Tag Archives: armed career criminal act

Trick or Treat – Update for October 28, 2022

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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, a little early Halloween…

TREAT: SENATE BILL AIMED AT HELPING PREGNANT PRISONERS

treat221028Not that introduction of a bill this late in the Congressional season is much more than symbolism, but legislation introduced a few weeks ago by Sens Amy Klobuchar (D-MN) and Susan Collins R-ME) aims to improve care in federal prisons for pregnant and postpartum women and their babies.

The Protecting the Health and Wellness of Babies and Pregnant Women in Custody Act (S.5027) would establish care standards for federal facilities across the country, requiring access to medical and mental health services, as well as education about parental rights and lactation.

The act would restrict when pregnant women can be placed in restrictive housing, ban the Bureau of Prisons and U.S. Marshal Service from placing pregnant women in solitary confinement during the third trimester, and require the BOP to evaluate pregnant women to determine if their pregnancy is high-risk.

Companion legislation in the House was introduced by Reps Karen Bass (D-CA) and Guy Reschenthaler (R-PA).

Sadly, the likelihood that this bill will be considered before the 117th Congress expires on January 2, 2023, is remote.

Gov’t Executive, Senate Bill Aims to Improve Care for Pregnant Women and Babies in Federal Prisons (October 18, 2022)

S. 5027, Protecting the Health and Wellness of Babies and Pregnant Women in Custody Act

TRICK: IF AT FIRST YOU DON’T SUCCEED…

trick221028After Dan Kordash got caught at the airport by Customs and Border Protection officers after declaring he was carrying $12,000 in currency that turned out to be more like $33,000 (money which he forfeited), he was detained and questioned by CBP on at least two subsequent occasions. What’s worse, CBP officers told Dan that because of the money incident, he could count on always getting the third degree when he passed through the airport.

Dan filed Bivens claims against the CBP officers who detained him. The district court found that the officers had qualified immunity and dismissed the complaint. Not to be deterred, Dan then filed a Federal Tort Claims Act complaint for false imprisonment, battery, assault, intentional infliction of emotional distress, and negligence. The district court dismissed the new complaint as well for failure to state a claim, and Kordash appealed.

Last week, the 11th Circuit upheld the FTCA dismissal, holding that the doctrine of collateral estoppel meant that the Bivens suit determination that the officers acted lawfully in furtherance of federal policy should apply to the FTCA suit as well.

The 11th held that the issue in the FTCA case – whether the officers’ acts had a “nexus” with furthering federal policy and complied with federal law – was identical to the issue in the Bivens action. “In the Bivens action,” the Circuit said, “the district court determined for each incident when Kordash or Nilsen were stopped whether the officers acted within their discretionary authority and whether the detentions complied with federal law. Here, the same legal inquiries govern the application of the Supremacy Clause as a bar to liability for claims arising out of these incidents under the Federal Tort Claims Act.”

Because the issue met the test for issue preclusion, “Kordash is barred from relitigating these issues under the doctrine of collateral estoppel.”

Kordash v. United States, Case No. 21-12151, 2022 U.S.App. LEXIS 29420 (11th Cir., Oct. 21, 2022)

TREAT: MINNESOTA DRUG SALE STATUTES OVERBROAD

treatB221028The 8th Circuit ruled last week that because Minnesota’s definitions of “narcotic drug” and cocaine“ include drugs that the federal controlled-substance schedules do not, convictions under those statutes are not predicate “serious drug offense” under the Armed Career Criminal Act.

While the defendant was still convicted of a felon-in-possession count under 18 U.S.C. § 922(g)(1), his sentence exposure fell from 15 years to life all the way down to zero to 10 years.

United States v. Owen, Case No. 21-3870, 2022 U.S.App. LEXIS 28979 (8th Cir., Oct. 19, 2022)

– Thomas L. Root

A Moment in Time: Wooden Redefines ‘Occasions’ – Update for March 17, 2022

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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 OCCASIONAL CRIME

As I reported last week, on March 7, the Supreme Court unanimously reversed a sentence in the case of Dale Wooden, a man who had received an Armed Career Criminal Act-enhanced 15-year sentence for having committed ten prior burglaries. He had broken into a self-storage building and burgled ten separate units all in one hour’s work.

