Tag Archives: 18 usc 924(c)

Procedure Matters… Innocence? Not So Much – Update for March 24, 2022

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

IN § 2255 CASES, PROCEDURE MATTERS

procedure220324Over the past three weeks, Russia has been reminded of the truth of General Omar Bradley’s old saw that “amateurs talk strategy, professionals talk logistics.” Likewise, two cases handed down last week underscore the truth that inmates talk substance, judges talk procedure.”

DeMarko Collins pled guilty to being a felon in possession under 18 USC § 922(g)(1). DeMarko’s presentence report determined he had two prior felony convictions for crimes of violence, including a Missouri 2nd-degree robbery, which enhanced his Guidelines advisory sentencing range under USSG § 2K1.1.

Five months before DeMarko’s sentencing hearing, a divided 8th Circuit panel held in United States v. Bell that Missouri 2nd-degree robbery was not a crime of violence, but DeMarko’s attorney goofed and did not cite the decision in opposing the § 2K2.1 enhancement. The district court granted the government’s motion for an upward variance, and sentenced DeMarko to 216 months.

DeMarko appealed his sentence. Relying on Bell, he argued the § 2K2.1 enhancement should not have applied. But while his appeal was pending, the 8th Circuit en banc overruled Bell and held that a Missouri 2nd-degree robbery is a violent felony after all. Because of that, Demarko lost his appeal.

stupidlawyr191202DeMarko then filed a § 2255 post-conviction motion, arguing that his lawyer should have cited Bell, which had been controlling authority and good law at the time of his sentencing. The district court denied the § 2255, finding that even if DeMarko was right that his lawyer should have raised Bell at sentencing, “he cannot demonstrate he was prejudiced by” the error.

Last week, the 8th Circuit agreed, holding that by the time DeMarko on “direct appeal cited Bell in challenging his § 2K2.1 enhancement based on a Missouri 2nd-degree robbery conviction, Bell had been overruled… and this prior conviction was once again a predicate crime of violence under the Guidelines. Strickland prejudice ‘focuses on the question whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair…’ DeMarko was not deprived of a substantive or procedural right to which the law entitles him, so he ‘suffered no legally cognizable prejudice’.”

Meanwhile, in the 9th Circuit, Cesar Gonzalez filed a 28 USC § 2244 application for permission to file a second § 2255 motion. He wanted to argue that his 18 USC § 924(c) conviction for having a gun in furtherance of a crime of violence was invalid because his predicate crime – racketeering – was no longer a categorical crime of violenceunder a new rule of constitutional law announced in the Supreme Court’s United States v. Davis decision.

Last week, the 9th Circuit shot Cesar down, finding that his new Davis argument was not “previously unavailable” as required by 28 USC § 2255(h)(2).

When Davis was handed down, Cesar had filed his § 2255 motion, and the government had responded. Cesar, however, had not yet filed his reply. The 9th Circuit ruled that to show the argument was “previously unavailable” to him, he had to show “that the real-world circumstances that he faced prevented him, as a practical matter, from asserting his claim based on a new rule of law in his initial habeas proceeding.”

The Circuit said it “recognized that pro se prisoners face unique difficulties when litigating habeas relief or anything else, and that language barriers, as Cesar cited in his case, add to those difficulties.” However, the 9th ruled, “nothing in the text or context of AEDPA‘s previously-unavailable-claim requirement suggesting that this limited exception to the otherwise broad prohibition against filing second or successive habeas proceedings was intended to be applied subjectively.”

innocent210504The 9th concluded that Cesar could show that his new Davis argument was unavailable during his initial § 2255, where Davis issued shortly before Cesar filed his reply brief and a few months before the § 2255 was decided. Cesar had the facts that he needed for his claim, the Circuit held, and no systemic or external barrier prevented him from presenting his claim in his initial habeas proceeding.

So it did not matter that Cesar stood convicted of a § 924(c) offense unlawfully, because a hypothetical reasonable inmate would have tried to raise Davis in the nearly-completed § 2255 proceeding.

Substance? Who cares about substance when procedure triumphs?

Collins v. United States, Case No. 20-3662, 2022 U.S. App. LEXIS 6725 (8th Cir., March 16, 2022)

Gonzalez v. United States, Case No 20-71709, 2022 U.S. App. LEXIS 6943 (9th Cir., March 17, 2022)

– Thomas L. Root

Is Trying To Be Violent All It Takes? – Update for December 8, 2021

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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.

AIDING, ABETTING, ATTEMPTING, AND GUNNING

drugripoff211208Gary D. Harris got convicted of aiding and abetting 2nd-degree murder, aiding and abetting attempted robbery, and aiding and abetting using or carrying a firearm during and in relation to a crime of violence. He got hammered: 420 months for the aiding and abetting murder, and an extra 60 months for the 18 USC § 924(c) charge.

