Tag Archives: 924(c)

The Fine Print Counts In A Deal With the Devil – Update for February 20, 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.

‘SHUT UP AND SIGN’ LEADS TO A LOT OF BUYER REMORSE

About 95% of all federal indictments end with a plea agreement where the defendant agrees to take a guilty plea in exchange for government promises that often seem evanescent if not illusory. If I had a dime for every prisoner who has told me that he or she only signed because defense counsel said to, I would be writing this on the beach of my private Caribbean island instead of at a desk looking out at February snow in Ohio.

plea161116Two cases decided last week remind all prisoners – including those who have already signed their plea agreements – that in a plea agreement, every promise counts. A defense attorney’s disservice to the client is never greater than when he or she rushes them into signing a “good deal” without first painstakingly walking the defendant through every provision and explaining it in detail.

Eric Rudolph (remember him?) decided to express his political views by blowing up Olympic venues and abortion clinics. The innocents he slaughtered in the process were just icing on his demented cake. After five years on the lam, Eric was caught dining out of a dumpster in Murphy, North Carolina, and was later convicted of one 18 USC § 844(i) arson offense and five companion 18 USC § 924(c) counts for using a firearm (bombs studded with nails qualify under the statute as “firearms”) in the commission of the arson.

Eric’s approach to the plea agreement was unrepentant. He said he had “deprived the government of its goal of sentencing me to death,” and that “the fact that I have entered an agreement with the government is purely a tactical choice on my part and in no way legitimates the moral authority of the government to judge this matter or impute my guilt.”

Uh-huh. Eric’s statement brings to mind old Gus McRae (Lonesome Dove) addressing outlaw Dan Suggs, who was about to be executed with his brother but expressed only hatred and contempt:

Gus McCrae: I’ll say this, Suggs; you’re the kind of man it’s a pleasure to hang. If all you can talk is guff, you can talk it to the Devil.

supermaxcell240220I’m no fan of mandatory life sentences and even less of the death penalty, but it’s amazing how malleable our principles can be when we’re punched in the face with pure-D evil. Eric undeservedly got a life sentence, which he’s spending in the mountains of Colorado (although he never gets to see them from his concrete cell at ADX Florence).

As part of the plea deal he was proud of for depriving the Feds of the death penalty, Eric waived the right to collaterally attack his sentence in any post-conviction proceeding, including under 28 USC § 2255. But because of what the Court disapprovingly calls “the evergreen litigation opportunities introduced by the categorical approach” to § 924(c) litigation,” Eric – who has apparently decided that freedom some day isn’t such a bad goal – has filed two § 2255s so far. Last week, the 11th Circuit turned down his second one as barred by the plea agreement and, in so many words, told Eric to enjoy his place in the mountains for the rest of his life.

In the last few years, courts have applied the Supreme Court’s “categorical” approach to determining whether an offense is a “crime of violence” within the meaning of 18 USC § 924(c)(3)(A), that is, “an offense that is a felony and has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Even Eric’s district court agreed that after the Supreme Court’s decision in United States v. Davis, his arson offenses were no longer crimes of violence under the federal statute (because one can be convicted of arson for burning down his or her own property). But that didn’t matter, the district court said, because Eric had given away his right to bring a § 2255 motion to correct the error.

Last week, the 11th Circuit agreed. It held that “a plea agreement is, in essence, a contract between the Government and a criminal defendant. And because it functions as a contract, a plea agreement should be interpreted in accord with what the parties intended. In discerning that intent, the court should avoid construing a plea agreement in a way that would deprive the government of the benefit that it has bargained for and obtained in the plea agreement.”

Eric’s plea deal, the 11th said, contained the common waiver of the right to bring a collateral attack on his sentence. But Eric argued that the plea deal only prohibited collateral attacks on the sentence, while his collateral attack was on the § 924(c) convictions.

dumpsterfire249220Eric’s argument was a dumpster fire, the Circuit said. “The text of 28 USC § 2255, the history of that same statute, and the habeas corpus right that it codified, all point in the same direction: 2255 is a vehicle for attacking sentences, not convictions.” Starting with the origins of English habeas corpus through the codification of 2255 up to last summer’s Supreme Court Jones v. Hendrix decision (where SCOTUS said “Congress created 2255 as a separate remedial vehicle specifically designed for federal prisoners’ collateral attacks on their sentences”), the 11th concluded that the history, the plain text of the statute “shows the same, as does Rudolph’s requested relief… [His] motions are collateral attacks on his sentences, so his plea agreements do not allow them.”

Winning his § 2255 would have been a huge deal for Eric. The 18 USC § 844(i) conviction carries a maximum 10-year sentence. Each of the § 924(c) convictions carries a maximum of life. Had Eric been allowed to bring the § 2255, he would have gone from his concrete cell straight to walking the streets (something most of his victims would never enjoy again).

