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Supreme Court Says in Burglary, People Make the Difference – Update for December 11, 2018

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

SUPREME COURT BROADENS ACCA BURGLARY IN EARLY LUMP-OF-COAL DECISION

coal181211The Supreme Court yesterday issued an unexpectedly-early decision in United States v. Stitt, delivering a lump of coal to the stockings of people still hoping to to convince a court that their state burglary prior conviction should not count as a “prior” under the Armed Career Criminal Act. In a unanimous decision, the Court held in a Justice Breyer opinion that burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation counts as a “generic burglary” in the ACCA’s “enumerated offenses” clause.

First, a review: Under the ACCA, a defendant convicted of being a felon in possession of a firearm under 18 USC 922(g)(1) receives an enhanced sentence. The basic 922(g)(1) conviction carries a zero to ten-year sentence. But if the ACCA applies, the sentence starts at 15 years and goes to a maximum of life.

A defendant qualifies for an ACCA sentence if he or she has three prior convictions for a serious drug offense or a crime of violence. The Stitt opinion concerned the ACCA’s crime-of-violence definition. A crime of violence is either (1) one of four listed crimes, burglary, arson, extortion or use of explosives, or (2) a crime which requires the use of force or threat of force against another. The first clause is known as the “enumerated offense” clause, which the second is called the “elements clause.”

people181211In deciding whether an offense qualifies as one of the enumerated offenses – burglary, extortion, arson or use of explosives – under the “violent felony” definition in the ACCA, the “categorical approach” first adopted in the 1990 decision Taylor v. United States requires courts to evaluate a prior conviction by reference to the elements of the offense instead of the defendant’s actual conduct. A prior state burglary conviction does not qualify as a generic burglary under the ACCA where the elements of the offense are “broader than those of generic burglary,” as explained in Mathis v. United States.

The Supreme Court has defined the elements of a generic burglary as “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime. Under that definition, breaking into a car, a boat, an RV or even a mobile home often was not considered a burglary because it was not a “building or other structure.”

Yesterday’s decision changed all of that. In a consolidated case covering two defendants from two separate states, Arkansas and Tennessee, the Supreme Court expanded that previous definition, saying in effect that burglarizing anywhere that is used for overnight lodging falls within the ACCA’s generic burglary definition. The Court said Congress intended that the burglary definition reflect “the generic sense” in which the term ‘burglary’ was used in the criminal codes of most States when the ACCA was passed.

burglary160502At that time, a majority of state burglary statutes covered vehicles adapted or customarily used for lodging. Also, Congress viewed burglary as an inherently dangerous crime that “creates the possibility of a violent confrontation” between the burglar and an occupant. An offender who breaks into a mobile home, an RV, a tent, or another structure or vehicle “adapted or customarily used for lodging creates a similar or greater risk of violent confrontation.”

The Court said it did not matter if the vehicle or structure was only used for lodging part of the time, meaning that conceivably, breaking into new RVs on the dealer’s lot would still count toward an ACCA sentence.

One of the two defendants, Jason Sims complained that Arkansas’ statute remained too broad, because it also covers burglary of “a vehicle… [w]here any person lives.” He said since homeless people sometimes sleep in cars, this means that breaking into any car would fall under the ACCA definition. The Supreme Court said the question of whether the statute would be applied that way needed to be decided by a lower court, and remanded Jason’s case to a lower court to decide the merits of the claim.

