Tag Archives: ACCA

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

Supreme Court Disappoints on Shular – Update for March 2, 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.

SUPREME COURT REJECTS EFFORT TO NARROW ACCA-PREDICATE DRUG CRIMES

The Supreme Court last week refused to extend the Taylor/Mathis “categorical” approach – an approach that has substantially narrowed the definition of a crime of violence – to “serious drug offense” prior convictions that can qualify a defendant for the Armed Career Criminal Act 15-year mandatory minimum.

A unanimous court held in Shular v. United States that the only thing that matters in analyzing whether a prior conviction is a “serious drug offense” is that the state offense involve the conduct specified in the ACCA, not that the state offense match some particular generic drug offense.

A primer: The ACCA is a penalty statute that applies to 18 USC § 922(g)(1), the so-called felon-in-possession statute. Section 922(g)(1) prohibits people with a prior conviction for a felony from possessing guns or ammo. The penalty for violating 922(g)(1) is set out in 18 USC 924(a), a sentence of zero to ten years in prison.

Robber160229However, there’s a kicker.  If the defendant has three prior convictions for crimes of violence, serious drug felonies (or a combination of the two), he or she is considered an “armed career criminal,” and the penalty skyrockets to a minimum of 15 years and a maximum of life. This enhanced penalty is set out in a different subsection, 18 USC § 924(e)(2), and is known as the Armed Career Criminal Act.

The ACCA includes definitions of what constitutes a crime of violence and what qualifies as a “serious drug felony.” The “crime of violence” definition has been the subject of a number of Supreme Court decisions in the last decade or so, including findings that one subsection – which provided that a crime was violent if it carried a substantial likelihood of physical harm – was unconstitutionally vague (Johnson v. United States, 2015). Judging whether and the requirement that when judging whether a state conviction was a crime of violence, the district court had to apply the “categorical approach.” Under that approach, one would not look at what the defendant was convicted of having done, but instead whether the offense could be committed (and reasonably would be prosecuted) without any violent physical conduct.

A good example of this is found in our review last month of Hobbs Act robbery. Everyone agrees that a robbery is violent – after all, use of force or threat of force is an element. But is an attempted Hobbs Act robbery violent? One can be convicted of attempted Hobbs Act robbery by walking up to the bank’s front door carrying a mask and a gun. That act requires no violence at all.

drugdealer180228But for all of the ink that’s been spilled on ACCA crimes of violence, the “serious drug offense” definition has been unscathed. That definition provides that a prior drug conviction counts toward the ACCA’s three-conviction predicate only if it involves “manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance.” Seems simple. But it’s not.

Defendant Eddie Shular argued that the terms in the statute are shorthand for the elements of the prior offense. He maintained that a district court had to first identify the elements of the “generic” drug offense, that is, the offense that Congress must have had in mind when it wrote the statute. The district court then had to ask whether the elements of the defendant’s prior state offense matched those of the generic crime.

This was important to Eddie, because he said his prior Florida drug convictions did not include a mens rea element, that is, they lacked the requirement that he had to know the substance he possessed was illegal.

oldlady200302Assume Eddie was right that the Florida statute lacked a mens rea requirement. Such a statute, that made it a felony to possess illegal drugs with an intention to distribute, would permit conviction of a little old lady who went to pick up her neighbor’s laxative at the drug store as a favor, but was accidentally given Oxycontin instead. After she gave the drug store bag to her neighbor, she would have possessed a controlled substance, and she would have distributed it. Eddie argued that a defective statute like that had to be measured against a generally-accepted generic PWITD statute, one that required the defendant know that he or she possessed an illegal substance.

The Supreme Court didn’t buy it. Instead, the Justices unanimously sided with the government’s view, that the a court should simply ask whether the prior state offense’s elements “necessarily entail one of the types of conduct” identified in the statute. In other words, the terms ““manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance” described conduct, not elements. It does not matter how many possible ways there might be to violate the state statute, nor does it matter whether other elements were present or lacking. If the defendant’s conduct was one of the listed terms, the prior felony was a “serious drug offense.”

mens160307

(For what it’s worth, the Court’s opinion disputed Eddie’s contention that the Florida statute lacked a mens rea element, but the unanimous decision focused on the “conduct vs. elements” debate, not about the intricacies of the Florida statute.)

