Tag Archives: ACCA

A Moment in Time: Wooden Redefines ‘Occasions’ – Update for March 17, 2022

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

THE OCCASIONAL CRIME

As I reported last week, on March 7, the Supreme Court unanimously reversed a sentence in the case of Dale Wooden, a man who had received an Armed Career Criminal Act-enhanced 15-year sentence for having committed ten prior burglaries. He had broken into a self-storage building and burgled ten separate units all in one hour’s work.

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

The ACCA is a penalty statute. If someone possesses a firearm or ammunition while being prohibited from doing so – 18 USC § 922(g) includes prior felony convictions, being a fugitive, using controlled substances, even having a dishonorable discharge, and a host of other prohibitions – the penalty is up to ten years in prison. But if the defendant has been convicted of three violent felonies or serious drug offenses, and those three offenses were committed on “occasions different from one another,” the penalty jumps to a minimum of 15 years and a maximum of life without parole. Rather harsh…

Dale only had one wild night in a storage facility, when he broke through flimsy drywall walls separating individual storage units and took what he could find. But the state charged him with ten burglaries, which are considered to be violent crimes. Many years later, when a police officer who had stopped by Dale’s house saw a gun in plain sight, Dale was charged as a felon-in-possession. An enterprising U.S. Attorney figured that the ten burglaries had been committed on “occasions different from one another,” because, after all, you can only burgle one storage unit at a time. And that is how Dale became an armed career criminal.

Whether the occasions really were different from one another was the question that made it to the Supreme Court. Interpreting the ACCA’s “on occasions different from one another” language, all nine justices agreed that Dale’s ten burglaries occurred during the same “occasion.” Writing for the court, Justice Kagan first explained that according to its ordinary meaning, an occasion is “essentially an episode or event. If one learned about Wooden’s burglary spree,” Kagan explained, “they would say: ‘On one occasion, Wooden burglarized ten units in a storage facility.’ A person would not say: ‘On ten occasions, Wooden burglarized a unit in the facility.’ Nor would the average person describe Wooden breaking into each separate unit as its own independent occasion. Indeed, one need only turn to the dictionary to confirm this to be true, as the word occasion ‘commonly refers to an event, occurrence, happening, or episode’.”

If the Hamburglar stole them on successive days...
If the Hamburglar stole them on successive days…

Kagan ruled that “by treating each temporally distinct offense as its own occasion,” the government’s interpretation of the word “occasion” essentially collapses “two separate statutory conditions.” Kagan noted that the history of the “occasions” clause supports this interpretation. Congress amended ACCA to include the clause in order to write the Solicitor General’s position in United States v. Petty into law. In Petty, the Solicitor General admitted to the Supreme Court that the ACCA should be triggered only when a person’s prior convictions result from “multiple criminal episodes” even though such a requirement was not founded in ACCA’s text. Kagan explained that Congress amended ACCA to include the “separate occasions” requirement.

Recognizing that courts may struggle to define “separate occasions,” Kagan suggested standards: If offenses are committed “close in time,” they “will often count as part of one occasion; not so offenses separate by substantial gaps in time or significant intervening events.” She explained that in defining an occasion, “proximity of location is also important; the further away crimes take place, the less likely they are components of the same criminal event.” Finally, Kagan noted that “the character and relationship of the offenses may make a difference: The more similar or intertwined the conduct giving rise to the offenses… the more apt they are to compose one occasion.” She said that “applying this approach” will usually “be straightforward and intuitive.

Justices Gorsuch and Sotomayor were unsure how straightforward Kagan’s approach would be, given that different people may have “different intuitions about the same set of facts.” A multifactor balancing test, he wrote, did not give lower courts adequate guidance. “Imagine a defendant who sells drugs to the same undercover police officer twice at the same street corner one hour apart,” he wrote. “Do the sales take place on the same occasion or different ones?”

burglthree160124Gorsuch added that Kagan’s factors did not conclusively answer the question presented in the Wooden case. “When it comes to location, each storage unit had its own number and space, each burglary infringed on a different person’s property, and Mr. Wooden had to break through a new wall to enter each one,” Justice Gorsuch wrote. “Suppose this case involved not adjacent storage units but adjacent townhomes or adjacent stores in a mall. If Mr. Wooden had torn through the walls separating them, would we really say his crimes occurred at the same location?”

In Gorsuch’s view, the rule of lenity – the principle that courts should resolve statutory ambiguities in favor of criminal defendants – should come into play when courts struggle to decide whether crimes were committed as part of a single “occasion.”