United States v. Stitt, Case No. 17-765 (Supreme Court, Dec. 10, 2018)
United States v. Sims, Case No. 17-765 (Supreme Court, Dec. 10, 2018)

– Thomas L. Root

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

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SUPREME COURT REFUSES CHANCE TO APPLY JOHNSON TO MANDATORY GUIDELINES

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

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

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

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

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

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

– Thomas L. Root

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Another ACCA Predicate Bites the Dust – Update for September 18, 2018

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9TH CIRCUIT HOLDS WASHINGTON STATE DRUG STATUTE OVERBROAD FOR ACCA

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

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

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

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

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

– Thomas L. Root

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Between the Devil and the Deep Blue Sea – Update for September 17, 2018

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TWO MORE CIRCUITS CALL MANDATORY GUIDELINE JOHNSON CHALLENGES UNTIMELY

Last week, the 6th and 9th Circuits joined the 8th Circuit in ruling that post-conviction motions filed pursuant to 28 USC 2255 by people sentenced as Guidelines career offenders under the pre-Booker mandatory guidelines are not timely.

devil180918In the 2015 Johnson v. United States decision, the Supreme Court ruled that a part of the statutory definition of “crime of violence,” the so-called residual clause that included as a violent crime any offense that carried a significant risk someone might get hurt, was unconstitutionally vague, because no one could tell for sure what kind of crime might qualify. That definition was in the Armed Career Criminal Act, 18 USC 924(e)(2), but similar language appeared in the “crime of violence” definition used in Chapter 4B of the Sentencing Guidelines, which defined a “career criminal” and applied dramatically higher sentencing ranges.

Immediately, prisoners with “career offender” sentences filed motions claiming that the Johnson logic meant their Guidelines sentences were flawed. However, the Supreme Court ruled in Beckles v. United States that because the Guidelines are advisory, the constitutional concerns in Johnson did not apply to the residual clause of 4B1.2(a)(2).

The rub is that until the 2005 Supreme Court decision in United States v. Booker, the Guidelines were mandatory, not advisory. The Beckles decision specifically noted that the issue of whether Johnson might apply to someone labeled a “career offender” under the mandatory pre-Booker Guidelines was not being decided by Beckles.

Under 28 USC 2255(f)(3), a person seeking to take advantage of a change in the law to modify his or her sentence must file within a year of the decision. Within a year of Johnson, the prisoners in both the 6th and 9th Circuit cases filed 2255 motions claiming their district courts relied on the residual clause of USSG 4B1.2(a)(2) to conclude that each was a Guidelines career offender. They argued that the residual clause in 4B1.2(a)(2) was unconstitutionally vague because it was almost identical to the clause struck down in Johnson, and that Beckles did not apply to the residual clause of 4B1.2(a)(2) in the pre-Booker mandatory guidelines.

Last week, both the 6th and there 9th held that to apply Johnson to the career offender provisions of the mandatory, pre-Booker Guidelines “would be an extension, not an application, of the rule announced in Johnson.” Because the Supreme Court had not yet decided the issue it left open in Beckles, the appellate courts ruled, the 2255s were untimely and must be dismissed.

This puts people still serving long sentences under mandatory “career offender” Guidelines between the devil and the deep blue sea. The Supreme Court has sent a clear signal in Beckles that it would look at a mandatory “career offender” Johnson case differently, if only the issue were before it.  But one has to get to it in order to be decided. The cases that would qualify are so old (every one pre-2005) that the only way one can be put before a court is through a 2255 motion, and such a motion would not be timely if Johnson did not trigger the one-year clock.

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No doubt one or more of the cases already decided by the various Circuits may make it to the Supreme Court. To a layman, however, dragging prisoners through an additional four years of incarceration that virtually all commentators – including the Beckles court justices – acknowledge is unconstitutional seems to be a strange and unfair way to run a process.

A Johnson endnote: Meanwhile, the respected Supreme Court website SCOTUSBlog last week blasted the Attorney General’s claim that the recidivism rate for people released under Johnson was “staggering” blasted. Parsing various reports issued within the past year, the author finds Sessions’ claims are without foundation. Recidivism rates are no different for Johnson releasees from other inmates.

Robinson v. United States, Case No. 16-3595 (6th Cir. Sept. 7, 2018)

United States v. Blackstone, Case No. 17-55023 (9th Cir. Sept. 12, 2018)

SCOTUSBlog: Johnson v. United States: Three years out (Sept. 5, 2018)

– Tom Root

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