Tag Archives: 924(c)

Two Very Distinguished Cases – Update for May 13, 2021

Leave a comment

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

A SOLITARY RAY OF LIGHT…

There was a single bright spot in otherwise dreary judicial news last week.

light210513When an appeals court 3-judge panel issues a precedent-making opinion, no other 3-judge panel can invalidate it. Only the court of appeals sitting en banc (all of the active judges as one court) can do that.

So when a 3-judge panel does something stupid, what can another 3-judge panel do about it?

Last week, a 6th Circuit panel employed one method of finessing a way around a lousy opinion: it distinguished it. That means the judges found some factual difference that let them rule the way they thought they should rule, regardless of the prior opinion.

Ian Owens was charged with one count of bank robbery. He wouldn’t take a deal, so the government added an 18 USC § 924(c) count for using a gun in the commission of a violent crime. He still wouldn’t deal, so the government added another. By the time Ian went to trial, the government had heaped five § 924(c) counts on top of the robbery. Because the case was decided much before the First Step Act changed things around, the § 924(c) counts were stacked, with the second through fifth counts each carrying a mandatory 300 months. Ian was sentenced to 1370 months (114 years).

When Ian filed a compassionate release motion claiming that he wouldn’t get that kind of time after the First Step Act ended § 924(c) stacking and that his co-defendants all got a lot less time than he did, he ran into two prior 6th Circuit decisions, United States v. Tomes and United States v. Wills. Both of those cases said First Step changes in 18 USC § 924(c) could not be used as extraordinary and compelling reasons for a compassionate release sentence reduction. The district court did not consider Ian’s evidence of rehabilitation, any other bases for a finding of extraordinary and compelling reasons, or the 18 USC § 3553(a) sentencing factors.

hares210513Last week, the 6th Circuit split hairs in a split decision, and explained away Tomes and Wills. In those cases, the Circuit said, the prisoner argued only that the First Step Act changed § 924(c) stacking. But Ian had three reasons supporting his extraordinary and compelling showing, not just one. That made his case “factually distinguishable,” the 6th said. “Owens points to the fact that his lengthy sentence resulted from exercising his right to a trial and to his rehabilitative efforts as additional factors that considered together constitute an extraordinary and compelling reason meriting compassionate release,” the Circuit said. “Further, the district court in Owen’s case did not consider these other factors and, instead, summarily concluded that his First Step Act 403 argument was meritless.”

It was not necessarily meritless, the 6th said. “In making an individualized determination about whether extraordinary and compelling reasons merit compassionate release, a district court may include, along with other factors, the disparity between a defendant’s actual sentence and the sentence that he would receive if the First Step Act applied…”

The decision seems to have jumped onto a rather technical difference between Ian’s situation and the prior cases, but those prior decisions largely stink. Now, the odor has been contained, or – as lawyers like to say – Tomes and Wills have been “limited to their facts.”

United States v. Owens, Case No 20-2139, 2021 US App LEXIS 13656 (6th Cir May 6, 2021)

– Thomas L. Root

Hobbs Is Violent, Hobbs Is Not Violent – Update for May 3, 2021

Leave a comment

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

THE TWO FACES OF HOBBS

Two cases decided in the past few weeks illustrate the strange world of Hobbs Act robbery.

janus210502The Hobbs Act, a post-war legacy of Congressman Sam Hobbs (D-Alabama) federalized robbery of the corner candy store. Sam was a man of his time, close friends of J. Edgar Hoover (and sponsor of a bill that would have let the FBI wiretap anyone suspected of a felony, which ultimately did not pass).

The Hobbs Anti-Racketeering Act of 1946 amended the Anti-Racketeering Act of 1934 after the Supreme Court held in United States v. Teamsters Local 807 that Congress meant to exempt union extortion from criminal liability.  Congress did not so intend, and Sam Hobbs sponsored a bill that made sure the Court got the message.

Like its predecessor, the Hobbs Act prescribes heavy criminal penalties for acts of robbery or extortion that affect interstate commerce. The courts have interpreted the Hobbs Act broadly, requiring only a minimal effect on interstate commerce to justify the exercise of federal jurisdiction. That Clark bar you stole at gunpoint?  It was made over in Altoona, Pennsylvania, by the Boyer Candy Co. Inasmuch as you robbed it from a confectioner in Podunk Center,  Iowa, your robbery affected interstate commerce. Presto – a Hobbs Act robbery.

clark2120503The Hobbs Act has been used as the basis for federal prosecutions in situations not apparently contemplated by Congress in 1946. Just ask Earl McCoy.

Earl rode around in the car while his brothers committed armed home invasions, stealing TVs and the such from Harry and Harriet Homeowner at gunpoint. Convicted of Hobbs Act robbery, Hobbs Act conspiracy, attempted Hobbs Act robbery and of four counts of using a gun in the commission of the crimes, Earl got sentenced to 135 years.

