Tag Archives: 18 usc 924(c)

“Failure…” May Be An Option – Update for June 3, 2024

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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.

SCOTUS WILL DECIDE WHETHER DOING NOTHING IS VIOLENT

BillyJoe240603Today is June 3rd, forever to be remembered as the day Billy Joe McAllister jumped off the Tallahatchie Bridge (if you recall that 1967 earworm by Bobbie Gentry or the forgettable movie that followed it).

But what really happened that fateful day? If Bobbie pushed him, she committed a crime of violence. But what if he slipped, called for her to throw him a rope, and she sat there doing nothing? Would that also be a crime of violence? And why would we care?

We may never know about the star-crossed lovers or Billy’s inner demons, but the Supreme Court decided today that it will decide whether nothing is the same as something in the world of violent crime.

The “categorical approach” to whether an underlying offense is a crime of violence has both complicated 18 USC § 924(c) cases and benefitted a number of people wrongly convicted of possessing a gun during a crime of violence or punished under the Armed Career Criminal Act (18 USC § 924(e)(2)).

violent170315Section 924(c)(3) provides that a crime of violence encompasses any felony that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” The “categorical approach” to determine whether a predicate offense is a crime of violence focuses on the elements of the underlying crime rather than the particular facts of the case, considering whether the least culpable conduct that could satisfy the elements in a hypothetical case would necessarily involve the “use, attempted use, or threatened use of physical force against the person or property of another.”

Courts disagree about whether crimes that require proof of a victim’s bodily injury or death but can be committed by failing to take action are crimes of violence because sitting there and doing nothing is not really the use of physical force. At common law and in an overwhelming number of state statutes, no distinction is made between crimes of omission–failing to act in a way that results in a victim’s death or injury–and crimes where physical force is used. Thus, a decision in favor of the defendant could put a lot of § 924(c) convictions at risk.

That defendant, Sal Delligatti, was indicted in 2017 for attempted murder in violation of the Violent Crimes in Aid of Racketeering (VICAR) statute, 18 USC § 1959(a)(5). The Second Circuit ruled that attempted murder (a New York state charge) was necessarily a crime of violence even if it can be committed through inaction. Under the law of some states, a person who has a duty to act but fails to do so—such as by failing to provide medicine to someone who is sick or by neglecting to feed a dependent—may face criminal liability, even a murder charge if the defendant’s nonfeasance results in death.

Most courts of appeal agree, but the Third and Fifth have gone the other way (and the Ninth has suggested it may do so as well).

nottoact240603Sal has asked the Supreme Court to conclusively resolve whether a crime that requires proof of bodily injury or death but can be committed by failing to take action, has as an element the use, attempted use, or threatened use of physical force. Surprisingly, the government supports the grant of certiorari (although it wants the Supremes to uphold the Second Circuit). The National Association for Public Defense and National Association of Criminal Defense Lawyers have filed briefs in support of the grant of certiorari as well.

The Supreme Court granted the petition for certiorari today, so it will be argued next fall.

Delligatti v US, Case No 18-2432 (petition for cert pending)

SCOTUSBlog.com, Supreme Court once again considers the “categorical approach” to sentencing enhancements (May 31, 2024)

– Thomas L. Root

Hair-Splitting on § 924(c) Sentence Stacking – Update for September 28, 2023

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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.

6TH CIRCUIT REFUSES EN BANC ON STACKED § 924(C) SENTENCES

Sentencestack170404Tim Carpenter used a gun in a string of Hobbs Act robberies. He ended up with 105 years when he was sentenced before the First Step Act, which reduced mandatory minimum sentences for stacked 18 USC § 924(c) offenses. But Tim’s sentence was vacated because of errors, and he was not resentenced until after First Step became law.

First Step, if applied to Tim’s sentencing, would reduce his § 924(c) mm sentence from 105 to 25 years. But despite the First Step’s retroactivity provision extending its benefits to defendants awaiting sentencing, and despite Tim’s pre-FSA sentence being thrown out, a three-judge panel held that Tom had to be resentenced under the old version of the statute.

First Step § 403(b) provides that the new § 924(c) sentencing statute would apply to offenses committed before the Act “if a sentence for the offense has not been imposed as of such date of enactment.” The Circuit believes that if a defendant was sentenced for a § 924(c) offense before December 2018 – even if the sentence was vacated later – any new § 924(c) sentence would have to be imposed under the old law.

Last week, the 6th denied en banc review, although six judges wanted to revisit the issue. Judge Bloomekatz spoke for all dissenters in an opinion that some commentators think was an effort to get at least one Supreme Justice’s attention:

The real human costs that this esoteric legal issue presents also should not be overlooked. Because our circuit has split from every other to reach this issue, defendants in Kentucky, Michigan, Ohio, and Tennessee will often have to serve decades longer sentences than those in most of the other states. Timothy Carpenter proves this point. His sentence is eighty years longer than it would be if he had been resentenced in the seventeen states that comprise the 3rd, 4th, and 9th Circuits. The resulting sentencing disparity… should give us pause enough to consider the decision as a full court. Indeed, the circuit split, the federal government’s position, the dissent from then-Judge Barrett in United States v. Uriate, and the dueling opinions on this en banc petition underscore that the scope of the retroactivity provision is far from clear.

Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman said, “I am pretty sure this Timothy Carpenter has already served 10+ year in prisons, and so may soon be eligible for a reduction in sentence under the ‘unusually long sentences’ criteria in the U.S. Sentencing Commission’s proposed new [1B1.13] ‘Compassionate Release’ policy statement.”

circuitsplit220919In his legal blog, UCLA law prof Eugene Volokh said of the opinion, “The en banc denial—which garners two dissentals—solidifies a circuit split, so keep an eye on this one.”

United States v. Carpenter, Case No 22-1198 (6th Cir., September 18, 2023)

United States v. Uriate, 975 F.3d 596 (7th Cir. 2020)

Sentencing Law and Policy, Notable debate among Sixth Circuit judges as court turns down en banc review of “resentencing retroactivity” after FIRST STEP Act (September 20, 2023)

The Volokh Conspiracy, Short Circuit: A Roundup of Recent Federal Court Decisions (September 22, 2023)

– Thomas L. Root

“Hold My Beer,” 4th Circuit Says in Compassionate Release Case – Update for August 18, 2023

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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.

APPEALS COURT TAKES GRANT OF COMPASSIONATE RELEASE MOTION INTO ITS OWN HANDS

Appellate courts are usually much more circumspect in reversing trial courts, vacating a decision but not explicitly directing the district judge how to decide things on remand.

holdmybeer230818Not that the savvy district judge doesn’t read between the lines. An appellate court vacatur with a suggestion – often implicit – that the district court needs to think about the case differently usually leads to a different ruling the second time around.

Not always. When Kelvin Brown was convicted of drug trafficking nine years ago, the jury also found him guilty of two 18 USC § 924(c) counts as well. Back then, the first § 924(c) carried a mandatory minimum sentence starting at five years. The second conviction – even if it resulted from events the next day – required an additional mandatory minimum of 25 years. The district court thus sentenced Kelvin to 30 years in prison for his two § 924(c) convictions and stacked another 27 years on him for the various drug offenses.

Six years later, during the height of the COVID crisis, Kelvin moved for compassionate release under 18 USC § 3582(c)(1)(A). The judge turned him down flat without even asking the government to respond. Kelvin appealed, and the 4th Circuit remanded, directing the district court to consider the fact that Kelvin got 20 more years for the gun than he would have had to get after the First Step Act passed in 2018 in light of the Circuit’s decision in United States v. McCoy.

extraordinary220719The district court denied Kelvin a second time in December 2021, again neglecting to address the whopping § 924(c) sentences despite (as the 4th Circuit put it) “our express recognition in our previous remand order that McCoy – and its holding that disparate § 924(c) sentences can constitute “extraordinary and compelling reasons” for release – is relevant to this case.”

Two days ago, the 4th Circuit threw up its hands and told the district judge to watch how it’s done. The 4th cut Kelvin’s sentence by 20 years (which still leaves him with 37 years to do), both expressing its frustration and apologizing for its interference:

We hold that the district court abused its discretion by denying Brown’s motion because his disparate sentence creates an “extraordinary and compelling reason” for his early release, and the § 3553(a) sentencing factors overwhelmingly favor a sentence reduction. We therefore reverse and remand with instructions to rectify that disparity and reduce Brown’s prison sentence by twenty years.

Ordinarily, we understand that district courts wield broad discretion in deciding compassionate release motions… So, in a different case, we might remedy the district court’s error by remanding for the district court to consider Brown’s disparate sentence in the first instance. Yet the district court here has already had two opportunities to review Brown’s compassionate release motion: its initial denial of Brown’s motion in July 2020, and its second denial in December 2021 after we remanded Brown’s case for further consideration. Each time, the district court neglected to address Brown’s disparate sentence.

The Circuit also found that Kelvin’s disparate sentence strongly affects the 18 USC § 3553(a) sentencing factors: “The First Step Act‘s amendment to § 924(c) reflects Congress’s judgment that sentences like Brown’s are dramatically longer than necessary or fair,” the appeals court said, “and, in turn, are not necessary to serve the ends of § 3553(a)(2).”

dungeon180627Notable in the 4th’s analysis is its holding that the need for Kelvin’s longer sentence has been called into question because COVID-19 created hardship in prison life “not contemplated by the original sentencing court” and that those hardships have “undoubtedly increased his prison sentence’s punitive effect.” The Circuit observed that Kelvin’s facility was placed on lockdown in response to the pandemic, during which he was “confined to his cell for 22.5 hours a day,” and the recreation areas were closed.” The majority opinion said, “Even if those factors have been mitigated by the evolving circumstances of the pandemic, that they plagued Brown at any point has made his incarceration harsher and more punitive than would otherwise have been the case… Therefore, Brown’s drastic sentence, which might have been ‘sufficient but not greater than necessary’ before the coronavirus pandemic, may no longer be justified.”