The decision is a disappointment for people who hoped the decision would do for ACCA people with drug priors what Taylor and Mathis did for crimes of violence. Leah Litman, a law professor at University of California – Irvine, wrote in SCOTUSBlog that the Shular decision “confirms two realities of the court’s docket. The first is the ease with which the court finds unanimity in ruling against criminal defendants; the second is the sprawling reach of federal criminal law, particularly with respect to drugs, guns and immigration.”

Shular v. United States, 2020 U.S. LEXIS 1366 (Supreme Ct. Feb. 26, 2020)

– Thomas L. Root

Quantifying The “Bad” In “Bad Boy” – Update for February 19, 2020

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7TH CIRCUIT PUZZLED BY INCONSISTENT UPWARD SENTENCING VARIANCES

pecks200219Jesse Ballard was a bad boy, having compiled what his sentencing court called “probably one of the worst criminal histories I’ve seen in 30 years” of experience. From 1985 until 2017, he accrued over 30 convictions for attempted burglary, kidnapping, battery, and aggravated assault. He also committed a pile of parole violations, prison disciplinary infractions, and a few DUIs, just for good measure.

When Jesse was sentenced for being a felon in possession of a gun (in violation of 18 USC § 922(g)(1)), the court applied the Armed Career Criminal Act’s 15-year minimum mandatory sentence as a starting point, and then – considering Jesse’s extensive criminal history – went upward from there. The judge imposed a sentence of 232 months, a 10% upward variance from the high end of Jesse’s advisory Guidelines sentencing range.

badjudge171016But on appeal, Jesse proved that his prior attempted burglary convictions could not count as ACCA predicates. This dropped his Guidelines range dramatically. No more ACCA 15-to-life sentencing range – now, Jesse’s statutory maximum was 10 years, and his advisory Guidelines sentencing range was a mere 33-41 months. At Jesse’s resentencing, the judge – still citing our boy’s “extensive criminal history, which it found demonstrated a disrespect for the law and an inability to live a law-abiding life” – varied upward again by 67 months, imposing a 108-month sentence.

Naturally, this came as a shock to Jesse’s system. He headed back to the Court of Appeals. Last week, the 7th Circuit reversed Jesse’s sentence again.

The Circuit observed that when a district court fails to adequately explain a chosen sentence, including the reason for deviation from the range, it commits a procedural error. This makes sense: an appellate court can hardly review the reasonableness of a sentence if the district court has not provided an adequate explanation for why it did what it did.


badboy200219Here, the Circuit complained, the district court failed to justify the extreme difference between the second sentence’s upward variance and that of the original sentence. “To justify a sentence that was 67 months above the Guidelines range (a 160% upward departure),” the 7th held, “the court referred to… appropriate factors to consider under 18 USC § 3553. However, these were the same factors cited and discussed at the original sentencing, resulting in a sentence only 22 months above the original Guidelines range (a 10% upward departure)… The district court’s explanation of its departure from the Guidelines upon resentencing does not articulate and justify the magnitude of the variance where the explanation is essentially identical to the explanation provided for a much less extreme departure in the original sentence.”

The district court will now get a third whack at our mischievous Jesse. This is not to say that Jesse should expect much leniency – just more explanation.

United States v. Ballard, 2020 U.S. App. LEXIS 4771 (7th Cir, Feb 14, 2020)

– Thomas L. Root

Supremes Run Down the ACCA ‘Rabbit Hole’ – Update for January 29, 2020

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DON’T HOLD YOUR BREATH WAITING FOR SHULAR

It’s a fool’s game to try to guess the outcome of a Supreme Court case by reading the oral argument. But still, last week’s Shular v. United States hearing shouldn’t have any inmate giving away the contents of his locker in expectation of quick release.

gunwife200130Shular asks the court to interpret the Armed Career Criminal Act definition of “serious drug offense” to require that a prior state conviction find the defendant “knowingly” handled a controlled substance, which Eddie Shular’s Florida prior did not. His precise question is whether the determination of a “serious drug offense” under the ACCA requires the same categorical approach used in the determination of a “violent felony.”

Congress defined a “serious drug offense” to include an “offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance … for which a maximum term of imprisonment of ten years or more is prescribed by law.” The government is arguing that the words following “involving” describe only conduct, regardless of a defendant’s intent.

Justice Alito is clearly skeptical of Shular’s approach. Surprisingly, similar misgivings were voiced by Justices Ginsburg and Kagan, with Gorsuch on the fence but leaning toward the government. Justice Thomas revealed nothing, but is a reliable vote for the government.