Because Wooden’s decision interprets a statute, inmates in many circuits will be able to retroactively apply the decision to their ACCA convictions under the 28 USC § 2255(e) saving clause. It seems likely that the courts will struggle in applying the standards to the movant’s respective facts. Dale Wooden’s case seemed almost nonsensical. But what about (all too common) the guy who sold cocaine on a street corner for three successive days, and was convicted of three state-court distribution counts? Were those the same occasion? Or robs three banks in a week-long drug-addled frenzy?

The lawyers will be busy…

Wooden v. United States, Case No 20-5279, 2022 U.S. LEXIS 1421 (Mar 7, 2022)

SCOTUSBlog, Perhaps defining an “occasion” is not so difficult after all (March 8, 2022)

New York Times, Supreme Court Says 10 Burglaries Can Count as One Offense (March 7, 2022)

– Thomas L. Root

‘Great Occasions’, Predicate Crimes and the ACCA: The Supreme Court Speaks – Update for March 8, 2022

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

THREE CRIMES CAN BE ONE OCCASION, SUPREME COURT SAYS

louisianapurchase220308When Thomas Jefferson bought 530 million acres for $15 million in the Louisiana Purchase, he was violating his own sense of the proper limitations on federal authority.

The deal, however, was a steal: a lousy 3¢ an acre. It was just too good to pass up. Jefferson said at the time, “It is incumbent on those who accept great charges to risk themselves on great occasions.”

What if Jefferson’s purchase really was a steal, and he actually burgled 530 million acres from the French? Would he have committed a burglary on 530 million different occasions, or just 530 million burglaries at one time, on one “occasion?”

angels170726Talk about your angels on the head of a pin! But, arcane or not, this seemingly hyper-technical question yesterday – one with real-world consequences for many federal defendants – was addressed yesterday by the Supreme Court. A unanimous bench threw out an Armed Career Criminal Act sentencing enhancement for a man whose three predicate crimes of violence occurred during a single “occasion.”

The ACCA provides that the mandatory minimum sentence for a defendant convicted of an 18 USC 922(g) firearms offense – commonly known as felon-in-possession – is 15 years to life if the defendant has three prior serious drug offenses or crimes of violence. The statute – 18 USC 924(e) – holds that the three prior offenses must have occurred on “on occasions different from one another.”

The problem is that courts have taken an increasingly narrow view of what “different occasions” might be.

In 1997, Dale Wooden broke into a self-storage facility and burgled ten individual storage units. The State of Georgia convicted Dale of ten counts of burglary in a single state indictment. He received one sentence.

BettyWhiteACCA180503Seventeen years later, police found a gun in Dale’s house. The federal government charged him with felon-in-possession under 18 USC § 922(g)(1) and – because of the prior burglaries – prosecutors sought an enhanced ACCA sentence of 15 years. Absent the ACCA, Dale would have faced a Guidelines sentencing range of 27-33 months. He got 15 years (180 months).

Dale’s trial court held that each burglary occurred on a different occasion, because a new burglary did not occur until the old one had been completed. As a result, one night’s illegal frolic made Dale an armed career criminal.

Yesterday’s decision turned on the meaning of § 924(e). Justice Kagan, writing for the court, said Dale’s burglary convictions arose from a single criminal episode and thus did not count as multiple occasions. She complained that the government’s view that any time offenses occurred seriatim the occasions were separate gutted the “occasions different from one another” standard:

By treating each temporally distinct offense as its own occasion, the Government goes far toward collapsing two separate statutory conditions. Recall that ACCA kicks in only if (1) a §922(g) offender has previously been convicted of three violent felonies, and (2) those three felonies were committed on “occasions different from one another.” §924(e)(1). In other words, the statute contains both a three-offense requirement and a three-occasion requirement. But under the Government’s view, the two will generally boil down to the same thing: When an offender’s criminal history meets the three-offense demand, it will also meet the three-occasion one. That is because people seldom commit—indeed, seldom can commit—multiple ACCA offenses at the exact same time. Take burglary. It is, just as the Government argues, “physically impossible” for an offender to enter different structures simultaneously. (citation omitted). Or consider crimes defined by the use of physical force, such as assault or murder. Except in unusual cases (like a bombing), multiple offenses of that kind happen one by one by one, even if all occur in a short spell. The Government’s reading, to be sure, does not render the occasions clause wholly superfluous; in select circumstances, a criminal may satisfy the elements of multiple offenses in a single instant. But for the most part, the Government’s hyper-technical focus on the precise timing of elements—which can make someone a career criminal in the space of a minute—gives ACCA’s three-occasions requirement no work to do.

burglar160103Justice Kagen as well argued that the history of the ACCA supported her view. For the first four years of its existence, the “ACCA asked only about offenses, not about occasions. Its enhanced penalties, that is, kicked in whenever a §922(g) offender had three prior convictions for specified crimes—in the initial version, for robbery or burglary alone, and in the soon-amended version, for any violent felony or serious drug offense.” But after a court enhanced a sentence under the ACCA for six burglaries committed at once (see Petty v. United States, 481 U.S. 1034, 1034-1035 (1987), Congress amended ACCA to add the occasions clause, requiring that the requisite prior crimes occur on “occasions different from one another.” 