That’s only 15 years less than Bernie Madoff got for a $65 billion swindle, proving Earl was probably in the wrong business. Of course, Bernie didn’t use a gun. It was the gun that got Earl, five stacked 18 USC § 924(c) counts that added 107 years to his sentence. The First Step Act changed the stacking law, so the same offense would net Earl only 35 years today, still substantial time but at least servable in a normal lifetime.

Ernie appealed his conviction, arguing that the attempted robberies, the conspiracy, and aiding and abetting could not support 18 USC 924(c) convictions. Ten days ago, the 2nd Circuit gave him a split decision.

violence181008The 2nd agreed that after United States v. Davis, Hobbs Act conspiracy no longer supports a § 924(c) conviction. No surprise there. But the Circuit held that attempted Hobbs Act robbery and, for that matter, aiding and abetting a Hobbs Act robbery, was a crime of violence that supports a § 924(c) conviction.

Earl argued that one could attempt a Hobbs Act robbery without ever using force. After all, scoping out a store to rob while carrying a gun is enough to constitute an attempt, and no violence was ever used. Doesn’t matter, the 2nd said. To be guilty of Hobbs Act attempted robbery, a defendant necessarily must intend to commit all of the elements of robbery and must take a substantial step towards committing the crime. Even if a defendant’s substantial step didn’t itself involve the use of physical force, he or she must necessarily have intended to use physical force and have taken a substantial step towards using physical force. That constitutes “attempted use of physical force” within the meaning of § 924(c)(3)(A).

For aiding-and-abetting to be enough to convict someone of a crime, the underlying offense must have been committed by someone other than the defendant, and the defendant must have acted with the intent of aiding the commission of that underlying crime. An aider and abetter is as guilty of the underlying crime as the person who committed it.

Because an aider and abettor is responsible for the acts of the person who committed the crime, the Circuit held, “an aider and abettor of a Hobbs Act robbery necessarily commits all the elements of a principal Hobbs Act robbery.”

lock200601Earl will get 25 years knocked off his sentence, leaving him with a mere 110 years to do. As for whether “attempts” to commit a crime of violence is itself a crime of violence, that question may not be settled short of the Supreme Court.

But the Hobbs Act has a split personality: it is not a crime of violence for all purposes. In the 4th Circuit, Rick Green pled to Hobbs Act robbery, with an agreed sentence of 120 months. But the presentence report used the Hobbs Act robbery as a crime of violence to make him a Guidelines career offender, with an elevated 151-188 month sentencing range. At sentencing, Rick argued Hobbs Act robbery was not a crime of violence under the Guidelines “career offender” definition. His sentencing judge disagreed.

But last week, the 4th Circuit sided with Rick. Applying the categorical approach, the Circuit observed that 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.” The 4th said, “this definition, by express terms, goes beyond the use of force or threats of force against a person and reaches the use of force or threats of force against property, as well… So to the extent the Guidelines definition of “crime of violence” requires the use of force or threats of force against persons, there can be no categorical match.”

Thus, Rick was not a “career offender,” and will get resentenced to his agreed-upon 120 months.

United States v. McCoy, Case No 17-3515(L), 2021 US App. LEXIS 11873 (2nd Cir Apr 22, 2021)

United States v. Green, Case No 19-4703, 2021 US App. LEXIS 12844 (4th Cir Apr 29, 2021)

– Thomas L. Root

10th Circuit Greenlights Compassionate Release for Over-Long Sentences – Update for April 5, 2021

Leave a comment

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

PEELING THE COMPASSIONATE RELEASE ONION

peelingOnion210405A trio of appellate decisions last week – two from the 10th and one from the 4th – continue to peel away the uncertainty from the scope of 18 USC § 3582(c)(1)(A)(i) sentence reduction and the factors relevant to whether a reduction will be granted or denied.

You recall that 18 USC § 3582(c)(1)(A)(i) permits the district court that sentenced a defendant to reduce the sentence at any time if the defendant can show “extraordinary and compelling” reasons for doing so, if the reduction is consistent with Sentencing Commission policy statements, and if the reduction is not too much of an affront to the factors listed in 18 USC § 3553(a) that a court is to consider at sentencing.

First, the 10th Circuit joined the 4th in holding that district courts are entitled to broadly interpret “extraordinary and compelling” reasons for granting compassionate release. In two decisions, the 10th reversed district court holdings that the fact Congress had not made First Step Act drug and § 924(c) sentencing changes retroactive does not mean that those changes cannot figure in a compassionate release motion.

Malcom McGee was sentenced to mandatory life back in 2000 for a drug trafficking offense, the stratospheric minimum sentence because he had prior state convictions for drug use and sale. Section 401 of the First Step Act cut the mandatory life minimum in 21 USC § 841(b)(1)(A) to 25 years, but Congress decided against making the change retroactive (a sop Senate Majority Mitch McConnell (R-Kentucky) threw Sens Ted Cruz (R-Texas), Tom Cotton (R-Klingon Empire) and their fellow troglodytes who thought there was nothing wrong with forcing someone sentenced on December 20, 2018, to get life while someone being sentenced two days later to get 25 years).

klingons210405Because First Step did not make the mandatory minimum change retroactive, Malcom found himself in the middle: Congress didn’t cut him a break, and the district court said it could not use compassionate release to grant him a sentence reduction because of Congress’s refusal to apply retroactivity.

