Tag Archives: ACCA

Kinder and Gentler Robbery Not ACCA ‘Violent’ – Update for June 25, 2018

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5TH CIRCUIT HOLDS TEXAS SIMPLE ROBBERY IS NOT CRIME OF VIOLENCE

The 5th Circuit last week ruled that a conviction for Texas robbery is not a crime of violence for purposes of the Armed Career Criminal Act.

BettyWhiteACCA180503Latroy Burris, convicted of being a felon-in-possession of a gun, was sentenced under the ACCA for priors of drug distribution, robbery and aggravated robbery. He conceded the drug conviction counted for ACCA purposes, and the 5th Circuit last year said aggravated robbery was a crime of violence. But Latroy argued that Texas robbery under § 29.02(a) of the Texas Penal Code was not a crime of violence.

Texas robbery requires that in the course of committing theft, a person intentionally, knowingly, or recklessly cause bodily injury to another; or intentionally or knowingly threaten or place someone in fear of imminent bodily injury or death.

The Circuit agreed with Latroy, finding that Texas law interprets “bodily injury” expansively, encompassing even “relatively minor physical contacts so long as they constitute more than mere offensive touching.” The Circuit said the Supreme Court decision on “physical force,” Curtis Johnson v. United States, suggests that causing “relatively minor physical contacts” does not entail the “violent force” required to make the state robbery offense a “crime of violence.”

Latroy will be resentenced without the ACCA 15-year mandatory minimum.

United States v. Burris, Case No. 17-10478 (5th Cir. June 18, 2018)

– Thomas L. Root

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Mandatory Guideline Career Offenders Get an ACCA Break – Update for June 12, 2018

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7TH CIRCUIT EXTENDS JOHNSON TO PRE-BOOKER CAREER OFFENDERS

BettyWhiteACCA180503When Johnson v. United States declared the residual clause of the Armed Career Criminal Act’s definition of “crime of violence” to be unconstitutionally vague, prisoners who had ACCA convictions, 18 USC 924(c) convictions and Guidelines “career offender” sentences based on crimes of violence started a land rush to district courts to get resentenced.

But their enthusiasm cooled off when the Supreme Court, in Beckles v. United States, ruled that the ruling did not apply to the several places in the Guidelines that used a “crime of violence” residual clause that read like the one in the ACCA. Beckles held that the vagueness concerns that made the ACCA residual clause unconstitutional were not present where the Sentencing Guidelines were concerned, because the Guidelines were merely advisory: that is, a judge did not have to follow them.

However, some inmates were still serving sentences handed down before the Supreme Court in 2005 declared the Guidelines to be merely advisory in United States v. Booker. Beckles simply did not address their situation.

Last week, the 7th Circuit did so, holding that “under Johnson, the guidelines residual clause is unconstitutionally vague insofar as it determined mandatory sentencing ranges for pre-Booker defendants.”

advisoryguidelines180613In Beckles, the Circuit said, the Supreme Court “took care… to specify that it was addressing only the post-Booker, advisory version of the guidelines.” In fact, the 7th said, “Beckles’ logic for declining to apply the vagueness doctrine rests entirely on the advisory quality of the current guidelines… Beckles reaffirmed that the void-for-vagueness doctrine applies to ‘laws that fix the permissible sentences for criminal offenses.’ As Booker described, the mandatory guidelines did just that. They fixed sentencing ranges from a constitutional perspective… The residual clause of the mandatory guidelines did not merely guide judges’ discretion; rather, it mandated a specific sentencing range and permitted deviation only on narrow, statutorily fixed bases.”

The 7th Circuit concluded that the career offender provisions of “the mandatory guidelines are thus subject to attack on vagueness grounds.”

Cross v. United States, Case No. 17-2282 (7th Cir., June 7, 2018)

– Thomas L. Root

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Supreme Court Taking Another Look at ACCA Predicates – Update for May 3, 2018

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IT’S DEJA VU ALL OVER AGAIN

deja171017It will seem like old times – James, Begay, Chambers, Sykes, Johnson, Mathis, and Beckles – as the Supreme Court has granted review to yet another pair of Armed Career Criminal Act cases last week. These companion cases focus on the question of whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the ACCA. The cases will be decided together during the Supreme Court term beginning in October 2018.