The opinion also emphasizes that Kelvin’s “one disciplinary infraction throughout his incarceration—a fact the district court also failed to mention—casts further doubt on the court’s concern for the safety of the community. And while the court did briefly consider Brown’s rehabilitative efforts” – which included a stack of programming and mentoring work to his credit – “it failed to weigh how those efforts ameliorate any risk posed to Brown’s community upon his release.” Citing Pepper v. United States, the Circuit ruled that such “postsentencing rehabilitation minimizes the need for the sentence imposed to protect the public from further crimes of the defendant, and provides the most up-to-date picture of Brown’s history and characteristics, which also favors a sentence reduction.”

illdoitmyself230818The 2-1 opinion is remarkable not only for the fact that an appellate court took the unusual step of granting a compassionate release motion itself but because of the reliance on the harshness of Bureau of Prisons conditions during the pandemic and the elevation of post-sentencing conduct as a factor in § 3553(a) analysis in reaching its decision.

United States v. Brown, Case No. 21-7752, 2023 U.S. App. LEXIS 21403, at *24-25 (4th Cir. Aug. 16, 2023)

United States v. McCoy, 981 F.3d 271 (4th Cir. 2020)

Pepper v. United States, 562 U.S. 476 (2011)

– Thomas L. Root

9th Won’t Extend Taylor to Aiding and Abetting – Update for August 17, 2023

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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.

9TH CIRCUIT HOLDS HOBBS ACT AIDER AND ABETTOR COMMITS CRIME OF VIOLENCE

Call me dense (you wouldn’t be the first), but I have never understood how an attempt to commit a Hobbs Act robbery could not be a crime of violence – as the Supreme Court held in United States v. Taylor – but aiding and abetting a Hobbs Act robbery was a crime of violence under 18 USC § 924(c)(1)(A)(3).

hobbsact200218In Taylor, the Supremes held that attempted Hobbs Act robbery was not a crime of violence, because one could attempt a Hobbs Act robbery without actually attempting, threatening or using violence. If, for example, Peter Perp is arrested in a jewelry store parking lot with masks and a gun as he approaches the front door, he could be convicted of an attempted Hobbs Act robbery without ever having gotten to the point of attempting to threaten or employ violence at all. In fact, the people inside the store might not even be aware that they were about to be robbed. Sure, Petey can go down for an attempted Hobbs Act robbery (and get plenty of time for that), but he could not be convicted of a § 924(c) offense.

Taylor seemed to focus on what elements would have to be proven for the particular defendant to be convicted of the Hobbs Act crime. The principals in the crime – the guys who actually waved guns in the jewelry store clerks’ faces – must be shown to have employed violence or threatened to do so. But how about the guy sitting behind the wheel of the getaway car? He’s aiding and abetting, and certainly can be convicted of the Hobbs Act offense just like the gun-wielders. But that’s not the point. The point is whether he is also guilty of a 924(c) offense, too.

Leon Eckford is as disappointed as I am (maybe more, because he’s doing the time) that the 9th Circuit went the other way on my pet legal argument the other day. Leon pleaded guilty to aiding and abetting two Hobbs Act jewelry store robberies. He was sentenced to 11 years’ imprisonment, including a mandatory minimum sentence for the use of a firearm during a crime of violence under § 924(c).

aiding230522On appeal, Leon argues that aiding and abetting Hobbs Act robbery is not a crime of violence and therefore could not serve as a predicate for his § 924(c) conviction and mandatory minimum sentence. A couple of days ago, the 9th rejected his argument.

The Circuit claimed that Leon’s argument “misunderstands the nature of aiding and abetting liability. At common law, aiding and abetting was considered a separate offense from the crime committed by the principal actor, but “we no longer distinguish between principals and aiders and abettors; principals and accomplices “are equally culpable and may be convicted of the same offense.”

The 9th complained that Leon “would have us return to the era when we treated principals and accomplices as guilty of different crimes. We have long moved past such distinctions for purposes of determining criminal culpability, although the terminology may be useful for other reasons.” This is nonsense. Leon freely admitted that his aiding and abetting the Hobbs Act robberies made him as guilty of the offense as if he had been inside the stores. He did not ask to be treated as having been convicted of a “different crime.”

Instead, as the Circuit admitted without appreciating its significance, the law has moved past distinguishing principal versus accomplice “for purposes of determining criminal culpability,” that is, for figuring out whether Leon was guilty of a Hobbs Act offense. But, as the 9th admitted, “the terminology may be useful for other reasons.”

violence180508Primary among those reasons is to determine whether the defendant’s commission of the Hobbs Act was a crime of violence. This is not to say that the court should focus on what Leon himself did. The categorical approach to determining whether aiding and abetting a Hobbs Act robbery is violent does not look at the facts of the case. Instead, it focuses on what must be proven to prove a defendant was an aider-and-abettor.

