Tag Archives: armed career criminal act

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

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

SUPREME COURT GRANT CERTIORARI TO ANOTHER ARMED CAREER CRIMINAL CASE

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

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

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

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

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

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

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

– Thomas L. Root

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

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

THE SUPREME COURT’S OUT FOR SUMMER… BUT NOT FOREVER

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

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

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

THE LAST JOHNSON DOMINO FALLS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

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

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5TH CIRCUIT FLIPS, DEFENDANT WINNER IS NOW A LOSER

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

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

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

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

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

Latroy Burris’ ACCA sentence was upheld.

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

– Thomas L. Root

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

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PAIR OF STATE SEX OFFENSES NOT VIOLENT UNDER ACCA

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

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

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

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

– Thomas L. Root

Some of It’s Violent, Some of It’s Not – Update for February 5, 2019

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MIXED WEEK FOR CRIMES OF VIOLENCE

Defendants arguing that prior state convictions were not crimes of violence enjoyed mixed results last week.

violent160620A 10th Circuit panel ruled in United States v. Bong that robbery under Kansas law can be accomplished with minimal force that falls short of the “violent force” required under the Armed Career Criminal Act’s elements clause. What’s more, Kansas aggravated robbery – a robbery committed by someone armed with a dangerous weapon or who inflicts bodily harm during course of a robbery – is not violent, either. Merely being “armed” with a weapon during the course of a robbery, the court said, is not sufficient to render the state offense a “violent crime” for ACCA purposes.

Things did not go so well in the 2nd Circuit. There, the court held in United States v. Thrower that 3rd degree robbery under N.Y. Penal Law 160.05 is a crime of violence for ACCA purposes. The crime requires “forcible stealing,” which is defined as common to every degree of robbery in New York State, requires use or threat of the immediate use of physical force sufficient to prevent or overcome victim resistance. “By its plain language,” the Circuit said, “the New York robbery statute matches the Armed Career Criminal Act.” The holding includes not just 3rd degree robbery, but by necessity all levels of New York robbery.

A 9th Circuit panel, however, held in United States v. Vederoff that 2nd degree assault under Wash. Rev. Code 9A.36.021(1) is overbroad when compared to the generic definition of aggravated assault, because the statute encompasses assault with intent to commit a felony. Because Washington’s 2nd-degree assault statute is indivisible, the panel could not apply the modified categorical approach, and therefore concluded that Washington second-degree assault does not qualify as a “crime of violence” under the enumerated clause of USSG 4B1.2. For the same reason, the panel held, 2nd-degree murder under Washington Code 9A.32.050 is overbroad because the statute covers felony murder. The panel found the statute indivisible, and therefore concluded 2nd-degree murder is not a “crime of violence” under the enumerated clause of USSG 4B1.2.

The 8th Circuit ruled in Mora-Higuera v, United States that a defendant’s 2255 motion, asserting a due process right to be sentenced without reference to the residual clause of USSG 4B1.2(a)(2) under the mandatory guidelines, was not dictated by Johnson v. United States, because it is “reasonably debatable whether Johnson’s holding regarding the ACCA extends to the former mandatory guidelines.” Thus, the defendant was not able to challenge his mandatory Guidelines career offender sentence on the grounds one of the prior crimes of violence was invalidated by Johnson.

vaguenes160516Finally, the 10th Circuit agreed in United States v. Pullen that “the Supreme Court has never recognized a void for vagueness challenge to the Guidelines and so Johnson neither creates a new rule applicable to the Guidelines nor dictates that any provision of the Guidelines is subject to a void for vagueness challenge.”

United States v. Bong, 2019 U.S. App. LEXIS 2798 (10th Cir. Jan. 28, 2019)

United States v. Thrower, 2019 U.S. App. LEXIS 3145 (2nd Cir. Jan. 31, 2019)

United States v. Vederoff, 2019 U.S. App. LEXIS 3314 (9th Cir., Feb. 1, 2019)

Mora-Higuera v. United States, 2019 U.S. App. LEXIS 3139 (8th Cir. Jan 31, 2019)

United States v. Pullen, 2019 U.S. App. LEXIS 2937 (10th Cir. Jan. 29, 2019)

– Thomas L. Root

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

Know Your Guns: Supreme Court to Review Mens Rea of Felon-In-Possession – Update for January 14, 2019

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SUPREME COURT TO REVIEW FELON-IN-POSSESSION STATUTE

gun160718The felon-in-possession statute, 18 USC 922(g)(1), makes it illegal for a convicted felon to possess a gun or ammo. But the statute does not specify a punishment. Instead, 18 USC 924(a)(2) provides the 10-year maximum for anyone who knowingly violates the F-I-P statute.

But what do you have to know? Do you have to know you’re breaking the law? Know that you are a convicted felon, or that what you possess is really a gun? Or just know that whatever it is, you possess it?

The Supreme Court granted review to a case that explores the mens rea requirement for the F-I-P statute a case which has implications for thousands of people convicted of being felons-in-possession, as well for the general issue of mens rea requirements for federal criminal statutes. The implications for people serving time for such convictions could be significant.

burglthree160124Certiorari was also granted in a case asking whether generic burglary requires proof that a defendant intended to commit a crime at the time of unlawful entry or whether it is enough that the defendant formed the intent to commit a crime while “remaining in” the building or structure. Two circuits hold the defendant has to intend to commit a crime as he or she enters. Four hold that it’s burglary even if a defendant can enter the structure with a pure heart, and only later decides to commit a crime.

Because burglary is a crime of violence offense for both the Armed Career Criminal Act conviction and the Guidelines career offender label, the holding could be important for a lot of people now doing time.

It is unclear whether the cases will be decided by June or will go into the the next term starting in October 2019.

Quarles v. United States, Case No. 17-778 (certiorari granted Jan. 11, 2019) 

Rehaif v. United States, Case No. 17-9560 (certiorari granted Jan. 11, 20190

– Thomas L. Root

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

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

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

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

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

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

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

– Thomas L. Root