*     *     *

Meanwhile, over in Louisiana, Keesha Dinkins – a front-office worker at Positive Change healthcare clinic – was swept up in a Medicaid billing fraud. She didn’t make a dime from the fraud beyond her normal salary, but her lawyer had her sign a plea agreement for 24 months and restitution of $3.5 million.

positivechange240220Despite the deal she made, she argued that she should not be on the hook to share the restitution equally with Positive Change’s owner (who got a lot more time than she did). Last week, the 5th Circuit told her that it was Positive that it would not Change her restitution:

The criminal justice system in this country relies on plea agreements to provide efficient resolutions to criminal cases. Indeed, over 95 percent of federal criminal cases are resolved without trial. It would undermine the principle that plea bargains are contracts to hold that a party can agree to a specific amount of restitution, supported by record evidence, and then in the next breath, challenge an order imposing that exact amount of restitution.

The 5th observed that her plea agreement provided that “Dinkins — not Positive Change — was responsible for the $3.5 million loss.” That is how the judgment will remain.

Rudolph v. United States, Case No 21-12828, 2024 U.S. App.  LEXIS 3278 (11th Cir., February 12, 2024)

United States v. Johnson, Case No 22-30242, 2024 U.S. App. LEXIS 3487 (5th Cir., February 14, 2024)

– Thomas L. Root

‘You Agreed to an Unconstitutional Conviction,’ 2nd Circuit Says – Update for October 26, 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.

‘WAIVING’ JUSTICE GOODBYE

plea161116Resolving criminal cases by a plea deal is more than merely common. In the federal system, 98% of all cases end in a plea agreement where the defendant agrees to plead to one or more counts in exchange for the government usually agreeing to do not much at all. Sure, the defendant usually gets a 2-3 level reduction under § 3E1.1 of the Sentencing Guidelines for “acceptance of responsibility” by pleading guilty.

But often enough, the Government’s concessions are illusory while the defendant’s obligations become onerous.  One of the unexploded mines in the agreement is the waiver.  A defendant will waive the right to appeal the conviction or sentence and to bring a collateral attack on the conviction under 28 USC § 2255.

Such a waiver probably doesn’t seem that unfair, at least where waiving the right to appeal is concerned.  A plea agreement, after all, is supposed to end litigation. But what happens when the conviction to which a defendant agrees proves down the road to be unconstitutional?

hobbsact200218That happened to Derek Cook. Derek (like a number of co-petitioners in his case) pled guilty to conspiracy to commit Hobbs Act robbery – 18 USC § 1951(a) – and using a firearm in furtherance of a crime of violence – 18 USC § 924(c). In exchange for the government’s promise not to bring any more criminal charges, Derek agreed to waive a number of rights, including the right to collaterally attack the convictions and sentences under 28 USC § 2255.

But after the Supreme Court held in the 2015 Johnson v. United States case that the residual clause of the Armed Career Criminal Act was unconstitutionally vague, Derek filed a § 2255 motion in which he correctly argued that his conspiracy charge could no longer be a defined as a crime of violence supporting a § 924(c) conviction. The district court sat on the petition until SCOTUS agreed, definitively holding that, constitutionally, conspiracy could not be the basis for a § 924(c) in the 2019 United States v. Davis decision.

After that, the district court conceded that Derek’s conviction for using a firearm in furtherance of a crime of violence was unconstitutional. But that didn’t matter, the Court said, because Derek had waived his entitlement to a conviction that was constitutional by signing a plea agreement containing his commitment not to file a § 2255 motion.

Last week, the 2nd Circuit agreed. The Circuit wrote that “while we have not yet considered the precise question of whether collateral-attack waivers are enforceable in the wake of Johnson and Davis, we have made clear that such waivers are generally enforceable in the face of evolving judicial precedent… [T]he possibility of a favorable change in the law after a plea is simply one of the risks that accompanies pleas and plea agreements. This principle follows from the fact that plea agreements, like all contracts, allocate risk between the parties – and we are not free to disturb the bargain the parties strike.

pleadeal180104“The enforceability of a collateral-attack waiver,” the 2nd held, “turns on whether the petitioner’s plea was knowing and voluntary, not the nature of any subsequent legal developments… Petitioners counter that they have a due process right not to be convicted of a non-existent offense. But the question is not whether Petitioners have a right not to be convicted of a non-existent offense. It is whether Petitioners have a right to bring a collateral attack when, in exchange for valid consideration, they executed binding plea agreements admitting their criminal conduct and waiving their ability to challenge the resulting convictions. And on that score, our precedent is clear that ignorance of future rights is unavoidable and not a basis for avoiding a plea agreement.”

Cook v. United States, Case Nos. 16-4107 et al, 2023 U.S.App. LEXIS 27383 (2d Cir., October 16, 2023)

– Thomas L. Root

More Rumors – How Many Can You Identify as True? – Update for October 24, 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.

RUMORS II – TAKE OUR INMATE.COM RUMOR QUIZ

In prison, “inmate.com” is an information site of almost mythical status. It’s omniscient, omnipresent, omnivorous, and almost always, always wrong.