The 9th Circuit noted that it had “repeatedly upheld § 924(c) convictions based on accomplice liability.” So what? The 9th Circuit had previously held that an attempted Hobbs Act robbery was a crime of violence until Taylor reversed the holding. Being wrong once is hardly an argument that you aren’t wrong now.

The Circuit argues that nothing in its analysis in Leon’s case is “clearly irreconcilable with Taylor. Taylor dealt with an inchoate crime, an attempt, and does not undermine our precedent on aiding and abetting liability. There are fundamental differences between attempting to commit a crime, and aiding and abetting its commission… Chief among these differences is that in an attempt case there is no crime apart from the attempt, which is the crime itself, whereas aiding and abetting is a different means of committing a single crime, not a separate offense itself. Put differently, proving the elements of an attempted crime falls short of proving those of the completed crime, whereas a conviction for aiding and abetting requires proof of all the elements of the completed crime plus proof of an additional element: that the defendant intended to facilitate the commission of the crime.

hobbs230316The 9th held that “[o]ne who aids and abets the commission of a violent offense has been convicted of the same elements as one who was convicted as a principal; the same is not true of one who attempts to commit a violent offense. Accordingly, we conclude that our precedent is not clearly irreconcilable with Taylor.”

But if 924(c) is intended to fix extra liability for using a gun in a crime of violence, the element that the defendant employed or threatened violence should be required.

United States v. Eckford, Case No. 17-50167, 2023 U.S. App. LEXIS 21175 (9th Cir. Aug. 15, 2023)

– Thomas L. Root

Supreme Court Puts Flesh on ‘Aid and Abet’ Bones – Update for May 22, 2023

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WHO CARES ABOUT TWITTER AND ISIS, ANYWAY?

aiding230522The Supreme Court has awakened from its slumber, issuing six opinions last Thursday as it begins its annual sprint to finish its work by June 30th. None of the six was a criminal case, but the Court did decide an important question about the liability of social media platforms like Twitter, Meta and Google for spreading terrorism-related content posted by ISIS and its fellow travelers.

Under 18 USC § 2333, U.S. nationals who have been “injured… by reason of an act of international terrorism” may sue for damages both from the terrorists themselves and “any person who aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism.” The plaintiffs in Twitter v. Taamneh argued that social media companies aided and abetted ISIS by letting the terrorists use social media platforms to recruit new terrorists and raise funds.

Recognize the old legal chestnut “aid and abet?” Ever since United States v. Taylor held that an attempted Hobbs Act robbery was not a crime of violence that could support an 18 USC § 924(c) conviction (which comes with a mandatory consecutive sentence starting at five years), I have wondered why the same analysis wouldn’t hold that aiding and abetting a crime of violence was not itself a crime of violence.

In Taamneh, the Court observed that nothing in the statute defines ‘aids and abets’, but the term “is a familiar common-law term and thus presumably ‘brings the old soil’ with it.” Taamneh holds that

overly broad liability [for aiding and abetting] would allow for one person [to] be made… a felon against his or her consent, and by the mere rashness or precipitancy or overheated zeal of another… To keep aiding-and-abetting liability grounded in culpable misconduct, criminal law thus requires that a defendant in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed before he could be held liable. In other words, the defendant has to take some “affirmative act” with the intent of facilitating the offense’s commission. Such intentional participation can come in many forms, including abetting, inducing, encouraging, soliciting, or advising the commission of the offense, such as through words of encouragement or driving the getaway car.

intentions230522The ‘so what’ to all of this is that under Taylor, an attempt to commit a crime of violence was held not to be a crime of violence itself under the elements clause. “Yes, to secure a conviction the government must show an intention to take property by force or threat, along with a substantial step toward achieving that object,” the Taylor Court said. “But an intention is just that, no more. And whatever a substantial step requires, it does not require the government to prove that the defendant used, attempted to use, or even threatened to use force against another person or his property.”

The Taamneh Court suggests that “words of encouragement” – such as sitting around drinking a few beers and telling your buddy that robbing the cellphone store tomorrow sounds like a great idea could make you an aider and abettor if the next day he takes down the Verizon outlet at gunpoint. The Taylor court said that if you could be convicted of the underlying crime without attempting, threatening or carrying out an act of violence, you could not be held liable for an 18 USC § 924 offense because of that conviction.

aidandabet230522Like an attempt to commit a Hobbs Act robbery, aiding and abetting a Hobbs Act robbery could be committed without the guilty party attempting, threatening or committing an act of violence. Just ask the guy drinking the beer. Or the one who holds your beer while you commit the Hobbs Act crime.

I believe that Taamneh hastens the day that “aiding and abetting” a crime of violence may join “attempting” a crime of violence as falling short of supporting a mandatory consecutive 18 USC § 924(c) sentence.