May you rest in peace, Betty... stealing America's hearts did not make you ACCA-qualified.
May you rest in peace, Betty… stealing America’s hearts did not make you ACCA-qualified.

The ACCA is a penalty statute. If someone possesses a firearm or ammunition while being prohibited from doing so – 18 USC § 922(g) includes prior felony convictions, being a fugitive, using controlled substances, even having a dishonorable discharge, and a host of other prohibitions – the penalty is up to ten years in prison. But if the defendant has been convicted of three violent felonies or serious drug offenses, and those three offenses were committed on “occasions different from one another,” the penalty jumps to a minimum of 15 years and a maximum of life without parole. Rather harsh…

Dale only had one wild night in a storage facility, when he broke through flimsy drywall walls separating individual storage units and took what he could find. But the state charged him with ten burglaries, which are considered to be violent crimes. Many years later, when a police officer who had stopped by Dale’s house saw a gun in plain sight, Dale was charged as a felon-in-possession. An enterprising U.S. Attorney figured that the ten burglaries had been committed on “occasions different from one another,” because, after all, you can only burgle one storage unit at a time. And that is how Dale became an armed career criminal.

Whether the occasions really were different from one another was the question that made it to the Supreme Court. Interpreting the ACCA’s “on occasions different from one another” language, all nine justices agreed that Dale’s ten burglaries occurred during the same “occasion.” Writing for the court, Justice Kagan first explained that according to its ordinary meaning, an occasion is “essentially an episode or event. If one learned about Wooden’s burglary spree,” Kagan explained, “they would say: ‘On one occasion, Wooden burglarized ten units in a storage facility.’ A person would not say: ‘On ten occasions, Wooden burglarized a unit in the facility.’ Nor would the average person describe Wooden breaking into each separate unit as its own independent occasion. Indeed, one need only turn to the dictionary to confirm this to be true, as the word occasion ‘commonly refers to an event, occurrence, happening, or episode’.”

If the Hamburglar stole them on successive days...
If the Hamburglar stole them on successive days…

Kagan ruled that “by treating each temporally distinct offense as its own occasion,” the government’s interpretation of the word “occasion” essentially collapses “two separate statutory conditions.” Kagan noted that the history of the “occasions” clause supports this interpretation. Congress amended ACCA to include the clause in order to write the Solicitor General’s position in United States v. Petty into law. In Petty, the Solicitor General admitted to the Supreme Court that the ACCA should be triggered only when a person’s prior convictions result from “multiple criminal episodes” even though such a requirement was not founded in ACCA’s text. Kagan explained that Congress amended ACCA to include the “separate occasions” requirement.

Recognizing that courts may struggle to define “separate occasions,” Kagan suggested standards: If offenses are committed “close in time,” they “will often count as part of one occasion; not so offenses separate by substantial gaps in time or significant intervening events.” She explained that in defining an occasion, “proximity of location is also important; the further away crimes take place, the less likely they are components of the same criminal event.” Finally, Kagan noted that “the character and relationship of the offenses may make a difference: The more similar or intertwined the conduct giving rise to the offenses… the more apt they are to compose one occasion.” She said that “applying this approach” will usually “be straightforward and intuitive.

Justices Gorsuch and Sotomayor were unsure how straightforward Kagan’s approach would be, given that different people may have “different intuitions about the same set of facts.” A multifactor balancing test, he wrote, did not give lower courts adequate guidance. “Imagine a defendant who sells drugs to the same undercover police officer twice at the same street corner one hour apart,” he wrote. “Do the sales take place on the same occasion or different ones?”

burglthree160124Gorsuch added that Kagan’s factors did not conclusively answer the question presented in the Wooden case. “When it comes to location, each storage unit had its own number and space, each burglary infringed on a different person’s property, and Mr. Wooden had to break through a new wall to enter each one,” Justice Gorsuch wrote. “Suppose this case involved not adjacent storage units but adjacent townhomes or adjacent stores in a mall. If Mr. Wooden had torn through the walls separating them, would we really say his crimes occurred at the same location?”