Shular argues that without a mens rea requirement, and with the squishy “involving” standard, people could get prosecuted for unknowingly distributing or possessing drugs was misplaced. Justice Alito argued that because ACCA is aimed at repeat offenders, the statute’s penalties are triggered only when a defendant has multiple prior convictions. It was doubtful someone would unknowingly distribute or possess drugs twice.

bunnygun190423Justice Breyer asked the government whether its interpretation of “involving” as not including a mens rea requirement would sweep in prior convictions that only tangentially or remotely involved controlled substances. SCOTUSBlog observed that “although Breyer’s skeptical questioning of the government is often a good sign for a criminal defendant, it is unclear if there are five votes for Shular. Some of the court’s textualists had serious misgivings about Shular’s interpretation, and several justices seemed eager to disavow that interpretation to the extent it required courts to construct generic definitions of offenses… The one concern that seemed to unite several of the justices (including unusual bedfellows Gorsuch and Breyer) was the uncertain and potentially expansive reach of the government’s interpretation of the ACCA. Time will tell whether the court is willing to throw the dice and take the risk of going down another ACCA rabbit hole, this one about the possible reach of the word ‘involving’.”

SCOTUSBlog, Argument analysis: Another ACCA rabbit hole? (Jan. 21)

Sentencing Law and Policy, SCOTUS to contemplate yet another level of ACCA jurisprudential hell with Shular oral argument (Jan. 20)

– Thomas L. Root

4th Holds Defendant Has Right to Know About ACCA Sentence at Guilty Plea – Update for January 21, 2020

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4TH CIRCUIT HOLDS LIKELY ACCA SENTENCE MUST BE MENTIONED AT PLEA HEARING

A week ago last Friday, the 4th Circuit ruled that a defendant in a felon-in-possession-of-a-firearm case (18 USC § 922(g)(1)) must be told of the risk that he or she will receive a mandatory minimum 15-year sentence under the Armed Career Criminal Act (18 USC § 924(e)) at the time the guilty plea is entered.

guilty170417Anyone is entitled to plead guilty, and a lot of people do. In fact, something like 97% of all federal defendants enter guilty pleas. That could be because of the superior law enforcement work done in ensuring that only guilty people ever get indicted. Of course, it could be that the system is rigged so that most of the time, the only rational course for a defendant to pursue is to admit to whatever the government has charged him or her with, in order to save a spouse from indictment, to secure a sentence that offers some chance of release in a reasonable time frame, or just to get out of jail and into a prison setting which is sweeter than county lockup.

Nevertheless, when a defendant enters a guilty plea, he or she gives up a panoply of constitutional rights, such as right to a trial by jury, a right to confront the accusers, the right to present evidence, the right to be found guilty only beyond a reasonable doubt. For that reason, due process and Rule 11 of the Federal Rules of Criminal Procedure require that a guilty plea be entered with the defendant aware of those rights, aware of the contents of any written plea agreement, and aware of the maximum penalty he or she faces.

changeofplea170616Jesmene Lockhart pled guilty without a plea agreement to a single § 922(g)(1) count. During a Rule 11 change-of-plea hearing (which is a lengthy formal proceeding at which the defendant changes the “not guilty” plea into a “guilty” plea), the magistrate judge asked the government to “summarize the charge and the penalty.” The government said the “maximum penalty” Jesmene faced was 10 years.

This was technically correct: at that time, everyone was reading the sentencing statute, 18 USC § 924(a)(2), which specified a maximum sentence of 10 years. No one was considering whether Jesmene had prior convictions that might result in his getting a 15-year mandatory minimum ACCA sentence under § 924(e).

But as the parties prepared for sentencing, the presentence report writer uncovered Jesmene’s prior convictions, and noticed the parties that he was eligible for the ACCA 14-year mandatory minimum sentence. Jesmene fought the ACCA designation, arguing that the convictions were too remote (he had been 16 years old), too close in time to one another, and statutorily exempt. Nothing worked.