Gary filed a post-conviction habeas corpus motion under 28 USC § 2255, but it failed like most of them do. After United States v. Davis changed the landscape on what crimes were and were not crimes of violence, Gary filed a second 28 USC § 2255 motion.

A second § 2255 is not easy to file. A prisoner must get permission from the Court of Appeals to file one, and the standards are tough: you’ve got to have newly-discovered evidence that pretty much exonerates you or be the beneficiary of a new Supreme Court constitutional decision that is retroactive.

Gary asked the 6th Circuit for permission. Last week the 6th Circuit turned him down.

aidabett211208Gary argued his consecutive 60-month sentence had to be vacated because the district court might have imposed that sentence under the unconstitutionally vague “residual clause.” What’s more, Gary argued, his § 924(c) sentence couldn’t fall under the “elements clause” either, because neither his conviction for aiding and abetting second-degree murder nor his conviction for aiding and abetting attempted robbery could have constituted  a “crime of violence.”

It’s an appealing argument. It seems like you could aid or abet a violent crime without committing an act of violence yourself, like loaning your car to someone who uses it to rob a bank. But the Circuit didn’t buy it. “To justify relief under § 2255,” the 6th said, Gary had to not only show “constitutional error but also harm that he suffered from that error.” He had to “establish that he could not have been sentenced to the consecutive 60-month prison term under § 924(c)(3)’s elements clause. Because the 18 USC § 2113 crime of aiding and abetting attempted robbery necessarily constitutes a crime of violence,” the Court said, Gary cannot do that.

So aiding and abetting and attempted crimes of violence are themselves violent. And the Garys of the world lose. Right?

corso170112As Lee Corso might say, “Not so fast, my friend.” Yesterday, the Supreme Court heard argument in United States v. Taylor, where the issue is whether an attempt to commit a Hobbs Act robbery is a crime of violence. The outcome of that case could reopen the aiding and abetting/attempt issue for hundreds, if not thousands, of inmates.

Justin Taylor was a Richmond, Virginia, pot dealer who robbed his buyers. This was a business model with great short-term results, but lousy for building customer loyalty. In August 2003, Justin and his sidekick planned just such a robbery. Justin sat in the getaway car while his partner pulled off the heist. The buyer was unwilling to turn over his money, so Justin’s buddy shot him dead. Justin and his partner fled without the money.

Justin was convicted of Hobbs Act conspiracy and a crime of violence under § 924(c). He got 20 years for the conspiracy and another ten for using a gun during a crime of violence.

violent160620After Davis, Justin filed a § 2255 motion, arguing that his crime – because it was a mere attempt – was not a crime of violence. That meant that the 10-year sentence for using the gun would have to be thrown out. The U.S. Court of Appeals agreed, vacating Justin’s § 924(c) conviction. “Because the elements of attempted Hobbs Act robbery do not invariably require ‘the use, attempted use, or threatened use of physical force,’ the offense does not qualify as a ‘crime of violence’ under § 924(c),” the appeals court said.

At yesterday’s argument, the Government complained that the Fourth Circuit “has excised from § 924(c) a core violent federal crime, based on the imaginary supposition that someone might commit it with a purely non-threatening attempted threat and yet somehow still come to the attention of law enforcement and be prosecuted.”

But just how imaginary would such a supposition? That question consumed the argument session.

Chief Justice John Roberts asked at one point just what charges Woody Allen’s character in “Take the Money and Run” would have faced for handing the note “I have a gub” to the teller. Justin’s lawyer, Michael Dreeben, said the Woody Allen character’s actions would violate the Hobbs Act. “An attempt that fails is still prosecutable as an attempt,” Dreeben said.

Jail151220As always, the Government predicted the collapse of the judicial system and wholesale release of inmates if Justin Taylor’s view prevailed. Justice Sonia Sotomayor was justifiably skeptical, pointed out that whether an attempt could support a § 924(c) was a question of enhancement, not convictability (my word, not the Justice’s). She said the government made it sound like a win for the defense would mean letting out “all of these horrible criminals,” but she emphasized that defendants still face substantial sentences on other charges, like Justin’s 20-year conspiracy term that isn’t at issue here.

Justice Brett Kavanaugh worried about a ruling for the defense. “Congress obviously… imposed this because there’s a huge problem with violent crime committed with firearms and thought that the sentences were not sufficient to protect the public,” he said.

Harris v. United States, Case No. 21-5040, 2021 U.S. App. LEXIS 35494 (6th Cir., December 1, 2021)

United States v. Taylor, Case No. 20-1459 (Supreme Court, oral argument December 7, 2021)

Bloomberg Law, Violent-Crime Definition Gets High-Court Hearing in Gun Case (December 7, 2021)

– Thomas L. Root

Nothing Extraordinary about a 312-Year Robbery Sentence, 3rd Circuit Says – Update for September 8, 2021

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A LARGELY UGLY COMPASSIONATE RELEASE DECISION FROM THE THIRD CIRCUIT

guns200304The 3rd Circuit last week joined eight other federal circuits in holding that an inmate-filed compassionate release motion is not limited by the Sentencing Guidelines § 1B1.13 policy statement. That was the good news, the only good news.

