to meet all of the criteria. Without much transparency in the review process, several critics now compare it to a “lottery system.”

DOJ control of the clemency process comes with a built-in conflict of interest: The same officials who prosecute offenders decide whether those same people are worthy of presidential mercy. Justice “shouldn’t be the gatekeeper because that means the gate never opens for far too many deserving people,” Barkow said.

USA Today, Kardashian effect: Trump White House tries to tame a chaotic, celebrity-driven approach to pardons (Sept. 10, 2018)

Cannabis Wire, The Prisoners Left Behind (Sept. 7, 2018)

– Thomas L. Root

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Another ACCA Predicate Bites the Dust – Update for September 18, 2018

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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9TH CIRCUIT HOLDS WASHINGTON STATE DRUG STATUTE OVERBROAD FOR ACCA

A year ago, the 9th Circuit ruled in United States v. Valdivia-Flores that Washington State’s accomplice liability statute rendered its drug trafficking law categorically broader than a federal drug trafficking equivalent. Thus, a Washington drug conviction was found to not categorically constitute an illicit trafficking offense and to not be an aggravated felony under the Immigration and Nationality Act.

abet180919The federal aiding-and-abetting standard requires the government to prove an accomplice has “specific intent” to facilitate the crime. Washington law by contrast requires only that the government prove a person “with knowledge that it will promote or facilitate the commission of the crime… solicits, commands, encourages, or requests the principal to commit it; or aids or agrees to aid [the principal] in planning or committing it.”

drugdealer180228Specific intent and knowledge are distinct. “Intentionally abetting the commission of a crime involves a more culpable state of mind than knowingly doing so.” Validivia-Flores held, “because the Washington statute does criminalize conduct that would not constitute a drug offense under federal law — due to the distinct aiding and abetting definitions — it is overbroad.”

Last week, although the government vigorously argued to the contrary, the 9th Circuit ruled there was no pertinent difference between the “serious drug offense” description in the Armed Career Criminal Act and the generic “illicit trafficking” described in the statute analyzed in Valdivia-Flores. Thus, the Washington drug statute is broad than the generic drug offense that constitutes a “serious drug felony” under the ACCA, and no longer can count as a predicate for an ACCA conviction.

United States v. Franklin, Case No. 17-30011 (9th Cir. Sept. 13, 2018)

– Thomas L. Root

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Between the Devil and the Deep Blue Sea – Update for September 17, 2018

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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TWO MORE CIRCUITS CALL MANDATORY GUIDELINE JOHNSON CHALLENGES UNTIMELY

Last week, the 6th and 9th Circuits joined the 8th Circuit in ruling that post-conviction motions filed pursuant to 28 USC 2255 by people sentenced as Guidelines career offenders under the pre-Booker mandatory guidelines are not timely.

devil180918In the 2015 Johnson v. United States decision, the Supreme Court ruled that a part of the statutory definition of “crime of violence,” the so-called residual clause that included as a violent crime any offense that carried a significant risk someone might get hurt, was unconstitutionally vague, because no one could tell for sure what kind of crime might qualify. That definition was in the Armed Career Criminal Act, 18 USC 924(e)(2), but similar language appeared in the “crime of violence” definition used in Chapter 4B of the Sentencing Guidelines, which defined a “career criminal” and applied dramatically higher sentencing ranges.

Immediately, prisoners with “career offender” sentences filed motions claiming that the Johnson logic meant their Guidelines sentences were flawed. However, the Supreme Court ruled in Beckles v. United States that because the Guidelines are advisory, the constitutional concerns in Johnson did not apply to the residual clause of 4B1.2(a)(2).

The rub is that until the 2005 Supreme Court decision in United States v. Booker, the Guidelines were mandatory, not advisory. The Beckles decision specifically noted that the issue of whether Johnson might apply to someone labeled a “career offender” under the mandatory pre-Booker Guidelines was not being decided by Beckles.

Under 28 USC 2255(f)(3), a person seeking to take advantage of a change in the law to modify his or her sentence must file within a year of the decision. Within a year of Johnson, the prisoners in both the 6th and 9th Circuit cases filed 2255 motions claiming their district courts relied on the residual clause of USSG 4B1.2(a)(2) to conclude that each was a Guidelines career offender. They argued that the residual clause in 4B1.2(a)(2) was unconstitutionally vague because it was almost identical to the clause struck down in Johnson, and that Beckles did not apply to the residual clause of 4B1.2(a)(2) in the pre-Booker mandatory guidelines.

