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The Error Is Harmless If You Really Did It – Update for March 5, 2026

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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.

HARMLESS ERROR MATTERS, NOT CATEGORICAL MISSTEP, 1ST SAYS

Anthony Shea was charged back in the 90s with a series of robberies that featured liberal use of firearms. He was convicted of a Hobbs Act conspiracy, several Hobbs Act robberies and two 18 USC § 924(c) offenses for using and carrying a gun during the crimes.

Tony’s jury was instructed that the predicate crime of violence for the two § 924(c) charges could be either Hobbs Act robbery or conspiracy to commit the same. The jury returned a general verdict of guilty as to all counts, including the two § 924(c) counts and their predicates, meaning that no one could tell on which predicate – the robbery or conspiracy –  the § 924(c)s were based.

However, in 2015, years after Tony’s conviction, the Supreme Court decided in Johnson v. United States that the residual clause in the Armed Career Criminal Act (18 USC § 924(e)(2)(B)) definition of “violent felony” was unconstitutionally vague. Later, SCOTUS held in United States v. Davis that the logic of Johnson extended to § 924(c), holding that the residual clause “crime of violence” under § 924(c)(3)(B) was unconstitutionally vague as well.

Tony got permission to file a successive 28 USC § 2255 motion based on Johnson in order to challenge his two § 924(c) convictions and his sentences. He argued that the court has to assume that the jury took the categorical approach, meaning that the facts of his particular robberies didn’t matter, just the elements of the crime. Because the jury could have convicted him of § 924(c) offenses based on a conspiracy – and conspiracies didn’t count as violent after Davis – he argued that the two § 924(c) counts had to be vacated.

The District Court disagreed. It found the error harmless, because Tony was convicted of the two robberies in which the guns were used, and those substantive offenses “did, and still do, qualify as predicate ‘crimes of violence’ under [s]ection 924(c).” The District Court thus held that the jury’s verdicts on the § 924(c) convictions “remain valid.”

Last week, the 1st Circuit agreed. Ordinarily, to determine whether it is harmless error for a district court to instruct a jury on “multiple theories of guilt, one of which is improper,” a court must examine the factual circumstances and the record before it in evaluating the effect of the error on the jury’s verdict. The Circuit rejected Tony’s approach, holding that there is “no reason why a different approach to harmless error review would be required or appropriate when the instructional error results from a district court’s erroneous instruction as to whether an offense qualifies as a ‘crime of violence’ under the categorical approach.

“The categorical approach,” the Circuit said, “is used to determine whether a court has erred in instructing the jury about whether a predicate offense constitutes a ‘crime of violence.’ But the determination on direct appeal of whether that error was harmless turns on whether, ‘in the setting of a particular case,’ that error may be ‘so unimportant and insignificant that [it] may… be deemed harmless.’”

Here, the jury found beyond a reasonable doubt that Tony had committed the robberies. Therefore, any error in not instructing the jury that the robberies – not the conspiracy – was the underlying crime of violence supporting the § 924(c) convictions was harmless.

Shea v. United States, Case Nos. 22-1055, 2026 U.S.App. LEXIS 5327 (1st Cir. February 23, 2026)

~ Thomas L. Root

Bowe Gets His §2255 Second Chance – Update for February 20, 2026

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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.

11TH CIRCUIT GIVES BOWE ANOTHER ARROW

You may remember that a month ago, Michael Bowe – convicted 10 years ago of conspiracy to commit a Hobbs Act robbery, attempted Hobbs Act robbery, and using a gun during the offenses in violation of 18 USC § 924 – won his Supreme Court case. On January 12, 2026, SCOTUS ruled that while 28 USC § 2244 provides that a denial of authorization “to file a second or successive application” shall not be subject to Supreme Court review, the limitation does not apply to federal prisoners. The Supremes said the limitation is housed within 28 USC § 2244, “which imposes several strict requirements that apply only to state prisoners.” What’s more, subsection 2244(b)(3)(E) addresses only “second or successive application’ but “unlike state prisoners who file such ‘applications,’ federal prisoners file ‘motions.”