Eric Andrews is serving a 312-year sentence for a string of armed robberies, with almost all of that time due to stacked 18 USC § 924(c) convictions. If he had been sentenced after passage of the First Step Act, his § 924(c) sentences would have amounted to 91 years, still impressive but possibly a survivable sentence. But because the First Step changes were not retroactive, Rick’s only course was to file a compassionate release motion under 18 USC § 3582(c)(1)(A)(i) arguing that his excessive sentence length and the First Step Act changes were the “extraordinary and compelling reasons” supporting grant of the motion.

The district court denied Rick, and last week, the 3rd Circuit agreed.

The appeals court held that “the duration of a lawfully imposed sentence does not create an extraordinary or compelling circumstance… Considering the length of a statutorily mandated sentence as a reason for modifying a sentence would infringe on Congress’s authority to set penalties.”

41475-Forever-Is-A-Long-TimeLikewise, the 3rd ruled, a nonretroactive change to mandatory minimums “cannot be a basis for compassionate release. In passing the First Step Act, Congress specifically decided that the changes to the 924(c) mandatory minimums would not apply to people who had already been sentenced.” Applying rules of statutory construction to the First Step Act, the Circuit said, “we will not construe Congress’s nonretroactivity directive as simultaneously creating an extraordinary and compelling reason for early release. Such an interpretation would sow conflict within the statute… We join the 6th and 7th Circuits in reaching this conclusion.”

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, makes a telling point:

The very first sentence of the Andrews ruling has a Kafka-esque “only in America” quality to it: “Eric Andrews is serving a 312-year sentence for committing a series of armed robberies when he was nineteen.” That a person at age 19 can get a 312-year sentence for a series of robberies strikes me as quite extraordinary and quite compelling, but the district court did not see matters that way. Specifically, as described by the panel opinion, the district court decided that “the duration of Andrews’s sentence and the nonretroactive changes to mandatory minimums could not be extraordinary and compelling as a matter of law.” Of course, there is no statutory text enacted by Congress that sets forth this “as a matter of law.” But the Third Circuit panel here blesses the extra-textual notion that courts can and should invent some new categorical exclusions “as a matter of law” regarding what might qualify as extraordinary and compelling.

noquorum191016The Second, Fourth, Fifth, Ninth and Tenth Circuits have held the contrary to this opinion, which perhaps puts some wind in Thomas Bryant’s pending petition to the Supreme Court for review of the 11th Circuit’s denial of his compassionate release motion. That petition is ripe for decision at the end of this month at the Supreme Court’s “long conference.” Of course, a reconstituted Sentencing Commission could solve this circuit split by rewriting USSG § 1B1.13, but that would require that the Sentencing Commission first be repopulated with new members. President Biden has thus far shown no more interest than did his predecessor in appointing new members. By December, the Commission will have been without a quorum for three years.

United States v. Andrews, Case No 20-2768, 2021 US App LEXIS 26089 (3d Cir. August 30, 2021)

Sentencing Law and Policy, Third Circuit invents some extra-textual limits on what might permit a sentence reduction under 3582(c)(1)(A) (August 30, 2021)

– Thomas L. Root

“What Is It Exactly That You Want?” Courts Ask Defendants – Update for August 3, 2021

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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.

FUTILITY

futility180705Two decisions last week should serve as cautionary tales for people seeking a sentence break from the courts, without really being able to explain to the courts why they are seeking the break they want.

In the 7th Circuit, Mike Millis filed a 28 USC § 2241 petition for writ of habeas corpus, arguing that his career-offender Guidelines enhancement (USSG § 4B1.1) should not have been applied in his case. As a result of his 1994 crime spree, Mike was convicted of several robbery counts, which included two 18 USC § 924(c) counts for using a gun. The § 924(c) counts, of course, were stacked. When the dust settled, Mike’s sentencing range began at 562 months.

That was too much for his judge, who departed downward to a still-shocking 410 months.

In the intervening 26 years, Mike filed and lost a 28 USC § 2255 motion in his Eastern District of Kentucky home. But well after that, the 6th Circuit held in a different case that one of the prior convictions relied on to make Mike a Guidelines career offender – an Ohio aggravated assault conviction – could not be used as a basis for career offender. Because the change in the law did not open the door to a new § 2255 motion. But Mike relied on the § 2255(e) “saving clause,” which lets prisoners use a § 2241 motion where the § 2255 would be “inadequate or ineffective to test the legality of his detention.”

