We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
ALABAMA ROBBERY BECOME NONVIOLENT
The 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.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
TWO WAYS TO WIN
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.
When 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 poora federaldistrict 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.”
It 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.”
Without 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.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
JACKASS
Remember back in 2000 when MTV decided to break Masterpiece Theatre’s hammerlock on classy television programming? The result was Jackass, an ill-conceived piece of televised mayhem in which the show’s participants performed all manner of risky and stupid stunts on themselves and each other. Their viewers – being not just kids but dumb kids – often imitated what they saw on the show.
Much of what the ensemble cast did to each other – such as branding one participant on his bare kiester with a hot iron – easily blew past negligence and gross negligence standards on the way to sheer recklessness. And that brings us to today’s case.
George Bennett was convicted of being a felon in possession of as gun under 18 USC 922(g), among other crimes. Because the sentencing court concluded that George had three prior “crimes of violence” within the meaning of the Armed Career Criminal Act, he was sentenced under 18 USC 924(e) to 25 years. Without the ACCA specification, the most he could have gotten for the 922(g) was 10 years.
The legal landscape began shifting with the Supreme Court’s decision in Johnson v. United States that a portion of the ACCA – the “residual clause,” which pretty much defined a violent crime as one in which something bad could have happened, intended or not – was unconstitutionally vague. After Johnson, George filed a motion under 28 USC 2255 for relief from the ACCA sentence, arguing that his priors, all of which were aggravated assault under Maine law, were not “crimes of violence” within the meaning of the ACCA.
An ACCA “crime of violence” is an offense that (1) was burglary, arson, extortion or use of explosives (called the “Enumerated Clause”); or (2) has as an element the use, attempted use, or threatened use of physical force against the person of another (called the “Force Clause”).
George argued in his 2255 motion that Maine’s aggravated assault statute went beyond the Force Clause, in that one could commit aggravated assault through reckless conduct but without intent. The district court agreed with George, but the government appealed.
Cast member gets branded.
On Wednesday, the 1st Circuit Court of Appeals upheld the district court, not necessarily agreeing with George that recklessness was not enough to come within the Force Clause, but not being sure that it did not. In a 54-page exposition of the state of the law on recklessness and the Force Clause, the Circuit concluded that “the text and purpose of ACCA leave us with a ‘grievous ambiguity,’ as to whether ACCA‘s definition of a “violent felony” encompasses aggravated assault in Maine, insofar as that offense may be committed with a mens rea of mere recklessness, as opposed to purpose or knowledge, we… must apply the rule of lenity… and, in consequence, we conclude that Bennett’s two prior Maine convictions for aggravated assault do not so qualify…”
Maine defines aggravated assault to include “intentionally, knowingly or recklessly causing” bodily injury to another. Maine defines the mens rea of recklessness as acting when a person “consciously disregards a risk.”
The problem, the Court said, is that “Congress chose in ACCA to denominate ‘the use of force against another’ as a single, undifferentiated element.” The question thus becomes whether “the relevant volitional act that an offense must have as an element for ACCA purposes is not just the ‘use . . . of physical force,’ but the ‘use . . . of physical force against the person of another.” The injury caused to another by the volitional action in a reckless assault, the Court said, is by definition neither the perpetrator’s object nor a result known to the perpetrator to be practically certain to occur. For that reason, a voluntary reckless act – the Court used the example of throwing a plate against a wall in anger, resulting the splinters flying off and injuring one’s spouse. – may endanger another without deliberately endangering another.
The Court could as easily have used the Jackass “branding iron” skit.
The Court traced all of the arguments for and against George’s position, but concluded that “the canon against surplusage does at least suggest that the follow-on ‘against’ phrase in ACCA must be conveying something that the phrase ‘use . . . of physical force’ does not… Nevertheless, we can hardly be sure.”
The Rule of Lenity holds that a court should interpret any ambiguity in a criminal statute in the defendant’s favor. The Circuit said, “We are considering here a sentencing enhancement of great consequence. We should have confidence, therefore, that we are doing Congress’s will in applying this enhancement here.”