In Gorsuch’s view, the rule of lenity – the principle that courts should resolve statutory ambiguities in favor of criminal defendants – should come into play when courts struggle to decide whether crimes were committed as part of a single “occasion.”

Because Wooden’s decision interprets a statute, inmates in many circuits will be able to retroactively apply the decision to their ACCA convictions under the 28 USC § 2255(e) saving clause. It seems likely that the courts will struggle in applying the standards to the movant’s respective facts. Dale Wooden’s case seemed almost nonsensical. But what about (all too common) the guy who sold cocaine on a street corner for three successive days, and was convicted of three state-court distribution counts? Were those the same occasion? Or robs three banks in a week-long drug-addled frenzy?

The lawyers will be busy…

Wooden v. United States, Case No 20-5279, 2022 U.S. LEXIS 1421 (Mar 7, 2022)

SCOTUSBlog, Perhaps defining an “occasion” is not so difficult after all (March 8, 2022)

New York Times, Supreme Court Says 10 Burglaries Can Count as One Offense (March 7, 2022)

– Thomas L. Root

ACCA Arguments Show SCOTUS Skepticism – Update for October 11, 2021

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

READING SUPREME COURT TEA LEAVES ON ACCA

tea160404When I was a young lawyer, I figured out very quickly that it’s dangerous to try to predict the outcome of an appeal case based on the questions asked by the court during oral argument. But I will go out on a limb by predicting that the definition of “occasions different from one another” in the Armed Career Criminal Act is about to become more defendant-friendly.

To qualify for an ACCA 15-year minimum sentence, a defendant has to have three prior convictions for drug or violent offenses that were committed on “different occasions.” Over the years, a number of circuits – including the 6th – have collapsed “different occasions” so that a guy like William Wooden who broke into a self-storage building and stole from 10 units was held to have committed the crimes on “different occasions.”

Last Monday, the Supreme Court strained to answer what Justice Samuel Alito called a “nearly impossible question,” what it means for crimes to be different occasions. Both the government’s and Woden’s interpretation of “occasion” troubled the justices. In Justice Elena Kagan’s words, Bill Wooden’s interpretation of what constitutes an occasion felt “loosey-goosey.” But Justice Brett Kavanaugh suggested the government’s interpretation seemed to defy “common sense intuition.”

BettyWhiteACCA180503

It may not be the parties, but instead the statute. Justice Samuel Alito argued that this was “a nearly impossible question of statutory interpretation because the term ‘occasion’ does not have a very precise meaning.” In the same vein, Justice Sonia Sotomayor suggested the statute might be “so vague” that it is “incapable of rational application.” Justices Clarence Thomas and Amy Coney Barrett wondered if there were Sixth Amendment concerns given that both of the proposed interpretations may require improper judicial factfinding. And Justice Neil Gorsuch pondered what the court is to do if the justices find ambiguity “either way” — does the rule of lenity apply such that the tie breaks in favor of the defendant?

Justice Barrett said that it’s important for a jury to be able to understand when crimes should be considered separate offenses. The difference in terms of criminal activity, she said, is that “it is difficult to let the jury know when this event begins and when it ends.”

Expect a decision in February or March. I predict a near-unanimous court overturning Bill’s sentence, and – in the process – opening the door for some post-conviction ACCA challenges.

Bloomberg Law, Justices Parse ‘Occasion’ Meaning in Career-Criminal Appeal (October 4, 2021)

SCOTUSBlog, A hypothetical-filled argument proves how tricky it is to define an “occasion” (October 5, 2021)

Courthouse News Service, Burglary of many units in one facility poses counting challenge at sentencing (October 4, 2021)

– Thomas L. Root

Happy New Year! – Update for October 4, 2021

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

WE’RE BA-A-A-CK…

happynewyear211004… the nine Supreme Court justices will say this morning, the first Monday in October and the first day of the Court’s new year. The high court begins its new term – which lasts until June 30, 2022 but is known as “October Term 2021” – with hearing arguments on one federal criminal issue and granting review to another.