What Jesmene did not try to do was to withdraw his guilty plea on the grounds it was not knowing and voluntary, because has was not told he could get an ACCA sentence. On appeal, even under the tougher “plain error” standard (because his trial court lawyer had not raised the issue), Jesmene claimed his guilty plea was involuntary because he had not been told about the possible ACCA sentence. He contended the benefit he gained from pleading guilty – a reduction from the bottom of his ACCA guideline range of 188 months to 180 months – was “so small as to be virtually non-existent.” Had he known about the risk of an ACCA sentence and how little a plea deal would help him, Jesmene contended, he would have had strong incentive to go to trial to try to avoid the 15-year ACCA sentence altogether.

plea161116In a January 10 en banc opinion, the 4th Circuit held that Jesmene had met the plain error standard: the failure to inform him of the ACCA sentence at the change-of-plea was an error, it was plain, it affected his substantial rights, and “the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” The Circuit cited national statistics that felon-in-possession defendants only go to trial 3% of the time, but ACCA defendants choose trial 13.5% of the time, and noted that the difference in Jesmene’s guidelines as a non-ACCA defendant and under the ACCA was 125 months. Plus, his very old criminal history (three burglaries within a short time span when he was 16 years old) suggested that Jesmene, being unaware of the ACCA risk, would reasonably have expected to be sentenced at the bottom of his 46-57 month advisory guideline range. By contrast, the only benefit he got from pleading guilty to an ACCA was an 8-month break for acceptance of responsibility.

The 4th said, “the magistrate judge’s failure to inform Lockhart of the correct sentencing range was an obvious and significant mistake. Such an error undermines the very purpose of Rule 11 that a defendant be fully informed of the nature of the charges against him and of the consequences of his guilty plea… As a result of this error,  Lockhart had every reason to think after the plea hearing that he would receive a sentence within the stated statutory range of between zero and 120 months’ imprisonment…”

United States v. Lockhart, 2020 U.S. App. LEXIS 822 (4th Cir. Jan 10, 2020)

– Thomas L. Root

Supremes to Hear Another ACCA Case – Update for November 20, 2019

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SUPREME COURT GRANT CERTIORARI TO ANOTHER ARMED CAREER CRIMINAL CASE

In the last few years, it’s been a great time to be an armed career criminal. Not really (we don’t recommend doing it at any time), but the Armed Career Criminal Act has been the focus of the Court’s attention both directly (Johnson v. United States, Mathis v. United States and Rehaif v. United States) as well as indirectly (United States v. Beckles, Sessions v. Dimaya and United States v. Davis).

Robber160229A quick primer: 18 USC 922(g) provides that certain classes of people – convicted felons, drug abusers, fugitives, illegal aliens – are prohibited from possessing guns and ammo (the actual items, not just the magazine). If you are convicted of a § 922(g) offense, you face a maximum of 10 years in prison. But, if you have three prior convictions for drug felonies, crimes of violence or a combination of the two, you fall under the Armed Career Criminal Act (18 USC § 924(e)), and your penalty starts at 15 years and goes all the way to life in prison.

Ever since the 2016 Supreme Court decision in Voisine v. United States, most appellate courts have been holding that a crime committed with a mens rea of recklessness was enough to establish the use, attempted use, or threatened use of physical force. Junior Walton discovered 13 bullets in a rooming house that he managed and removed them for safekeeping. He was convicted of possessing ammunition as a felon, in violation of 18 USC 922(g)(1) and sentenced under the Armed Career Criminal Act to 15 years. The application of the ACCA turned on whether one of his past convictions, which could be committed with a mens rea of recklessness, qualified as a violent felony under the ACCA’s force clause.

The district court said it did not. The 6th Circuit, with several dissenting judges, said it did in an en banc proceeding. Last week, the Supreme Court granted cert to Junior on the question of whether a criminal offense that can be committed with a mens rea of recklessness can qualify as a “violent felony” under the ACCA.

The case, which will be decided by the end of June 2020, could further limit the kinds of prior convictions that will support an ACCA sentence. Just in time, too: last week Attorney General William Barr announced a new DOJ initiative, Project Guardian, intended to “increase scrutiny of people convicted of violent felonies or domestic violence, potentially reducing their access to firearms.”