Unsurprisingly, there really is an inmate.com, although it bears no resemblance to the ethereal website of legend.

legend231023On November 1, the Guidelines amendments proposed last April will become effective. Under 28 USC § 994(p), amendments proposed by May 1 must become effective by November 1 unless Congress votes otherwise. Congress has not done so, and with the House in turmoil and no apparent Senate interest in stopping the amendments, the amendments will be effective in eight days.

Somehow, in the 35 years we’ve had the Sentencing Guidelines, the date of “November 1” has taken on a mystical, legendary quality. This year’s no different, as my email inbox continues to be stuffed with questions about what may happen ten days from now.

trueorfalse231024Take our true-or-false test to see how current you are on the latest November 1st rumors now being featured on  Inmate.com (the mythical one, not the penpal site):


(1) True or false: On November 1, the meth guidelines will be lowered by doing away with the “ice” enhancement.

FALSE. A district judge in SD Mississippi refused a few months ago to enhance for meth purity. It happens that this Judge is also Chairman of the Sentencing Commission, but nothing has been proposed on meth, let alone passed.

(2) True or false: On November 1, a new law will go into effect making 18 USC 924(c) prisoners eligible for FSA credits.

FALSE. The only way for 924(c) people to get FSA credits would be for Congress to amend the First Step Act. There is no proposal in front of either the House or the Senate to do that.

(3) True or false: On November 1, Congress is going to do away with the crime of conspiracy.

FALSE. Such a proposal, if anyone were daft enough to propose it, would never even make it to a committee hearing.

(4) True or false: On November 1, Biden is going to give all federal prisoners a year off of their sentences because of how miserable it was to be locked up for COVID.

FALSE. No one has even suggested such a thing, let alone seriously proposed it.

(5) True or false: On November 1, the new 65% law is going into effect.

FALSE. There ain’t no 65% law, never has been a 65% law, and probably never will be a 65% law.

(6) True or False:  On November 1, the Time Reduction Fairy will appear to magically commute your sentence to ‘time served.’

FALSE, but no more false than all the other November 1 rumors.

timereductionfairy231003Do you detect a trend here? This year, more happens on the 1st of November than All Saint’s Day… but not much. A couple of Guideline amendments go into effect and become retroactive. That’s good. Another one – compassionate release – will help a lot of people. But nothing will come out of Congress, nothing from the White House, very little from the BOP, and just the predictable annual amendment list from the Sentencing Commission.

And thus it will ever be.

– Thomas L. Root

“Hold My Beer,” 4th Circuit Says in Compassionate Release Case – Update for August 18, 2023

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

APPEALS COURT TAKES GRANT OF COMPASSIONATE RELEASE MOTION INTO ITS OWN HANDS

Appellate courts are usually much more circumspect in reversing trial courts, vacating a decision but not explicitly directing the district judge how to decide things on remand.

holdmybeer230818Not that the savvy district judge doesn’t read between the lines. An appellate court vacatur with a suggestion – often implicit – that the district court needs to think about the case differently usually leads to a different ruling the second time around.

Not always. When Kelvin Brown was convicted of drug trafficking nine years ago, the jury also found him guilty of two 18 USC § 924(c) counts as well. Back then, the first § 924(c) carried a mandatory minimum sentence starting at five years. The second conviction – even if it resulted from events the next day – required an additional mandatory minimum of 25 years. The district court thus sentenced Kelvin to 30 years in prison for his two § 924(c) convictions and stacked another 27 years on him for the various drug offenses.

Six years later, during the height of the COVID crisis, Kelvin moved for compassionate release under 18 USC § 3582(c)(1)(A). The judge turned him down flat without even asking the government to respond. Kelvin appealed, and the 4th Circuit remanded, directing the district court to consider the fact that Kelvin got 20 more years for the gun than he would have had to get after the First Step Act passed in 2018 in light of the Circuit’s decision in United States v. McCoy.

extraordinary220719The district court denied Kelvin a second time in December 2021, again neglecting to address the whopping § 924(c) sentences despite (as the 4th Circuit put it) “our express recognition in our previous remand order that McCoy – and its holding that disparate § 924(c) sentences can constitute “extraordinary and compelling reasons” for release – is relevant to this case.”

Two days ago, the 4th Circuit threw up its hands and told the district judge to watch how it’s done. The 4th cut Kelvin’s sentence by 20 years (which still leaves him with 37 years to do), both expressing its frustration and apologizing for its interference:

We hold that the district court abused its discretion by denying Brown’s motion because his disparate sentence creates an “extraordinary and compelling reason” for his early release, and the § 3553(a) sentencing factors overwhelmingly favor a sentence reduction. We therefore reverse and remand with instructions to rectify that disparity and reduce Brown’s prison sentence by twenty years.