Twitter, Inc v. Taamneh, Case No 21-1496, 2023 US LEXIS 2060 (May 18, 2023)

United States v. Taylor, 142 S.Ct. 2015 (2022)

Sentencing Law and Policy, Some extended discussion of criminal doctrines as SCOTUS unanimously dismisses federal tort suit against Twitter alleging “aid” to ISIS (May 18, 2023)

– Thomas L. Root

Circuits Go 1-1 In Wrestling Match with Taylor – Update for March 16, 2023

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ONE UP, ONE DOWN ON § 924

Two Circuits checked in last week on crimes of violence and 18 USC § 924, the statute that mandates a consecutive mandatory minimum sentence when a gun is possessed or used during drug or violent offenses. When the dust settled, defendants went one-and-one.

gunknot181009If 924(c) Is Vacated, 924(j) Must Be, Too: In 2018, Dwaine Colleymore pleaded guilty to four criminal charges stemming from an attempted robbery, during which he fatally shot a man. Dwaine pleaded guilty to (1) conspiracy to commit Hobbs Act robbery in violation of 18 USC § 1951; (2) attempted Hobbs Act robbery in violation of 18 USC § 1951 and 2; (3) discharging a firearm during and in relation to a crime of violence in violation of 18 USC § 924(c); and (4) murdering a person with a firearm during and in relation to a crime of violence in violation of 18 USC § 924(j)(1). The judge sentenced him to 525 months (43+ years).

Dwaine was still on appeal when the Supreme Court decided United States v. Taylor last June. Last week, the 2nd Circuit reversed his §§ 924(c) and 924(j) convictions.

The Circuit ruled that after Taylor, attempted Hobbs Act robbery no longer qualifies as a crime of violence under § 924(c)(3)(A) “and therefore cannot serve as a predicate for Dwaine’s conviction under § 924(c)(1)(A). Furthermore,” the 2nd said, because an element of a § 924(j) murder offense is that the defendant killed someone ‘in the course of a violation of [924(c)],’ attempted Hobbs Act robbery also cannot serve as a predicate for Dwaine’s conviction under § 924(j)(1).”

“Having given due consideration to Taylor,” the Circuit held, “we vacate Colleymore’s convictions on Counts Three and Four.” The case was remanded to the district court for resentencing.

hobbs230316Beating the ACCA Like a Rented Mule: The 7th Circuit last week embarked on an exercise in pretzel logic to conclude that Hobbs Act robbery itself is crime of violence under the Armed Career Criminal Act.

Lavelle Harley argued that while § 924(c) defined a crime of violence as physical force against a person or property, the ACCA (18 USC 924(e)(2)) defined a crime of violence as physical force against a person only.

That should have ended matters. After all, a Hobbs Act robbery can be committed “by means of actual or threatened force, or violence, or fear of injury, immediate or future, to [a victim’s] person or property” 18 USC § 1951(b)(1). So it’s pretty clear that Hobbs Act robbery is not a crime of violence under the ACCA (although it is under 924[c]).

That wasn’t the result the 7th Circuit wanted. “We have to look beyond the force clause,” the 7th said, “to determine if Hobbs Act robbery committed using force against property qualifies as a violent felony under some other provision of ACCA.”

Under the ACCA‘s “enumerated clause,” extortion is listed as a crime of violence. “The question,” the Circuit explained, “then becomes whether a conviction of Hobbs Act robbery for using force against property fits within ACCA extortion.”

hobbes230316The Circuit halfway admitted it was using smoke and mirrors, noting that “a careful reader may be pausing at this point and questioning why we are using the generic definition of extortion to interpret ACCA’s enumerated clause when the Hobbs Act provides its own, similar definition… But remember the question we are trying to answer and the analysis that the categorical approach requires. We look to the Hobbs Act only to understand the elements of Hobbs Act robbery, the prior conviction at issue here. Once we understand those elements, our focus turns to ACCA… We assess whether each way of committing Hobbs Act robbery fits within ACCA’s definition of ‘violent felony’ in § 924(e)(2)(B). Put most simply, the Hobbs Act does not tell us what constitutes extortion under ACCA. That answer has to come from ACCA itself.”

But the Hobbs Act does define extortion, saying it is “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”

Nevertheless, the 7th Circuit managed to conclude that “generic extortion encompasses Hobbs Act robbery using force against property. Make no mistake, the analysis is difficult, and the issue is close.”

hobbestiger230316The decision flies in the face of the rules of statutory construction, which say that when one definition in a single statute’s subsection differs from a definition in another subsection, Congress must be presumed to have intended the distinction. But the 7th Circuit intended to hold that a Hobbs Act robbery was a crime of violence for purposes of the ACCA, and through an intellectually dishonest opinion, did exactly that.