Walker v United States, Case No. 19-373 (cert. granted Nov. 15)

New York Times, Justice Dept. Unveils Gun Plan, Sidestepping a Preoccupied Washington (Nov. 13)

– Thomas L. Root

What’s Old Is New Again As 5th Circuit Reverses Herrold – Update for October 22, 2019

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5TH CIRCUIT UNDOES HERROLD DECISION

A lot of people were jubilant last year when the 5th Circuit reversed its long-standing United States v. Uribe decision, and held that Texas burglary was no longer a generic burglary under the Armed Career Criminal Act. If you were benefitted by the decision, we hope you got your petition in fast, because last week, the Circuit reversed course yet again.

rollercoaster191022The Herrold case has had a topsy-turvy history. A 5th Circuit panel originally affirmed Mike Herrold’s ACCA sentence on the basis that Texas burglary fit the generic definition. Then the Supreme Court, based on its intervening decision in Mathis v. United States, sent the case back for further consideration. Applying the Uribe decision, the 5th Circuit reimposed the ACCA sentence. But the hearing the case en banc, the Circuit reversed Uribe, holding that to be guilty of generic burglary, a defendant must have the intent to commit a crime when he enters or remains in the building or structure. The Court said held the Texas statute “contains no textual requirement that a defendant’s intent to commit a crime contemporaneously accompany a defendant’s unauthorized entry,” and thus was nongeneric and could not support an ACCA sentence.

On remand after the en banc decision, the district court sentenced Mike to time served. Meanwhile, the government filed a petition for certiorari. Two intervening Supreme Court decisions, Quarles v. United States and United States v. Stitt, foreclosed the two principal grounds on which Mike had contested his ACCA sentencing enhancement, so the Supreme Court sent the case back to the Circuit again.

texasburglary191022Before Quarles and Stitt, the Circuit held the Texas burglary statute is non-generic “because it criminalizes entry and subsequent intent formation rather than entry with intent to commit a crime.” But because of the Supreme Court decisions, the 5th said, Mike’s “old arguments no longer avail and his new ones lack merit. We hold that Section 30.02(a)(3) is generic — and Herrold’s three prior felonies are therefore qualifying predicates for a sentence enhancement under the ACCA.”

United States v. Herrold, 2019 U.S. App. LEXIS 31139 (5th Cir. Oct. 18, 2019)
– Thomas L. Root

October Term 2018 Ends With A Whimper – Update for July 1, 2019

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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 SUPREME COURT’S OUT FOR SUMMER… BUT NOT FOREVER

scotus170627The Supreme Court stumbled across the finish line of its current session (called October Term 2018, because that’s when it began) last Friday, ending with a couple of fumbles and a punt. There will be nothing more from the nine Justices – except for the occasional action on a stay of execution – until the “long conference” in the last week of September. 

Then, come Monday, October 7, 2019… the Court will be back at it with October Term 2019.

The last week started out to be a significant one for federal criminal law. Last Monday, the Court handed down the Davis decision, with United States v. Haymond following two days later. For those who follow the Court for criminal law, that just left Mitchell v. Wisconsin and Carpenter v. Murphy for the Court’s final day on Thursday. Mitchell was a 4th Amendment case, asking whether blood can be drawn from an unconscious motorist without a warrant (yes, it can). Carpenter is a big deal for Oklahoma, Native Americans and the many states with reservations inside their borders, because the 10th Circuit held that most of eastern Oklahoma – including the City of Tulsa – still belonged to the Cherokee Nation. It also matters to anyone with a prior Oklahoma state conviction from that area, because all of those convictions might be invalid.

On Thursday, the Court issued big decisions on the census form citizenship question and how Congressional districts are drawn, in each case sort of kicking the can down the road. So it was no surprise when the Chief Justice announced that Carpenter will not be decided this year, but instead will get reargued in the fall.

domino190422But remember how Davis was called Johnson’s “last domino?” Well, it is not. On Friday, the Court issued its final order list of the Term, granting review to Shular v. United States, another case raising an important issue in the application of the Armed Career Criminal Act, this one on the drug trafficking side. For an ACCA conviction, you have to have three prior convictions that are crimes of violence or drug cases. In Shular, the question is whether the determination of a “serious drug offense” under the ACCA requires the same categorical approach used in the determination of a violent felony, the approach just approved in Davis. There is little doubt that the holding will apply to drug crimes underlying 18 U.S.C. § 924(c) convictions – mandatory consecutive sentences starting at five years for using a gun in a drug offense or crime of violence – as well.

Also, in Kisor v. Willkie, a case that asks whether a court must defer to an agency interpretation of its own ambiguous regulation, the Court last Thursday declined to overrule a longstanding line of cases instructing courts to defer to an agency’s interpretation of its own regulation, but at the same time, he suggested that the doctrine does not apply in every case where an agency is interpreting its own rules. The tepid ruling leaves the deference doctrine a muddled mess the Court will almost certainly have to address again.