Yesterday’s decision was unanimous, although four justices — Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett — declined to join some of Kagan’s opinion, meaning they disagreed with some of her reasoning.

So how does a court tell whether the occasions are different or the same? Kagan called the inquiry that must be made “multi-factored in nature.” She wrote

Ontime160103Timing of course matters, though not in the split-second, elements-based way the Government proposes. Offenses committed close in time, in an uninterrupted course of conduct, will often count as part of one occasion; not so offenses separated by substantial gaps in time or significant intervening events. Proximity of location is also important; the further away crimes take place, the less likely they are components of the same criminal event. And the character and relationship of the offenses may make a difference: The more similar or intertwined the conduct giving rise to the offenses—the more, for example, they share a common scheme or purpose—the more apt they are to compose one occasion.

For the most part, applying this approach will be straightforward and intuitive. In the Circuits that have used it, we can find no example (nor has the Government offered one) of judges coming out differently on similar facts. In many cases, a single factor—especially of time or place—can decisively differentiate occasions. Courts, for instance, have nearly always treated offenses as occurring on separate occasions if a person committed them a day or more apart, or at a “significant distance.” (citation omitted). In other cases, the inquiry just as readily shows a single occasion, because all the factors cut that way. That is true, for example, in our barroom-brawl hypothetical, where the offender has engaged in a continuous stream of closely related criminal acts at one location. Of course, there will be some hard cases in between, as under almost any legal test. When that is so, assessing the relevant circumstances may also involve keeping an eye on ACCA’s history and purpose…

So where an ACCA defendant (as in one case with which I am familiar) broke into a strip mall and burgled one store, then pushed through the wall to another, it will be pretty easy to claim it was one occasion. In another case I worked on once, the defendant sold crack on the same street corner, was arrested for three undercover buys in 16 days. Different occasions? That one will be a lot closer.

Because yesterday’s decision interprets a statute, it will be retroactive on collateral review, meaning that people already convicted of an ACCA offense may challenge their sentence. Expect a wave of post-conviction litigation arising from this decision, in large part because the government has been so heavy-handed in charging ACCA enhancements where a more prudent prosecuting authority might not have been.

Wooden v. United States, No. 20-5279, 2022 U.S. LEXIS 1421 (March 7, 2022)

SCOTUSBlog, Court rejects enhanced sentence under Armed Career Criminal Act for man who broke into storage facility (March 7, 2022)

– Thomas L. Root

Novel Robbery Theory Undercuts ACCA, 4th Circuit Says – Update for February 3, 2020

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

GIVE ME YOUR MONEY OR I’LL SAY YOU’RE A @#$!&*%+

Terry Antonio White was convicted of an Armed Career Criminal Act violation. He violated 18 USC § 922(g)(1)’s prohibition on being a felon in possession of a firearm and had three prior crimes of violence (COV), including Virginia common law robbery. That was enough to trigger 18 USC § 924(e)’s mandatory 15-year sentence.

devil180418But exactly what constitutes a COV has evolved over the past few years. The COV must be an offense that necessarily must be committed by using or threatening physical force against another. Seems pretty logical, but – as always – the devil’s in the details.

On appeal, Terry argued that Virginia common law robbery can be committed without the actual, attempted, or threatened use of physical force. Terry claimed that at common law, one could commit robbery in Virginia by threatening to accuse the victim of having committed sodomy if he didn’t hand over the loot.

Terry’s claim sent the 4th Circuit to the Supreme Court of Virginia. The Circuit asked whether someone can be convicted of Virginia common law robbery by threatening to accuse the victim of having committed sodomy. The Virginia Supreme Court said, “yes if the accusation of ‘sodomy’ involves a crime against nature under extant criminal law.”

badwords220204Last week, the 4th Circuit, therefore, held that Virginia common law robbery can be committed without proving as an element the “use, attempted use, or threatened use of physical force.” Thus, Virginia common law robbery cannot be a predicate offense for an ACCA conviction. 

Terry gets time lopped off his sentence, and – while the Circuit didn’t say this – it means that Virginia common law robbery cannot support any 18 USC § 924(c) offense for using a gun during the commission of a Virginia common law robbery, either.