At the same time, we’re watching a trio of cases that are awaiting a decision by SCOTUS on certiorari. The petitions for certiorari have been “relisted” eight times, an astounding number of deferrals by the Court. (A relist is when the Supreme Court schedules a case for a decision on certiorari at the weekly Friday justices’ conference, but then defers decision until the next conference, essentially “relisting” it on the next week’s conference list).

The three cases, Allen v. United States, Gates v. United States, and James v. United States, all ask whether under the Supreme Court’s opinions in United States v. Booker, Johnson v. United States and Beckles v. United States – all of which depended heavily upon the distinction between advisory and mandatory sentencing schemes – the residual clause of the mandatory sentencing guidelines is unconstitutionally vague.

BettyWhiteACCA180503Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog last week, noted that the Stitt and Sims cases are being heard “because the government was seeking cert on these cases after losing in big Circuit rulings and because there is a split in the circuits.” Still, he admitted to “growing somewhat annoyed that issues related to the application of the Armed Career Criminal Act continued to be the focal point of so much SCOTUS activity… Many other issues that are so very consequential to so many more cases – e.g., the functioning of reasonableness review or the proper application of Graham and Miller — have been unable to get the Justices’ attention while nearly a dozen ACCA cases have been taken up by SCOTUS in the last decade.”

United States v. Stitt, Case No. 17-765 (cert. granted Apr. 23, 2018)

United States v. Sims, Case No. 17-766 (cert. granted Apr. 23, 2018)

Allen v. United States, Case No. 17-5864 (certiorari decision pending)

Gates v. United States, Case No. 17-6262 (certiorari decision pending)

James v. United States, Case No. 17-6769 (certiorari decision pending)

Sentencing Law and Policy, SCOTUS grants cert on yet another set of ACCA cases, this time to explore when burglary qualifies as “burglary” (Apr. 23, 2018)

SCOTUSBlog.com, Relist Watch (Apr. 27, 2018)

– Thomas L. Root

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Thanks to Mathis, Chances Are It’s No Longer Violent – Update for May 1, 2018

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8TH CIRCUIT SAYS NORTH DAKOTA BURGLARY TOO BROAD FOR ACCA

Courts are still struggling over the application of Mathis v. United States, the 2016 case that changed the way state statutes are interpreted for imposing Armed Career Criminal Act sentences. Mathis says that in determining whether a statute can be divided into crimes that qualify for ACCA treatment and crimes that are too broad for ACCA treatment, you first read the plain text, then see whether the separate offenses have different punishments, then look at state court decisions in the issue, and then check out state jury instructions. If none of that works, chances are it may still not count for an ACCA punishment…

mathis180501That’s what the 8th Circuit ran into last week with defendant Jon Kinney. He had a prior North Dakota burglary conviction of a “building or occupied structure” that helped qualify him for an ACCA sentence. But the state statute provided that an occupied structure could include a vehicle, and vehicle burglary falls beyond the kind of generic burglary that counts against the ACCA.

The Circuit looked at the statute, state court decisions and jury instructions, but could not tell whether “building or occupied structure” described two elements or just two means of committing the crime. Frustrated, the court gave just a “peek” at the record of Jon’s prior conviction “for the sole and limited purpose of determining whether the listed items are elements of the offense.”

It turned out that each of Jon’s charges just accused him of burgling “a building or occupied structure.” The fact that his indictments listed both, the Court held, was “as clear an indication as any that each alternative is only a possible means of commission, not an element that the prosecutor must prove to a jury beyond a reasonable doubt.” Thus, the Circuit held, Jon’s prior North Dakota convictions can’t count as predicates for the ACCA.

United States v. Kinney, Case No. 16-3764 (8th Cir. Apr. 23, 2018)

– Thomas L. Root

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Another Case of the “Shorts” – Update for April 19, 2018

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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.  Today, we’re doing clean-up with a number of short takes from our most recent newsletter to inmates.