Mike filed and lost a § 2255 motion in 2016, arguing that Johnson v. United States, which invalidated the residual clause in the Armed Career Criminal Act (18 USC § 924(e)), also invalidated his § 924(c) conviction. He lost. He filed a second § 2255 motion in 2019, after United States v. Davis held that conspiracy to commit a vviolent crime was not itself a violent crime. He lost again, because while Davis announced a new, retroactive constitutional rule, Mike’s attempted Hobbs Act robbery conviction was still a crime of violence.

After United States v. Taylor held in 2022 that attempted Hobbs Act robbery was not a crime of violence, Mike once again asked the 11th Circuit for authorization under § 2255(h), arguing that Davis and Taylor leave none of his convictions as valid predicates for a § 924(c) charge. The Circuit dismissed the part of his request resting on Davis, reasoning that the claim had been “presented in a prior application” and that the panel lacked jurisdiction over such old claims under § 2244(b)(1) –  a statute that on its face applies to state prisoners seeking leave to file a second 28 USC § 2254 petition in federal court but has ambiguously been applied by federal appeals courts to federal § 2255 movants as well.

The Supreme Court reversed, holding that § 2244(b)(1)’s old-claim bar – that states that “[a] claim presented in a second or successive habeas corpus application under § 2254 that was presented in a prior application shall be dismissed” – applies only to state prisoners.

Last week, the 11th  ruled that Mike could go forward with a new § 2255 motion. “Based on Taylor and the 11th Circuit’s Brown v. United States decision, Bowe contends that neither of his predicate offenses — conspiracy to commit Hobbs Act robbery (Count 1) and attempted Hobbs Act robbery (Count 2) — can now quality as a ‘crime of violence’ that would support his § 924(c)(1)(A) conviction (Count 3) for using, brandishing, or discharging a firearm during a crime of violence,” the 11th said.

Bowe has made a prima facie showing that he meets the statutory criteria in § 2255(h)(2)… But a prima facie showing case is not a final showing entitling an applicant to relief. A prima facie showing is only the necessary first step. He still has to show the district court that he is entitled to the relief he seeks. As we have explained: “Things are different in the district court. That court has the benefit of submissions from both sides, has access to the record, has an opportunity to inquire into the evidence, and usually has time to make and explain a decision about whether the petitioner’s claim truly does meet the § 2244(b) requirements. The statute puts on the district court the duty to make the initial decision about whether the petitioner meets the § 2244(b) requirements—not whether he has made out a prima facie case for meeting them, but whether he actually meets them…”

In re Bowe, Case No. 24-11704, 2026 U.S. App. LEXIS 3876 (11th Cir. February 6, 2026)

Brown v. United States, 942 F.3d 1069 (11th Cir. 2019)

United States v. Taylor, 596 U.S. 845 (2022)

United States v. Davis, 588 U.S. 445 (2019)

Bowe v. United States, Case No. 24-5438, 2026 U.S. LEXIS 4 (January 9, 2026)

~ Thomas L. Root

Supreme Court Separates 924(c) and (j) – Update for January 15, 2026

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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.

ONE TO A CUSTOMER

Cigarettes are bad for you, whether you’re smoking them or stealing them. Dwayne Barrett found that out too late. But his campaign to stamp out smoking by robbing vendors of their tobacco products led to a Supreme Court decision yesterday on the reach of the federal criminal code’s harsh and unforgiving gun penalty statute.Dwayne and his gang – unimaginatively just called the “Crew” – committed a series of at least eight robberies in New York, New Jersey and Pennsylvania between August 2011 and January 2012. Their niche was knocking over convenience stores and illegal cigarette vendors, guys who sell untaxed cowboy killers smuggled from southern states at a discount because the merch is untaxed. Such people made good marks for Dwayne and his Crew because the victims can hardly file police reports.

But it’s hard to hide a heist from the authorities when someone gets killed. During one robbery, Dwayne and two other Crew members stuck up three guys selling untaxed cigarettes out of the back of a minivan. Brandishing guns, two of the Crew hijacked the minivan and drove off with one of the victims, Gamar Dafalla, still aboard. Mr. Dafalla surreptitiously threw $10,000 in sales proceeds out of the moving vehicle. Enraged by this, the Crew member shot Mr. Dafalla to death.