The 10th Circuit disagreed:

“The plain text of § 401(c) of the First Step Act makes clear that Congress chose not to afford relief to all defendants who, prior to the First Step Act, were sentenced to mandatory life imprisonment under § 841(b)(1)(A). But nothing in § 401(c) or any other part of the First Step Act indicates that Congress intended to prohibit district courts, on an individualized, case-by-case basis, from granting sentence reductions under § 3582(c)(1)(A)(i) to some of those defendants…The possibility of a district court finding the existence of “extraordinary and compelling reasons” based, in part, on a defendant’s pre-First Step Act mandatory life sentence under § 841(b)(1)(A) does not, in our view, necessarily usurp Congressional power.”

Two days later, the 10th Circuit shut down government arguments in another compassionate release case. Kepa Maumau was convicted of three stacked § 924(c) convictions, receiving a 55-year sentence. The district court granted him compassionate release based on the First Step Act’s change of § 924(c) which was to not impose the 25-year sentence for a subsequent § 924(c) conviction unless the defendant had already been convicted of a prior one. The court also considered Kepa’s youth at the time he committed the crimes and his rehabilitation in prison.

But Kepa stayed in prison because the government appealed, arguing that the U.S. Sentencing Commission alone, not the courts, has power to determine what constitutes an extraordinary and compelling reason for compassionate release. What’s more, the government complained, a district court has no authority to grant compassionate release based on its disagreement with the length of a mandatory sentence.

Sentencestack170404The Circuit bluntly rejected these arguments, holding that the government’s “underlying premise is incorrect. Nothing in the district court’s decision indicates that the district court granted relief to Maumau based upon its general disagreement with the mandatory sentences that are required to be imposed in connection with § 924(c) convictions. Nor was the district court’s decision based solely upon its disagreement with the length of Maumau’s sentence in particular. Rather, the district court’s decision indicates that its finding of “extraordinary and compelling reasons” was based on its individualized review of all the circumstances of Maumau’s case and its conclusion “that a combination of factors” warranted relief, including: “Maumau’s young age at the time of” sentencing; the “incredible” length of his stacked mandatory sentences under § 924(c); the First Step Act’s elimination of sentence-stacking under § 924(c); and the fact that Maumau, “if sentenced today… would not be subject to such a long term of imprisonment.”

Kepa went home last Friday.

Finally, the 4th Circuit handed Ryan Kibble a loss, but in an opinion interesting for its concurring opinion discussing § 3553 factors. Ryan was locked up at FCI Elkton, a notorious BOP COVID-19 hotbed, for 87 months after a conviction for soliciting sex from a female cop (whom Ryan thought was a 14-year old girl).

One of the sentencing factors set out in § 3553(a) is that the sentence be “just punishment” for the offense. District courts have grappled with § 3582(c)(1)(A)’s directive that they “consider[]” the § 3553(a) factors, and more than one has said it already applied the factors at sentencing, and it would stand on its previous position.

lockdowncovid210405But “[s]ection 3582(c)(1) necessarily envisions that the § 3553(a) factors may balance differently upon a motion for compassionate release than they did at the initial sentencing,” Chief Judge Roger Gregory wrote in his concurrence. “An individual requesting compassionate release will, in all cases, be serving a sentence that a district court once held was ‘sufficient but not greater than necessary’. If a district court’s original § 3553(a) analysis could always prove that a sentence reduction would intolerably undermine the 3553(a) factors, then 18 U.S.C. § 3582(c)(1) would, in effect, be a nullity. There is good reason to believe that, in some cases, a sentence that was “sufficient but not greater than necessary” before the coronavirus pandemic may no longer meet that criteria. A day in prison under the current conditions is a qualitatively different type of punishment than one day in prison used to be. In these times, drastically different. Some facilities house inmates who now serve their sentences knowing that they are not equipped to guard against a virus that may result in serious illness or death. Other facilities keep COVID-19 at bay by placing inmates in solitary confinement, ending prison programs, restricting visitation, and limiting access to nonessential medical care… These conditions, not contemplated by the original sentencing court, undoubtedly increase a prison sentence’s punitive effect.”

United States v. McGee, Case No. 20-5047, 2021 U.S. App. LEXIS 9074 (10th Cir. March 29, 2021)

United States v. Maumau, Case No 20-4056, 2021 U.S. App. LEXIS 9510 (10th Cir.  April 1, 2021)

United States v. Kibble, Case No 20-7009, 2021 U.S. App. LEXIS 9530 (4th Cir.  April 1, 2021)

– Thomas L. Root

Circuits Do Violence to ‘Attempted Violence’ – Update for March 8, 2021

Leave a comment

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

TWO CIRCUITS REFUSE TO “DAVIS” ATTEMPT CRIMES

It was a rough week for violent crime.

violent160620The Supreme Court’s 2019 United States v. Davis decision held that conspiracy to commit a violent crime was not itself a “crime of violence” that fell within the definition in 18 USC § 924(c). That is important, because a § 924(c) for using or carrying a gun during a crime of violence or drug offense carries a hefty mandatory sentence that by law is consecutive to the sentence for the underlying offense.  