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8TH CIRCUIT RULES MISSOURI 2ND DEGREE BURGLARY DOES NOT COUNT FOR ACCA

burglary160502Chuck Naylor pleaded guilty to being a felon in possession of a firearm. The district court found that four of his prior Missouri 2nd-degree burglary convictions qualified as violent felonies under the Armed Career Criminal Act. On appeal, the 8th Circuit agreed, because it was bound by United States v. Sykes.

But in an April 5 rehearing en banc, the Circuit changed its mind, holding that “convictions under Mo. Rev. Stat. § 569.170 (1979) do not qualify as violent felonies under the ACCA. To the extent Sykes concluded otherwise, it is overruled.”

The decision suggests that a lot of people doing ACCA time because of the Sykes decision will be visiting their local district courts soon with 28 USC 2241 petitions.

United States v. Naylor, Case No. 16-2047 (8th Cir. Apr. 5, 2018)

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FDA SEEKING COMMENT ON MARIJUANA DRUG SCHEDULE

Mike, an alert reader, brought to our attention that the FDA and Trump Administration have asked the public to comment on the “abuse potential, actual abuse, medical usefulness, trafficking, and impact of scheduling changes on availability for medical use of” marijuana and its derivatives. Mike noted that “there are medical benefits, jobs to be had, taxes to be made to go to education, a sure way to help get the people off opioids, not to mention a drop in schedule would help all those incarcerated with mandatory mins.”

Any interested person can comment on the proposal online.

Food and Drug Administration, Case No. FDA-2018-N-1072), International Drug Scheduling; Single Convention on Narcotic Drugs; Cannabis Plant… Request for Comments

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CALLING JUDGE POSNER

paging180419We wrote about Judge Posner’s new pro se assistance organization a few weeks ago, and since then, we’ve heard from a number of people wanting contact information. We still do not have an address, but the editor at Litigation Daily provided us with the organization’s web address:

http://www.justice-for-pro-ses.org
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THE AUSA, NOT THE COURT, PULLS 5K1.1 STRINGS

When a federal defendant assists the authorities prior to his or her being sentenced, the government returns the favor by filing a motion with the sentencing court under Sec. 5K1.1 of the Guidelines, asking for a sentence cut. Sec. 5K1.1 is about the only way a defendant can get a substantial reduction in sentence (the cut averages about 52%), and only the government can make the motion.

An unnamed defendant who helped out the government received his USSG Sec. 5K1.1 motion at sentencing, but the Feds only recommended dropping his 235-293 sentencing range to 135-168 months. That was a nice reduction, but was still above his 120-month statutory minimum sentence. The sentencing judge granted the 5K1.1, but departed downward to 80 months. The government thought that was too much, and appealed.

toughluck180419Last week, the 5th Circuit reversed, holding that the law is clear a court cannot impose a sentence below a statutory minimum for substantial assistance unless the government, in its 5K1.1, specifically moves to go below the minimum. The district court knew this, but justified its sentencing decision by citing its authority “to review a prosecutor’s refusal to file a substantial-assistance motion and to grant a remedy if they find the refusal was based on an unconstitutional motive.” The district court said its bigger reduction was warranted because the government did not take into account the lower Guidelines sentencing range the district court had applied, and overlooked other grounds, such as the fact that Appellee voluntarily withdrew from the conspiracy early on, encouraging others in the conspiracy to quit, volunteering at a local church, and maintaining a job. The district judge said he “disagrees with the concept of mandatory minimum sentencing by which members of the legislature and the executive who do not see the human beings before the Court nevertheless impose on the judiciary arbitrary minimum sentences.”

Tough, the Circuit said. Regardless of the district court’s own policy views about the use of mandatory minimum sentences, the law in this area is clear. And we must faithfully apply it. A motion by the government was required for the district court to depart below the minimum term of imprisonment established by Congress for the drug offense Appellee committed. Thus, it was error for the district court to sua sponte depart from the minimum.”