United States v. White, Case No. 19-4886, 2022 U.S. App. LEXIS 2599 (4th Cir., January 27, 2022)

– Thomas L. Root

ACCA Arguments Show SCOTUS Skepticism – Update for October 11, 2021

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READING SUPREME COURT TEA LEAVES ON ACCA

tea160404When I was a young lawyer, I figured out very quickly that it’s dangerous to try to predict the outcome of an appeal case based on the questions asked by the court during oral argument. But I will go out on a limb by predicting that the definition of “occasions different from one another” in the Armed Career Criminal Act is about to become more defendant-friendly.

To qualify for an ACCA 15-year minimum sentence, a defendant has to have three prior convictions for drug or violent offenses that were committed on “different occasions.” Over the years, a number of circuits – including the 6th – have collapsed “different occasions” so that a guy like William Wooden who broke into a self-storage building and stole from 10 units was held to have committed the crimes on “different occasions.”

Last Monday, the Supreme Court strained to answer what Justice Samuel Alito called a “nearly impossible question,” what it means for crimes to be different occasions. Both the government’s and Woden’s interpretation of “occasion” troubled the justices. In Justice Elena Kagan’s words, Bill Wooden’s interpretation of what constitutes an occasion felt “loosey-goosey.” But Justice Brett Kavanaugh suggested the government’s interpretation seemed to defy “common sense intuition.”

BettyWhiteACCA180503

It may not be the parties, but instead the statute. Justice Samuel Alito argued that this was “a nearly impossible question of statutory interpretation because the term ‘occasion’ does not have a very precise meaning.” In the same vein, Justice Sonia Sotomayor suggested the statute might be “so vague” that it is “incapable of rational application.” Justices Clarence Thomas and Amy Coney Barrett wondered if there were Sixth Amendment concerns given that both of the proposed interpretations may require improper judicial factfinding. And Justice Neil Gorsuch pondered what the court is to do if the justices find ambiguity “either way” — does the rule of lenity apply such that the tie breaks in favor of the defendant?

Justice Barrett said that it’s important for a jury to be able to understand when crimes should be considered separate offenses. The difference in terms of criminal activity, she said, is that “it is difficult to let the jury know when this event begins and when it ends.”

Expect a decision in February or March. I predict a near-unanimous court overturning Bill’s sentence, and – in the process – opening the door for some post-conviction ACCA challenges.

Bloomberg Law, Justices Parse ‘Occasion’ Meaning in Career-Criminal Appeal (October 4, 2021)

SCOTUSBlog, A hypothetical-filled argument proves how tricky it is to define an “occasion” (October 5, 2021)

Courthouse News Service, Burglary of many units in one facility poses counting challenge at sentencing (October 4, 2021)

– Thomas L. Root

Happy New Year! – Update for October 4, 2021

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WE’RE BA-A-A-CK…

happynewyear211004… the nine Supreme Court justices will say this morning, the first Monday in October and the first day of the Court’s new year. The high court begins its new term – which lasts until June 30, 2022 but is known as “October Term 2021” – with hearing arguments on one federal criminal issue and granting review to another.

First, the grant of certiorari. Last week at its annual “long conference,” where the Court disposed of over 1,200 petitions seeking review of lower court decisions, the Supremes granted review to a First Step Act case. Back when Congress passed the Fair Sentencing Act of 2010 to reduce the disparity crack and powder cocaine sentences, it did not make the Fair Sentencing Act retroactive to the thousands of crack sentences already imposed.

In Section 404 of the 2018 First Step Act, Congress granted retroactivity at the discretion of the defendant’s sentencing judge, but did not specify any standards for the judge to apply in deciding whether to reduce a sentence. The question raised in Concepcion v. United States is whether, when a court is deciding whether to resentence a defendant under the Fair Sentencing Act, the court must or may consider intervening developments (such as prison record or rehabilitation efforts), or whether such developments only come into play (if at all) only after courts conclude that a sentence reduction is appropriate.

FSAsplit190826

The 3rd, 4th, 10th, and DC circuits have held that district courts must consider all subsequent facts, and not just the changes to statutory penalties, when conducting Fair Sentencing Act resentencings. But in the 1st, 2nd, 6th, 7th and 8th circuits are only required to adopt the revised statutory maximum and minimum sentences for crack cocaine spelled out in the Fair Sentencing Act. In the 5th, 9th, and 11th circuits, district courts are prohibited from considering any intervening case law or updated sentencing guidelines, and are not required to consider any post-sentencing facts during resentencings.

Don’t expect a decision before June 2022.