Dwayne was following the van in a car, so he wasn’t present when the killing occurred, but he was charged with the robbery, with tried to prevent his merchandise from being stolen.

Dwayne was convicted of Hobbs Act robbery and conspiracy, as well as several 18 USC § 924(c) counts for using guns to commit the robberies (crimes of violence under § 924(c)). In the case of the death of Mr. Dafalla, Dwayne was convicted of both a § 924(c) count – because his co-conspirator was using and carrying a gun during the robbery – and an 18 USC § 924(j) offense (because death resulted from the § 924(c) conduct). Thus, he was convicted under both statutes for the same act, essentially treating the gun use that caused Mr. Dafalla’s death as a basis for two separate convictions.

Dwayne was sentenced to 90 years in prison, later reduced to 50 years. Twenty of those years came from concurrent sentences on three Hobbs Act robbery counts. Twenty-five years came from a consecutive term on the § 924(j) conviction, into which the District Court – believing that § 924(c) and § 924(j) were not separate offenses that could be punished cumulatively – merged into the § 924(c) conviction.

The Second Circuit, however, rejected the District Court’s position that the Double Jeopardy Clause required it to treat § 924(c) and § 924(j) as the same offense. Although the Government regularly concedes that § 924(c) and § 924(j) overlap and may not be punished cumulatively and qualify as the same offense under the governing test laid out in Blockburger v. United States, it convinced the Circuit that the two provisions “are separate offenses for which Congress has clearly authorized cumulative punishments.”

The 5th Amendment’s Double Jeopardy Clause provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” In the 1932 Blockburger decision, the Supreme Court directed reviewing courts to evaluate whether one criminal statute required proof of any element that another did not.  If no different proof was needed, double jeopardy barred additional prosecution and punishment.

While Congress may pass two different statutes directed at prohibiting the same offense, the Blockburger presumption holds that Congress ordinarily does not intend to do so. This means that courts must find evidence of Congress’s intent before finding that different statutes punish the same crime, and thus that a defendant cannot be charged or punished for violating both under Blockburger.

Yesterday, the Supreme Court sided with Dwayne and the District Court, applying the Blockburger presumption that Congress did not clearly authorize convictions under both §§ 924(c) and (j) for a single act that violates both provisions. In other words, one conviction and one sentence for one violation. One to a customer.

Blockburger addresses whether multiple convictions, not just multiple sentences, are allowed by the 5th Amendment. The assumption underlying the Blockburger rule is that Congress ordinarily does not intend to punish the same offense under two different statutes, where punishment means a criminal conviction and not simply the imposition of sentence.

When enacted, § 924(c) made it a discrete offense to use or carry a firearm in connection with a predicate federal crime of violence or drug trafficking crime. Congress later added § 924(j) to provide a different penalty scheme for § 924(c) violations that cause death. Section 924(j) has no mandatory minimums, the Supreme Court observed, but instead authorized significant maximum sentences – including the death penalty or life in prison – when the underlying violation is murder committed with a gun.

In a unanimous opinion (but for a partial concurrence by Justice Neil Gorsuch, Justice Ketanji Brown Jackson wrote that § 924’s text “suggests strongly, perhaps conclusively,” that Congress did not disavow Blockburger here. Congress included Blockburger-surmounting language twice within § 924(c) itself: It mandated that a § 924(c)(1) conviction must be “in addition to the punishment provided for” the underlying violent or drug crime and it also mandated that a conviction under § 924(c)(5)—for using or carrying armor piercing ammunition—must be “in addition to the punishment provided for” the conviction under” § 924(c)(1).

Such “in addition to” language has previously been found to be “crystal clear” evidence of a legislature’s intent to overcome Blockburger. But Congress used no similar language with respect to the interplay between subsection (c)(1) and subsection (j).

Dwayne’s case could have implications for future convictions across the country.

Gorsuch argued in his concurrence that the Court has been confusing about double jeopardy in the past. The Supreme Court has at times said the clause “protects against multiple punishments for the same offense,” he wrote, and has held that multiple convictions for the same offense constitute multiple punishments, even when secured in a single proceeding. “From this, it would seem to follow that Congress cannot authorize multiple convictions for the same offense in concurrent prosecutions. But this Court has also sometimes said that, in the concurrent-prosecution context, the Clause merely directs courts to ascertain statutory meaning accurately,” Gorsuch wrote.