Last week, the 7th Circuit shot him down. One of the standards for being able to use the 28 USC § 2255(e) saving clause, the Circuit said, is that the prior conviction or sentence has to constitute a miscarriage of justice. Here, Mike’s sentence range had started at 567 months. But if he had not been a career offender, the Circuit said, his 410-month sentence would still have fallen within what his non-career sentencing range would have been.

miscarriage-of-justiceBecause of that, the sentence – although the career offender status was wrong – was not a miscarriage of justice. This made the § 2255(e) saving clause unavailable to Mike.

So what was Mike’s point? I am guessing that he was looking to get rid of the career-offender label, because he is or will soon seek to get his second § 924(c) conviction cut from 300 months to 60 months, which is all he could have gotten under the law since passage of the First Step Act made clear that the 300-month mandatory sentence only applies after a prior conviction for a § 924(c) offense. Knocking 240 months off his sentence would let Mike out after having only served 260-some months (21 years) in prison.

Talk about soft on crime!

Meanwhile, over in the 8th Circuit, Brett Corrigan got a mandatory-minimum sentence of 60 months in prison, based on quantity of drugs involved in his case. At sentencing, his district court gave him a 2-level enhancement under USSG § 2D1.1(b)(1) for possessing a dangerous weapon, which gave him an advisory sentencing range of 60 to 71 months in prison. The judge gave him 60 months, the bottom of the range, (which, incidentally, was his mandatory minimum sentence).

softoncrime190307That did not stop Brett, who appealed the 2-level enhancement to the Court of Appeals. Last week the 8th Circuit denied him any relief. “Nothing we do here will affect Corrigan’s sentence, meaning that we lack the ability to provide any effectual relief.,” the Circuit said. “Win or lose, it makes no difference—his sentence will remain 60 months because of the mandatory minimum. In jurisdictional terms, Corrigan lacks a cognizable interest in the outcome, which means that there is no longer a live case or controversy under Article III.”

So why bother appealing? I suspect what Brett was fighting for was to get the 2-level gun enhancement lifted, because the enhancement made him ineligible to take the Bureau of Prison’s Residential Drug Abuse Program. The RDAP would entitle him to another 12 months off his sentence under 18 USC § 3621(e)(2)(B), meaning that Brett very much had something at stake here. It’s just that the courts generally seem not to appreciate the adverse effects that enhancements like that – which often get added on the flimsiest of evidence – have on a defendant’s prison term.

Millis v. Segal, Case No. 20-1520, 2021 U.S. App. LEXIS 22349 (7th Cir., July 28, 2021)

United States v. Corrigan, Case No. 20-1682, 2021 U.S. App. LEXIS 22166 (8th Cir., July 27, 2021)

– Thomas L. Root

Flip-Flops in Cincinnati – Update for June 10, 2021

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IF THIS IS MONDAY, ‘YES, YOU CAN…’ IF IT’S TUESDAY, ‘NO, YOU CAN’T’

Confusion reigns in the Queen City, nestled on the banks of the Ohio River (and home of the United States Court of Appeals for the Sixth Circuit, a few professional sports teams, and some pretty good brewskis).

Four weeks ago, I reported that the 6th Circuit had decided in United States v. Owens that despite two contrary Circuit decisions – United States v. Tomes and United States v. Wills – a prisoner with stacked 18 USC § 924 sentences could rely on First Step Act changes in 18 USC § 924 as one of several extraordinary and compelling reasons for a compassionate release sentence reduction.

flipflop170920But a week ago, a different 6th Circuit panel said despite Owens, the deal is off. In a 2-1 decision, the Court ruled that “non-retroactive changes in the law [can] not serve as the ‘extraordinary and compelling reasons’ required for a sentence reduction.” However, if movants have some other fact that is an extraordinary and compelling reason for a sentence reduction, “they may ask the district court to consider sentencing law changes like this one in balancing the § 3553(a) factors — above all with respect to the community safety factor.”

Ohio State University law professor Doug Berman, writing in his Sentencing Policy and Law blog, called “the majority ruling problematic from a straight-forward application of textualism. There is absolutely nothing in the text of § 3582(c)(1)(a) that supports the contention that non-retroactive changes in the law cannot ever constitute “extraordinary and compelling reasons” to allow a sentence reduction, either alone or in combination with other factors. The majority here, presumably based on its own sense of sound policy, seems to be just inventing an extra-textual categorical limitation on the authority Congress gave to district courts to reduce sentences.”