Since Davis, a hot question facing courts has been whether a mere attempt to commit a violent crime should be lumped with conspiracy as inherently nonviolent.

Last Monday, the 2nd Circuit denied Kevin Collier’s post-conviction motion to throw out his § 924(c) in the wake of Davis, holding that his attempted bank robbery offense (18 USC §2113(a)) was indeed a crime of violence supporting his § 924(c) conviction.

In 2019, the Circuit held in United States v. Moore that § 2113(a) bank robbery was categorically a crime of violence under § 924(c)’s elements clause, and in United States v. Hendricks the Court found that Hobbs Act robbery and New York 3rd-degree robbery were crimes of violence as well. But Kevin argued he could be convicted of an attempt to rob a bank without ever getting to the point that he used force or threatened anyone and that it thus did not fall under § 924(c)’s elements clause. Driving up to the bank with a mask and a gun was enough to get him convicted, and that did not require he first commit any violent act.

violence180508The 2nd Circuit disagreed, noting that the crime of attempt requires that the defendant have intended to commit each of the elements of the substantive crime. A § 2113(a) conviction for attempted bank robbery requires that the defendant “by force and violence, or by intimidation… attempt[s] to take” the property at issue. Because Hendricks held that bank robbery by intimidation was a crime of violence, “a conviction for attempted bank robbery is a categorical match for a crime of violence under 924(c)’s elements clause, regardless of whether the substantial step taken involved the use of force.”

The 2nd declined to reach the question of whether all “attempts” to commit other crimes of violence would necessarily be considered “crimes of violence” under § 924(c), limiting its holding to attempted § 2113(a) bank robbery, which expressly requires that the attempt have been committed by force, violence, or intimidation. The Circuit admitted the question might be thornier if the statute of conviction did not clearly state that the elements of the attempt must include an act of force, violence, or intimidation.

The very next day, the 2nd Circuit issued an en banc opinion reversing a prior appellate decision that New York 1st-degree manslaughter was not a crime of violence. Gerald Scott was released in 2018 after serving 11 years of a 22-year Armed Career Criminal Act sentence when the district court held his prior manslaughter convictions were not crimes of violence. The district court reasoned that because someone can cause death by omission, manslaughter could be accomplished without employing any force or threat of force at all.

violence160110The en banc decision needed 50 pages to explain why New York 1st-degree manslaughter in New York qualifies as a crime of violence, and 70 more pages for the concurrences and dissents to debate what Ohio State law prof Doug Berman called “a formalistic legal matter that is an awful artifice of poorly conceived and constructed federal sentencing law.” In a nutshell, the majority, relying on the definition of physical force in Curtis Johnson v. United States, held that “1st-degree manslaughter is a categorically violent crime because its elements — (1) the causation of death (2) by a person intent on causing at least serious physical injury — necessarily involve the use of violent force.”

Finally, not to be outdone, last Friday a 3rd Circuit panel held that an attempt to commit a Hobbs Act robbery was categorically a crime of violence under the “elements” clause of 18 USC § 924(c). Defendant Marcus Walker argued that his conviction must be vacated because a person can be convicted of attempted Hobbs Act robbery based on nothing more than an intent to complete the robbery without actually committing a violent act and with only the intent to do so.

But the 3rd, in a decision that described in detail the circuit split on the issue, refused to follow the 4th Circuit’s United States v. Taylor ruling, and instead joined the 5th, 7th, 9th and 11th Circuits in holding tha it is “apparent that Congress meant for all attempted crimes of violence to be captured by the elements clause of § 924(c), and courts are not free to disregard that direction and hold otherwise.”

furball210308There is little doubt that this issue, and probably the whole “attempt” furball, is headed for the Supreme Court.

Collier v. United States, Case No 17-2402, 2021 U.S. App. LEXIS 5894 (2d Cir. Mar 1, 2021)

United States v. Scott, Case No 18-163-cr, 2021 U.S. App. LEXIS 6014 (2d Cir. Mar 2, 2021)

United States v. Walker, Case No 15-4062, 2021 U.S. App. LEXIS 6453 (3d Cir. Mar 5, 2021)

Lexology, Second Circuit Holds that Attempted Bank Robbery is Categorically a ‘Crime of Violence’ (March 4, 2021)

Sentencing Law and Policy: En banc Second Circuit needs 120 pages and five opinions to sort out whether NY first-degree manslaughter qualifies as a federal “violent crime” (March 2, 2021)

– Thomas L. Root

It’s Not a Sentence Until It Is, 6th Circuit Says – Update for December 22, 2020

Leave a comment

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

DOING IT OVER UNTIL YOU GET IT RIGHT

mulligan190430Mike Henry and an accomplice robbed three banks. In each robbery, Mike’s co-conspirator used a gun. A jury convicted Mike of the three robberies and three counts of using a gun in a crime of violence under 18 USC § 924(c). A § 924(c), you may recall, carries a mandatory sentence of at least five years (more if you brandish it or, God forbid, actually fire it).