He said the court will someday need to resolve that “tension.”

Barrett v. United States, Case No. 24-5774, 2026 U.S. LEXIS 433 (January 14, 2026)

Blockburger v. United States, 284 U.S. 299 (1932)

The National News Desk, Supreme Court limits dual charges in overlapping gun statutes (January 14, 2026)

~ Thomas L. Root

Exclusions From FSA Credits Are Easy To Come By – Update for November 14, 2025

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We share news and provide commentary on federal criminal justice issues, mainly focusing on trial and post-conviction topics, legislative efforts, and sentencing debates.

FSA CREDITS FOR AGGREGATE SENTENCES TAKE IT ON THE CHIN

Greg Bonnie is serving a 120-month drug-trafficking sentence and a consecutive 24-month revocation sentence tied to a 2005 conviction that included an 18 USC § 924(c) gun count.

A § 924(c) conviction is one of about 63 different convictions listed in 18 USC § 3632(d) that will disqualify someone from receiving First Step Act credits. Those credits are awarded as an incentive to inmates to complete programs that are proven to make them less likely to commit new crimes once they are released from prison.

A couple of asides here.  First, when the First Step Act programs were developed, experts estimated that they would substantially reduce recidivism. The actual results through June 2024, however, showed that the reduction was far greater than what even the most optimistic projections had anticipated. People whose programming placed them in the “low” recidivism category were estimated to have a repeat-offender incidence of under 25%. Real-world results showed that the repeat-offender incidence for almost 13,000 “low-risk” inmates over four years was 11.4%.

Second aside: The First Step Act directed the Attorney General to issue an annual report on the effectiveness of the Act’s several programs for five years, ending with June 2025, including review of the FSA credits and recidivism. Unfortunately, the current Administration’s Attorney General has been too preoccupied with pardoning people on the President’s preferred list, prosecuting sandwich throwers, purging the disloyal, and pursuing the President’s enemies to honor its obligation. We are thus six months overdue for the final 2025 report, and thus we’re having to make do with what old data we have.

Back to FSA credits: The list of convictions excluded from FSA credit makes sense only in a very political way. If your co-defendant possessed a gun while selling the marijuana you two raised, your § 924(c) disqualifies you. If you rob a bank and beat up a teller, you’re qualified. If you download child porn, you are disqualified. If you hire a hit man (who turns out to be an undercover cop) to kill your spouse, you’re OK.

The exemption of the § 924(c) offense from FSA credit was an 11th-hour deal Senate Majority Leader Mitch McConnell made with Sen. Ted Cruz (R-TX) and Sen. Tom Cotton (R-AR) in order to corral their support for the First Step Act. As you may recall, § 924(c) requires that a court impose a mandatory consecutive sentence of at least five years on anyone convicted of possessing, using or carrying a gun during a crime of violence or drug offense. Stick a Glock in your waistband while selling a guy a 20-lb bale of marijuana you and your cousin grew back in the woods? The Guidelines will score you at a base 14 for that sale, barely worth 15 months in federal prison. But the gun in your waistband will add another five years to the sentence.

And now for Greg: In 2005, Greg was sentenced to 120 months for his bad judgment to engage in a drug trafficking offense and a consecutive 60 months for having the even worse judgment to possess a gun while doing it. In 2017, he completed the sentence in began an 8-year term of supervised release.

When it came to dealing drugs, Greg was learning-challenged (or his time in BOP custody was so much fun he wanted to repeat it). Whatever the reason, Greg resumed the drug trade while on supervised release. In 2021, he was again convicted of drug trafficking and received another 120-month sentence. Because the new crime also violated his supervised release, Greg received a consecutive 24-month sentence, for a total of 144 months.

The Bureau of Prisons is authorized by law to aggregate sentences, meaning that multiple sentences are blended into a single aggregate term for administrative purposes. That worked against Greg here: the BOP decided that because one-third of the Greg’s prior sentence was for a § 924(c) violation, and because one-sixth of his current sentence (24 months of a total 144 months) was for a supervised release violation stemming from the prior sentence, Greg was serving a sentence for a violation of § 924(c) and was ineligible for FSA credits.

