Tag Archives: ACCA

Supreme Court Rules “Remaining-in” Burglary is Generic Burglary – Update for June 11, 2019

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SUPREME COURT HOLDS THAT ‘REMAINING IN” BURGLARY IS GENERIC BURGLARY UNDER ACCA

Jamar Quarles was convicted of being a felon in possession of a gun under 18 USC § 922(g)(1). Because he had three prior convictions for crimes of violence, he was sentenced to a mandatory minimum sentence of 15 years under 18 USC § 924(e), the Armed Career Criminal Act.

burglar160103In order to be a crime of violence, you may recall, 18 USC 924(e) requires that the conviction either be (1) for burglary, arson, use of explosives or extortion (the “enumerated crimes” clause); or (2) a crime involving an actual or threatened use of physical force against another person (the “elements” clause).

Jamar appealed his ACCA conviction, arguing that one of the prior offenses, Michigan third-degree home invasion, was not generic burglary, because its terms were broader than mere generic burglary. Thus, he maintained, the home invasion did not fit the definition of “crime of violence” under the enumerated crimes clause.

Some 29 years ago, the Supreme Court in Taylor v. United States defined generic burglary under §924(e) to mean “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” The Michigan third-degree home invasion statute applied when a person “breaks and enters a dwelling or enters a dwelling without permission and, at any time while he or she is entering, present in, or exiting the dwelling, commits a misdemeanor.”

Jamar argued that this provision was too broad, because it encompassed situations where the defendant forms the intent to commit a crime at any time while unlawfully remaining in a dwelling. He contended that generic remaining-in burglary under the ACCA occurs only when the defendant has the intent to commit a crime at the exact moment when he or she first unlawfully remains in a building or structure.

The District Court rejected that argument, and the Sixth Circuit affirmed. Yesterday, the Supreme Court agreed with the lower courts.

remaining190611The Supreme Court said that “remaining in” refers only to the burglary being a continuous event, that begins when one enters the building unlawfully and does not end until he or she exits. The common understanding of “remaining in” as a continuous event, the Court said, “means that burglary occurs for purposes of §924(e) if the defendant forms the intent to commit a crime at any time during the continuous event of unlawfully remaining in a building or structure.” To put it in conventional criminal law terms, the Court explained, “because the actus reus [the act of burglary] is a continuous event, the mens rea [intent to commit a crime while there] matches the actus reus so long as the burglar forms the intent to commit a crime at any time while unlawfully present in the building or structure.”

The Court made it clear what concerns partly drove the train. It observed that “the important point is that all of the state appellate courts that had definitively addressed this issue as of 1986 [the year the ACCA was adopted] had interpreted remaining-in burglary to occur when the defendant forms the intent to commit a crime at any time while unlawfully present in the building or structure… To interpret remaining-in burglary narrowly… would thwart the stated goals of the Armed Career Criminal Act. After all, most burglaries involve unlawful entry, not unlawful remaining in. Yet if we were to narrowly interpret the remaining-in category of generic burglary so as to require that the defendant have the intent to commit a crime at the exact moment he or she first unlawfully remains… many States’ burglary statutes would presumably be eliminated as predicate offenses under §924(e). That result not only would defy common sense, but also would defeat Congress’ stated objective of imposing enhanced punishment on armed career criminals who have three prior convictions for burglary or other violent felonies.”

Quarles v United States, Case No. 17-778 (Supreme Court, June 10, 2019)

– Thomas L. Root

Texas Robbery Is Kinder and Gentler No Longer – Update for April 16, 2019

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5TH CIRCUIT FLIPS, DEFENDANT WINNER IS NOW A LOSER

Last June, we reported that the 5th Circuit had ruled that a conviction for Texas robbery is not a crime of violence under the Armed Career Criminal Act.