In 2013, Mike got 70 months concurrent for the three robberies and 60 months for the first § 924(c) conviction. Because back then, a second or subsequent § 924(c) conviction carried a mandatory sentence of 300 extra months got a total of 600 months (50 years, that is),  for each of the next two § 924(c)s. Mike ended up with a sentence of  730 months (about 61 years in prison).

Mikes’s conviction was reversed because of the intervening Supreme Court decision in Rosemond v United States, which held that an accomplice had to have some level of knowledge that is co-conspirator had a gun. But after retrial, Mike’s sentence got marginally worse, increasing by eight months to 738 months. But while Mike was on appeal the second time, the Supreme Court’s Dean v. United States decision was handed down (holding that judges could adjust the underlying sentence to account for the mandatory § 924(c) sentence), and Mike’s sentence got reversed again in 2018.

By the time Mike was resentenced a second time, the calendar had flipped to 2019, and the First Step Act had passed. First Step Act § 403 amended 18 USC § 924(c) so that subsequent convictions of the statute carried a 300-month mandatory minimum only if the defendant had been previously been convicted of a § 924(c) offense. Which, of course, Mike had not.

Robber160229But First Step was not retroactive. Instead, § 403 applied only to an “offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.” On his latest appeal, Mike argued that First Step § 403 applied to his case, and his sentences for the second and third § 924(c) offenses should have only been 60 months apiece, not 300 months apiece.

Last week, the 6th Circuit agreed. The Court said the plain language of § 403(b) supported its conclusion that the First Step Act applies to defendants whose cases were remanded prior to the First Step Act’s enactment but who were resentenced only after its enactment.  At the time of the First Step Act’s enactment, the Circuit ruled, Mike “did not have ‘a sentence” for the purposes of § 403(b), because his case had been remanded case to the district court for resentencing. “Only when the district court ‘imposed’ Henry’s sentence for his various convictions at his 2019 resentencing did he have a sentence for the purposes of § 403“, the 6th said. “The better reading of ‘a sentence’ requires the defendant to have a valid sentence at the time of the First Step Act’s enactment, not a sentence at some point… Therefore, Henry is eligible for sentencing under First Step Act § 403.”

oldmangrandkids201222This time, some 480 months should come off the sentence, leaving him with a still hefty 250 months (about 21 years). But it leaves Mike with a chance of hugging his grandkids someday.

United States v. Henry, Case 19-2445, 2020 U.S. App. LEXIS 39799 (6 Cir Dec 18, 2020)

– Thomas L. Root

4th Circuit Endorses Compassionate Release for Stacked 924(c) Sentences – Update for December 7, 2020

Leave a comment

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

THE REAL MCCOY


mccoy201207The compassionate release statute, 18 USC § 3582(c)(1)(A)(i), requires that any sentence reduction be “consistent with applicable policy statements issued by the Sentencing Commission.” The policy statement implicated by the statute is set out in USSG § 1B1.13, a Guideline which lists three very specific reasons for granting compassionate release, and a fourth “catch-all” provision permitting grant of a compassionate release motion if “as determined by the Director of the Bureau of Prisons, there exists in the defendant’s case an extraordinary and compelling reason other than, or in combination with, the [other three] reasons.”

USSG § 1B1.13 was written before the First Step Act authorized inmates to file their own sentence reduction motions. The Guideline has never been changed, because the Sentencing Commission has lacked a quorum, and thus has been able to conduct no business, since 2018. But that has not stopped the government from arguing that compassionate release motions could not be granted because the Director of the BOP has not decided that possessing COVID-19 risk factor is an extraordinary and compelling reason for a sentence reduction.

Many judges decided that because § 1B1.13 was written back in the day when only the BOP could file the motion, it was a relic that could be ignored. But not all. The result has been a terrible disparity between district courts in granting compassionate release motions: the same set of facts that justify a sentence reduction in front of one judge would be rejected by another.

Last September, the 2nd Circuit laid down the law on compassionate release in United States v. Brooker (some are calling the case United States v. Zullo), ruling that district courts have broad discretion to consider “any extraordinary and compelling reason for release that a defendant might raise” to justify a sentence reduction under § 3582(c)(1)(A), and that Guideline § 1B1.13 only applies to compassionate release motions brought by the BOP (which would be virtually none of them). Then, two weeks ago, the 6th Circuit followed Brooker/Zullo in United States v. Jones, and the 7th agreed in United States v. Gunn.