The math is interesting. About one-eighteenth of his current sentence can be attributed to the § 924(c) violation. Presumedly, if the court had sentenced him to one day additional incarceration for the supervised release violation – making the § 924(c) share of the current sentence less than 1/9000th of the total sentence – Greg would still be considered ineligible for FSA credits.

Notwithstanding the intellectual force of my reductio ad absurdum argument, not to mention the serious question of whether serving a prison term for violating a term of supervised release can fairly be considered to be serving a prison term for any of the counts of conviction that led to the original prison term), the BOP denied him FSA-credit eligibility for the entire 144-month sentence. Under 18 USC § 3584(c), multiple terms of imprisonment are to be treated “as a single, aggregate term of imprisonment” for administrative purposes. Thus, the BOP took the view that Greg’s 24-month supervised release revocation term disqualified him from earning FSA credits for his entire 144-month sentence.

This was no mean matter: Greg’s maximum FSA credits would have been about 50 months, entitling him to a year off of his sentence and the right to spend the remaining 38 months’ worth of credit or so on home confinement or in a halfway house.

Greg filed a 28 USC § 2241 petition for habeas corpus, arguing that the BOP could deny him FSA credits only for the 24-month supervised release revocation. The district court denied his petition, and last week, the 4th Circuit denied his appeal.

The issue was whether a federal prisoner serving multiple terms of imprisonment, some of which qualify for FSA credits and at least one tied to a conviction that is deemed disqualifying by 18 USC § 3632(d)(4)(D), may earn FSA credits during the non-disqualifying portion of the sentence.

In a 2-1 decision, the 4th held that because 18 USC § 3584(c) requires aggregation for administrative purposes, and because administering FSA credits is an administrative function, any prisoner serving an aggregate term that includes any disqualifying conviction is ineligible for FSA time credits for the entire aggregate term. The aggregate term is evaluated as a whole, and because the aggregate includes a disqualifying § 924(c)-based revocation sentence, Greg is ineligible for credits for the entire aggregate term.

The dissenting judge argued that the text “is serving a sentence for” naturally means ineligibility only while the disqualifying sentence is actually being served; once that period ends, eligibility resumes for the remaining eligible term.

The Circuit’s decision aligns with other circuits and mechanically emphasizes the statute’s categorical prisoner-level disqualification in a blunt-force kind of way.

Bonnie v. Dunbar, Case No 24-6665, 2025 U.S.App. LEXIS 28978 (4th Cir. Nov 5, 2025)

~ Thomas L. Root

Grammar Gets the ‘Gold’ at Supreme Court – Updates for June 27, 2025

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A GOLD MEDAL FOR LENITY?

Is “lenity” the word that dare not be uttered? You might think so after yesterday’s Supreme Court decision in Hewitt v. United States.

The issue seems straightforward enough. Among the many changes made by the 2018 First Step Act was a long-overdue modification of 18 USC § 924(c), the penalty statute that mandates a consecutive minimum sentence for carrying a gun during a drug trafficking crime or crime of violence. Before First Step, the initial § 924(c) offense carried a mandatory sentence of at least five years, but every subsequent § 924(c) offense was punished by a 25-year term. Lousy drafting of the statute led to courts concluding that if you sold drugs while carrying a gun on Monday, you’d get time for the drug crime and an extra five years for the gun. If you sold some more drugs the next day while still carrying the gun, you’d probably get no more time for the drugs, but you would get a mandatory 25 years on top of Monday’s five-year term for a second § 924(c) crime, an outcome known as “stacking.”

It wasn’t difficult to figure. A hard-working street corner drug dealer plying his trade for a five-day work week, with a gun in his pocket the whole time, would run up a sentence of maybe 51 months for the drugs he sold but a whopping mandatory consecutive sentence of 105 years for five days of § 924(c) counts.