Ordinarily, we understand that district courts wield broad discretion in deciding compassionate release motions… So, in a different case, we might remedy the district court’s error by remanding for the district court to consider Brown’s disparate sentence in the first instance. Yet the district court here has already had two opportunities to review Brown’s compassionate release motion: its initial denial of Brown’s motion in July 2020, and its second denial in December 2021 after we remanded Brown’s case for further consideration. Each time, the district court neglected to address Brown’s disparate sentence.

The Circuit also found that Kelvin’s disparate sentence strongly affects the 18 USC § 3553(a) sentencing factors: “The First Step Act‘s amendment to § 924(c) reflects Congress’s judgment that sentences like Brown’s are dramatically longer than necessary or fair,” the appeals court said, “and, in turn, are not necessary to serve the ends of § 3553(a)(2).”

dungeon180627Notable in the 4th’s analysis is its holding that the need for Kelvin’s longer sentence has been called into question because COVID-19 created hardship in prison life “not contemplated by the original sentencing court” and that those hardships have “undoubtedly increased his prison sentence’s punitive effect.” The Circuit observed that Kelvin’s facility was placed on lockdown in response to the pandemic, during which he was “confined to his cell for 22.5 hours a day,” and the recreation areas were closed.” The majority opinion said, “Even if those factors have been mitigated by the evolving circumstances of the pandemic, that they plagued Brown at any point has made his incarceration harsher and more punitive than would otherwise have been the case… Therefore, Brown’s drastic sentence, which might have been ‘sufficient but not greater than necessary’ before the coronavirus pandemic, may no longer be justified.”

The opinion also emphasizes that Kelvin’s “one disciplinary infraction throughout his incarceration—a fact the district court also failed to mention—casts further doubt on the court’s concern for the safety of the community. And while the court did briefly consider Brown’s rehabilitative efforts” – which included a stack of programming and mentoring work to his credit – “it failed to weigh how those efforts ameliorate any risk posed to Brown’s community upon his release.” Citing Pepper v. United States, the Circuit ruled that such “postsentencing rehabilitation minimizes the need for the sentence imposed to protect the public from further crimes of the defendant, and provides the most up-to-date picture of Brown’s history and characteristics, which also favors a sentence reduction.”

illdoitmyself230818The 2-1 opinion is remarkable not only for the fact that an appellate court took the unusual step of granting a compassionate release motion itself but because of the reliance on the harshness of Bureau of Prisons conditions during the pandemic and the elevation of post-sentencing conduct as a factor in § 3553(a) analysis in reaching its decision.

United States v. Brown, Case No. 21-7752, 2023 U.S. App. LEXIS 21403, at *24-25 (4th Cir. Aug. 16, 2023)

United States v. McCoy, 981 F.3d 271 (4th Cir. 2020)

Pepper v. United States, 562 U.S. 476 (2011)

– Thomas L. Root

When Murder Is Nonviolent – Update for July 18, 2023

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IS § 924(c) A VIOLENT CRIME?

I still get questions from people asking whether 18 U.S.C. § 924(c) remains a “crime of violence.”

The answer is that § 924(c) – which criminalizes the use of a gun during a crime of violence or drug trafficking offense – has never itself been a “crime of violence.”

cmonman230718“C’mon, man!” I hear people out in TV Land saying, “how can using a gun in a crime not be a “crime of violence?”

To you I say, “Welcome to federal criminal law.”

To those prisoners with § 924(c) charges because of an underlying drug offense, violence has nothing to do with nothing. The § 924(c) applies because you had a gun in the closet while you sold meth out of your bedroom. Or because you figured it’d be cool to have a Lorcin .380 stuck in your waistband where its principal threat was to your reproductive organs. You can’t have a gun while you’re selling controlled substances. It’s illegal. (Of course, selling controlled substances is illegal, too, but that’s a topic for another day).

To those people with § 924(c) charges because of an underlying crime of violence, the § 924(c) is not the “crime of violence.” It’s just a conviction resulting from another “crime of violence.”

Section 924(c) does define “crime of violence:” It’s (1) a felony; that is either

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

violence180508But after a line of Supreme Court decisions from Johnson v. United States through last year’s United States v. Taylor decision, alternate definition (b) has been invalidated as unconstitutionally vague. As a result, conspiracies to murder are not crimes of violence, because you can conspire with your buddies all night without using or threatening someone with the use of force. Attempts to rob a fellow drug dealer are not crimes of violence because you can complete an attempt just by walking up to the victim’s door with a gun in your hand and evil on your mind. In fact, some folks are starting to think that nothing is a “crime of violence” anymore.

Under the circumstances, Tiffany Janis could be forgiven for thinking that her crime wasn’t violent, either. All she did was to come home, catch her cheatin’-heart husband in flagrante delicto, and express her displeasure by shooting him a few times.

Because the domestic discord played out on Indian reservation land, it ended up in federal court, where Tiffany was convicted of 2nd-degree murder and discharging a gun during and in relation to a crime of violence.

In a § 2255 motion, Tiffany argued that her 2nd-degree murder conviction was not a crime of violence, meaning that her § 924(c) conviction had to be vacated.