Now, for today’s argument. The Supreme Court will begin its term hearing argument in Wooden v United States. Defendant Wooden broke into a storage facility and stole from 10 separate storage units many years ago. When he was found in possession of a gun years later, the district court sentenced him under the Armed Career Criminal Act to 15 years, because it found that he committed three violent offenses – the breaking into the 10 storage units – “on occasions different from one another.” The Court of Appeals agreed, arguing that the crimes were committed on separate “occasions” because “Wooden could not be in two (let alone ten) of [the storage units] at once.”

BettyWhiteACCA180503This has long been the worst aspect of the ACCA, itself as well-meaning but lousy law. A number of circuits hold that crimes are committed on different “occasions” for ACCA purposes when they are committed “successively rather than simultaneously.” Other circuits, however, looked beyond temporality and instead considered whether the crimes were committed under sufficiently different circumstances.

The Supreme Court will resolve the Circuit split. A decision is expected early next year, and – if the Court agrees defendant Wooden, a number of people serving ACCA sentences may be filing 28 USC § 2255 or 28 USC § 2241 petitions seeking reduced sentences.

Wooden v. United States, Case No. 20-5279 (Supreme Ct., argued Oct 4, 2021)

Concepcion v. United States, Case No. 20-1650 (Supreme Ct., certiorari granted Sep 30, 2021)

Law360, Supreme Court Will Seek To Solve Crack Resentencing Puzzle (September 30, 2021)

SCOTUSBlog.com, What’s an “occasion”? Scope of Armed Career Criminal Act depends on the answer. (October 1, 2021)

– Thomas L. Root

‘Reckless Is Not Violent,’ Supremes Say – Update for June 14, 2021

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SCOTUS TAKES ANOTHER SWIPE AT ACCA

The Supreme Court last Thursday further limited the types of offenses that constitute crimes of violence for purposes of the Armed Career Criminal Act. In a 5-4 ruling in favor of the prisoner in Borden v. United States, the majority (if you can call it that) ruled that crimes that can be committed through recklessness rather only through specific intent are not crimes of violence.

borden210614Justice Elena Kagan wrote an opinion that was joined by Justices Stephen Breyer, Sonia Sotomayor, and Neil Gorsuch. Justice Clarence Thomas did not join Kagan’s opinion but concurred in the result. So for you math-inspired people, that makes the final tally on the decision 4-4-1. At the Supreme Court, the fact that five Justices agreed with the result makes that result the winner. However, it can complicate figuring out what opinion as to how the Court got there is in the majority. That’s the Marks v. United States problem, boys and girls, and that is a topic for another time.

For now, we’re focusing on Borden. The case involved the definition of “violent felony” set out in 18 USC § 924(e)(2)(B)(i), defined as any felony that “has as an element the use, attempted use, or threatened use of physical force against the person of another.”

The defendant, Chuck Borden, pled guilty to an 18 USC § 922(g)(1) felon-in-possession charge, which the district court enhanced under the ACCA to a statutory minimum of 15 years, The defense argued the ACCA did not apply because one of the three priors relied on by the district court was a Tennessee conviction for reckless aggravated assault. That crime can result from reckless conduct – a lower legal standard than “purposefully or knowingly” assaulting someone. Chuck argued that only purposeful or knowing conduct can meet ACCA’s definition of “violent felony.” Mere recklessness, he argued, does not qualify.

bordennunss210615The decision turned on the meaning of “physical force against the person of another.” The government argued that “against” had a meaning similar to “I tripped and fell against the guy ahead of me in line,” suggesting referring to one body contacting another. That way, if you were driving recklessly, and careened into a busload of nuns, the crime would be an ACCA predicate, because you employed physical force against a busload of “anothers.”

The majority, however, agreed with the defendant that “against” means something more. “The phrase ‘against another,’ when modifying the ‘use of force,’ demands that the perpetrator direct his action at, or target, another individual,” the opinion holds. “Reckless conduct is not aimed in that prescribed manner.”

Justice Thomas concurred, but did so not because of the definition of “against.” Instead, he argued that the phrase “use of physical force” is limited to intentional acts designed to cause harm.

habeas_corpusThe immediate question raised by Borden is whether current prisoners can use it to attack now-illegal sentences. Because the decision does not make a ruling on constitutional law, it will not be retroactive under 28 USC 2255(f)(3). However, it probably is attackable under 28 USC 2241, relying on the § 2255(e) “saving clause.”

