Tag Archives: ACCA

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

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

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

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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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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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

Timing Is Everything – Update for March 17, 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.

A DISTINCTION WITH A DIFFERENCE

gunb160201Clint Rumley had amassed quite a record by the time he was convicted of being a felon in possession of a gun under 18 USC 922(g)(1). He had over 20 prior state convictions, with five of them eligible predicate crimes of violence or drug offenses that would let the district court sentence him to a minimum 15 years under the Armed Career Criminal Act. Clint’s presentence report identified four of the prior convictions as supporting the ACCA sentence enhancement, one more than the minimum three priors called for by the ACCA.

When Johnson v. United States – a 2015 Supreme Court case that substantially narrowed what crimes could be considered crimes of violence – came along seven years into Clint’s 15-year sentence, he filed a post-conviction motion under 28 USC § 2255 to have his ACCA sentence set aside. The district court agreed with Clint that two of the four predicate convictions identified in the presentence report no longer counted, and vacated his 15-year sentence. But when Clint was resentenced, the new PSR noted that one state conviction not previously relied on for as qualifying as an ACCA predicate should have been counted against him. That conviction, plus the two priors that remained crimes of violence under the ACCA, got Clint resentenced to 15 years.

Clint appealed, relying on a 4th Circuit decision, United States v. Hodge. Hodge held that the government was not allowed to oppose a 28 USC 2255 motion raising Johnson claims by arguing that a prior conviction that had not been designated during the sentencing proceeding should have been counted as an ACCA predicate. But last week the 4th Circuit said Hodge was different, and upheld Clint’s new 15-year sentence.

In Hodge, the Circuit ruled, “we explained that defendants have a right to adequate notice of the government’s plan to seek an ACCA enhancement and of the convictions that may support that enhancement” (typically done by listing the supporting convictions in the PSR). When the government opposed a § 2255 motion by arguing that there were other convictions that could have been used to support an ACCA, the Circuit said, it shifted the burden of proof: while “at the sentencing the government has the burden of proving the defendant has three prior ACCA-qualifying convictions… on collateral review, the defendant has the burden of proving that the convictions supporting his ACCA enhancement are infirm.”

judge160425The Hodge concerns, however, do not arise in a full resentencing like the one Clint got. ‘The court conducted a full sentencing hearing, at which it received evidence and made findings of fact,” the Circuit said. Unlike Hodge, Clint “had adequate notice of the designated predicate convictions, giving him a full opportunity to challenge them. Moreover, the 2019 sentencing proceeding was conducted under the burdens of proof applicable in every sentencing, and our review is conducted under direct appeal standards, rather than on standards applicable to review of collateral proceedings.”

United States v. Rumley, 2020 U.S. App. LEXIS 8128 (4th Cir. Mar. 13, 2020)

– Thomas L. Root

A Short Rocket – Update for March 12, 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.

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