Congress never meant for this to happen. What it intended was that if you violated § 924(c) with a pistol in your pocket, you’d get an extra five years for carrying the gun (seven years if you “brandished” it). If you did your time and then were stupid enough to pack heat again, you would get a 25-year consecutive sentence. And why not? If five or seven years hadn’t taught you a lesson, you really needed an attitude adjustment.

Congress finally got around to fixing it in the First Step Act, changing § 924(c)(1)(C) to require that you actually be convicted of a § 924(c) offense before being hammered with the 25-year term for a second § 924(c) offense. You could still get stacked five-year terms for a week’s worth of armed drug dealing (25 years total for gun-toting from Monday through Friday), but you would not get the extra 80 years for your poor decision-making.

The usual horse-trading needed to get the Senate to pass First Step in the 11th hours of the 115th Congress resulted in a deal embodied in § 403(b) of the Act that the changes in § 924(c) would apply to “any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.”

Back in 2007, a gang dubbed the “Scarecrow Bandits” began a crime spree of bank robberies in the Dallas-Fort Worth area that totaled 20 heists. Dubbed the “Scarecrow Bandits” due to the clothing and face coverings they wore during their initial offenses, the gang was finally taken down by 11 months of cell tower analytics that sifted a haystack of data to find phones that had been pinging towers in the vicinity of each target bank only at times around the robbery. When the gang prepared to hit bank number 21 in Garland, Texas, the police arrested them.

Thanks to the § 924(c) in force at the time, the government hung 330 years on the perpetrators. The passage of the First Step Act didn’t help, because the robbers had long since been sentenced. However, after the Supreme Court held in 2019 that the “crime of violence” definition the Government routinely used to support some § 924(c) convictions was unconstitutionally vague, several of the Hewitt defendants successfully petitioned to have their sentences set aside. When they were resentenced, they argued that because the new sentences were being imposed after First Step passed, they were entitled to the benefit of having their subsequent § 924(c) sentences cut from 25 years apiece to seven years apiece or less.

The 5th Circuit (joining the 6th but in opposition to the 3rd and 9th), ruled that § 403(b) excluded any defendant who was sentenced prior to the enactment date of the First Step Act, even if his sentence was later vacated. The 5th argued that First Step applies only “if a sentence for the offense has not been imposed as of” the Act’s enactment date. Even if the Scarecrow sentences were later vacated, they still had “been imposed” upon that defendant prior to the Act “as a matter of historical fact.”

Justice Ketanji Brown Jackson, writing for the 5-4 majority, reminded everyone why all of that tedious junior high school English grammar was consequential after all. She explained that the operative phrase of § 403(b) is “not written in the past-perfect tense, excluding anyone upon whom a sentence “had” been imposed. Rather, Congress employed the present-perfect tense—thereby requiring evaluation of whether “a sentence . . . has . . . been imposed” upon the defendant.” Citing sources including the Chicago Manual of Style and The Cambridge Grammar of the English Language, she argued “the primary focus is on the present” while “the past maintains ‘current relevance.’”

Justice Brown offers this example:

Suppose the U. S. Olympic Committee enacted a rule stating that athletes may call themselves Olympic champions if a gold medal “has been awarded” to them. Pursuant to that rule, a U. S. sprinter who took first place in the 2016 Summer Olympics’ 100-meter finals could validly proclaim—today—that she is “an Olympic champion.” The existence of her win as a historical event triggers the rule’s proper application, because it gives rise to the inference that the athlete remains an Olympic gold medalist at present, thereby justifying her continued use of the “Olympic champion” title…

But now imagine that the Olympic Committee stripped this sprinter of her medal after discovering that she used performance-enhancing drugs during the competition. Can that athlete, under the rule, still call herself an Olympic champion? The answer is no. Yes, she had been awarded such a medal, but it was revoked; the fact that she stood on the podium and was declared the winner in 2016 is inapposite for purposes of establishing whether she qualifies for Olympic-champion bragging rights under the rule today.

When used in this way, the present-perfect tense conveys to a listener that the event in question continues to be true or valid.

Her point was that a sentence once imposed but later vacated is not a sentence at all because it does not remain valid. The law thus denies sentencing relief to only those pre-First Step Act sentences with “continued legal validity, not those that have been vacated,” Jackson wrote.