Latroy Burris, who was convicted of being a felon-in-possession of a gun under 18 USC § 922(g)(1), was sentenced under the ACCA due to prior convictions for Texas robbery and Texas aggravated robbery. (The ACCA provides that a defendant with three prior convictions for crimes of violence or serious drug offenses must receive a sentence of 15 years to life instead of 922(g)’s usual zero-to-ten years.) Last year, Latroy argued that Texas robbery under § 29.02(a) of the Texas Penal Code was not a crime of violence, and the 5th Circuit agreed.

Afterwards, the government moved for rehearing en banc, and the Court withdrew its Burris decision pending the en banc court’s decision in United States v. Reyes-Contreras, and the Supreme Court decision in Stokeling v. United States, which held that Florida robbery qualified as a crime of violence under the ACCA.crimeofviolence190416

The 5th has now held that Sec 29.02(a)(1) is a crime of violence. It requires that a defendant “cause bodily injury.” Whether “caus[ing] bodily injury” requires the use of physical force under federal law “involves two issues,” the Court said, “(1) the relationship between causing bodily injury and the use of physical force and (2) the degree of force necessary to qualify as a violent felony under the ACCA’s elements clause. The en banc court resolved the first issue in Reyes-Contreras, and the Supreme Court resolved the second issue in Stokeling.”

The Court also concluded that Sec. 29.02(a)(2), which outlaws “robbery-by-threat,” has as an element the attempted or threatened use of physical force. That subsection criminalizes “intentionally or knowingly threaten[ing] or plac[ing] another in fear of imminent bodily injury or death.” The Court said that because Sec. 29.02(a)(1), robbery-by-injury, requires the use of physical force, it necessarily followed that 29.02(a)(2), “threatening to cause imminent bodily injury,” also requires the “attempted use, or threatened use of physical force.”

Latroy Burris’ ACCA sentence was upheld.

United States v. Burris, 2019 U.S.App.LEXIS 10606 (5th Cir. Apr. 10, 2019)

– Thomas L. Root

From the “War Is Peace” Dept.: Rape Is Not Violent, Court Says – Update for April 11, 2019

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PAIR OF STATE SEX OFFENSES NOT VIOLENT UNDER ACCA

Two different circuits invalidated two sex state sex offenses as violent predicates triggering the Armed Career Criminal Act.

rape190412The 8th Circuit held that the Illinois offense of aggravated criminal sexual abuse is “facially overbroad” and thus cannot count as an ACCA “crime of violence” predicate. Sexual conduct is defined in the statute as “any intentional or knowing touching or fondling by the victim or the accused…” The Circuit ruled, “Because a defendant can violate this statute by having a child touch him for sexual gratification, an act that does not necessarily require “the use, attempted use, or threatened use of physical force against the person of another,” the statute on its face cannot qualify as an ACCA predicate.”

Meanwhile, the 6th Circuit ruled that Clancy Lowe’s 1985 Tennessee rape conviction could not be a crime of violence, because rape by “force or coercion” included unlawful sexual penetration by someone with “parental, custodial, or official authority over a child less than fifteen (15) years of age.” Such a penetration could be committed without any force or coercion, or even with a willing child under 15. Thus, it could not be a “crime of violence,” and Clancy’s ACCA sentence was thrown out.

Lofton v. United States, 2019 U.S. App. LEXIS 10103 (8th Cir. Apr. 5, 2019)
Lowe v. United States, 2019 U.S. App. LEXIS 9944 (6th Cir., Apr. 4, 2019)

– Thomas L. Root

Simms Raises the Ante on 924(c) Crimes of Violence – Update for January 28, 2019

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4TH CIRCUIT SIMMS DECISION TEES UP 924(c) DEBATE FOR SUPREME COURT

The vigorous debate since the Supreme Court decided Sessions v. Dimaya last year at first seemed to surround whether the residual clause of 18 USC 924(c) – which defines “crime of violence” to include any offense that “by its nature, involves a substantial risk that physical force against the person or property of another” – was unconstitutionally vague. That is what the Supreme Court said about the same language in the Armed Career Criminal Act (in Johnson v. United States) and in Dimaya last spring referring to 18 USC 16(b).

violence181008But in the last few months, the argument has morphed into some more basic: when judging whether the offense underlying an 18 USC 924(c) charge is violent, should a court use the categorical approach (which asks whether the offense in its ordinary form is violent, not what the defendant did in the particular case under review)? Or should the court instead look only at how the defendant in the case under review committed the offense?