Tiffany’s murder conviction required that the government show she had killed another person “with malice aforethought.” She argued that killing a person “with malice aforethought” can be done without “us[ing] force against the person or property of another,” as required by § 924(c)(3)(A). Under SCOTUS’s Borden v. United States holding, Tiffany maintained, § 924(c)’s force clause requires “directing or targeting force” at another person or their property. The 8th’s 2nd-degree murder precedent, however, showed that “malice aforethought” can be established without a perp “targeting” force in the way that the force clause, as interpreted by Borden, requires.

The 8th Circuit disagreed, ruling:

Homicides committed with malice aforethought involve the “use of force against the person or property of another,” so 2nd-degree murder is a “crime of violence.” This holding implements the Supreme Court’s command to interpret statutes using not only “the statutory context, structure, history, and purpose,” but also “common sense…”

violent160620“Murder is the ultimate violent crime – irreversible and incomparable in terms of moral depravity,” the Court said. Borden quoted from an opinion by then-Judge Alito holding “the quintessential violent crimes, like murder or rape, involve the intentional use’ of force… Malice aforethought, murder’s defining characteristic, encapsulates the crime’s violent nature.”

Murder is still a crime of violence. Only in federal law could such a question be debatable.

Janis v. United States, Case No. 22-2471, 2023 U.S. App. LEXIS 16993 (8th Cir. July 6, 2023)

– Thomas L. Root

‘Don’t Understand 924(j), Just Do As It Directs,’ SCOTUS Says – Update for June 19, 2023

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CONGRESS MAKES NO SENSE, BUT WE’LL FOLLOW THE STATUTE ANYWAY

Anyone who believes that Congress crafts the laws it passes with wisdom and expertise needs look no further than 18 USC § 924, which sets out penalties for gun offenses.

chewbacca230619The penalties in 18 USC § 924(c) for using or carrying a gun during a drug or violent crime must be consecutive to any other sentence. But if the defendant uses the gun to murder someone during the § 924(c) offense, he or she is punished under 18 USC § 924(j).  While § 924(j)’s maximum penalty – death – is more severe than § 924(c)’s maximum of life without parole, § 924(j) has no mandatory minimum and does not require that the sentence be consecutive to any other sentence.

In other words, it seems from a straight reading of the statute that a defendant is better killing some with his gun during a Hobbs Act robbery than he is just keeping the gun in his, which punishes a § 924(c) violation “where death results,” do not.

Remember the Chewbacca defense?  That. Does. Not. Make. Sense.

Last Friday, the Supreme Court shrugged and said it doesn’t matter whether it makes sense or not. Section 924(j) means what it says, or more accurately, means what it doesn’t say.

In Lora v. United States, the high court held that the sentence imposed by § 924(j) may be either consecutive or concurrent (like the sentence for almost all other criminal offenses, as permitted by 18 USC § 3584(a)).

Efraim Lora was convicted of a violation of § 924(j)(1), which penalizes using a gun during a drug or violent crime to “cause the death of a person” where “the killing is a murder.” Efraim’s underlying offense was drug trafficking. At sentencing, the District Court concluded that it lacked discretion to run Efraim’s drug and § 924(j) sentences concurrently because § 924(c)’s requirement for consecutive sentences obviously governs § 924(j) sentences, too.  

violent160620After all, § 924(j) says, “A person who, in the course of a violation of subsection (c), causes the death of a person through the use of a firearm…”  It stands to reason that because subsection (j) refers to subsection (c), then subsection (j) must import subsection (c)’s mandatory consecutive sentences.

The District Court’s conclusion represented an attempt to make subsection (c) and subsection (j) make sense together.  Five circuit courts of appeal have held the same, which only two – the 10th and 11th – had held otherwise.

Last Friday’s Supreme Court opinion changes all of that. Justice Alito, writing for a unanimous court, noted the Government’s complaint that it is “implausible” that “Congress imposed the harsh consecutive-sentence mandate under subsection (c) but not subsection (j), which covers more serious offense conduct.” Yet, his opinion says, “that result is consistent with other design features of the statute.”

The Supremes observed that “Congress plainly chose a different approach to punishment in subsection (j) than in subsection (c). Subsection (c), first enacted in 1968, is full of mandatory penalties… Subsection (j), by contrast, generally eschews mandatory penalties in favor of sentencing flexibility… Even for murder, subsection (j) expressly permits a sentence of ‘any term of years.’ This follows the same pattern as several other provisions enacted alongside subsection (j) in the Federal Death Penalty Act of 1994.”

