Tag Archives: 18 usc 924(c)

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

Leave a comment

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

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

Leave a comment

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

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

Leave a comment

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

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

Leave a comment

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

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

Leave a comment

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

Leave a comment

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

A 924(c) Conviction in 9th Circuit Ends Not With a Bang But a Whimper – Update for June 23, 2022

Leave a comment

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

‘BOOM’ TIMES IN THE 9TH CIRCUIT
Rick's bomb was neither pink nor make of Creamsicles.
Rick’s bomb was neither pink nor make of Creamsicles.

In 1990, Richard Mathews set a bomb to blow up the leader of a  motorcycle gang that has expelled him (probably not for being a pacifist).

Unfortunately for everyone (except the gang leader), the bomb blew up a passerby instead of its target, seriously injuring him.

Rick was convicted of maliciously damaging property by means of an explosive in violation of 18 U.S.C. § 844(i) and of using or carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1). (In the federal government’s world, a “firearm” under § 924(c) includes a “destructive device” such as a pipe bomb filled with black powder and ball bearings).

Rick got 135 months for the § 844 violation and a mandatory 360-month consecutive sentence for the § 924(c).

Last week, the 9th Circuit vacated Rick’s § 924(c) conviction.

A conviction under § 844(i) is not categorically a crime of violence, the Circuit said, and thus cannot serve as a predicate crime for a § 924(c) conviction. Section 924(c) defines a crime of violence as an offense committed against “the person or property of another.” However, the 9th observed, a person can be convicted under § 844(i) for “using an explosive to destroy his or her own property.” As such, Section 844(i) “criminalizes conduct that falls outside Section 924(c)’s definition of ‘crime of violence.’”

The average Joe or Jane would think that blowing someone up with a homemade is very much a “crime of violence.” Even the Circuit noted,

violent170315No doubt it is strange to classify placing a bomb in an alleyway for the purpose of causing harm to another person or their property as not a crime of violence, particularly where the bomb was picked up by an innocent bystander who was seriously injured by the detonation. But that is what the law requires of us in this case. 

Rick is probably not going home any time soon. The district court will be free to adjust his § 844(i) sentence – which can span from 10 to 40 years – to achieve nearly the same end.

United States v. Mathews, Case No. 19-56110, 2022 U.S. App. LEXIS 16167 (9th Cir, June 13, 2022)

– Thomas L. Root

Supreme Court’s Final Days Include Criminal Decisions – Update for June 20, 2022

Leave a comment

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

BIG CRIMINAL DECISIONS STILL PENDING WITH ONLY TWO WEEKS OF SCOTUS TERM LEFT

The Supreme Court held two opinion days last week, but the most-watched criminal cases – United States v. Taylor, Concepcion v. United States and Ruan v. United States – remain among the 18 opinions yet to be issued before the Court’s term ends on June 30.

scotus161130Most people expect the two “big” cases, New York State Rifle & Pistol Assn v. Bruen (a 2nd Amendment case) and Dobbs v. Jackson Women’s Health Organization (the possibly-leaked abortion decision) to happen on the last day. But Taylor, which concerns whether an attempted offense that would be a “crime of violence” for application of 18 U.S.C. § 924(c) – the mandatory consecutive sentence for using a gun – is a “crime of violence” if it is only attempted but not completed – has been hanging around for six months since its December argument. Concepcion, which concerns proper resentencing considerations in First Step Section 404(b) resentencing, and Ruan, which considers physician liability under 21 USC 841(a), was argued in the Court’s February sitting.

Ohio State University law professor Doug Berman wrote last week in his Sentencing Law and Policy blog that “the standard and ready explanation, of course, for why decisions in Taylor and Conception may be taking a long time is because the Justices are (perhaps deeply?) divided in these cases, and so we should expect multiple (and lengthy?) opinions. And, to add a bit of spicy speculation, I am inclined to guess that the delay is also partially a function of the Justices in these cases not being divided neatly along the “standard” ideological lines.”

rules201202The only case of interest to defendants last week was Kemp v. United States. In that case, petitioner Dexter Kemp filed a 28 USC 2255 motion in 2015. The District Court dismissed the motion as untimely, and Dix did not appeal. But three years later, he sought to reopen his 2255 under Federal Rule of Civil Procedure 60(b)(1) and (6), rules which permit a court to reopen an otherwise final judgment if certain conditions are met. A 60(b)(1) motion has to allege that a mistake was made, and must be filed within a year, Relief under Rule 60(b)(6) for any other just reason can be filed at any time, but is available only when the other grounds for relief specified in the Rule don’t apply.