Sentencestack170404It may be hard to remember that compassionate release motions get filed for reasons other than COVID-19. One reason advanced by some defendants has been that they received horrific sentences because of stacked § 924(c) convictions. Recall that before First Step, if you robbed a bank with a gun, you got maybe 87 months for the robbery and a mandatory 60 months more for the gun. But rob three banks on successive days, and you would get 87 months for the robbery, 60 more months for the gun used in the first robbery, 300 months more for the gun used the next day, and 300 more months for the gun used the third day. This was because § 924(c) specified that each subsequent § 924(c) conviction carried 300 months. First Step changed that, making clear that the 300-month sentence only applied if you committed a § 924(c) offense after being convicted of the first offense.

First Step did not make the § 924(c) changes retroactive. Nevertheless, after it passed some guys with stacked § 924(c) violations filed compassionate release motions, arguing that it was extraordinary and compelling to make them serve much longer sentences when the law had changed, and people being sentenced now did not face the same penalty.

One guy in Virginia, Thomas McCoy, and three others from Maryland filed such cases. Their respective district courts agreed with the motions, cutting their sentences to time served. But the government appealed, arguing that the sentence reduction did not fit § 1B1.13, and even if they did, the fact that the defendants had stacked § 924(c) sentences was not extraordinary and compelling because in First Step, Congress decided against retroactivity of the First Step changes to § 924(c). Last week, the 4th Circuit sided with the defendants, in the process pushing the bounds of compassionate release to new horizons.

The 4th Circuit agreed with Brooker, Gunn and Jones that § 1B1.13 – because it refers only to compassionate release motions filed by the BOP – is not an “applicable policy statement” within the meaning of the statute, and thus may be ignored.

draco201207Beyond that, the 4th rejected the Government’s argument that there was nothing wrong with holding the defendants to their draconian sentences, ruling instead that “the district courts in these cases appropriately exercised the discretion conferred by Congress… We see no error in their reliance on the length of the defendants’ sentences, and the dramatic degree to which they exceed what Congress now deems appropriate, in finding “extraordinary and compelling reasons” for potential sentence reductions…”

The appellate holding is huge, suggesting that sentence unfairness and rehabilitation gives sentencing judges the right to make sentence reductions under § 3582(c)(1)(A)(i).

United States v. McCoy, Case No 20-6821, 2020 U.S. App. LEXIS 37661 (4th Cir., Dec. 2, 2020)

– Thomas L. Root

Hobbs Act “Attempt” Not Crime of Violence, 4th Says – Update for October 16, 2020

Leave a comment

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

4TH CIRCUIT CHIPS AWAY AT HOBBS ACT

Ever since the Supreme Court’s United States v. Davis decision a year ago – indeed, even before Davis with Mathis, Descamps and the line of Johnson cases – commentators have been asking “whither violence?”

chip201016OK, maybe nothing that fancy. But appellate courts have traditionally and dismissively held that if a crime is a crime of violence (and here we’re talking about crimes of violence for purposes of apply the 18 USC § 924(c) offense of using or carrying a gun during and in relation to a crime of violence), then any conspiracy or attempt to commit such a crime is necessarily a crime of violence as well.

(A “crime of violence,” for those of you joining us late, is defined in 18 USC § 924(c)(3)(A) as being one that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Read Davis, and then report back here).

The appellate courts’ formula that an attempt to commit a crime of violence is violent as well has the virtue of being easy to apply, if a little formulaic. And so what if defendants find themselves serving additional mandatory sentences of five, seven, ten or 25 years?

The Supreme Court made it clear in Davis (if not before) that the formula is wrong, at least where conspiracy is concerned. If people possess guns while conspiring to commit a violent crime – say, for example, while practicing to kidnap, try and shoot the governor of Michigan – the conspiracy certainly is punishable, but they cannot get a mandatory additional sentence under § 924(c) while maturing their felonious little plans.

That has left unanswered the question of whether an attempt to commit a crime of violence remains violent itself, even after Davis. Clearly, attempts to commit crimes of violence can carried out without force or threat of force. A carload of armed would-be bank robbers drive up to a bank, but before they can even get out of the car, they are surrounded by the police. Another bank robber approaches the bank’s front door, but an alert employee sees him coming and hits the button that automatically locks the door. The law says that’s an attempted bank robbery: the bad guy intended to rob the bank and carried out at least one significant step toward accomplishing it. But he at no time used force or attempted to do so.

I have written before about how a few district courts have rejected attempts to commit Hobbs Act robberies (18 USC § 1951) as crimes of violence. This week, the 4th Circuit did so, too, a necessary and bold step (in the face of three other circuits – the 7th, the 9th and the 11th – who have gone the other way).

robbery160321The facts were ugly. Justin Taylor – known to his friends as “Mookie” – and a buddy set up a drug buy. Their plan was not to buy weed from the hapless victim, Sylvester, but instead to rob him of his pot. Mookie’s friend brought a gun to the caper, and mishanded it somehow, shooting Sylvester dead. Mookie and his friend ran without taking the marijuana, thus making the Hobbs Act robbery an “attempt” instead of a completed act.