Justice Alito’s opinion admitted that “Congress could certainly have designed the penalty scheme at issue here differently. It could have mandated harsher punishment under subsection (j) than under subsection (c). It could have added a consecutive-sentence mandate to subsection (j). It could have written subsection (c)’s consecutive-sentence mandate more broadly. It could have placed subsection (j) within subsection (c). But Congress did not do any of these things. And we must implement the design Congress chose.”

massrelease161208So what does this mean for people serving consecutive sentences for § 924(j)? Unless you’re still within a year of conviction – so you can use your § 2255 petition to raise the issue – you probably would have to proceed on a 28 USC § 2241 petition for habeas corpus. The limits of what you can do in a § 2241 petition may be decided in the next two weeks when the Supreme Court decides Jones v. Hendrix. But many courts have held that a § 2241 petition cannot be used like this unless the statutory interpretation means you’re innocent of the offense, not just of the sentence. No doubt, there is plenty of litigation to come on this.

Bloomberg, Justices Clarify Sentencing for Gun-Related Drug Crimes (June 16, 2023)

Lora v. United States, Case No 22-49, 2023 US LEXIS 2548 (June 16, 2023)

– Thomas L. Root

Late is Still Late, But Early Is Not, 4th Circuit Says – Update for May 25, 2023

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2255 THAT WAS TOO EARLY IS NOT TOO LATE, 4TH CIRCUIT SAYS

hobbsact200218Andra Green was convicted of a series of Hobbs Act robberies, attempted robberies and conspiracies, along with several 18 USC § 924(c) offenses for using a gun during a crime of violence. Such § 924(c) offenses come with mandatory consecutive sentences and are thus beloved by prosecutors.

The reason for prosecutorial affection is illustrated in Andra’s case. Because someone died during one of the Hobbs Act robberies – a violation of 18 USC § 924(j) – Andra was sentenced to life in prison.

But a few years after Andra’s conviction, the Supreme Court decided Johnson v. United States in 2015. Johnson held that the residual clause of the definition of “crime of violence” – the part that said that a crime was violent if it carried a substantial likelihood that physical violence would result – was so vague as to be unconstitutional. Andra connected the dots – like a lot of prisoners did at the time – and figured that if Johnson invalidated the crime-of-violence residual clause for the Armed Career Criminal Act, the similarly-worded residual clause in 18 USC § 924(c) must be equally unconstitutional.

Andra filed a 28 USC § 2255 motion to vacate his § 924(c) and § 924(j) convictions based on his notion that Johnson should logically extend to § 924(c) crimes of violence. Such a § 2255 motion must be filed within strict time limits, such as within a year of the underlying conviction becoming final or within a year of a new constitutional holding that invalidates the conviction. (You can read the limitations in 28 USC § 2255(f)).

Andra was wrong: Johnson did not affect § 924(c) at all. The government argued that Andra’s petition was hopelessly late because it could not rely on Johnson, but instead had to be filed within a year of conviction (and it was four years late for that).

canary230525But Andra was prescient. Johnson may have had nothing to do with § 924(c) offenses directly, but it was the canary in the mine: the Supreme Court over the next few years would extend Johnson’s logic to 18 USC § 16(b) in Sessions v. Dimaya and then to § 924(c) in United States v. Davis. Andra’s petition was held in abeyance by the District Court and later the Fourth Circuit as all of this unfolded. Four years after Johnson, Davis held that the residual clause in § 924(c)’s definition was unconstitutionally vague as well.

Clearly, Andra’s § 2255 motion was untimely when he filed, because Johnson was not a constitutional ruling that would restart Andra’s § 2255 clock. That, as the 4th Circuit put it, made “the key question… whether Davis renders Green’s Johnson-based motion timely” after the fact.

Last week, the 4th said that being early ended up making Andra on time. For starters, it said, “[t]he Davis Court extended the holding of Johnson” to invalidate the “analogous” residual clause in § 924(c). Indeed, in concluding that § 924(c)’s residual clause is unconstitutionally vague, the Supreme Court noted that the clause “bear[s] more than a passing resemblance” to the ACCA residual clause it had struck down in Johnson. Davis thus confirmed what Andra’s motion asserted: that the vagueness analysis in Johnson also called into question the constitutionality of § 924(c)’s residual clause.

early230525The Circuit said the text of § 2255(f)(3) “is silent on how to address this particular scenario, where a petitioner filed a § 2255 motion within a year of a Supreme Court decision recognizing a closely analogous right, and the Supreme Court then recognized the specific right at issue during the pendency of the § 2255 proceedings.” The purpose of the statute of limitations supports extending the limitations period here, the 4th held, because the goal of the limitations in § 2255(f) is to “curb the abuse of the statutory writ of habeas corpus… including undue delays. A petitioner certainly does not contribute to undue delays by filing a § 2255 motion too early. And a petitioner does not abuse the writ by raising an argument, based on very persuasive but non-controlling Supreme Court precedent that the Supreme Court then endorses in a controlling decision.”