Last week, both the 6th and there 9th held that to apply Johnson to the career offender provisions of the mandatory, pre-Booker Guidelines “would be an extension, not an application, of the rule announced in Johnson.” Because the Supreme Court had not yet decided the issue it left open in Beckles, the appellate courts ruled, the 2255s were untimely and must be dismissed.

This puts people still serving long sentences under mandatory “career offender” Guidelines between the devil and the deep blue sea. The Supreme Court has sent a clear signal in Beckles that it would look at a mandatory “career offender” Johnson case differently, if only the issue were before it.  But one has to get to it in order to be decided. The cases that would qualify are so old (every one pre-2005) that the only way one can be put before a court is through a 2255 motion, and such a motion would not be timely if Johnson did not trigger the one-year clock.

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No doubt one or more of the cases already decided by the various Circuits may make it to the Supreme Court. To a layman, however, dragging prisoners through an additional four years of incarceration that virtually all commentators – including the Beckles court justices – acknowledge is unconstitutional seems to be a strange and unfair way to run a process.

A Johnson endnote: Meanwhile, the respected Supreme Court website SCOTUSBlog last week blasted the Attorney General’s claim that the recidivism rate for people released under Johnson was “staggering” blasted. Parsing various reports issued within the past year, the author finds Sessions’ claims are without foundation. Recidivism rates are no different for Johnson releasees from other inmates.

Robinson v. United States, Case No. 16-3595 (6th Cir. Sept. 7, 2018)

United States v. Blackstone, Case No. 17-55023 (9th Cir. Sept. 12, 2018)

SCOTUSBlog: Johnson v. United States: Three years out (Sept. 5, 2018)

– Tom Root

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Mandatory Guidelines ‘Johnson’ Challenge Neither Fish nor Foul – Update for September 13, 2018

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8TH CIRCUIT SLAMS PROCEDURAL DOOR ON A MANDATORY GUIDELINES JOHNSON CHALLENGE

In 2004, Jeff Russo was convicted of some drug and firearm offenses. The court sentenced him as a Guidelines career offender to 235 months for reasons. After Jeff was sentenced, the Supreme Court declared the Guidelines to be advisory in United States v. Booker, but that didn’t help Jeff, whose Guidelines were considered mandatory when they were imposed.

BettyWhiteACCA180503In 2015, the Supreme Court declared the residual clause of the Armed Career Criminal Act (ACCA) unconstitutionally vague in Johnson v. United States. Within a year of Johnson, Jeff filed a 28 USC 2255 motion, claiming district court relied on the residual clause of USSG 4B1.2(a)(2) to conclude that he was a Guidelines career offender. He argued that the residual clause in 4B1.2(a)(2) was unconstitutionally vague because it was almost identical to the clause held unconstitutional in Johnson. Jeff argued the court should vacate his sentence because it was calculated based on an unconstitutionally vague provision in the mandatory guidelines.

After he filed his motion, the Supreme Court held in Beckles v. United States, that the residual clause of 4B1.2(a)(2) in the post-Booker advisory guidelines is not subject to a vagueness challenge. Jeff argued that Beckles did not apply to the old mandatory Guidelines, because they “fix” a defendant’s sentence like the statute in Johnson, and are not flexible like the advisory guidelines ruled on in Beckles.

The district court dismissed Jeff’s motion as untimely, ruling that his motion was timely only if he filed it within a year of the date on which the right asserted was initially recognized by the Supreme Court. The district court said Jeff’s claimed right to be sentenced without the residual clause required “an extension, not an application, of the rule announced in Johnson.” Because the Supreme Court had not yet recognized the right that Jeff asserted, the district court ruled, his 2255 was untimely and should be thrown out.

vaguenes160516Last week, the 8th Circuit agreed with the district court. The Circuit admitted that it is “reasonably debatable whether Johnson’s holding regarding the ACCA extends to the former mandatory guidelines. However, it ruled, “the better view is that Beckles leaves open the question whether the mandatory guidelines are susceptible to vagueness challenges. Because the question remains open, and the answer is reasonably debatable, Johnson did not recognize the right Jeff was asserting, and he thus cannot benefit from the limitations period in Sec. 2255(f)(3).

