Tag Archives: 18 usc 924(c)

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

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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.

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

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