Dex was right that the District Court had goofed on dismissing his § 2255 motion as untimely. In a just world, his § 2255 should be reopened, and that would be that. But in the real world, it’s not that easy.

The Supreme Court held that a judge’s error of law is a “mistake” within the meaning of Rule 60(b)(1), meaning that Dex’s motion fit under Rule 60(b)(1). Subject to the Rule’s one-year limitations period, Dex’s motion was late and had to be dismissed as untimely.

Sentencing Law and Policy, Any (spicy?) speculations about why SCOTUS has not yet decided Taylor or Conception, two little sentencing cases? (June 13, 2022)

Kemp v. United States, Case No. 21-5726, 2022 U.S. LEXIS 2835 (June 13, 2022)

– Thomas L. Root

Congress Races Glacier, And Glacier Wins – Update for May 31, 2022

Leave a comment

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

NOTHIN’S HAPPENIN’ HERE

Every week, I get a lot of emails from people like this one this morning:

“I am sorry, I know that everyone sends you messages asking for information about the bills in the house and senate, but i have to ask.  Have you heard anything about the prohibiting punishment of acquitted conduct act?”

People are always just wanting “an update” on bills pending (or on bills they just imagine are pending) in Congress.

nothing160321My answer is always the same: if anything is going on with one of these bills, I will cover it in the newsletter. If I haven’t mentioned it, nothing’s going on. 

Like last week. Nothing went on last Monday. And after Tuesday’s horrific shooting in a Uvalde, Texas, school, Congress’s focus turned to anguished sound bites and to what feel-good knuckle-headed legislation might be passed in response. Think I’m over-reacting?  Ask “One-Door” Ted Cruz. Or “High-Caliber” Joe Biden.

But, as for criminal justice reform, here’s an update on legislation:

EQUAL Act: Senate Majority Leader Chuck Schumer held a news conference in front of the Second Circuit courthouse in New York City to call on lawmakers to support the EQUAL Act (S.79), which would end the sentencing disparity between crack and powder cocaine that has had a disproportionate effect on black defendants.

In September, the House passed the bill 361-66, which ends a sentencing formula that uses an 18-to-1 ratio in treating equal amounts of crack and powder cocaine. Since then, the Senate Judiciary Committee has approved the bill, sending it to the Senate floor for a vote.

The New York Daily News reported that Schumer, “who declined to describe a timeline for passage, appeared to be embarking upon a pressure campaign meant to clear space for the legislation’s approval without a fierce fight on the floor.”

Senators Rob Portman (R-OH) and Cory Booker (D-NJ) are sponsoring the bill, which has 21 cosponsors, 11 of the Republican. “We’re working together — Sens. Booker, Portman and myself — figuring out the right timeframe and the right way to go,” Schumer said last Monday. “We want to get this done as soon as we can.”

But all is not roses. At the end of April, Sen Charles Grassley (R-IA) introduced the SMART Cocaine Sentencing Act (S.4116), which cuts the crack-powder ratio to 2.5 to 1 and puts retroactivity decisions in the hands of the Dept of Justice. While the bill only has three cosponsors, it is generally seen as being intended to be a bargaining chip, to be used during floor debate to water down EQUAL.

Marijuana: Nearly every House Democrat and three House Republicans voted in April to pass the MORE Act (H.R. 3617). It would decriminalize marijuana, something 27 states and the District of Columbia have already done.

nothing190906

Meanwhile, expectations are wavering over a marijuana legalization bill in the Senate. Most of the pressure for cannabis reform is coming from state financial regulators, who last week urged Congress to pass marijuana banking reform as part of a large-scale manufacturing bill that’s currently being finalized in conference committee. In a way that would be helpful, because marijuana criminal reform has been held hostage to the problems state dispensaries have in accessing the banking system.

Experts predict, however, that the MORE Act won’t have enough Republican votes for passage. The bill faces opposition from some Democrats, including Sen Joe Manchin (D-WV), who has said that he is unsure about legalizing adult-use marijuana.