Ohio State University law prof Doug Berman said in his Sentencing Law and Policy blog, “I am truly making a wild guess here, and I am eager to hear from folks in the field about whether they agree that only hundreds of sentences may be potentially disrupted by Borden or if in fact it could end up being thousands. Whatever the exact number, as I will explain in a future post, every ACCA defendant with a viable Borden claim should be thankful for the First Step Act making ‘compassionate release’ motions available to bring directly to court.”

Borden v. United States, Case No 19-5410, 2021 U.S. LEXIS 2990 (June 10, 2010)

Sentencing Law and Policy, How many federal prisoners might now be serving illegal sentences after Borden? (June 11, 2021)

SCOTUSBlog.com, Court limits definition of “violent felony” in federal gun-possession penalty (June 10, 2021)

– Thomas L. Root

If Today’s Thursday, My Position Has Changed – Update for May 20, 2021

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DANCE WITH THE GIRL WHO BRUNG YOU

dancegirlbrung210520I used to practice in front of crusty old judge Walter J. Miller, who liked to warn attorneys that he expected them to “dance with the girl who brung you.” By that he meant that if you argued an evidentiary position in front of him, you were expected to maintain that position even if it became uncomfortable.

The government – which has a history of changing its position as the day, fashion, and its overarching goal of keeping people imprisoned may dictate – ran smack into that doctrine last week in the 7th Circuit. Dean Guenther was convicted of being a felon in possession of a firearm (18 USC § 922(g)(1)) in the District of Minnesota. Because he had three prior Minnesota burglaries, he was sentenced under the Armed Career Criminal Act. He appealed, and then tried a § 2255 motion. Both failed.

But some time after that, the 8th Circuit held that the Minnesota burglary statute was too broad to count as the kind of generic burglary that the ACCA intended to count against its predicate. Then, Johnson v. United States threw out the ACCA’s residual clause. Dean brought a 28 USC § 2241 habeas corpus motion in the 7th Circuit (where he was imprisoned) under the § 2255(e) saving clause. The district court denied his motion.

miscarriage-of-justiceLast week, the 7th Circuit reversed. A § 2255 motion is normally the exclusive method to collaterally attack a federal sentence, but the § 2255(e) saving clause provides a limited exception, letting a prisoner seek § 2241 habeas relief in the district where he is confined if “the remedy by motion is inadequate or ineffective to test the legality of his detention.” Generally, the saving clause works when the prisoner relies on an intervening statutory decision announcing a new, retroactive rule that could not have been invoked in his first § 2255 motion and the error is serious enough to amount to a miscarriage of justice.

Dean’s motion fit everything except the question of whether his ACCA-enhanced sentence amounts to a miscarriage of justice. Since ruling that the Minnesota burglary was not an ACCA predicate, the 8th Circuit has reversed its position, but the 7th Circuit more recently ruled that the Minnesota burglary could not be used to qualify a defendant for the ACCA.

Dean and the government argued whether the ACCA sentence was a miscarriage should rely on 7th Circuit law (which said it was) or the 8th Circuit (which now says it might not be). The Circuit settled the issue easily, noting that in a prior case, the government argued that “the law of the circuit of confinement — this circuit — should control. That position, if accepted, meant no relief.” At the time, the 8th had held Minnesota burglary was not an ACCA predicate but the 7th had not ruled on the question. By the time that case reached the court of appeals, the tables had turned. The 8th had reversed itself, but the 7th had held that Minnesota burglary could not be counted under the ACCA.

flipflop170920In the prior case, of course, the government’s position was that the 7th Circuit’s interpretation should govern, because that had a more severe outcome for the defendant. In Dean’s case, however, the 8th Circuit’s interpretation would have hammered the defendant more. Bu the government’s logic, that one should apply.

The court did not state the obvious in such stark terms, but it did rather pointedly note that prior case, “we held the government to the position it took in the district court and applied the law of this circuit. We follow the same approach here.”

Thus, under 7th Circuit precedent, Dean’s Minnesota burglary convictions are not ACCA predicates (meaning he faces a maximum sentence of 10 years instead of a minimum sentence of 15 years).

Enjoy the dance, Mr. United States Attorney. She’s your date, after all.

Guenther v. Marske, Case No 17-3409, 2021 USApp LEXIS 14055 (7th Cir May 12, 2021)

– Thomas L. Root

Lousy Lawyering and Other Stories – Update for April 27, 2021

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“DID I SAY FIVE YEARS? I MEANT FIVE DECADES…”

Four decisions of note last week:

stupidlawyr191202Oops, My Bad: Dave Mayhew was charged with white-collar fraud. The government offered him a plea deal that promised a maximum sentence of five years.

“C’mon, man,” his lawyer said. “That’s no deal. If we go to trial, five years is the worst we can do.” Dave, who paid big bucks for this professional advice, followed his attorney’s guidance and went to trial.