First, the grant of certiorari. Last week at its annual “long conference,” where the Court disposed of over 1,200 petitions seeking review of lower court decisions, the Supremes granted review to a First Step Act case. Back when Congress passed the Fair Sentencing Act of 2010 to reduce the disparity crack and powder cocaine sentences, it did not make the Fair Sentencing Act retroactive to the thousands of crack sentences already imposed.

In Section 404 of the 2018 First Step Act, Congress granted retroactivity at the discretion of the defendant’s sentencing judge, but did not specify any standards for the judge to apply in deciding whether to reduce a sentence. The question raised in Concepcion v. United States is whether, when a court is deciding whether to resentence a defendant under the Fair Sentencing Act, the court must or may consider intervening developments (such as prison record or rehabilitation efforts), or whether such developments only come into play (if at all) only after courts conclude that a sentence reduction is appropriate.

FSAsplit190826

The 3rd, 4th, 10th, and DC circuits have held that district courts must consider all subsequent facts, and not just the changes to statutory penalties, when conducting Fair Sentencing Act resentencings. But in the 1st, 2nd, 6th, 7th and 8th circuits are only required to adopt the revised statutory maximum and minimum sentences for crack cocaine spelled out in the Fair Sentencing Act. In the 5th, 9th, and 11th circuits, district courts are prohibited from considering any intervening case law or updated sentencing guidelines, and are not required to consider any post-sentencing facts during resentencings.

Don’t expect a decision before June 2022.

Now, for today’s argument. The Supreme Court will begin its term hearing argument in Wooden v United States. Defendant Wooden broke into a storage facility and stole from 10 separate storage units many years ago. When he was found in possession of a gun years later, the district court sentenced him under the Armed Career Criminal Act to 15 years, because it found that he committed three violent offenses – the breaking into the 10 storage units – “on occasions different from one another.” The Court of Appeals agreed, arguing that the crimes were committed on separate “occasions” because “Wooden could not be in two (let alone ten) of [the storage units] at once.”

BettyWhiteACCA180503This has long been the worst aspect of the ACCA, itself as well-meaning but lousy law. A number of circuits hold that crimes are committed on different “occasions” for ACCA purposes when they are committed “successively rather than simultaneously.” Other circuits, however, looked beyond temporality and instead considered whether the crimes were committed under sufficiently different circumstances.

The Supreme Court will resolve the Circuit split. A decision is expected early next year, and – if the Court agrees defendant Wooden, a number of people serving ACCA sentences may be filing 28 USC § 2255 or 28 USC § 2241 petitions seeking reduced sentences.

Wooden v. United States, Case No. 20-5279 (Supreme Ct., argued Oct 4, 2021)

Concepcion v. United States, Case No. 20-1650 (Supreme Ct., certiorari granted Sep 30, 2021)

Law360, Supreme Court Will Seek To Solve Crack Resentencing Puzzle (September 30, 2021)

SCOTUSBlog.com, What’s an “occasion”? Scope of Armed Career Criminal Act depends on the answer. (October 1, 2021)

– Thomas L. Root

‘Reckless Is Not Violent,’ Supremes Say – Update for June 14, 2021

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SCOTUS TAKES ANOTHER SWIPE AT ACCA

The Supreme Court last Thursday further limited the types of offenses that constitute crimes of violence for purposes of the Armed Career Criminal Act. In a 5-4 ruling in favor of the prisoner in Borden v. United States, the majority (if you can call it that) ruled that crimes that can be committed through recklessness rather only through specific intent are not crimes of violence.

borden210614Justice Elena Kagan wrote an opinion that was joined by Justices Stephen Breyer, Sonia Sotomayor, and Neil Gorsuch. Justice Clarence Thomas did not join Kagan’s opinion but concurred in the result. So for you math-inspired people, that makes the final tally on the decision 4-4-1. At the Supreme Court, the fact that five Justices agreed with the result makes that result the winner. However, it can complicate figuring out what opinion as to how the Court got there is in the majority. That’s the Marks v. United States problem, boys and girls, and that is a topic for another time.

For now, we’re focusing on Borden. The case involved the definition of “violent felony” set out in 18 USC § 924(e)(2)(B)(i), defined as any felony that “has as an element the use, attempted use, or threatened use of physical force against the person of another.”