Much of the slowdown in criminal justice reform results from violent crime rates nationwide, which have cooled the reformers’ ardor. Recent polling reflects public concerns about rising crime rates and dissatisfaction with how public leaders are addressing the problem.

nothingcoming181018Guns: Note to people who email me asking when Congress is going to reform the 18 USC 924(c) possession of a gun during drug and violent crimes statute. The rising violent crime rates – not to mention mass shootings in Buffalo and Uvalde, Texas, pretty much guarantee that no one is going to call for changes in 924(c) that will benefit defendants.

New Legislation: One bill introduced last week is good for federal prisoners. The Family Notification of Death, Injury, or Illness in Custody Act of 2022 (already introduced in the House as HR 6296), would require the DOJ to establish guidelines for the Bureau of Prisons and state correctional systems to notify families of incarcerated people if their loved one has a serious illness, a life-threatening injury or if they die behind bars.

The bill’s introduction in the Senate last Thursday comes more than two years after the Associated Press reported that BOP had ignored its internal guidelines by failing to notify the families of inmates who were seriously ill with COVID. The legislation – introduced by Sens. Jon Ossoff, D-Ga., and John Kennedy, R-La. – is “the latest step by members of Congress to further oversight of the beleaguered federal prison system, which has lurched from crisis to crisis in recent years,” AP reported.

New York Daily News, Schumer calls for end to crack cocaine sentencing disparity: ‘Cocaine is cocaine’ (May 23, 2022)

S.4116, SMART Cocaine Sentencing Act

Gray DC, Cannabis legalization remains stalled on Capitol Hill (May 26, 2022)

Vigour Times, How Criminal Justice Reform Fell Apart (May 26, 2022)

AP, Senate bill would set up medical notification to inmates’ kin (May 23, 2022)

– Thomas L. Root

Was The Gun For Dove Hunting? The Jury Didn’t Say… – Update for April 22, 2022

Leave a comment

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 REVERSES § 924(c) CONVICTION FOR FLAWED INSTRUCTION

Rhett Irons was convicted of possession of controlled substances with intent to distribute and possessing, using or carrying a gun in furtherance of drug trafficking (18 U.S.C. § 924(c)).

dangerousgun220422Although his lawyer never objected to the jury instructions during trial, Rhett argued on appeal that while the statute required the jury to find that he possessed a firearm “in furtherance of” a drug trafficking crime, the court’s instruction allowed the jury to convict merely by finding that defendant’s possession of the gun had a “connection” to the trafficking.  That, Rhett argued, was not enough.

Last week, the 9th Circuit agreed and reversed Rhett’s conviction. Although Rhett’s failure to object meant the appellate review was for plain error only, the Circuit held that the “in furtherance of” requirement in 18 U.S.C. § 924(c)(1)(A) means more than just that “there must be a connection between the firearm” and the alleged drug trafficking offense. It means a defendant must possess the firearm with the intent that it further or advance the drug offense.

To win a case on “plain error” review, a defendant has to show a mistake, that the mistake is “plain” (or obvious), the error affected his substantial rights, and the error affected the integrity of the proceeding. The 9th ruled that because the error in the instruction “effectively removed from the jury’s consideration the only disputed issue concerning the 924(c) charge – the defendant’s intent in having the gun under his mattress while living in his home,” his substantial rights had been affected by the flawed instruction.

lawyermistake170227“Removing the key disputed issue at trial from the jury’s consideration,” the Circuit held, “certainly casts doubt on the fairness of the proceedings, even if Iron’s own counsel failed to catch the error. Indeed, counsel’s failure to detect this plain error in the supplemental instruction arguably implicates Iron’s right to effective assistance of counsel, which is a consideration that bears upon the integrity and public reputation of the proceedings… We agree that the evidence of an objective connection between the firearm and Irons’s drug trafficking was strong. But the defect here relates to the issue of Irons’s subjective intent. Although we might have found the Government’s reading of the evidence more persuasive if we were the trier of fact, we conclude that the evidence is not so overwhelming that reversal here would impugn the integrity or fairness of the proceedings.”

United States v. Irons, Case No 20-30056, 2022 US App. LEXIS 9616 (9th Cir Apr 11, 2022)

– Thomas L. Root