Three circuits have embraced the conduct-based approach, the 1st in United States v. Douglas, the 2nd in United States v. Barrett, and the 11th in Ovalles v. United States. Three others have backed the categorical approach, the 5th in United States v. Davis, the 10th in United States v. Salas, and the D.C. Circuit in United States v. Eshetu. Two weeks ago, the Supreme Court granted the government’s petition to review the 5th Circuit’s Davis decision.

The Circuit split deepened last Thursday with the 4th Circuit’s long-awaited decision in United States v. Simms. In a contentious 100-page decision, the en banc Circuit decided 8-7 that whether an underlying offense supporting a 924(c) conviction is a crime of violence, a trial court must use the categorical approach the Supreme Court adopted and used in Leocal v. Ashcroft. What’s more, using the categorical approach, the 4th said, it is clear that a conspiracy to commit a Hobbs Act robbery (18 USC 1951) is not a crime of violence.

By extension, this means that in the 4th Circuit, no conspiracy to commit a violent crime is itself a violent crime (although it is in the 2nd Circuit).

violence160110The 4th Circuit focused on the phrase “by its nature” in 924(c)(3)(B), saying that the language directs courts to consider only the basic or inherent features of “an offense that is a felony,” and that the phrase “directs courts to figure out what an offense normally… entails, not what happened to occur on one occasion. Had Congress intended a conduct-specific analysis instead, it presumably would have said so; other statutes, in other contexts, speak in just that way… We cannot adopt a reading of 924(c)(3)(B) that renders part of the statute superfluous over one that gives effect to its ‘every clause and word’.”

As important as Simms may be to the 924(c) debate, it is clear that it is not the last word. The Supreme Court is going to resolve the sharp circuit split in Davis as early as June, although it is could well hold off oral argument and a decision to the term beginning in October 2019.

United States v. Simms, 2019 U.S. App. LEXIS 2341 (4th Cir. Jan. 24, 2019)

– Thomas L. Root

Curtis Johnson Suffers Violence at Hands of Supreme Court – Update for January 15, 2019

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SUPREME COURT RULING ON ROBBERY AS ACCA PRIOR IS BAD NEWS FOR PEOPLE ATTACKING ACCA PRIORS

violence180508Back in 2010, the Supreme Court brought some sense to the classification of crimes as “violent” in Curtis Johnson v. United States, holding that “physical force” means “violent force – that is, force capable of causing physical pain or injury to another person.  Applying that standard to a Florida battery law criminalizing “any intentional physical contact,” the Curtis Johnson Court concluded that the law did not require the use of “physical force” within the meaning of Armed Career Criminal Act.  

Since that time, Curtis Johnson has led to a number of state crimes that can be accomplished with something less than force capable of causing physical pain or injury to another person have been found not to require the use of force as contemplated by the ACCA.

Then came Denard Stokeling, who once tried to snatch a necklace from the nape of a female victim. The State of Florida convicted him of robbery for that. Some years later, Denard was caught with a handgun. He pled guilty to being a felon-in-possession under 18 USC 922(g). Based on his priors, including the Florida robbery conviction, he was sentenced to a 15-year mandatory minimum under the ACCA.

Denard appealed, arguing that Florida robbery was not a crime of violence under the ACCA, because it did not require force that could cause physical harm. His district court agreed, but the 11th Circuit reversed.