United States v. Davis, Case No. 18-431 (decided June 24, 2019)

United States v. Haymond, Case No. 17-1672 (decided June 26, 2019)

Carpenter v. MurphyCase No., Case No. 17-1107 (to be reargued in Fall 2019)

Kisor v.  Willkie, Case No. 18-15 (decided June 27, 2019)

Shular v. United States, Case No. 18-6662 (cert. granted June 28, 2019)

– Thomas L. Root

Davis Lives! 924(c)(3)(B) Residual Clause Held to be Unconstitutionally Vague – Update for June 25, 2019

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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 LAST JOHNSON DOMINO FALLS

By a 5-4 vote, the Supreme Court yesterday upheld the categorical approach to judging whether offenses were crimes of violence, ruling that 18 USC § 924(c)(3)(B) is unconstitutionally vague.

Justice Neil Gorsuch wrote in the majority opinion that “[i]n our constitutional order, a vague law is no law at all.”

vagueness160110The vagueness doctrine rests on the twin constitutional pillars of due process and separation of powers. Having applied the doctrine in two cases involving statutes that “bear more than a passing resemblance to § 924(c)(3)(B)’s residual clause” – those being Johnson v. United States (Armed Career Criminal Act residual clause unconstitutional) and Sessions v. Dimaya (18 USC § 16(b) residual clause unconstitutional) – the Court completed its frolic through the residual clauses in the criminal code.

Courts use the “categorical approach” to determine whether an offense qualified as a violent felony or crime of violence. Judges had to disregard how the defendant actually committed the offense and instead imagine the degree of risk that would attend the idealized “‘ordinary case’ ” of the offense.

The lower courts have long held § 924(c)(3)(B) to require the same categorical approach. After the 11th Circuit’s decision in Ovalles, the government advanced the argument everywhere that for § 924(c)(3)(B), courts should abandon the traditional categorical approach and use instead a case-specific approach that would look at the defendant’s actual conduct in the predicate crime.

The Supreme Court rejected that, holding that while the case-specific approach would avoid the vagueness problems that doomed the statutes in Johnson and Dimaya and would not yield to the same practical and Sixth Amendment complications that a case-specific approach under the ACCA and § 16(b) would, “this approach finds no support in § 924(c)’s text, context, and history.”

hathanded190625The government campaign came to a head in Davis, a 5th Circuit case in which the appellate court said that conspiracy to commit a violent crime was not a crime of violence, because it depended on the § 924(c)(3)(B) residual clause. The Dept. of Justice felt confident enough to roll the dice on certiorari. Yesterday, the DOJ had its hat handed to it.

Who does this benefit? Principally, it benefits anyone who received a § 924(c) enhanced sentence for an underlying conspiracy charge. Beyond that, it helps anyone else whose “crime of violence” depended on the discredited § 924(c)(3)(B) residual clause.

The Court did not rule that Davis is retroactive for 28 USC § 2255  post-conviction collateral attack purposes, because that question was not before it. SCOTUS never rules on retroactivity in the same opinion that holds a statute unconstitutional. There is little doubt that, if Johnson was retroactive because of Welch, Davis will be held to be retro as well.

United States v. Davis, Case No. 18-431 (Supreme Court, June 24, 2019)

ARE 59(e) MOTIONS ‘SECOND OR SUCCESSIVE’ 2255s?

A number of lower courts have ruled that an unsuccessful § 2255 movant who files a motion to alter the judgment under Fed.R.Civ.P. 59(e) may be filing a second-or-successive § 2255 motion requiring prior approval.

HobsonsChoiceThis leaves § 2255 movants with a Hobson’s choice. Filing a 59(e) stays the time for filing a notice of appeal. But if the court sits on the 59(e) past the notice of appeal deadline, and then dismisses it as second-or-successive, the § 2255 movant has missed the notice of appeal deadline with the Court of Appeals. If the movant files a notice of appeal to preserve his or her rights, that nullifies the 59(e).

Right now, the only logical election is to ignore Rule 59(e) motions altogether.

Yesterday, the Court granted review in yet another “Davis” case, asking whether the 59(e) motion should be considered second or successive such that it requires the grant of permission under 28 USC § 2244. We’ll have an answer next year.

Banister v. Davis, Case No. 18-6943 (certiorari granted, June 24, 2019)

– Thomas L. Root