The decision produced a strong dissent from Justice Samuel Alito Jr., who accused the majority of “disfigur[ing]” the law to “march in the parade of sentencing reform… Animating the court’s atextual interpretation is a thinly veiled desire to march in the parade of sentencing reform. But our role is to interpret the statute before us, not overhaul criminal sentencing,” he wrote in a dissent joined by Justices Clarence Thomas, Brett Kavanaugh and Amy Coney Barrett.

Writing his Sentencing Law and Policy blog, Ohio State University law professor Douglas Berman was as disappointed in the decision as one who supported the result could be. He wrote that “Justice Gorsuch has extolled the rule of lenity in a number of notable recent statutory interpretation cases (e.g., Wooden; Pulsifer), stressing that “lenity has played an important role in realizing a distinctly American version of the rule of law.” The issue in Hewitt may not be a “classic” rule of lenity case, but it clearly is one in which traditional tools of statutory interpretation yield no clear answer and a defendant’s liberty is at stake… [I]t seems notable that this word gets not a single mention in the Hewitt opinions… These opinions function to suggest there is more legislative meaning and purpose in verb choice than in how to redefine just and fair punishments in the enactment of the First Step Act.”

Hewitt v. United States, Case Nos. 23-1002, 23-1150, 2025 U.S. LEXIS 2494 (June 26, 2025)

I2 Group, Catching the Scarecrow Bandits

United States v. Davis, 588 U.S. 445 (2019)

Law.com, Split Supreme Court Allows Lighter Sentences for Bank Robbers Dubbed ‘Scarecrow Bandits’ (June 26, 2025)

Courthouse News Service, Justices side with bank robbers seeking new sentences under reform law (June 26, 2025)

Sentencing Law and Policy, Where are concerns for liberty and lenity and broader constitutional values in Hewitt? (June 26, 2025)

– Thomas L. Root

In the World of Violence, Nothing is Something – Update for March 24, 2025

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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.

DOING NOTHING IS A VIOLENT OPTION

nothing250324A conviction for using a gun in a crime of violence under 18 USC § 924(c) requires that the underlying offense being committed while using the gun be a felony involving the “use of physical force” against another person. Shooting someone obviously qualifies, but what if the underlying crime can be committed by doing nothing? Doing nothing hardly involves the “use of physical force” against another person.

Because the underlying offense must be categorically a crime of violence, you might think that if it can be committed without the “use of physical force,” it’s not violent. The Supreme Court disagreed in a 7-2 decision last Friday.

Salvatore Delligatti was convicted of a § 924(c) offense for recruiting some people to kill a suspected snitch and giving them a gun to do the job. The underlying offense was second-degree murder under state law, which could be accomplished simply by failing to act, such as letting a nursing home patient starve to death by not feeding him. Sal argued that a failure to act resulting in death meant that the second-degree statute was categorically not a crime of violence, and his § 924(c) conviction had to be thrown out.

nothinghere190906SCOTUS held that it was a crime of violence. The high court ruled that while Sal argued that an offender can commit 2nd-degree murder without being the actual cause of the victim’s death because the offender can do so through “omission of a legal duty. But the test for ‘actual causality’ is whether the victim’s death ‘would not have occurred in the absence of—that is, but for—the defendant’s conduct…’ When a child starves to death after the parents refuse to provide food, the parents’ conduct is no less a cause of death than if the parents had poisoned the child.”

What’s more, the Court ruled, an offender who causes harm by omission still makes “use” of physical force “against the person… of another.” The Justices said, “[I]t is natural to say that a person makes ‘use’ of something by deliberate inaction. A mother who purposely kills her child by declining to intervene when the child drinks bleach makes ‘use’ of the bleach’s poisonous properties.”

nothingcoming181018Justice Neil Gorsuch wrote a spirited dissent, in which Justice Ketanji Jackson joined, but the decision suggests that SCOTUS is finding some practical limits to its “crime of violence” jurisprudence. After all, if doing nothing is physical force, there seem to be no practical limits on what might be a crime of violence.

Delligatti v. United States, Case No. 23-825, 2025 U.S. LEXIS 1072 (March 21, 2025)

– Thomas L. Root

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

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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