Russo v. United States, Case No. 17-2424 (8th Cir. Sept. 6, 2018)

– Thomas L. Root

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Reality TV Star Talks to Reality TV Star About Clemency – Update for September 12, 2018

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KIM KARDASHIAN GOES TO WASHINGTON TO TALK CLEMENCY POLICY

kardashian180604Kim Kardashian was back at the White House last Wednesday to discuss prison reform with top Trump administration officials.

The reality television star, who successfully lobbied for the commutation of Alice Johnson in June, attended a listening session on clemency with a number of officials, Jared Kushner, President Trump’s son-in-law, and Ivanka Trump.

“The discussion is mainly focused on ways to improve that process to ensure deserving cases receive a fair review,” according to Hogan Gidley, White House deputy press secretary.

Others at the meeting included CNN commentator Van Jones, Georgetown law professor (and former federal inmate) Shon Hopwood, former U.S. District Court Judge Kevin Sharp, Mark Holden, the general counsel of Koch Industries, Jessica Jackson Sloan, a human rights attorney and prison reform advocate, law professors Rachel Barkow and Mark Osler, both of whom are sentencing and clemency specialists, and Leonard Leo of the Federalist Society.

trump170515
How many people have gotten clemency from President Trump?

Following the round-table discussion Wednesday, Sharp visited the Oval Office with Kushner, Ivanka Trump, Kardashian and a few others to brief the President. “We talked about criminal justice reform in general and the need for it, (and) for a change in the clemency and pardon process,” Sharp said, who noted the President seemed receptive during the roughly 20-minute meeting. “My sense was, he cares and he was listening to us. Sitting in that room, you would not have known it’s been a busy week – it was very relaxed. You wouldn’t know there was anything else going on.”

Wall Street Journal, Kim Kardashian Visits White House to Discuss Prison Reform (Sept. 5, 2018)

Chicago Tribune, Kim Kardashian meeting with President Trump on prison reform (Sept. 5, 2018)

Nashville Tennessean, Former Nashville judge speaks with Donald Trump about clemency, criminal justice reform (Sept. 7, 2018)

– Thomas L. Root

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“Sort of Violent” Is Kind of Like “Sort of Pregnant” – Update for September 11, 2018

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HOBBS ACT ROBBERY ONLY SORT OF VIOLENT

In what may to some seem like hair-splitting, the 6th Circuit last week held that a Hobbs Act robbery under 18 USC 1951 is a crime of violence for purposes of 18 USC 924(c), but it is not a crime of violence for purposes of Guidelines 4B1.2 “career offender” status.

violence180508Desmond Camp robbed a dollar store at gunpoint. Because he had a prior 924(c) conviction, he faced a 300-month (25 year) mandatory minimum on the gun charge. But on top of that, Des had two priors that qualified as crimes of violence under Chapter 4B of the Guidelines. With the Hobbs Act robbery in his current case as a third violent offense, Des got 72 month stacked on top of the 300 months.

Last week, the 6th Circuit upheld the 924(c) conviction, joining every other circuit in America in holding that a Hobbs Act robbery was a crime of violence under that statute. However, the appeals court ruled, the Guidelines “career offender” section is different. The Circuit said that “an offense is a crime of violence under that clause if it has as an element the use, attempted use, or threatened use of physical force against the person of another. The plain text of the Hobbs Act criminalizes robbery accomplished by using or threatening force against “person or property.” Though this may be sufficient under 924(c), it is not under the Guidelines. Given their definitional differences, “[t]here is nothing incongruous about holding that Hobbs Act robbery is a crime of violence for purposes of 18 USC 924(c), which includes force against a person or property, but not for purposes of USSG 4B1.2(a)(1), which is limited to force against a person.” Therefore, Hobbs Act robbery is not a crime of violence under the Guidelines’ use-of-force clause.

kindofpregnant180911So Hobbs Act robbery is only kind of violent.

Robbery is listed in the Guidelines as a crime that by definition is a crime of violence. But that, the Circuit said, does not matter. Recognizing that “most modern statutes limit robbery to force or threats against a person,” the court held that because Hobbs Act robbery encompassed “mere threats to property,” it was not categorically ‘robbery’ as used in the Guideline.

Not that all of this helps Desmond that much. On resentencing, he will still get somewhere between 300 and 372 months.

United States v. Camp, Case No. 17-1879 (6th Cir. Sept. 7, 2018)

– Thomas L. Root

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