Justin got 20 years for the attempted robbery, and another 10 for firing a gun during the crime. (His friend fired the gun, but Justin was equally liable for that, a legal doctrine we won’t get into now).

After Johnson was decided in 2015, Justin brought a post-conviction motion under 28 USC § 2255, arguing that an attempted Hobbs Act robbery is not a crime of violence that will support a § 924(c) conviction. He wanted the court to take back the extra 10 years on his sentence.

Earlier this week, the 4th Circuit agreed in a most significant holding.

A Hobbs Act robbery may be accomplished by use of force (I hit you over the head and steal your pot) or a threat of force (I threaten to hit you over the head to make you hand over your pot). The Circuit found this alternative crucial:

[U]nlike substantive Hobbs Act robbery, attempted Hobbs Act robbery does not invariably require the use, attempted use, or threatened use of physical force. The Government may obtain a conviction for attempted Hobbs Act robbery by proving that: (1) the defendant specifically intended to commit robbery by means of a threat to use physical force; and (2) the defendant took a substantial step corroborating that intent. The substantial step need not be violent. See United States v. McFadden… (concluding that defendants took a substantial step toward bank robbery where they “discussed their plans,” “reconnoitered the banks in question,” “assembled weapons and disguises,” and “proceeded to the area of the bank”). Where a defendant takes a nonviolent substantial step toward threatening to use physical force — conduct that undoubtedly satisfies the elements of attempted Hobbs Act robbery — the defendant has not used, attempted to use, or threatened to use physical force. Rather, the defendant has merely attempted to threaten to use physical force. The plain text of § 924(c)(3)(A) does not cover such conduct.

violence181008The government argued that the 4th’s approach would mean that no attempt to commit a crime of violence would support a § 924(c) conviction. The Circuit responded that “this simply is not so. Rather, as we have repeatedly held, certain crimes of violence — like Hobbs Act robbery, federal bank robbery, and carjacking — may be committed without the use or attempted use of physical force because they may be committed merely by means of threats,” such as “Hobbs Act robbery, when committed by means of causing fear of injury,” bank robbery and carjacking. “But where a crime of violence requires the use of physical force — as is usually the case — the categorical approach produces the opposite outcome: because the substantive crime of violence invariably involves the use of force, the corresponding attempt to commit that crime necessarily involves the attempted use of force. Such an attempt constitutes a “crime of violence” within the meaning of the force clause in § 924(c)(3).” The appeals court cited murder as such an offense.

This decision could very well set up a Supreme Court challenge, given the split between the 4th Circuit and the 7th, 9th and 11th.

United States v. Taylor, Case No. 19-7616, 2020 U.S. App. LEXIS 32393 (4th Cir. Oct. 14, 2020)

– Thomas L. Root

Meanwhile, Back At The Courtroom… – Update for April 17, 2020

Leave a comment

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

I THINK, THEREFORE I AM…

Watch me write an entire post without ever using the words “coronavirus” or “COVID-19.”

Despite our fixation-in-place with the pandemic, some legal news beyond The CARES Act release to home confinement of Michael Cohen is still being made.

violent170315A 9th Circuit decision last week held that even after the Supreme Court’s United States v. Davis decision last summer, a Hobbs Act armed robbery remains a crime of violence for purposes of 18 USC 924(c)(3)(A). That’s unsurprising: other than the pending 9th Circuit case United States v. Chea, there is hardly a groundswell to declare robberies to be non-violent.

But the 9th went beyond that and held, in a 2-1 decision, that – where a substantive offense is a crime of violence under 18 USC § 924(c)(3)(A) – an attempt to commit that offense is also a crime of violence.

The defendant, who had previously pulled off an armored car heist for a $900,000 score, decided to reprise his success. Unfortunately for him, the FBI had offered a $100,000 reward for information leading to his arrest, a pot of legit money that was enough to convince his sidekick to rat him out.

As the defendant drove toward the armored car garage, he got spooked by too much law enforcement activity in the area, and decided to abort. He was arrested a few days later, and convicted of attempted Hobbs Act robbery and carrying a gun during a crime of violence under 18 USC § 924(c).

The Circuit upheld the conviction, holding:

We agree with the Eleventh Circuit that attempted Hobbs Act armed robbery is a crime of violence for purposes of § 924(c) because its commission requires proof of both the specific intent to complete a crime of violence, and a substantial step actually (not theoretically) taken toward its completion… It does not matter that the substantial step—be it donning gloves and a mask before walking into a bank with a gun, or buying legal chemicals with which to make a bomb — is not itself a violent act or even a crime. What matters is that the defendant specifically intended to commit a crime of violence and took a substantial step toward committing it. The definition of “crime of violence” in § 924(c)(3)(A) explicitly includes not just completed crimes, but those felonies that have the “attempted use” of physical force as an element. It is impossible to commit attempted Hobbs Act robbery without specifically intending to commit every element of the completed crime, which includes the commission or threat of physical violence. 18 U.S.C. § 1951. Since Hobbs Act robbery is a crime of violence, it follows that the attempt to commit Hobbs Act robbery is a crime of violence.

