Tag Archives: 18 USC 924(e)(2)

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

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

SCOTUS WILL DECIDE WHETHER DOING NOTHING IS VIOLENT

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

Supreme Court Teeing Up Some Significant Criminal Law Decisions – Update for January 15, 2024

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

SUPREMES’ JANUARY LOOKING CONSEQUENTIAL FOR CRIM LAW HOLDINGS

alicewordsmeanhumpty231122The first argument of the current Supreme Court term last October, Pulsifer v. United States, ought to be yielding an opinion in the next few weeks. The First Step Act “safety valve” case – that considers whether “and” means “and” or simply “or” – has increased importance for a lot of people who might otherwise qualify for the zero-point sentence reduction under the new USSG § 4C1.1.

A condition of § 4C1.1 is that “the defendant did not receive an adjustment under § 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise…” So does that mean the defendant is qualified unless he has a § 3B1.1 adjustment AND a CCE conviction? Or is he disqualified if he has a § 3B1.1 OR a CCE violation? There are a lot of § 3B1.1 enhancements out there, but not nearly as many CCE convictions.

Even without the § 4C1.1 angle, Ohio State University law professor Doug Berman said last week in his Sentencing Law and Policy blog that Pulsifer may “prove to be the most interesting and impactful sentencing case from the current SCOTUS Term.”

Meanwhile, other interesting Supreme Court developments are happening largely unseen. Last November, the Court granted review in Erlinger v. United States, a case which asks whether the Constitution requires that a jury (instead of the judge) find beyond a reasonable doubt that an Armed Career Criminal Act defendant’s three predicate offenses were “committed on occasions different from one another.”

May you rest in peace, Betty... stealing America's hearts did not make you ACCA-qualified.
May you rest in peace, Betty… stealing America’s hearts did not make you ACCA-qualified.

(The ACCA, for those who got here late, is a sentencing enhancement contained in 18 USC § 924(e)(2) which provides that the punishment for a felon-in-possession conviction under 18 USC § 922(g) begins with a mandatory 15 years and goes to life imprisonment if the defendant has three prior convictions for serious drug offenses or crimes of violence committed on occasions different from one another. Erlinger explores the collision of those elements with the 6th Amendment: can a judge find the ACCA applies to a felon-in-possession by a simple preponderance of the evidence, or must those elements be found by a jury beyond a reasonable doubt?)

The curious development in Erlinger is that both the Solicitor General and defendant Erlinger agree that after the Supreme Court adopted the current “standard for determining whether offenses occurred on different occasions [set forth] in Wooden v. United States” in 2022, the issue of whether the predicates were “committed on occasions different from one another” implicates a defendant’s Apprendi v. New Jersey rights to have facts that raise the statutory minimum and maximum must be decided beyond a reasonable doubt by a jury.

When both parties in a Supreme Court case agree on how the case should come out, the Court appoints a lawyer to argue the other side. SCOTUS has appointed one in this case, who will file a brief next month opposing the briefs Erlinger and DOJ have already filed.

Erlinger is important not only for the ACCA issue presented but because some on the Court have argued that where an enhanced penalty (like 21 USC § 851 drug enhancements) requires a showing of a prior conviction, due process requires that the fact of the conviction be decided by a jury. The Supremes ruled the other way in the 1998 Almendarez-Torres v. United States decision, a holding that was unaffected by the subsequent Apprendi ruling. Justice Clarence Thomas especially has criticized Almendarez-Torres, believing it is wrong, and the fact of prior convictions should be a jury question. Erlinger may give a holding that is expansive enough to address the Almendarez-Torres holding.

expert160905Last week, the Court heard argument in Smith v. Arizona, addressing whether a defendant’s 6th Amendment right to confront witnesses means that the lab expert who prepared a report on drug purity must be put on the stand to verify the report. Many courts currently permit another expert who did not conduct the test to testify as to drug purity based on the report’s findings.

The  Court seemed sympathetic to Jason Smith, an Arizona prisoner who contends that the expert’s testimony – based on a drug purity test performed by someone who wasn’t present to testify – contravened the 6th Amendment’s confrontation clause, which gives defendants in criminal cases the right to “be confronted with the witnesses against him.”

Finally, the Court will hear the argument tomorrow in Loper Bright Enterprises v. Raimondo, the case that could end Chevron deference – the notion that courts must defer to agency interpretation of statutes and rules. A change in Chevron deference could affect the Sentencing Guidelines, court deference to agency interpretation of gun laws, and court deference to BOP policies, among other changes.

Sentencing Law and Policy, Top side SCOTUS brief now files in Erlinger v. US, the case considering Apprendi’s application to part of ACCA (January 9, 2024)

Almendarez-Torres v. United States, 523 U.S. 224 (1998)

Erlinger v. United States, Case No. 23-370 (S.Ct., awaiting decision)

Smith v. Arizona, Case No. 22-899 (S.Ct., argued January 10, 2024)

SCOTUSBlog, Court appears to favor Arizona man’s confrontation clause claim (January 10, 2024)

Loper Bright Enterprises v. Raimondo, Case No. 22-451 (S.Ct., awaiting argument)

– Thomas L. Root

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

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

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