United States v. Collymore, Case No 19-596, 2023 USAppLEXIS 5388 (2d Cir, Mar 7, 2023)

United States v. Hatley, Case No 21-2534, 2023 USAppLEXIS 5290 (7th Cir, Mar 6, 2023)

– Thomas L. Root

7th Circuit Does Violence to Taylor In Hobbs Act Decision – Update for March 8, 2023

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7th CIRCUIT STRAINS TO FIND AIDING AND ABETTING HOBBS ACT ROBBERY IS VIOLENT

It’s been pretty clear – at least clear to me – ever since the Supreme Court’s United States v. Taylor decision last June that the aiding-and-abetting doctrine was due for a “crime of violence” makeover.

violence181008A little explainer here: If a person commits a crime of violence while possessing, carrying or using a gun, he or she can be committed not just of the crime of violence but also of an add-on gun offense under 18 USC § 924(c). Prosecutors love § 924 counts, because the offense carries a mandatory consecutive sentence of at least five years (more if the perp brandishes or fires the gun).

But what exactly is a “crime of violence?” The definition is not as easy to understand as one might think. The latest entry in cases trying to parse the meaning was last June’s Taylor decision.

Taylor held that attempted Hobbs Act robbery was not a crime of violence, because one could attempt a Hobbs Act robbery without actually attempting, threatening or using violence. If, for example, Dexter Defendant is arrested in a jewelry store parking lot with masks and a gun as he approaches the front door, he could have been convicted of an attempted Hobbs Act robbery without trying to threaten or employ violence at all. In fact, the people inside the store might not even be aware that they were about to be robbed. Sure, Dexter can go down for an attempted Hobbs Act robbery (and get plenty of time for that), but he could not be convicted of a § 924 offense.

The same can be argued for aiding and abetting a crime.

violence161122Dejuan Worthen and his brother robbed a gun store. His brother shot and killed the proprietor. Dejuan was convicted of aiding and abetting the Hobbs Act robbery by being the getaway driver. He was also convicted of a § 924(c) offense for using a gun during a crime of violence (the Hobbs Act robbery).

Dejuan argued that aiding and abetting a Hobbs Act robbery was not crime of violence after Taylor. Dejaun contended that he could have aided or abetted his brother’s crime by providing the gun to his brother the night before the robbery, not even knowing when the crime was to happen.

Last week the 7th Circuit disagreed, suggesting that the question may end up at the Supreme Court.

The 7th said that the “question becomes whether accessory liability changes the analysis” that a Hobbs Act robbery is a crime of violence The Circuit said aiding-and-abetting is not a separate offense under 18 USC § 2, but instead “just establishes that someone who aids and abets a federal crime has committed the federal crime itself.” That is so, but 18 USC § 2 does the same for “attempting” a crime, a fact that didn’t stop Taylor from holding that attempting a crime of violence  is not a crime of violence  itself.

The 7th admitted that “because an aider and abettor does not need to participate in each element of the offense, a defendant can aid and abet a Hobbs Act robbery without personally using force — say, for example, by serving as the getaway driver from a violent robbery.” But because the Supreme Court rejected a similar argument in Gonzales v Duenas-Alvarez, a 2007 case in which aiding and abetting a state theft offense was a “theft offense” subjecting a noncitizen to removal under the immigration laws and because the Taylor decision did not overrule the 15-year-old decision, the same reasoning applied here.

violent170315The Circuit’s reasoning is flawed. No one questions whether Dejuan was guilty of the Hobbs Act robbery as an aider and abettor, just like no one questions whether Taylor was guilty of Hobbs Act robbery because of his attempt. The issue is different: was Dejuan’s aiding and abetting enough to make him liable under the § 924(c) statute, too?

When Taylor was decided, it was pretty clear that the same reasoning suggested that aiding and abetting a crime of violence was not a crime of violence itself. Until Taylor, almost all of the circuits had ruled the other way. The same could happen to liability for aiding and abetting a crime of violence.

United States v. Worthen, Case No. 21-2950, 2023 U.S. App. LEXIS 5133 (7th Cir., March 2, 2023)

– Thomas L. Root

Supreme Court Adds Two Criminal Cases to Docket – Update for December 13, 2022

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SCOTUS GRANTS REVIEW ON TWO CRIMINAL CASES

Last Friday, the Supreme Court agreed to review two federal criminal cases.

In the first case, the Court will consider the constitutionality of 8 U.S.C. § 1324(a)(1), which makes it a crime punishable by up to 10 years in prison to encourage or cause unauthorized immigrants to enter or reside in the United States.

freespeech221213Helaman Hansen was convicted for running a program that promised to help adult unauthorized immigrants become US citizens through adoption. On appeal, the 9th Circuit agreed that the statute violated the 1st Amendment because it is so broad that it would also apply to protected speech – for example, voicing support to a young illegal immigrant (OK, “undocumented” is the politically correct term, but then, if the immigrant were not here illegally, we wouldn’t be writing about this) that she not return to, say, Iceland, but instead fight to qualify for DACA is a federal criminal offense under § 1324(a)(1).

Maybe not the best illustration: stopping hordes of blond-haired blue-eyed people sneaking across our undefended borders is not our problem. Some, like a former President, even liked the idea.

Back to Mr. Hansen: The government appealed the 9th Circuit decision invalidating his conviction. 

Last week the Supreme Court granted review.