United States v. Green, Case No. 16-7168, 2023 U.S.App. LEXIS 11961 (4th Cir., May 16, 2023)

– Thomas L. Root

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

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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

Man Bites Dog; 2255 Movants Win A Few – Update for February 23, 2023

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PAIR OF 2255 WAIVER RULINGS VALUE SUBSTANCE MORE THAN PROCEDURE

Two appellate decisions last week – from the 4th and 10th Circuits – reminded even the most jaded critics of criminal justice that sometimes fairness can triumph.

robbbq230223In the 4th Circuit, Donzell McKinney and friends robbed a barbeque joint with a gun back in 2011. He pled guilty to Hobbs Act conspiracy and using a gun in a crime of violence under 18 USC 924(c). In the plea agreement, the government dropped the Hobbs Act robbery count. After the 2015 Johnson v United States ruling, Donzell filed a § 2255 motion arguing that the 924(c) count should be vacated.

After over five years of being held in abeyance, Donzell’s district court agreed that he was innocent of the § 924(c) because of the Supreme Court’s 2019 United States v. Davis ruling that conspiracy to commit a violent crime was not itself violent and thus could not support a § 924(c) conviction. But that didn’t help Donzell, the district court ruled, for a bunch of reasons including that his plea agreement waived his right to bring the § 2255, Donzell procedurally defaulted the claim, and anyway, if Donzell had been able to raise the issue back in 2011, the government would not have dismissed the Hobbs Act robbery count but instead would have hitched the § 924(c) charge to that count instead of the conspiracy.

Last week, the 4th Circuit reversed it all, ruling that enforcement of Donzell’s appeal waiver to bar his claim would result in a miscarriage of justice and that he had shown both cause and prejudice for his procedural default.

An appellate court can refuse to enforce an appeal waiver when a sentence is imposed in excess of the statutory maximum or is based on a constitutionally impermissible factor. Among these is the most fundamental reason, where enforcing an appeal waiver would result in a miscarriage of justice. Donzell’s § 924(c) conviction and punishment are for an act that the law does not make criminal. “There can be no room for doubt,” the 4th said, “that such a circumstance inherently results in a complete miscarriage of justice and presents exceptional circumstances that justify collateral relief under 28 USC § 2255.”

Robber160229But, the government protested, Donzell really was guilty of the robbery, and would have pled to it if the government hadn’t agreed to drop it. So he wasn’t prejudiced by the Davis error.

That’s not how it works, the Circuit replied. “Where the record in a case shows that a count of conviction is now invalid, no precedent authorizes a court to then rely on a dismissed count to negate that demonstrated prejudice. Rather, in determining prejudice for purposes of excusing procedural default, the court asks whether it is likely a defendant, had he known of the error, would not have pled guilty to the count of conviction. The court does not look to whether it is likely a defendant, had he known of the error, would not have pled guilty to a dismissed count.”

Fraud170406Meanwhile, in the 10th Circuit, Joe Chatwin pled guilty to bank fraud and a § 924(c), an unusual combination to be sure. Joe’s offenses were pretty prosaic, identity theft, turning a $30 cashier’s check into a $30,000 check that he used to buy an RV from a guy, but he apparently pulled a gun when the Marshals came to arrest him. The 18 USC § 111 assaulting a fed charge was dismissed, but it underlay the § 924(c) conviction.

After Johnson, Joe filed a bare-bones § 2255 that said simply, “police chase not a violent crime.” He later amended after Davis to argue that the district court had relied solely on the § 924(c) residual clause (which Davis held was unconstitutionally vague). The government never argued Joe’s merits, instead moving to dismiss the § 2255 motion because Joe had “knowingly and voluntarily waived his § 2255 rights in a Rule 11(c)(1)(C) plea agreement.”

Lose200615The district court agreed with the government, holding that enforcing the waiver would not be a miscarriage of justice because Joe’s Davis claim was a dead-bang loser. Joe’s appealed, raising for the first time the argument that his collateral-attack waiver must fail because his conviction-based § 2255 motion fell outside the scope of his plea agreement collateral-attack waiver. He argued that his waiver barred any collateral attacks to his sentence but not to his convictions.

The 10th applied “plain error” review to the issue Joe hadn’t argued in the district court, but it agreed Joe was right that the waiver applied only to challenging the sentence, not the conviction. The government argued the error did not affect Joe’s “substantial rights,” that is, it did not change the outcome of the proceeding because Joe would have lost his § 2255 motion anyway.

Plain error in real life...
Plain error in real life…

But because the district court only addressed the motion to dismiss, not the merits of the § 2255 claim, the Circuit held that “the ‘outcome of the proceeding’ here means the outcome of the motion to dismiss—not matters beyond that.” The 10th ruled that Joe “has shown substantial prejudice based on the dismissal of his § 2255 motion. He has shown that the outcome of ‘the proceeding’ would have been different in that the district court could not have dismissed on the issue of the collateral-attack waiver’s scope. Absent plainly erring on the waiver’s scope, the district court could not have dismissed on that ground.”