United States v. Sealed Appellee, Case No. 17-50451 (5th Cir. Apr. 10, 2018)

– Thomas L. Root

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Going Gently Into the Night – Update for March 6, 2018

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4TH CIRCUIT SAYS SOUTH CAROLINA INVOLUNTARY MANSLAUGHTER NOT ‘CRIME OF VIOLENCE’

Dylan Thomas adjured us to “not go gentle into that good night.” In the topsy-turvy world of violent crimes (by legal definition, if not in fact), the 4th Circuit has just held that sending someone into that good night can be done gently, at least if it’s involuntary manslaughter in South Carolina.

gentle180306Back in 2005, Jarnaro Middleton was sentenced to a 15-year mandatory minimum under the Armed Career Criminal Act. In a motion filed under 28 USC 2255, he challenged the district court’s determination that his prior conviction for South Carolina involuntary manslaughter qualified as a crime of violence under the ACCA.

Under the ACCA, a crime of violence must employ physical force against a person. ‘Physical force’ means “violent force – that is, force capable of causing physical pain or injury to another person.” “Physical force” must be both physical (exerted through concrete bodies) and violent (capable of causing pain or injury to another).

violence160110Involuntary manslaughter in South Carolina occurs when the defendant kills another person without malice and unintentionally while he or she was engaged in “either an unlawful activity not amounting to a felony and not naturally tending to cause death or great bodily harm, or a lawful activity with a reckless disregard of the safety of others.” To determine whether the crime calls for “physical force,” a court said it must apply the categorical approach by looking for the least culpable conduct that this offense encompasses. South Carolina courts have held that a defendant can be convicted of involuntary manslaughter by selling alcohol to a minor who later has a car accident because he is drunk. The government argued that the defendant used violent force because the drunk driver died, but the Circuit rejected that as “conflated.” In the drunk driving case, there is a distinction between use of violent force and what causes the injury. A crime may result in death or serious injury without involving the use of physical force.

Because a defendant may be convicted of involuntary manslaughter without using physical force against the victim, the offense is not a crime of violence as a matter of law, no matter what the facts of Jarnaro’s particular offense might have been.

United States v. Middleton, Case No. 16-7556 (4th Cir. Feb. 26, 2018)

– Thomas L. Root

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Meatloaf Was Right – Update for February 27, 2018

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TWO OUTTA THREE AIN’T BAD…

twoouttathreeb161026Under the Armed Career Criminal Act, a defendant convicted of possession of a firearm as a convicted felon would see his or her sentence increase from a 0-10 year range to a 15-year-to-life range if he or she had three prior convictions for crimes of violence or serious drug offenses. Any who could possibly object? It makes perfect sense that we would want to get these gun-wielding lifetime lowlives off the streets for a long time.

Likewise the Sentencing Guidelines, which jack up the sentencing ranges for what it calls “career offenders,” people getting convicted of drug or violent crime offenses with only two qualifying priors of much the same flavor as the ACCA predicates. Think of Guidelines “career offenders” as “ACCA Lite.” Nevertheless, who among us law-abiding citizens would not want to see these no-goodniks safely behind bars for a long time?

But things seldom work out in practice the way they sound in a Capitol Hill soundbite. The prosecutors ran with it, and so we had people getting the ACCA label for prior offenses of drunk driving or walking away from a halfway house. We personally know one guy who broke into a barbershop one night, and – while he was there – went to the door leading to the attached beauty shop. Hr got bupkis in the burglary, but 10 years later, the prosecutors counted it as two burglaries (which are categorically “crimes of violence”) not one. Another guy sold drugs for a week nine years before, and did a year of state time. But he pled guilty to three counts, selling a dime bag each day for three days in a row. The court called that three serious drug offenses, not one, and he got 15 years.

But the ACCA and “career offender” Guidelines have been mangled by defendants, too. A “crime of violence” has to be defined, and – as we have explained before – that’s not always easy. But surprisingly enough, it’s not always simple to figure out what a “serious drug offense,” is, either. The statute says it’s either (1)  an offense under the federal Controlled Substances Act with a max sentence of 10 years or more; or (2) an offense under state law “involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance” with a max of 10 years or more. It looks straightforward, but it is not.

drugdealer180228After the Supreme Court’s 2016 Mathis decision, defendants are not just looking for crimes of violence that are too broad for the ACCA and Guidelines career offender enhancement. The statute defines a prior state offense as involving “manufacturing, distributing, or possessing with intent to manufacture or distribute.” But state statutes sometimes include “transporting” or “offering to sell” in their definitions, and those are broader than the ACCA/Guidelines definition. Thus, defendants seek to invalidate state drug convictions for being too broad.