United States v. Jarvis, Case No. 20-3912, 2021 U.S. App. LEXIS 16596 (6th Cir. June 3, 2021)

Sentencing Law and Policy, Split Sixth Circuit panel further muddles what grounds can contribute to basis for sentence reduction under § 3582(c)(1)(a) (June 3, 2021)

– Thomas L. Root

Virus or No, The World Keeps Turning on Hobbs Act and FSA – Update for March 31, 2020

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MEANWHILE, A COUPLE OF IMPORTANT FAIR SENTENCING ACT/HOBBS ACT CASES…

Two appellate cases handed down last week would have been headliners any other time except for now, with the coronavirus crowding everything else out of the news.

crackpowder160606In 2001, Brandon Gravatt was convicted of conspiracy to possess with intent to distribute 5 kilograms or more of powder cocaine and 50 grams or more of crack cocaine (21 USC § 846). He pled guilty to the dual-object drug conspiracy charge, facing sentences of 10 years-to-life for the coke and 10-to-life for the crack. The court sentenced him to just short of 22 years.

After the Fair Sentencing Act became retroactive due to the  provision at Section 404 of the First Step Act (passed in December 2018), Brandon filed for a sentence reduction because the crack statutory minimum had fallen to five years. But the District Court denied his motion, because the 10-to-life sentence for the powder cocaine remained the same.

Last week, in a decision awaited by a lot of people, the 4th Circuit reversed. It held that even in a multi-object conspiracy like Brandon’s – where the penalties of one object (possession of crack) were reduced by the FSA while the penalties of the other (powder cocaine) were not – if the crack minimum sentence fell, Brandon was eligible for resentencing. The Circuit said because Brandon’s “sentence involved a covered offense under Section 404(a) [of the First Step Act], the district court should have reviewed Gravatt’s motion on the merits, applying its discretion under Sections 404(b) and (c).”

Of course, the 4th said, the quantity of powder cocaine in Gravatt’s case could mean the district court would decide not to lower his sentence. “Our decision today,” the Circuit said, “only requires that Gravatt’s sentence receive a substantive review. It should not be construed as expressing any view on how the district court should rule.”

Meanwhile, the 11th Circuit held last week that a Hobbs Act robbery was not a crime of violence for purposes of determining whether a defendant was a “career offender” under Chapter 4B of the Guidelines.

violence151213Joining the 6th and 9th Circuits, the 11th held that because the Guidelines definition of robbery and extortion only extends to physical force against persons, while under Hobbs Act robbery and extortion, the force can be employed or threatened against property as well, the Hobbs Act (18 USC § 1951) is broader than the Guidelines definition, and thus cannot be a crime of violence for career offender purposes.

Unfortunately, because 18 USC § 924(c) does include threats to property as well as to people, the 11th Circuit holding does not apply to defendants with § 924(c) counts supported by Hobbs Act convictions.

United States v. Gravatt, 2020 U.S. App. LEXIS 9053 (4th Cir Mar 23, 2020)

United States v. Eason, 2020 U.S. App. LEXIS 9096 (11th Cir Mar 24, 2020)

– Thomas L. Root

Gun Case Misfires, Shoots Government in the Foot – Update for March 3, 2020

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GENERAL VERDICT DOOMS HOBBS ACT CONSPIRACY/ ATTEMPT CONVICTION

Defendant Stacy Berry was found guilty of a using a gun in a crime of violence (an 18 USC § 924(c) offense) based on both an underlying conspiracy to commit Hobbs Act and an attempted Hobbs Act robbery. A § 924(c) violation, of course, carries a mandatory additional sentence of at least five years.

guns200304Time was, the government liked attaching § 924(c) counts to conspiracies, because conspiracies are so long-lived and squishy that essentially, a defendant’s possession of a gun at any time during a months-long or years-long conspiracy was enough to ensure the § 924 conviction. It was may, prove that during a robbery on a particular date and at a particular location, the defendant knew that his accomplice was going to pull his .44 Klutzman and pistol-whip a store clerk.

Prior to the Supreme Court’s United States v. Davis decision in June 2019, courts generally held that if a crime was violent, then, ipso facto, a conspiracy to commit the crime was violent, too, and any attempt to commit the crime had to be violent. That made securing the § 924(c) conviction a cinch.

sowwind200205Sow the wind, reap the whirlwind. Last month, a district court granted the defendant’s post-conviction 28 USC § 2255 motion, because the government had cleverly attached a § 924(c) count to both a Hobbs Act conspiracy and an attempted Hobbs Act robbery. By now, everyone knows that a Hobbs Act conspiracy is not a crime of violence, and courts are coming around to the view that an attempted crime of violence is not necessarily a crime of violence, either.

Stacy argued that neither the conspiracy nor the attempted robbery was a crime of violence. The government argued that while the conspiracy was not, the attempt certainly was.

The district court held that “it need not rule whether attempted Hobbs Act robbery qualifies as a crime of violence… The parties acknowledge that the jury instructions allowed for a conviction on either conspiracy or attempted Hobbs Act robbery, and the jury verdict was a general verdict which does not specify which was the basis of the conviction.” For that reason, the § 924(c) conviction was thrown out.