The Bennett decision is long but consequential, treating in detail a substantial question on interpreting “use of physical force against the person of another.” The issue may well be the next battleground in ACCA and “crime of violence” litigation.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
4TH CIRCUIT REVERSES SELF, HOLDS VIRGINIA COMMON-LAW ROBBERY IS NOT VIOLENT
With all of the recent news about Beckles v. United States, where the Supreme Court held that constitutional vagueness cannot apply to Guidelines sentences, it’s easy to forget that there is still a burgeoning legal industry in weighing whether crimes once thought to be violent for Armed Career Criminal Act cases are still violent.
The ACCA enhances the sentence of a felon caught with a gun if he (or in rare cases, she) has three prior qualifying convictions. The convictions may be serious drug offenses or “crimes of violence.” A “crime of violence” has traditionally been (1) burglary, arson, extortion or use of explosives (the “Enumerated Clause”); (2) a crime that involves use or attempt to use physical force (the “Force Clause”); or (3) a crime that involves significant risk that physical force may be used (the “Residual Clause”).
In 2015, Johnson v. United States held that the Residual Clause was unconstitutionally vague. In the wake of the decision – which was held by the Supreme Court to retroactively apply to people already convicted of ACCA offenses – prisoners have been returning to court to escape harsh ACCA sentences (which start at 15 years) where their predicate offenses no longer qualify.
A substantial procedural problem for a lot of the defendants is that the district courts often did not bother to explain under which ACCA clause their prior crimes fit. It hardly seemed to matter: if someone had been convicted of robbery, it seemed to fit under the Force Clause or the Residual Clause, so it hardly mattered to the outcome which clause it was on which the sentencing judge relied.
After Johnson, however, it suddenly made a big difference. It certainly did to Bobby Winston, who got 275 months back on 2002 for a felon-in-possession charge, where one of the predicate crimes was Virginia common-law robbery. The Johnsonretroactivity gave prisoners a one-year window to file motions under 28 U.S.C. Sec. 2255 seeking relief if Residual Clause cases had been used to bootstrap their convictions into ACCA sentences. Bobby filed, arguing that the Virginia common-law robbery could no longer be a predicate for his lengthy sentence.
Bobby ran straight into a procedural buzzsaw. The government argued that his 2255 motion had to be dismissed., because the district court had never said Virginia common-law robbery was a Residual Clause offense. The government contended it was a Force Clause offense, which was consistent with a 22-year old 4th Circuit decision that the Virginia crime employed physical force.
Monday, the 4th Circuit handed Bobby a win. First, the Circuit rejected the government’s procedural roadblock, holding that which the sentencing record did not establish that the Residual Clause served as the basis for concluding that Bobby’s common-law robbery conviction was a violent felony, “nothing in the law requires a court to specify which clause… it relied upon in imposing a sentence.” The appellate panel said, “We will not penalize a movant for a court’s discretionary choice not to specify under which clause of Section 924(e)(2)(B) an offense qualified as a violent felony. Thus, imposing the burden on movants urged by the government in the present case would result in selective application of the new rule of constitutional law announced in Johnson, violating the principle of treating similarly situated defendants the same.”
But is Virginia common-law robbery a violent crime? The 4th noted that since its 1995 decision that the offense qualified, the Supreme Court had ruled that the Force Clause only applied to “violent force… capable of causing physical pain or injury to another person.” Applying that standard, the Circuit said, requires that the federal court adhere to how state courts apply the offense, focusing on “the “minimum conduct criminalized by state law, including any conduct giving rise to a realistic probability, not a theoretical possibility that a state would apply the law and uphold a conviction based on such conduct.”
Common-law robbery or a simple purse-snatching?
Virginia courts have held that commission of common-law robbery by violence requires only a “slight” degree of violence, “for anything which calls out resistance is sufficient.” The violence used to commit common-law robbery “does not need to be great or cause any actual harm to the victim.” Thus, in one case, when a defendant grabbed a woman’s purse with force enough to spin her around but not cause her to fall, the force was enough for common-law robbery, but was not violent force within the U.S. Supreme Court’s definition.
Therefore, the 4th said, Virginia common-law robbery was no longer a crime of violence, and it will not support an ACCA conviction.
The 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.