You can guess what happened. Dave lost, and he was sentenced to 27 years.

After appeals were over, Dave filed a habeas corpus motion under 28 USC § 2255, arguing that his lawyer was ineffective for giving him such bad advice. The district court denied the petition, pointing out that Dave was told at his re-arraignment that he could get up to 55 years on all of the charges and the court – no one else – would decide the sentence. So Dave knew what he was getting into, the judge claimed, and that cured any prejudice he would have suffered from his lawyer’s idiocy.

Last week, the 4th Circuit reversed. The re-arraignment came only after Dave had rejected the plea deal. The Circuit admitted that in the usual lousy-advice-on-sentence-exposure case, the law is clear that if the defendant pleads guilty after a Rule 11 change-of-plea hearing, the court’s warning that only it would determine the sentence and that the maximum the defendant faces, “taken together, may well have been enough to cure… counsel’s misadvice. But there is a fundamental problem,” the 4th held, “with applying that principle here, and it has to do with timing: The court’s admonitions in this case came only after Dave already had rejected the government’s plea offer, and there is no indication — in the record or from the government on appeal — that the offer remained open at that point.”

Bait and Switch: Rebecca Stampe made a deal on her drug case, agreeing to a Rule 11(c)(1)(C) plea locking her sentence at 168 months. An 11(c)(1)(C) plea sets a particular sentence or sentence range, with the court’s role limited to honoring the sentence deal or rejecting the guilty plea.

Deal170216Becky’s deal came with a government promise that if she testified against her co-defendant, she might get a substantial-cooperation sentence reduction under USSG § 5K1.1. But after she made the plea deal, the government dismissed the case against her co-defendant because of some unspecified misconduct by the informant (which presumedly made the informant’s testimony worthless).

Becky demanded information about the misconduct under Brady v Maryland, arguing that it was material to her guilt as well. She also moved to withdraw from her plea agreement (but not her guilty plea), figuring she’d do better with an open plea that let the court sentence her than she would with a Rule 11(c)(1)(C) plea.

Last week, the 6th Circuit shot her down. The Circuit ruled that the evidence could not possibly be material to Becky’s defense, because she had already pled guilty, so there was no defense left to make. As for the plea agreement, the Circuit said, “While we do not doubt that Stampe sincerely believed that she might avoid some prison time because of her putative cooperation in her co-defendant’s case, the plea agreement contemplated but did not require that possibility. So contrary to her assertion on appeal, it was not the ‘principal purpose’ of the agreement. The main purpose was the exchange of her plea for the government dropping the other charge against her and agreeing to a 168-month sentence.”

mathisEnd Run: John Ham filed a 28 USC § 2241 habeas petition claiming that Mathis v United States – a Supreme court decision that dictated how a sentencing court should apply the “categorical approach” in deciding whether a prior crime was a “crime of violence” under the Armed Career Criminal Act – required that he be resentenced to a lot less time.

John figured that the 4th Circuit’s United States v. Wheeler decision authorized the district court to address his § 2241 petition on the merits. The district court disagreed, and Jim appealed.

Wheeler adopted a four-part test for using § 2241 petitions to attack a defective sentence where a § 2255 motion would be “inadequate or ineffective.” One of those tests is that a petitioner must show a retroactive change in substantive law that happened after the direct appeal and first § 2255 motion.

John claimed that Mathis satisfies that requirement, changing “well-settled substantive law” about how a sentencing court should apply the categorical approach. Last week, the 4th Circuit disagreed.

“Mathis itself made clear that it was not changing, but rather clarifying, the law,” the 4th held. “The categorical approach has always required a look at the elements of an offense, not the facts underlying it… Indeed, Mathis merely repeated the ‘simple point’ that served as ‘a mantra’ in its ACCA decisions: ‘a sentencing judge may look only to the elements of the offense, not to the facts of the defendant’s conduct’.”

abandoned210427jpgSee You Around, Chump: Finally, in the 8th Circuit, Charles Ahumada filed a § 2255 motion arguing his attorney abandoned him by failing to file a petition for rehearing on his direct appeal. Not so, the Circuit said. In order to make a 6th Amendment ineffective assistance, a defendant first has to have a constitutional right to counsel. There is no constitutional right to counsel on a discretionary appeal, and a petition for rehearing is exactly that.

Chuck admitted as much, but argued that the Circuit’s Criminal Justice Act plan requiring counsel to file non-frivolous appeals gave him a due process right to effective counsel. “Even assuming there was a breach of the statute, the CJA,” the 8th said, “it does not give rise to a claim for ineffective representation of counsel.”