United States v. Berry, 2020 U.S.Dist. LEXIS 20380 (W.D.Va. Feb 6, 2020)

– Thomas L. Root

Beginning of the End for Hobbs Act Violence? – Update for February 18, 2020

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ANOTHER DISTRICT COURT HOLDS HOBBS ACT ROBBERY ATTEMPT DOES NOT SUPPORT § 924(C) CONVICTION

hobbsact200218A few weeks ago, I reported that an Eastern District of New York case, United States v. Tucker, held that an attempted Hobbs Act robbery did not support an 18 USC § 924 conviction for using a gun in a crime of violence.

The same reader who brought Tucker to my attention last week pointed me toward a late January Western District of New York decision that granted a 28 USC § 2255 post-conviction motion on the same grounds.

Tom Lofton was in the business of robbing drug dealers. He found that using a gun in his business was an effective way to make his point with his victims, which was that they should hand over their money and drugs. It worked quite well until the Feds caught him in 2004. He was charged with conspiracy to commit Hobbs Act robbery and two counts of attempted Hobbs Act robberies. He was also charged with three § 924(c) counts, one each attached to the conspiracy and both Hobbs Act attempts. Tom beat one of the § 924(c) counts at trial, but he was convicted on the other two, receiving 180 months for the conspiracy and attempts, but 84 consecutive months for the first § 924(c) and 300 more for the second § 924(c). All told, Tom received a 567-month sentence during which he should rethink his business model.

Robber160229After the Supreme Court’s 2019 decision in United States v. Davis, however, Tom rethought the § 924 convictions as well. He got permission from the Second Circuit to file a second § 2255 motion to attack his two § 924(c) counts as being unsupported by predicate crimes of violence. The government agreed that the first § 924(c), based on the conspiracy count, had to be dismissed, but it argued that the attempt-to-violate-the-Hobbs-Act count remained a crime of violence.

The government’s thinking was quite linear: a Hobbs Act violation is a crime of violence. To be convicted of an “attempt” crime, one must intend to commit the underlying crime and take at least one step toward doing so. Since the defendant intended a crime of violence, the “attempt” crime must be a crime of violence as well.

A few weeks ago, however, Tom’s district court agreed with him, and dismissed both § 924(c) convictions.

The Hobbs Act is violated either by robbery or by extortion. The district court agreed that the Act is divisible between the two offenses, but held that within the definition of Hobbs Act robbery, the statute indivisible. The Act provides that “whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do…” will be punished.

maskgun200218Relying on Tucker, the district court ruled that an attempt to commit a Hobbs Act robbery could not be a crime of violence, because people have been successfully prosecuted in the past for attempted Hobbs Act robbery when no force was ever threatened or used. In one case cited by the court, a defendant was convicted because he had twice “reconnoitered the place contemplated for the commission of the crime and possessed the paraphernalia to be employed in the commission of the crime: loaded sawed-off shotguns, extra shells, a toy revolver, handcuffs, and masks…”

The district court argued that prior decisions in other circuits that agreed with the government’s argument had confused “intent” with “attempt.” Just because a defendant intends to commit an act of violence does not necessarily mean the defendant has actually attempted to do so.

Because a defendant can violate 18 USC § 1951 by intending to commit the crime and taking a step toward completing the offense, even without any force threatened or used, an attempted Hobbs Act violation cannot support a § 924(c) conviction.

Tom’s two § 924(c) offenses were vacated.

United States v. Lofton, 2020 U.S. Dist. LEXIS 10764 (WDNY, Jan. 22, 2020)

– Thomas L. Root

Nasty, Brutish Week for the Hobbs Act… But a Ray of Sunshine, Maybe? – Update for January 22, 2020

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DARKEST HOUR FOR HOBBS ACT JUST BEFORE DAWN?

violent170315In the wake of last summer’s United States v. Davis Supreme Court decision, a number of federal defendants began asking whether attempting to commit or aiding and abetting a Hobbs Act robbery (18 USC § 1951) can be considered a “crime of violence” that will support an 18 USC § 924(c) conviction and mandatory add-on sentence for possession or use of a gun in the underlying offense. In other words, a crime that any reasonable person might think is violent may not be quite violent enough.

A primer: Under 18 USC § 924(c), anyone who commits a drug trafficking offense or a crime of violence while possessing a firearm is sentenced for the underlying crime, and then hit with a mandatory additional sentence of at least five year and up to life in prison. The minimum sentences increase if the defendant brandished the gun (minimum additional seven-year sentence) or actually fired it (minimum additional seven-year sentence). The hot arguments over the past decade have been what makes an underlying crime a “crime of violence,” with Davis being only the latest case to take up the question.

And yesterday, the Supreme Court heard arguments in Shular v. United States, which could bring the same kind of scrutiny to what constitutes a drug offense that Davis and its antecedents brought to crimes of violence.