Corey Jones tried that, arguing that his Illinois drug conviction did not count toward Guidelines career offender status, because it applied not just to controlled substances and counterfeit drugs, but to controlled substance analogs, too. He argued the CSA only applied to two of those – controlled substances and counterfeit drugs – making his prior under 720 Ill.Stat. 570/401 too broad. Two outta three, he argued, was bad.

Last week, the 8th Circuit turned him down, holding that two outta three ain’t bad. While 21 USC 841 (the defining offense statute in the CSA) does not mention analogs, Title 21 USC 802(32)(a)  defines analog (albeit spelled “analogue”) and Sec. 813 provides “that a controlled substance analogue shall, to the extent intended for human consumption, be treated, for the purposes of any Federal law as a controlled substance in schedule I… Differences in spelling notwithstanding, we find no material distinction between the term “analog” as used in 720 Ill.Stat. 570/401 and the federal term “analogue” as used in Sec. 813. We therefore conclude Jones’s two prior Illinois convictions categorically qualify” for career offender status.

 United States v. Jones, Case No. 17-1710 (8th Cir. Feb. 21, 2018)

– Thomas L. Root

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A Miss Becomes a Hit: Shooting at House Is Not a Violent Crime – Update for February 20, 2018

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HE SHOOTS, BUT MISSES…

gunb160201At some point in his reckless past, Daryl Higdon pumped a few rounds into somebody’s house. The somebody was there at the time, but no one was hurt. Maybe Daryl was a lousy shot. Maybe he was just sending a message. Maybe he didn’t know the house was occupied, and was just being stupid.

Well, we can all agree that whatever else, he was being stupid. But – even if we haven’t shot up the neighbor’s place – who among us hasn’t been stupid once or twice our lives? Or even more?

Years later, when Daryl was caught with a gun (which, as a convicted felon, he was not supposed to have), he was sentenced under the Armed Career Criminal Act. The ACCA requires that a defendant have three prior crimes of violence or controlled substance offenses. Daryl’s three priors (we don’t know what the other two were) included the North Carolina conviction for discharging a firearm into an occupied structure.

Regular readers of this blog know that since Mathis v. United States and Johnson v. United States, a lot of crimes that might intuitively seem to us to be violent are nonetheless not “crimes of violence” as the term is used in the ACCA. Whether busting a few caps into somebody’s castle was a crime of violence is what the 6th Circuit took up last week, and while Daryl may have missed what he was shooting at many years ago, he sure hit the target last week.

The North Carolina crime of discharging a firearm into an occupied structure has as its elements (1) willfully and wantonly discharging (2) a firearm (3) into property (4) while it is occupied, and (5) while having reasonable grounds to believe the property might be occupied. When Daryl got his ACCA sentence, the district court counted the shooting offense as a crime of violence “even if no one was actually struck, [because] the defendant fired a bullet toward a location where he knew or believed another person to be.’”

violent170315The 6th Circuit said that was not good enough. The ACCA requires that a prior be “a crime of violence,” not just a violent crime. For Daryl’s prior to be a COV, he just did not have to be reckless. As well, force had to be used “against the person of another.” As to that requirement, the 6th said, “it matters very much whether the person was actually struck.” Otherwise, the appellate court said, “by the government’s logic, a defendant who intentionally fired a gun at someone would be guilty of murder even if he missed.

No matter how reckless Daryl had been in shooting at the house, the Circuit said, because no one was hit, discharging a firearm into an occupied structure was not a crime of violence under the ACCA.