United States v. McKinney, Case No. 20-6396, 2023 U.S. App. LEXIS 3715 (4th Cir. Feb. 16, 2023)

United States v. Chatwin, Case No. 21-4003, 2023 U.S. App. LEXIS 3889 (10th Cir. Feb. 17, 2023)

– Thomas L. Root

Attempted Crime of Violence Does Not Support 18 USC 924(c) – Update for June 22, 2022

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TAYLOR-MADE DECISION

The Supreme Court ruled yesterday in a 7-2 decision that an attempt to commit a crime of violence is not in itself a “crime of violence” for purposes of 18 USC § 924(c).

gunknot181009A little review: under 18 USC § 924(c), possessing, using or carrying a gun during and in relation to a crime of violence or drug offense will earn a defendant a mandatory minimum consecutive sentence of at least five years (and much worse if the defendant waves it around or fires it). A “crime of violence” is one that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”

This fairly straightforward question of what constitutes a crime of violence has spawned a series of Supreme Court decisions since Johnson v. United States in 2015. The last words on the subject were United States v. Davis, a 2019 decision holding that conspiracy to commit a crime of violence was not a “crime of violence” that would support a conviction under 18 USC § 924(c), and last summer’s Borden v. United States (an offense that can be committed recklessly cannot be a “crime of violence,” because a “crime of violence” has to be committed knowingly or intentionally).

The Court has directed that interpretation of whether a statute constitutes a crime of violence is a decision made categorically. The Court’s “categorical approach” determines whether a federal felony may serve as a predicate “crime of violence” within the meaning of the statute if it “has as an element the use, attempted use, or threatened use of physical force.” This definition is commonly known as the “elements” clause.

The question is not how any particular defendant may have committed the crime. Instead, the issue is whether the federal felony that was charged requires the government to prove beyond a reasonable doubt as an element of its case, that the defendant used, attempted to use, or threatened to use force.

knifegunB170404This approach has caused a lot of mischief. The facts underlying yesterday’s decision, Taylor v. United States, were particularly ugly. Justin Taylor, the defendant, went to a drug buy intending to rip off the seller of his drugs. Before he could try to rob the seller, the seller smelled a setup, and a gunfight erupted. Justin was wounded. The drug dealer was killed.

Because Justin never actually robbed the seller – he didn’t have time to do so – he was convicted of an attempted Hobbs Act robbery under 18 USC § 1951 (a robbery that affects interstate commerce) and of an 18 USC § 924(c) offense for using a gun during a crime of violence. Justin argued that while he was guilty of the attempted Hobbs Act robbery, he could not be convicted of a § 924(c) offense because it’s possible to commit an attempted robbery without actually using or threatening to commit a violent act. Under Borden and Davis, Justin argued, merely attempting a crime of violence was not itself a crime of violence.

Yesterday, the Supreme Court agreed.

Justice Gorsuch ruled that an attempted Hobbs Act robbery does not satisfy the “elements clause.” To secure a conviction for attempted Hobbs Act robbery, the government must prove that the defendant intended to complete the offense and completed a “substantial step” toward that end. An intention, the Court said, is just that and 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. This is true even if the facts would allow the government to do so in many cases (as it obviously could have done in Taylor’s case).

maskgun200218The Court cited the Model Penal Code’s explanation of common-law robbery, which Justice Gorsuch called an “analogue” to the Hobbs Act. The MPC notes that “there will be cases, appropriately reached by a charge of attempted robbery, where the actor does not actually harm anyone or even threaten harm.” Likewise, the Supreme Court ruled, no element of attempted Hobbs Act robbery requires proof that the defendant used, attempted to use, or threatened to use force.

Taylor raises interesting questions about “aiding and abetting.” In Rosemond v. United States, the Supreme Court ruled that a defendant can be convicted as an aider and abettor under 18 USC § 2 “without proof that he participated in each and every element of the offense.” Instead, Congress used language in the statute that “comprehends all assistance rendered by words, acts, encouragement, support, or presence… even if that aid relates to only one (or some) of a crime’s phases or elements.”

Taylor’s finding that attempted Hobbs Act robbery cannot support a § 924(c) conviction because a defendant can be convicted of the attempt without proof that he or she used, attempted to use, or threatened to use force, then it stands to reason that if the defendant can be convicted of aiding or abetting a Hobbs Act robbery without proof that he or she used, attempted to use, or threatened to use force, “aiding and abetting” likewise will not support a § 924(c) conviction.

In separate dissents, Justice Clarence Thomas and Justice Samuel Alito argued that the lower court should have been reversed. Justice Thomas said the court’s holding “exemplifies just how this Court’s ‘categorical approach’ has led the Federal Judiciary on a ‘journey Through the Looking Glass,’ during which we have found many ‘strange things.’”

violence180508Indeed, a layperson would find it baffling that Justin could shoot his target to death without the government being able to prove he used a gun in a crime of violence. But Justice Thomas’s ire is misplaced. One should not blame the sword for the hand that wields it. Congress wrote the statute. It can surely change it if it is not satisfied with how the Court says its plain terms require its application.

United States v. Taylor, Case No. 20-1459 2022 U.S. LEXIS 3017 (June 21, 2022).

– Thomas L. Root