Today, the Supreme Court sided with the 11th Circuit in an opinion that pretty much sounds a death knell for any arguments that any robbery – state or federal – is not a crime of violence. That includes a number of people who are now arguing that Hobbs Act robbery is not a crime of violence for 18 USC 924(c) purposes.

At one time, the ACCA included robbery among the enumerated crimes that were automatically crimes of violence. Congress changed the law to delete “robbery,” but expanded the elements clause of the ACCA to cover any offense that has as an element “the use, attempted use, or threatened use of physical force.”

In a decision written by Justice Thomas, the Supreme Court held earlier today that by replacing robbery with a clause that has “force” as its touchstone, Congress retained the same common-law definition that undergirded the definition of robbery in the original ACCA. The widely-accepted definition of robbery at the state level required nothing more than “a degree of force sufficient only to overcome a victim’s resistance.”

candybaby190117The Court said that the understanding of “physical force” in robbery comports with the definition of force in Curtis Johnson. There, the force necessary for misdemeanor battery required only the “slightest offensive touching” to qualify. Robbery, the Court said, requires force necessary to overcome resistance by a victim, and that is inherently “violent” in the sense contemplated by Johnson and “suggest[s] a degree of power that would not be satisfied by the merest touching.” The Supreme Court held that Curtis Johnson did not purport to establish a force threshold so high as to exclude even robbery from the ACCA’s scope.

Therefore, the Court said, robbery under Florida law qualifies as an ACCA-predicate offense under the elements clause. The term “physical force” in the ACCA encompasses the degree of force necessary to commit common-law robbery.

Curiously, the decision was 5-4, with the dissenters, Chief Justice Roberts and Justices Sotomayor, Ginsburg and Kagan, arguing that the decision eviscerated Curtis Johnson. And they have a point. It is difficult to see what would limit Justice Thomas’ holding that any force sufficient to overcome the will of the victim – such as the yanking a purse away from a woman’s shoulder or even taking candy from the fist of a baby – is not sufficient force to fall within Curtis Johnson.

thThere are those who suspect that today’s decision may limit Curtis Johnson to its facts, which in the law is a nice way to say the court has kneecapped a case.

Not content to vastly expand the reach of the ACCA’s “crime of violence” definition, the decision included the ominous dictum that federal criminal statutes should not be construed in ways that would render them inapplicable in many states. This warning could cause significant problems for people seeking to have state statutory crimes declared to be too broad for ACCA or career offender.

Stokeling v. United States, Case No. 17-5554 (Supreme Court, January 15, 2019)

– Thomas L. Root

Ohio Not as Violent, 6th Circuit Says, Overruling Itself – Update for January 8, 2019

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6TH CIRCUIT FLIPS, DECIDES OHIO ASSAULT IS NO CRIME OF VIOLENCE AFTER ALL

In 2012, the 6th Circuit held Ohio felonious assault and aggravated assault felonies are crimes of violence under the “elements” clause of the Armed Career Criminal Act and the career offender Guidelines. Last week, the Circuit reversed six years of precedent, holding in an en banc ruling that the two Ohio assault offenses are overbroad but divisible: just beating someone up is not violent, but using or trying to use a deadly weapon or dangerous ordnance to do so is.

violence151213The statutes require that a defendant cause physical harm to the victim, but Ohio law defines “physical harm” to include mental harm. Several Ohio cases have convicted where defendants merely failed to prevent their kids from suffering mental trauma. For that reason, the 6th said, the statutes are overbroad.

However, the statutes (ORC 2903.11 and ORC 2903.12) are divisible. A defendant can violate the statutes by causing physical harm to others or by using a deadly weapon to cause or try to cause physical harm to others. The 6th said the first subsection, (a)(1), is clearly overbroad because it is possible to violate the statute by inflicting mental distress on a person without causing physical harm,  and thus cannot count for ACCA or career offender. Subsection (a)(2), however, can be used as a prior for ACCA or career offender.