The defendant, Chuck Borden, pled guilty to an 18 USC § 922(g)(1) felon-in-possession charge, which the district court enhanced under the ACCA to a statutory minimum of 15 years, The defense argued the ACCA did not apply because one of the three priors relied on by the district court was a Tennessee conviction for reckless aggravated assault. That crime can result from reckless conduct – a lower legal standard than “purposefully or knowingly” assaulting someone. Chuck argued that only purposeful or knowing conduct can meet ACCA’s definition of “violent felony.” Mere recklessness, he argued, does not qualify.

bordennunss210615The decision turned on the meaning of “physical force against the person of another.” The government argued that “against” had a meaning similar to “I tripped and fell against the guy ahead of me in line,” suggesting referring to one body contacting another. That way, if you were driving recklessly, and careened into a busload of nuns, the crime would be an ACCA predicate, because you employed physical force against a busload of “anothers.”

The majority, however, agreed with the defendant that “against” means something more. “The phrase ‘against another,’ when modifying the ‘use of force,’ demands that the perpetrator direct his action at, or target, another individual,” the opinion holds. “Reckless conduct is not aimed in that prescribed manner.”

Justice Thomas concurred, but did so not because of the definition of “against.” Instead, he argued that the phrase “use of physical force” is limited to intentional acts designed to cause harm.

habeas_corpusThe immediate question raised by Borden is whether current prisoners can use it to attack now-illegal sentences. Because the decision does not make a ruling on constitutional law, it will not be retroactive under 28 USC 2255(f)(3). However, it probably is attackable under 28 USC 2241, relying on the § 2255(e) “saving clause.”

Ohio State University law prof Doug Berman said in his Sentencing Law and Policy blog, “I am truly making a wild guess here, and I am eager to hear from folks in the field about whether they agree that only hundreds of sentences may be potentially disrupted by Borden or if in fact it could end up being thousands. Whatever the exact number, as I will explain in a future post, every ACCA defendant with a viable Borden claim should be thankful for the First Step Act making ‘compassionate release’ motions available to bring directly to court.”

Borden v. United States, Case No 19-5410, 2021 U.S. LEXIS 2990 (June 10, 2010)

Sentencing Law and Policy, How many federal prisoners might now be serving illegal sentences after Borden? (June 11, 2021)

SCOTUSBlog.com, Court limits definition of “violent felony” in federal gun-possession penalty (June 10, 2021)

– Thomas L. Root

If Today’s Thursday, My Position Has Changed – Update for May 20, 2021

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

DANCE WITH THE GIRL WHO BRUNG YOU

dancegirlbrung210520I used to practice in front of crusty old judge Walter J. Miller, who liked to warn attorneys that he expected them to “dance with the girl who brung you.” By that he meant that if you argued an evidentiary position in front of him, you were expected to maintain that position even if it became uncomfortable.

The government – which has a history of changing its position as the day, fashion, and its overarching goal of keeping people imprisoned may dictate – ran smack into that doctrine last week in the 7th Circuit. Dean Guenther was convicted of being a felon in possession of a firearm (18 USC § 922(g)(1)) in the District of Minnesota. Because he had three prior Minnesota burglaries, he was sentenced under the Armed Career Criminal Act. He appealed, and then tried a § 2255 motion. Both failed.

But some time after that, the 8th Circuit held that the Minnesota burglary statute was too broad to count as the kind of generic burglary that the ACCA intended to count against its predicate. Then, Johnson v. United States threw out the ACCA’s residual clause. Dean brought a 28 USC § 2241 habeas corpus motion in the 7th Circuit (where he was imprisoned) under the § 2255(e) saving clause. The district court denied his motion.

miscarriage-of-justiceLast week, the 7th Circuit reversed. A § 2255 motion is normally the exclusive method to collaterally attack a federal sentence, but the § 2255(e) saving clause provides a limited exception, letting a prisoner seek § 2241 habeas relief in the district where he is confined if “the remedy by motion is inadequate or ineffective to test the legality of his detention.” Generally, the saving clause works when the prisoner relies on an intervening statutory decision announcing a new, retroactive rule that could not have been invoked in his first § 2255 motion and the error is serious enough to amount to a miscarriage of justice.