United States v. Higdon, Case No. 17-5027 (6th Cir., Feb. 13, 2018)

– Thomas L. Root

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A Kinder, Gentler Robbery – Update for February 14, 2018

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ALABAMA ROBBERY BECOME NONVIOLENT

violence160110The 9th Circuit threw out Donnie Lee Walton’s conviction under the Armed Career Criminal Act last week, holding that Alabama first-degree robbery under Criminal Code § 13A-8-41 was not a violent felony under the ACCA, because the force required to support a conviction for 3rd-degree robbery (in the same statute) is not sufficiently violent to render that crime a violent felony under the ACCA, and the Government waived any argument that the statute is divisible.

At the same time, Donnie’s panel held that United States v. Dixon, a 9th Circuit case holding that California robbery is not a violent felony under the ACCA’s force clause because it can be committed where force is only negligently used and because the statute is indivisible), requires a holding that California 2nd-degree robbery under Penal Code § 211 is not violent, either.

United States v. Walton, Case No. 15-50358 (9th Cir., Feb. 1, 2018)

– Thomas L. Root

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5th Circuit Says Defendant Need Not Prove Sentencing Under Residual Clause – Update for October 16, 2017

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TWO WAYS TO WIN

gunb160201
Lawrence Taylor was convicted of being a felon in possession of a gun, and received a 15-year Armed Career Criminal Act sentence because he had three prior state convictions that the judge held to be crimes of violence.

After the Supreme Court’s Johnson v. United States decision, Lawrence filed a post-conviction motion under 28 USC 2255 claiming that one of his prior offenses, a Texas conviction for injury to a child, no longer qualified as one of the three offenses needed to impose an ACCA sentence.

Up until Johnson, the ACCA definition of a crime of violence had three subsections. First, four specific offenses – burglary, arson, extortion and use of explosives – were categorically included. This subset is known as the “enumerated crimes” clause. Second, all crimes that involved use or threat of physical force against another person were included. This subset is known as the “elements” clause. Finally, a “residual clause” held that a any crime posing a substantial risk of physical harm to another was considered a crime of violence as well. Johnson held that the “residual clause” was unconstitutionally vague, because no one could reasonably tell whether an offense would qualify under it or not.

McBryde171016When Lawrence was sentenced back in 2006, the district court did not specify whether the injury-to-a-child predicate offense qualified under the residual clause or the elements clause. At the time, no courts were parsing ACCA convictions that finely. That did not prevent the District Judge – John H. McBryde, who for our money is as poor a federal district judge as can be found in America – from peremptorily deciding 10 years after the fact that the ACCA’s residual clause “did not play any role” in Lawrence’s sentencing. Judge McBryde additionally complained that Lawrence should have asked at sentencing which clause – “elements” or “residual” – the court relied on to make the injury-to-a-child prior into a predicate ACCA offense.

Last week, the 5th Circuit reversed Judge McBryde. It held Lawrence was not to blame for not objecting that the district court did not specify “elements” or “residual,” because at the time, a defendant had “no legal right to such a determination.”

win171916It turned out Lawrence had two ways to win. First, the Circuit said Texas’ injury-to-a-child offense is clearly broader than the ACCA’s elements clause, which is to say that commission of that crime does not necessarily require use or threat of physical force. Because the offense is too broad to rely on the “elements” clause, the district court must have relied the residual clause, no matter what Judge McBryde may say now, and that clause has been declared unconstitutional. So under either element, the injury-to-a-child offense does not qualify him for an ACCA enhancement.

But was it Lawrence’s fault for not objecting to the paucity of the record back in 2006? The appeals court said no. “Theoretically,” the 5th said, “the district court mistakenly could have been thinking of the elements clause when sentencing Taylor. But this court will not hold a defendant responsible for what may or may not have crossed a judge’s mind during sentencing.”

release160523Without the ACCA conviction, Lawrence’s felon-in-possession offense carries a statutory maximum sentence of 10 years. He has already served nine months more than that. Although opposing Lawrence’s position that a defendant making a Johnson claim need not prove which element a sentencing court relied on when it imposed an ACCA sentence, the government nevertheless conceded that “if this Court determines that Taylor’s current motion presents a constitutional claim… we would agree to relief.” Thus, the 5th Circuit vacated Lawrence’s ACCA enhancement and ordered his immediate release.

United States v. Taylor, Case No. 16-11384 (5th Cir., Oct. 12, 2017)

– Thomas L. Root

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