Judge Nguyen dissented, succinctly observing that “as the majority acknowledges, an attempted Hobbs Act robbery can be committed without any actual use, attempted use, or threatened use of physical force. Therefore, it plainly does not fit the definition of a crime of violence under the elements clause. Yet in a leap of logic, the majority nevertheless holds that “when a substantive offense is a crime of violence under 18 U.S.C. § 924(c)(3)(A), an attempt to commit that offense is also a crime of violence.”

Several district courts in the Second Circuit have held that attempted Hobbs Act robberies are not crimes of violence. I suspect this question will ultimately be settled at the Supreme Court.

Ithink200417French philosopher René Descartes famously posited, “Cogito, ergo sum.” For those of you who did not have Emily Bernges for high school Latin, this translates as, “I think, therefore I am.”

The 9th Circuit’s corollary is “I think about violence, therefore I have committed violence.” Somehow, it doesn’t have the same ring to it.

United States v. Dominguez, 2020 U.S. App. LEXIS 10863 (9th Cir., April 7, 2020)

– Thomas L. Root

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

Leave a comment

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

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

A Short Rocket – Update for March 12, 2020

Leave a comment

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

WE’VE GOT THE SHORTS…

rocket-312767Arson: In a decision approving filing a second-or-successive 2255 motion, the 6th Circuit last week held that because United States v. Davis is retroactive, a defendant who was convicted of 18 USC 844(i) arson and an 18 USC 924(c) use of a destructive device (a Molotov cocktail) could challenge the 924(c) conviction.

The 6th said the defendant’s “924(c) conviction was premised upon his use of a destructive device in furtherance of the 844(i) offense… The question is whether 844(i) has as an element the use, attempted use, or threatened use of physical force against the person or property of another… Arson under 844(i) does not appear to qualify as a crime of violence under 924(c)(3)(A) because it can be committed against “any building… used in interstate or foreign commerce,” including one owned by the arsonist… That means defendant’s 924 conviction must have been based on 924(c)(3)(B), which Davis invalidated…”

In re Franklin, 2020 U.S. App. LEXIS 6672 (6th Cir. Mar, 3, 2020)

manyguns190423Waiver: The defendant pled guilty to violating 18 USC 924(c) for brandishing a firearm during a crime of violence — theft from a firearms dealer under 18 USC 922(u). He filed a 2255 motion claiming after United States v. Davis, a 922(u) violation no longer counts as a crime of violence. But his plea agreement included the waiver of his right to contest the conviction and sentence “on any ground, including any claim of ineffective assistance of counsel unless the claimed ineffective assistance of counsel relates directly to this waiver or its negotiation, including any appeal… or any post-conviction proceeding, including but not limited to, a proceeding under Title 28, United States Code, Section 2255…”

Last week, the 7th Circuit ruled this collateral-attack waiver was valid and barred a Davis challenge to the conviction and sentences.

Oliver v United States, 2020 U.S. App. LEXIS 6760 (7th Cir. Mar. 4, 2020)

Fair Sentencing Act: The Defendants were sentenced for crack offenses under 21 USC 841(b)(1)(A) prior to the Fair Sentencing Act of 2010. After the First Step Act passed, they applied for sentence reductions. The government; argued they were not eligible because the amounts of crack they were found to have been involved with at sentencing were so great that their sentence exposure did not change.

crackpowder160606The U.S. District Court for the Eastern District of New York last week held that the defendants were eligible. It held that “the weight of authority supports Defendants’ interpretation. “[T]he majority of district court cases in this Circuit” have found “that a defendant is eligible for relief under the First Step Act based upon his offense of conviction, as opposed to his actual conduct… Decisions from other circuits also favor Defendants’ interpretation. See United States v. White, 2019 U.S. Dist. LEXIS 119164 (S.D. Tex., July 17, 2019) (collecting over 40 cases across the nation that agree with defendants’ interpretation of ‘covered offense’).”

The EDNY court said it “joins the chorus of district courts to hold that eligibility under… the First Step Act is based on the crime of conviction and not a defendant’s actual conduct. Both defendants were convicted of violating 21 USC 841(b)(1)(A), the statutory penalties for which were modified by the Fair Sentencing Act. They are both therefore eligible for a sentence reduction under the First Step Act.”

United States v. Pressley, 2020 US Dist. LEXIS 34973 (EDNY Feb 28, 2020)

ACCA Recklessness: The Supreme Court last week granted certiorari to a case asking whether an offense that involves physical force that is used recklessly – that is, conduct undertaken with a conscious disregard of a substantial and unjustifiable risk – is a crime of violence for Armed Career Criminal Act purposes.

A prior case asking the same issue was recently dismissed after the defendant/petitioner died.

Borden v. United States, Case No. 19-5410 (certiorari granted Mar. 2, 2020)

– Thomas L. Root