Dean’s motion fit everything except the question of whether his ACCA-enhanced sentence amounts to a miscarriage of justice. Since ruling that the Minnesota burglary was not an ACCA predicate, the 8th Circuit has reversed its position, but the 7th Circuit more recently ruled that the Minnesota burglary could not be used to qualify a defendant for the ACCA.

Dean and the government argued whether the ACCA sentence was a miscarriage should rely on 7th Circuit law (which said it was) or the 8th Circuit (which now says it might not be). The Circuit settled the issue easily, noting that in a prior case, the government argued that “the law of the circuit of confinement — this circuit — should control. That position, if accepted, meant no relief.” At the time, the 8th had held Minnesota burglary was not an ACCA predicate but the 7th had not ruled on the question. By the time that case reached the court of appeals, the tables had turned. The 8th had reversed itself, but the 7th had held that Minnesota burglary could not be counted under the ACCA.

flipflop170920In the prior case, of course, the government’s position was that the 7th Circuit’s interpretation should govern, because that had a more severe outcome for the defendant. In Dean’s case, however, the 8th Circuit’s interpretation would have hammered the defendant more. Bu the government’s logic, that one should apply.

The court did not state the obvious in such stark terms, but it did rather pointedly note that prior case, “we held the government to the position it took in the district court and applied the law of this circuit. We follow the same approach here.”

Thus, under 7th Circuit precedent, Dean’s Minnesota burglary convictions are not ACCA predicates (meaning he faces a maximum sentence of 10 years instead of a minimum sentence of 15 years).

Enjoy the dance, Mr. United States Attorney. She’s your date, after all.

Guenther v. Marske, Case No 17-3409, 2021 USApp LEXIS 14055 (7th Cir May 12, 2021)

– Thomas L. Root

Lousy Lawyering and Other Stories – Update for April 27, 2021

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“DID I SAY FIVE YEARS? I MEANT FIVE DECADES…”

Four decisions of note last week:

stupidlawyr191202Oops, My Bad: Dave Mayhew was charged with white-collar fraud. The government offered him a plea deal that promised a maximum sentence of five years.

“C’mon, man,” his lawyer said. “That’s no deal. If we go to trial, five years is the worst we can do.” Dave, who paid big bucks for this professional advice, followed his attorney’s guidance and went to trial.

You can guess what happened. Dave lost, and he was sentenced to 27 years.

After appeals were over, Dave filed a habeas corpus motion under 28 USC § 2255, arguing that his lawyer was ineffective for giving him such bad advice. The district court denied the petition, pointing out that Dave was told at his re-arraignment that he could get up to 55 years on all of the charges and the court – no one else – would decide the sentence. So Dave knew what he was getting into, the judge claimed, and that cured any prejudice he would have suffered from his lawyer’s idiocy.

Last week, the 4th Circuit reversed. The re-arraignment came only after Dave had rejected the plea deal. The Circuit admitted that in the usual lousy-advice-on-sentence-exposure case, the law is clear that if the defendant pleads guilty after a Rule 11 change-of-plea hearing, the court’s warning that only it would determine the sentence and that the maximum the defendant faces, “taken together, may well have been enough to cure… counsel’s misadvice. But there is a fundamental problem,” the 4th held, “with applying that principle here, and it has to do with timing: The court’s admonitions in this case came only after Dave already had rejected the government’s plea offer, and there is no indication — in the record or from the government on appeal — that the offer remained open at that point.”

Bait and Switch: Rebecca Stampe made a deal on her drug case, agreeing to a Rule 11(c)(1)(C) plea locking her sentence at 168 months. An 11(c)(1)(C) plea sets a particular sentence or sentence range, with the court’s role limited to honoring the sentence deal or rejecting the guilty plea.

Deal170216Becky’s deal came with a government promise that if she testified against her co-defendant, she might get a substantial-cooperation sentence reduction under USSG § 5K1.1. But after she made the plea deal, the government dismissed the case against her co-defendant because of some unspecified misconduct by the informant (which presumedly made the informant’s testimony worthless).