Enough background… now for the news. Last week was not especially helpful to defendants hoping that Hobbs Act robbery might be found to be other than a crime of violence. Parts were nasty and brutish. But, mercifully, those may also be short.

First, the Supreme Court denied certiorari on a closely-watched petition filed in Mojica v. United States, which asked indirectly whether a § 924(c) conviction could be based on a conviction for aiding and abetting a Hobbs Act robbery. Mojica argued that aiding or abetting a Hobbs Act robbery was not a “crime of violence” after Davis, because viewed categorically, a Hobbs Act robbery could be committed without using or threatening force. Although there were early signs of Supreme Court interest in the case, brought by talented post-conviction attorney Brandon Sample, certiorari was denied on Jan. 10.

violence180508Meanwhile, the 7th Circuit rejected claims that an attempt to commit a Hobbs Act robbery is not a crime of violence under the elements test of § 924. Because a Hobbs Act robbery qualifies as a crime of violence, the Circuit said, and because a jury has to find the defendant intended to commit the robbery in order to convict him for attempt, attempted Hobbs Act robbery is a “valid predicate offense” for 924(c).

One ray of sunshine fell in the 9th Circuit, which in an unpublished opinion said, “We accept the government’s concession that conspiracy to commit Hobbs Act robbery is not a crime of violence under 18 USC 924(c)(3) in light of the Supreme Court’s decision in U.S. v Davis… Therefore, we vacate defendants’ convictions for carrying and discharging a firearm in furtherance of a crime of violence.”

Robber160229A second ray of light may have flickered the week before. An alert reader commended my attention to Judge Sterling Johnson’s fascinating holding in United States v. Tucker, handed down January 8th. A defendant was charged with conspiracy to rob a Brooklyn gas station and an attempt to rob the station, both Hobbs Act offenses. (How something so criminally prosaic as robbing a gas station became a federal offense is a question I’ll leave for another day.) He was also charged with two § 924(c) offenses, one for possessing a gun during the conspiracy to rob and another for possessing a gun during the attempt to rob. If convicted of the 924(c) offenses, defendant Tambhia Tucker would have had a minimum of ten extra years added to whatever he might get for the conspiracy and the attempted robbery.

Tambhia filed a pretrial motion to dismiss both 924(c) counts, arguing that after Davis, neither a conspiracy nor an attempt could support a 924(c) conviction. Judge Johnson agreed, holding that Davis made short work of the 924(c) connected to the conspiracy. As for the attempt, the Judge noted that in the 2nd Circuit, previous holdings have established that conducting surveillance of an intended robbery target, or even just obtaining a getaway car for use in a robbery, was enough to convict for attempted Hobbs Act robbery. The Judge concluded that

it is incorrect to say that a person necessarily attempts to use physical force within the meaning of 924(c)’s elements clause just  because he attempts a crime that, if completed would be violent… The defense reasonably interprets “surveillance” as the “minimum criminal conduct,” necessary to convict for attempted Hobbs Act robbery.  Thus, the question becomes whether a person conducting surveillance of a target with the intent to commit robbery necessarily uses, attempts to use, or threatens the use of force… A person may engage in an overt act — in the case of robbery, for example, overt acts might include renting a getaway van, parking the van a block from the bank, and approaching the bank’s door before being thwarted — without having used, attempted to use, or threatened to use force. Would this would-be robber have intended to use, attempt to use, or threaten to use force? Sure. Would he necessarily have attempted to use force? No.

As Tucker has pointed out, in the Second Circuit, even less severe conduct, such as “reconnoitering” a target location or possessing “paraphernalia to be employed in the commission of the crime,” can constitute a substantial step and lead to an attempt conviction… Accordingly… this court finds that given the broad spectrum of attempt liability, the elements of attempt to commit robbery could clearly be met without any use, attempted use, or threatened use of violence.

Judge Johnson dismissed both 924(c) counts.

lastword200122This will hardly be the last word on an attempted robbery offense, but it certainly advances the debate.

Mojica v. United States, Case No. 19-35 (cert. denied Jan. 13, 2020)

United States v. Ingram, 2020 U.S. App. LEXIS 1531 (7th Cir. Jan 17, 2020)

United States v. Soto-Barraza, Case No. 15-10856 (9th Cir. Jan 17, 2020) (unpublished)

United States v. Tucker, 2020 U.S. Dist. LEXIS 3035 (E.D.N.Y. Jan. 8, 2020)

– Thomas L. Root

Handful of Interesting Criminal Issues at Supreme Court – Update for December 11, 2019

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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.

INTERESTING TIMES AT SUPREME COURT

interesting191212Banister: The Supreme Court last week heard oral arguments in Banister v. Davis, the case that asks whether a motion to amend a judgment denying a 28 USC § 2255 motion under F.R.Civ.P. 59(e) constitutes a second-or-successive § 2255 for which prior permission from the court of appeals is necessary under 28 USC § 2244.