In a second case, the high court agreed to take an 18 USC § 924(c) case. Section 924(c) mandates a consecutive sentence of a certain minimum term when a gun is possessed or used in a drug trafficking offense or a violent crime.

carriefgun170807Under 18 USC § 3584(a), a district court may impose either consecutive or concurrent sentences unless a statute requires otherwise. Section 924(c)(1)(D)(ii) of Title 18 requires consecutive sentences but only for sentences imposed “under this subsection.” Efrain Lora was convicted and sentenced under § 924(j), a different subsection that sets punishments where “a person… in the course of a violation of subsection (c), causes the death of a person through the use of a firearm.”

Curiously, § 924(c) includes no requirement that the sentence must be consecutive. This suggests that if an offender is going to use a gun in a violent crime, he should be sure to kill someone (and thus get a possibly better sentence).

Lora argued a district court has the discretion to impose concurrent sentences because § 924(j) creates a separate offense not subject to § 924(c)(1)(D)(ii).

The 2nd Circuit disagreed, holding that the district court was required to impose consecutive sentences because a § 924(j) counts as being “under” § 924(c).

The 3rd, 4th, 8th and 9th Circuits agree with the 2nd Circuit. The 10th and 11th do not. The question the Supreme Court granted review is whether § 924(c)(1)(D)(ii), which provides that “no term of imprisonment imposed… under this subsection shall run concurrently with any other term of imprisonment,” is triggered when a defendant is sentenced under § 924(j).

Both cases will be argued this term and decided by the end of June.

United States v. Hansen, Case No. 22-179 (certiorari granted December 9, 2022)

Lora v. United States, Case No 22-49 (certiorari granted December 9, 2022)

– Thomas L. Root

Circuit Split Deepens on Using Sentence Law Changes in Compassionate Release Motions – Update for September 19, 2022

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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.

9TH CIRCUIT ALLOWS FIRST STEP CHANGE IN § 924(c) STACKING TO SUPPORT COMPASSIONATE RELEASE

In 2007, Howard Chen was busted with a distribution-sized amount of MDMA in his car. Later, the DEA found more MDMA, two guns and cash at his house.

mdma220919A jury convicted Howie of six drug-related counts and two 18 USC § 924(c) counts for possessing a gun during and in furtherance of a drug crime. He got 48 months for the drug counts, 60 more months for the first gun offense and 300 months for the second one: a total of 34 years for a fairly garden-variety non-violent drug case.

In late 2020, Howard filed a motion for sentence reduction, seeking compassionate release for – among other reasons – that the First Step Act changed 18 USC § 924(c) so that he would not have to get a minimum of 300 months for the second gun charge. Although the change was not retroactive, Howie contended that the unfairness of how the 2007 version of the statute mandated 300 months but the current statute did not was an extraordinary and compelling reason for granting him a sentence reduction.

The district court denied the compassionate release motion, holding that because Congress did not make the 18 USC § 924(c) change retroactive, it could not be an extraordinary and compelling reason for grant of compassionate release under 18 USC § 3582(c)(1)(A).

Last week, the 9th Circuit reversed, holding that a district court may consider the First Step Act’s non-retroactive changes to sentencing law – in combination with other factors particular to the individual – when finding extraordinary and compelling reasons for a sentence reduction.

circuitsplit220919Bloomberg said, “The opinion deepens a circuit split on the bipartisan 2018 reform law that has generated much litigation since then-President Donald Trump signed it.”

The 3rd, 7th, and 8th Circuits have ruled that district courts may not consider non-retroactive sentence changes made by First Step, whether offered alone or in combination with other factors, in deciding compassionate release motions. Those circuits reasoned that Congress explicitly made the sentencing changes non-retroactive and that § 3582(c)(1)(A) “should not provide a loophole to get around explicit non-retroactivity.”

For instance, the 3rd Circuit ruled, “We will not construe Congress’s nonretroactivity directive as simultaneously creating an extraordinary and compelling reason for early release.” The 7th held that “the discretionary authority conferred by § 3582(c)(1)(A)… cannot be used to effect a sentencing reduction at odds with Congress’s express determination embodied in… the First Step Act that the amendment to § 924(c)’s sentencing structure appl[ies] only prospectively.” The 8th said, “The compassionate release statute is not a freewheeling opportunity for resentencing based on prospective changes in sentencing policy or philosophy.”

The 3rd and 7th Circuits still allow district courts hearing compassionate release motions to consider First Step’s changes to stacked § 924(c) sentencing when analyzing § 3553(a) sentencing factors.

dontthink220919The 1st, 4rth, and 10th Circuits, on the other hand, have all held that district courts may consider First Step’s non-retroactive changes to penalty provisions, in combination with other factors, when determining whether extraordinary and compelling reasons for compassionate release exist in a particular case. The Circuits have held that the statutes directly addressing “extraordinary and compelling reasons” don’t prohibit district courts from considering non-retroactive changes in sentencing law; and (2) a sentence reduction under § 3582(c)(1)(A)’s “extraordinary and compelling reasons” is “entirely different from automatic eligibility for resentencing as a result of a retroactive change in sentencing law.”