Becky demanded information about the misconduct under Brady v Maryland, arguing that it was material to her guilt as well. She also moved to withdraw from her plea agreement (but not her guilty plea), figuring she’d do better with an open plea that let the court sentence her than she would with a Rule 11(c)(1)(C) plea.

Last week, the 6th Circuit shot her down. The Circuit ruled that the evidence could not possibly be material to Becky’s defense, because she had already pled guilty, so there was no defense left to make. As for the plea agreement, the Circuit said, “While we do not doubt that Stampe sincerely believed that she might avoid some prison time because of her putative cooperation in her co-defendant’s case, the plea agreement contemplated but did not require that possibility. So contrary to her assertion on appeal, it was not the ‘principal purpose’ of the agreement. The main purpose was the exchange of her plea for the government dropping the other charge against her and agreeing to a 168-month sentence.”

mathisEnd Run: John Ham filed a 28 USC § 2241 habeas petition claiming that Mathis v United States – a Supreme court decision that dictated how a sentencing court should apply the “categorical approach” in deciding whether a prior crime was a “crime of violence” under the Armed Career Criminal Act – required that he be resentenced to a lot less time.

John figured that the 4th Circuit’s United States v. Wheeler decision authorized the district court to address his § 2241 petition on the merits. The district court disagreed, and Jim appealed.

Wheeler adopted a four-part test for using § 2241 petitions to attack a defective sentence where a § 2255 motion would be “inadequate or ineffective.” One of those tests is that a petitioner must show a retroactive change in substantive law that happened after the direct appeal and first § 2255 motion.

John claimed that Mathis satisfies that requirement, changing “well-settled substantive law” about how a sentencing court should apply the categorical approach. Last week, the 4th Circuit disagreed.

“Mathis itself made clear that it was not changing, but rather clarifying, the law,” the 4th held. “The categorical approach has always required a look at the elements of an offense, not the facts underlying it… Indeed, Mathis merely repeated the ‘simple point’ that served as ‘a mantra’ in its ACCA decisions: ‘a sentencing judge may look only to the elements of the offense, not to the facts of the defendant’s conduct’.”

abandoned210427jpgSee You Around, Chump: Finally, in the 8th Circuit, Charles Ahumada filed a § 2255 motion arguing his attorney abandoned him by failing to file a petition for rehearing on his direct appeal. Not so, the Circuit said. In order to make a 6th Amendment ineffective assistance, a defendant first has to have a constitutional right to counsel. There is no constitutional right to counsel on a discretionary appeal, and a petition for rehearing is exactly that.

Chuck admitted as much, but argued that the Circuit’s Criminal Justice Act plan requiring counsel to file non-frivolous appeals gave him a due process right to effective counsel. “Even assuming there was a breach of the statute, the CJA,” the 8th said, “it does not give rise to a claim for ineffective representation of counsel.”

United States v. Mayhew, Case No 19-6560, 2021 U.S.App. LEXIS 11248 (4th Cir., April 19, 2021)

United States v. Stampe, Case No 19-6293, 2021 U.S.App. LEXIS 11459 (6th Cir., April 20, 2021)

Ham v. Breckon, Case No 20-6972, 2021 U.S.App. LEXIS 11493 (4th Cir., April 20, 2021)

Ahumada v. United States, Case No 19-3632, 2021 U.S.App. LEXIS 11861 (8th Cir., April 22, 2021)

– Thomas L. Root

Circuits Do Violence to ‘Attempted Violence’ – Update for March 8, 2021

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TWO CIRCUITS REFUSE TO “DAVIS” ATTEMPT CRIMES

It was a rough week for violent crime.

violent160620The Supreme Court’s 2019 United States v. Davis decision held that conspiracy to commit a violent crime was not itself a “crime of violence” that fell within the definition in 18 USC § 924(c). That is important, because a § 924(c) for using or carrying a gun during a crime of violence or drug offense carries a hefty mandatory sentence that by law is consecutive to the sentence for the underlying offense.  

Since Davis, a hot question facing courts has been whether a mere attempt to commit a violent crime should be lumped with conspiracy as inherently nonviolent.

Last Monday, the 2nd Circuit denied Kevin Collier’s post-conviction motion to throw out his § 924(c) in the wake of Davis, holding that his attempted bank robbery offense (18 USC §2113(a)) was indeed a crime of violence supporting his § 924(c) conviction.