Since the 2005 Gonzalez v. Crosby decision, a F.R.Civ.P. 60(b) motion to set aside a § 2255 judgment has almost always been considered a second-or-successive § 2255 motion for which prior permission from the court of appeals is necessary. In the last few years, some courts of appeal have also held that even the lowly F.R.Civ.P. 59(e) motion to amend a judgment denying a § 2255 motion, which postpones the deadline for filing a notice of appeal, is a second-or-successive § 2255.

This has created a conundrum for § 2255 movants. If you file a Rule 59(e) motion in a § 2255 case, it delays your deadline for appealing. But if the court treats the 59(e) as a second-or-successive § 2255, it will not delay the appeal deadline. Often, by the time you find out the court is treating it as a second-or-successive, your appeal deadline will likely have passed.

By the end of last week’s argument session, there appeared to be at least six votes for the conclusion that prisoner Greg Banister’s Rule 59(e) motion was not a “second-or-successive” habeas petition. And although that result may not ultimately change the outcome of Greg’s quest for collateral post-conviction relief, it would avoid a significant narrowing of appeal rights for federal post-conviction relief.

Holguin-Hernandez: When a defendant asks for a lower sentence than the judge ultimately imposes, does the defendant have to object to the judge’s sentence after it is announced in order to preserve the issue for appellate review?

kabuki191212It always seemed foolish to me that after vigorously arguing a sentencing issue, only to have the court rule against you, you were compelled to renew your objection after the sentence was imposed. It was sort of kabuki theater that served no purpose other than to create a procedural trap for appellants whose trial lawyers had missed making the magical incantation. F.R.Crim.P. 52(b) provides that an error not brought to the trial court’s attention may be reviewed only for “plain error.” On the other hand, Rule 51(b) explains that a “party may preserve a claim of error by informing the court – when the court ruling is made or sought – of the action the party wishes the court to take.”

Yesterday, the Supreme Court heard argument in Holguin-Hernandez v. United States to resolve a circuit split about exactly how these two rules play out against each other in federal sentencings. Holguin-Hernandez raised several claims under 18 USC § 3553(a) at sentencing, and then then appealed his additional 12-month sentence, arguing that it was unreasonable because it was “greater than necessary to effectuate the sentencing goals of … § 3553(a).” But the 5th Circuit held that because Mr. Holguin-Hernandez “failed to raise his challenges in the district court, our review is for plain error only.”

This might look like simple clear error. After all, Mr. Holguin-Hernandez surely did “raise his challenges” below – the court noted that “there is a circuit split” on the appropriate standard of review. In fact, the 5th Circuit has applied the rule that a defendant must register an objection to a sentence after it is imposed since its 2007 decision in United States v. Peltier.

Arguing for Mr. Holguin-Hernandez, attorney Kendall Turner agreed with my view (not that she cited me or anything, but any time a Supreme Court litigator and I make the same cogent argument, I feel good). She pointed out that Rule 51 plainly “tells parties how to preserve claims of error for appeal,” and “[t]here’s no need to tell the court twice.” There is no “practical merit” to a requirement that the defendant must again say “I object,” and, as Turner noted in rebuttal, the “[n]ine courts of appeals” that do not require a repeated objection “show that the Fifth Circuit’s rule is not necessary to the effective functioning of courts.” She emphasized the government’s agreement with this view, and said that the amicus was “tr[ying] to defend the judgment below on alternative grounds” – grounds that Justice Elena Kagan later pointed out are not “what the question presented is.”

slamdunk191212Post-argument commentators suggest the outcome is pretty cut-and-dried. The issue is not whether Mr. Holguin-Hernandez will carry the day, but rather – as Justice Sotomayor asked – how the Court will write its opinion to provide clear guidance to litigants.

Mojica: I am watching a petition for certiorari that is getting some traction. By now, it is clear that a conspiracy to commit a violent crime is not does not support an 18 USC § 924(c) conviction for use of a gun in a crime of violence. Post-conviction attorney Brandon Sample has filed a petition for certiorari arguing that the Supreme Court should resolve the question of whether aiding and abetting a crime of violence, which can be done without committing an act of violence, will support an 18 USC § 924 conviction.

This case has consequences for the crime of attempting to commit a crime of violence as well, and seems to be a logical extension of the implicit United States v. Davis holding last June that a conspiracy to commit a violent crime is not itself violent.

SCOTUSBlog, Argument analysis: Justices seem likely to side with Texas prisoner in important habeas case (Dec. 6)

SCOTUSBlog, Argument preview: Court likely to rule that a defendant preserves appellate challenge to length of sentence merely by arguing for lower one, but precise wording of opinion will be important (Dec. 11)

Mojica v. United States, Case No. 19-35 (Pet. for Certiorari, filed July 2, 2019)

– Thomas L. Root