The 6th Circuit swings both ways. In United States v. Jarvis, the Circuit held that the “district court, moreover, correctly concluded that it lacked the authority to reduce Jarvis’s sentence based on a nonretroactive change in the law.” But in United States v. Owens, the panel said that the disparity between a defendant’s actual sentence and the sentence that he would receive if the First Step Act applied can be considered, along with other factors, to be an extraordinary and compelling reason for a reduction.

In Howard’s case, the 9th said,

Congress has only placed two limitations directly on extraordinary and compelling reasons: the requirement that district courts are bound by the Sentencing Commission’s policy statement, which does not apply here, and the requirement that ‘rehabilitation alone’ is not extraordinary and compelling. Neither of these rules prohibits district courts from considering rehabilitation in combination with other factors. Indeed, Congress has never acted to wholly exclude the consideration of any one factor, but instead affords district courts the discretion to consider a combination of “any” factors particular to the case at hand… To hold that district courts cannot consider nonretroactive changes in sentencing law would be to create a categorical bar against a particular factor, which Congress itself has not done.

United States v. Chen, Case No 20-50333 (9th Cir., September 14, 2022)

Bloomberg, Compassionate Release Gets Another Look Under First Step Act (September 14, 2022)

– Thomas L. Root

How Many Angels with Guns Can Fit on the Head of a Pin? – Update for August 4, 2022

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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.

‘WAIVING’ DAVIS RETROACTIVE RELIEF GOODBYE

Robber160229Deandre King was convicted of conspiracy to rob a bank and using or carrying a gun while doing so (an 18 USC § 924(c) violation). He signed a plea deal that, among other things, included a waiver giving up “the right to appeal his conviction and sentence and the right to collaterally attack his conviction and sentence in any post-conviction proceeding unless the sentence exceeded the statutory maximum.”  The waiver language included waiving post-conviction motions filed pursuant to 28 USC § 2255.

As you may recall the § 924(c) count is the darling of the prosecution set. A § 924(c) count (for using, carrying or possessing a gun during and in relation to a drug offense or a crime of violence) carries a mandatory sentence of at least five years. Plus, the law requires the mandatory sentence be imposed consecutively to any other sentence imposed. So while the conspiracy to rob might carry an 51-month sentence (as Deandre’s did), piling a § 924 count on top ensured another 84 months (the mandatory minimum where the gun is “brandished”), for  a 135-month stay.

deal160516Deandre’s plea deal probably didn’t seem too bad to him, because the government dropped some other counts, including another § 924(c) count that would have added another five years. Besides, the law was clear: bank robbery was a crime of violence, and all the Circuits had long since agreed that a conspiracy to commit a crime of violence was itself a violant crime.

However, four years after Deandre’s conviction, the Supreme Court held that all the Circuits were wrong. In United States v. Davis, the Supreme Court held that conspiracy to commit a violent offense could not be used as an underlying crime of violence supporting a § 924(c) conviction.

The Davis holding has since been held to be retroactive, so Deandre jumped on it, filing a § 2255 asking his district court to throw out the § 924(c) conviction.

His district court refused, however, holding that Deandre’s plea agreement waiver prevented such a filing. Last week, the 11th Circuit agreed, holding that the mere fact that no one foresaw a change in the law that would nullify a conviction did not invalidate a waiver.

angels170726Deandre argued that the Davis change was the equivalent to his being sentenced in excess of his stastutoery maximum. The argument has some appeal. After all, if he was not guilty of the § 924 count, then the statutory maximum sentence would be zero, and any § 924(c) sentence in excess of zero would exceed the statutory maximum (at least in some metaphysical way).

But the 11th Circuit was uninterested in counting the angels on the head of the pin:

Forcing constitutional claims into the statutory-maximum exception would render the promise of waiver virtually meaningless, robbing defendants of a powerful bargaining tool,” the Circuit held. “Defendants who agree to waive their appeals receive the immediate benefit of reduced penalties in return—as King’s case shows. But if that waiver becomes contingent, whether the defendant wishes it to be or not, a bargain will be much harder to strike… We are not the only circuit court to recognize the value of enforcing appeal waivers against claims based on new constitutional rules… Two of our sister circuits have recently held that such waivers prohibit § 2255 motions based on Davis. The 7th Circuit explained that a Davis challenge did not “satisfy any of its recognized bases for avoiding a valid collateral-attack waiver…” and the 6th Circuit interpreted an explicit carve-out in an appeal waiver for sentences exceeding “the statutory maximum” to refer to “the maximum sentence at the time of sentencing, not to maximum sentences throughout a defendant’s prison term based on future changes to the law.

What this means is that while Deandre is not guilty of the § 924(c) conviction, he’ll do the time for it.

King v. United States, Case No 20-14100, 2022 US App LEXIS 20910 (11th Cir Jul 28, 2022)

– Thomas L. Root