The government complained that the Circuit’s flip flop, after six years going the other direction, will “excuse thousands of violent career criminals” from the consequences imposed by the ACCA and the Guidelines.” Maybe so, the Court said, but “we are a lower court, and we must follow the Supreme Court’s categorical-approach jurisprudence here.”

United States v. Burris, Case No. 16-3855 (6th Cir., Jan. 3, 2019), 2019 U.S. App. LEXIS 129

– Thomas L. Root

Tennessee “Complicated” Sentencing Scheme Saves Defendant ACCA Sentence – Update for November 27, 2018

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TENNESSEE SENTENCING SCHEME MAKES SOME STATE DRUG CONVICTIONS INELIGIBLE FOR ACCA

Dwayne Rockymore, who had some prior felonies, got caught with a gun. His three prior Tennessee delivery-of-cocaine convictions seemed to qualify him for a 15-year Armed Career Criminal Act conviction. But the district court refused.

BettyWhiteACCA180503Last week, the 6th Circuit agreed. Complaining that “Tennessee’s criminal sentencing scheme is sufficiently complicated that even Tennessee courts have experienced difficulty in understanding the different classes, ranges, and tiers involved in making a sentencing determination,” the Circuit decided that while the cocaine charges were punishable by more than 10 years in prison, a separate statute “takes each felony class’s authorized sentence and narrows those sentences into ‘ranges’ that correspond with the defendant’s prior record.” A defendant with no criminal background who commits a Class C felony like Dwayne’s must be sentenced to no more that 6 years in prison.

The ACCA classifies a serious drug offense as one with a max sentence of more than 10 years. The 6th said it has to look at “all the relevant law that Tennessee applies to sentencing,” and because Dwayne faced a six-year-maximum sentence for two of the cocaine charges, those priors did not qualify him for ACCA.

United States v. Rockymore, Case No. 18-5148 (Nov. 20, 2018)

– Thomas L. Root

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Supreme Court, Weary of ACCA, Ducks Trio of Cases – Update for October 22, 2018

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SUPREME COURT REFUSES CHANCE TO APPLY JOHNSON TO MANDATORY GUIDELINES

Three years ago, the Supreme Court held in Johnson v. United States that the “residual clause” of the Armed Career Criminal Act definition of a crime of violence, which included within its sweep any crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” was unconstitutionally vague. Because the ACCA’s definition was identical to the Guidelines’ “career offender” definition, a lot of people thought that it was only a matter of time before “career offender” sentences would be cut as well.

thilo181022But two years after Johnson, the Supreme Court ruled in Beckles v. United States that because the Guidelines are merely advisory, a constitutional vagueness challenge to the career offender guidelines would not work. But the Guidelines have only been advisory since 2005, when United States v. Booker held that mandatory sentencing guidelines were unconstitutional. What the Beckles court did not answer was the question of whether someone whose “career offender” sentence was imposed under the pre-2005 mandatory Guidelines could successfully make a Johnson challenge. Nevertheless, Beckles seemed to presage a holding that would invalidate mandatory Guideline “career offender” sentences under Johnson as soon as the proper case presented itself to the Supremes.

Thilo Brown, as well as two other mandatory Guidelines “career offenders,” had such cases, and their petitions for writs of certiorari arrived at the high court last summer while the Justices were gone fishin’. The three cases would provide the Court a chance to answer the Johnson mandatory “career offender” question everyone thought the Justices had all but begged to have presented.

Apparently not. Last week, the Court denied certiorari to all three.

The decision not to review Thilo’s case drew a dissent from Justice Sonia Sotomayor, rare for a cert denial. She said, “This important question, which has generated divergence among the lower courts, calls out for an answer… Regardless of where one stands on the merits of how far Johnson extends, this case presents an important question of federal law that has divided the courts of appeals and in theory could determine the liberty of over 1,000 people. That sounds like the kind of case we ought to hear.”