United States v. Mayhew, Case No 19-6560, 2021 U.S.App. LEXIS 11248 (4th Cir., April 19, 2021)

United States v. Stampe, Case No 19-6293, 2021 U.S.App. LEXIS 11459 (6th Cir., April 20, 2021)

Ham v. Breckon, Case No 20-6972, 2021 U.S.App. LEXIS 11493 (4th Cir., April 20, 2021)

Ahumada v. United States, Case No 19-3632, 2021 U.S.App. LEXIS 11861 (8th Cir., April 22, 2021)

– Thomas L. Root

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

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

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

1st Circuit Gives Pre-Booker Career Offenders Some Relief– Update for October 5, 2020

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

NO DEFENDANT LEFT BEHIND

vagueness160110The 2015 Supreme Court decision Johnson v. United States was a landmark, holding that the residual clause in the Armed Career Criminal Act’s definition of “crime of violence” was unconstitutionally vague. Johnson’s reasoning led to Sessions v. Dimaya (extending Johnson to the criminal code’s general definition of “crime of violence” at 18 USC § 16(b)) and 2019’s United States v. Davis holding extending Johnson to 18 USC § 924(c), the “use or carry a firearm” statute.

But thousands of inmates who were held to be Guidelines “career offenders” because of prior crimes of violence got no relief. A Guidelines “career offender” is very different from an ACCA armed career criminal. A Guidelines career offender is someone with two prior crimes of violence or serious drug convictions (federal or state). If a defendant qualifies as a Guidelines career offender, he or she will be deemed to have the highest possible criminal history score and a Guidelines offense level that ensures a whopping sentencing range.

After Johnson, a number of Guidelines career offenders, whose status had been fixed by including some dubious prior convictions as “violent,” sought the same kind of relief that Johnson afforded armed career criminals. But in 2017 the Supremes said that Johnson did not apply to the Guidelines. Beckles v. United States held that the Guidelines were not subject to the same kind of “vagueness” challenge that worked in Johnson, because the Guidelines did not “fix the permissible range of sentences, but merely guided the exercise of discretion in choosing a sentence within the statutory range.”

This may have been so for people sentenced under the advisory Guidelines. However, back before the 2005 Supreme Court decision in United States v. Booker, those “advisory” Guidelines were mandatory. They did not guide a judge’s discretion. Instead, the law required a judge to sentence within the applicable Guidelines sentencing range except in very narrow circumstances, and then only if the sentencing court jumped through the many hoops the Guidelines erected.

Robber160229So, how about guys like Tony Shea, who was sentenced after a bank robbery spree as a career offender back in 1998? Tony’s prior crimes of violence were pretty shaky bases for a career offender enhancement (not that Tony didn’t have plenty of problems for his string of armed robberies, but that’s another story). Tony was looking at minimum 430 months under normal Guidelines, nothing to sneeze at, but with the career offender label, Tony’s minimum sentence shot that up to 567 months (that’s 47-plus years, or 330 dog years).

Tony filed a § 2255 motion arguing that because his Guidelines career offender sentence was mandatory, not “advisory,” the Johnson holding should apply to wipe out his career offender status.

Last Monday, the 1st Circuit agreed. The appeals court noted that while Beckles was right that advisory Guidelines guide a judge’s discretion rather than “fix the permissible range of sentences,” the pre-Booker Guidelines did much more than this. The Circuit said “when the pre-Booker Guidelines ‘bound the judge to impose a sentence within’ a prescribed range, as they ordinarily did, they necessarily “fixed the permissible range of sentences” she could impose.”

Judicial despotism... probably not a good thing.
         Judicial despotism… probably not a good thing.

“It’s easy,” the 1st said “to see why vague laws that fix sentences… violate the Due Process Clause. The… rule applied in Booker serves two main functions. First, fair notice: requiring the indictment to allege ‘every fact which is legally essential to the punishment to be inflicted… enables the defendant to determine the species of offence with which he is charged in order that he may prepare his defense accordingly…” Second, “the rule also guards against the threat of ‘judicial despotism’ that could arise from ‘arbitrary punishments upon arbitrary convictions,’ by requiring the jury to find each fact the law makes essential to his punishment.”

Only the 11th Circuit has explicitly held that Beckles does not apply to mandatory Guidelines career offender enhancements. The 5th, 8th and 10th Circuits are on the fence. This 1st Circuit decision is the first to emphatically apply Johnson to give relief to people like Tony, who is already well into his third decade of imprisonment.

Shea v. United States, 2020 U.S. App. LEXIS 30776 (1st Cir., September 28, 2020)

– Thomas L. Root