In 2019, the Circuit held in United States v. Moore that § 2113(a) bank robbery was categorically a crime of violence under § 924(c)’s elements clause, and in United States v. Hendricks the Court found that Hobbs Act robbery and New York 3rd-degree robbery were crimes of violence as well. But Kevin argued he could be convicted of an attempt to rob a bank without ever getting to the point that he used force or threatened anyone and that it thus did not fall under § 924(c)’s elements clause. Driving up to the bank with a mask and a gun was enough to get him convicted, and that did not require he first commit any violent act.

violence180508The 2nd Circuit disagreed, noting that the crime of attempt requires that the defendant have intended to commit each of the elements of the substantive crime. A § 2113(a) conviction for attempted bank robbery requires that the defendant “by force and violence, or by intimidation… attempt[s] to take” the property at issue. Because Hendricks held that bank robbery by intimidation was a crime of violence, “a conviction for attempted bank robbery is a categorical match for a crime of violence under 924(c)’s elements clause, regardless of whether the substantial step taken involved the use of force.”

The 2nd declined to reach the question of whether all “attempts” to commit other crimes of violence would necessarily be considered “crimes of violence” under § 924(c), limiting its holding to attempted § 2113(a) bank robbery, which expressly requires that the attempt have been committed by force, violence, or intimidation. The Circuit admitted the question might be thornier if the statute of conviction did not clearly state that the elements of the attempt must include an act of force, violence, or intimidation.

The very next day, the 2nd Circuit issued an en banc opinion reversing a prior appellate decision that New York 1st-degree manslaughter was not a crime of violence. Gerald Scott was released in 2018 after serving 11 years of a 22-year Armed Career Criminal Act sentence when the district court held his prior manslaughter convictions were not crimes of violence. The district court reasoned that because someone can cause death by omission, manslaughter could be accomplished without employing any force or threat of force at all.

violence160110The en banc decision needed 50 pages to explain why New York 1st-degree manslaughter in New York qualifies as a crime of violence, and 70 more pages for the concurrences and dissents to debate what Ohio State law prof Doug Berman called “a formalistic legal matter that is an awful artifice of poorly conceived and constructed federal sentencing law.” In a nutshell, the majority, relying on the definition of physical force in Curtis Johnson v. United States, held that “1st-degree manslaughter is a categorically violent crime because its elements — (1) the causation of death (2) by a person intent on causing at least serious physical injury — necessarily involve the use of violent force.”

Finally, not to be outdone, last Friday a 3rd Circuit panel held that an attempt to commit a Hobbs Act robbery was categorically a crime of violence under the “elements” clause of 18 USC § 924(c). Defendant Marcus Walker argued that his conviction must be vacated because a person can be convicted of attempted Hobbs Act robbery based on nothing more than an intent to complete the robbery without actually committing a violent act and with only the intent to do so.

But the 3rd, in a decision that described in detail the circuit split on the issue, refused to follow the 4th Circuit’s United States v. Taylor ruling, and instead joined the 5th, 7th, 9th and 11th Circuits in holding tha it is “apparent that Congress meant for all attempted crimes of violence to be captured by the elements clause of § 924(c), and courts are not free to disregard that direction and hold otherwise.”

furball210308There is little doubt that this issue, and probably the whole “attempt” furball, is headed for the Supreme Court.

Collier v. United States, Case No 17-2402, 2021 U.S. App. LEXIS 5894 (2d Cir. Mar 1, 2021)

United States v. Scott, Case No 18-163-cr, 2021 U.S. App. LEXIS 6014 (2d Cir. Mar 2, 2021)

United States v. Walker, Case No 15-4062, 2021 U.S. App. LEXIS 6453 (3d Cir. Mar 5, 2021)

Lexology, Second Circuit Holds that Attempted Bank Robbery is Categorically a ‘Crime of Violence’ (March 4, 2021)

Sentencing Law and Policy: En banc Second Circuit needs 120 pages and five opinions to sort out whether NY first-degree manslaughter qualifies as a federal “violent crime” (March 2, 2021)

– Thomas L. Root

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