Brown v. United States, Case 17-9276 (Supreme Court, Oct. 15, 2018)

– Thomas L. Root

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Enough is Still Too Much in the 6th Circuit – Update for October 16, 2018

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WHEN TIME SERVED AIN’T GOOD ENOUGH
Sweet Brown should have been Steve's judge.
Sweet Brown should have been Steve’s judge.

Steve Mitchell did 17 years on a 21-year Armed Career Criminal Act conviction before his sentencing court, applying Johnson v. United States, held that one of his three predicate crimes of violence was not violent at all. The District Court sentenced him to time served plus three years of supervised release, and cut him loose.

Steve appealed. Yeah, you read that right. He appealed the decision that set him free. But Steve’s claim was anything but frivolous: he argued that because his conviction for being a felon in possession of a gun (18 USC 922(g)) could not be enhanced by the ACCA, the maximum sentence was only 10 years, and the District Court should have resentenced him to 10 years, not time served (which worked out to 17 years). What Steve wanted, of course, was for the District Court to recognize that he had served seven years extra, and therefore cut him loose from supervised release, too.

Last week, the 6th Circuit agreed with Steve that his “time-served” corrected sentence is unlawful. Absent the ACCA enhancement, Steve could have received only a ten-year-maximum sentence. But when the district court corrected his sentence to remove the enhancement, it gave him a “time-served” — or 17-year – sentence. The Circuit said that sentence in excess of the statutory maximum is unlawful.

doover181015The appellate court remanded Steve’s case to the district court for a re-do that recognized (1) a time-served sentence that is equivalent to a term-of-months sentence above the statutory maximum is invalid, and (2) while a district court has the discretion to select appropriate proceedings for correcting a sentence, the corrected sentence must comply with substantive and procedural reasonableness.

The Circuit did not rule on the district court’s reimposition of 3 years’ supervised release, holding that “on remand, the district court should take the opportunity to provide an appropriate rationale for its supervised release decision.”

Who knows? Maybe the sentencing court will decide that Steve has suffered enough.

United States v. Mitchell, Case No. 17-5904 (6th Cir. Oct. 10, 2018)

– Thomas L. Root
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Another ACCA Predicate Bites the Dust – Update for September 18, 2018

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9TH CIRCUIT HOLDS WASHINGTON STATE DRUG STATUTE OVERBROAD FOR ACCA

A year ago, the 9th Circuit ruled in United States v. Valdivia-Flores that Washington State’s accomplice liability statute rendered its drug trafficking law categorically broader than a federal drug trafficking equivalent. Thus, a Washington drug conviction was found to not categorically constitute an illicit trafficking offense and to not be an aggravated felony under the Immigration and Nationality Act.

abet180919The federal aiding-and-abetting standard requires the government to prove an accomplice has “specific intent” to facilitate the crime. Washington law by contrast requires only that the government prove a person “with knowledge that it will promote or facilitate the commission of the crime… solicits, commands, encourages, or requests the principal to commit it; or aids or agrees to aid [the principal] in planning or committing it.”

drugdealer180228Specific intent and knowledge are distinct. “Intentionally abetting the commission of a crime involves a more culpable state of mind than knowingly doing so.” Validivia-Flores held, “because the Washington statute does criminalize conduct that would not constitute a drug offense under federal law — due to the distinct aiding and abetting definitions — it is overbroad.”

Last week, although the government vigorously argued to the contrary, the 9th Circuit ruled there was no pertinent difference between the “serious drug offense” description in the Armed Career Criminal Act and the generic “illicit trafficking” described in the statute analyzed in Valdivia-Flores. Thus, the Washington drug statute is broad than the generic drug offense that constitutes a “serious drug felony” under the ACCA, and no longer can count as a predicate for an ACCA conviction.

United States v. Franklin, Case No. 17-30011 (9th Cir. Sept. 13, 2018)

– Thomas L. Root

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