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Attempted Crime of Violence Does Not Support 18 USC 924(c) – Update for June 22, 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.

TAYLOR-MADE DECISION

The Supreme Court ruled yesterday in a 7-2 decision that an attempt to commit a crime of violence is not in itself a “crime of violence” for purposes of 18 USC § 924(c).

gunknot181009A little review: under 18 USC § 924(c), possessing, using or carrying a gun during and in relation to a crime of violence or drug offense will earn a defendant a mandatory minimum consecutive sentence of at least five years (and much worse if the defendant waves it around or fires it). A “crime of violence” is one that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”

This fairly straightforward question of what constitutes a crime of violence has spawned a series of Supreme Court decisions since Johnson v. United States in 2015. The last words on the subject were United States v. Davis, a 2019 decision holding that conspiracy to commit a crime of violence was not a “crime of violence” that would support a conviction under 18 USC § 924(c), and last summer’s Borden v. United States (an offense that can be committed recklessly cannot be a “crime of violence,” because a “crime of violence” has to be committed knowingly or intentionally).

The Court has directed that interpretation of whether a statute constitutes a crime of violence is a decision made categorically. The Court’s “categorical approach” determines whether a federal felony may serve as a predicate “crime of violence” within the meaning of the statute if it “has as an element the use, attempted use, or threatened use of physical force.” This definition is commonly known as the “elements” clause.

The question is not how any particular defendant may have committed the crime. Instead, the issue is whether the federal felony that was charged requires the government to prove beyond a reasonable doubt as an element of its case, that the defendant used, attempted to use, or threatened to use force.

knifegunB170404This approach has caused a lot of mischief. The facts underlying yesterday’s decision, Taylor v. United States, were particularly ugly. Justin Taylor, the defendant, went to a drug buy intending to rip off the seller of his drugs. Before he could try to rob the seller, the seller smelled a setup, and a gunfight erupted. Justin was wounded. The drug dealer was killed.

Because Justin never actually robbed the seller – he didn’t have time to do so – he was convicted of an attempted Hobbs Act robbery under 18 USC § 1951 (a robbery that affects interstate commerce) and of an 18 USC § 924(c) offense for using a gun during a crime of violence. Justin argued that while he was guilty of the attempted Hobbs Act robbery, he could not be convicted of a § 924(c) offense because it’s possible to commit an attempted robbery without actually using or threatening to commit a violent act. Under Borden and Davis, Justin argued, merely attempting a crime of violence was not itself a crime of violence.

Yesterday, the Supreme Court agreed.

Justice Gorsuch ruled that an attempted Hobbs Act robbery does not satisfy the “elements clause.” To secure a conviction for attempted Hobbs Act robbery, the government must prove that the defendant intended to complete the offense and completed a “substantial step” toward that end. An intention, the Court said, is just that and no more. And whatever a “substantial step” requires, it does not require the government to prove that the defendant used, attempted to use, or even threatened to use force against another person or his property. This is true even if the facts would allow the government to do so in many cases (as it obviously could have done in Taylor’s case).

maskgun200218The Court cited the Model Penal Code’s explanation of common-law robbery, which Justice Gorsuch called an “analogue” to the Hobbs Act. The MPC notes that “there will be cases, appropriately reached by a charge of attempted robbery, where the actor does not actually harm anyone or even threaten harm.” Likewise, the Supreme Court ruled, no element of attempted Hobbs Act robbery requires proof that the defendant used, attempted to use, or threatened to use force.

Taylor raises interesting questions about “aiding and abetting.” In Rosemond v. United States, the Supreme Court ruled that a defendant can be convicted as an aider and abettor under 18 USC § 2 “without proof that he participated in each and every element of the offense.” Instead, Congress used language in the statute that “comprehends all assistance rendered by words, acts, encouragement, support, or presence… even if that aid relates to only one (or some) of a crime’s phases or elements.”

Taylor’s finding that attempted Hobbs Act robbery cannot support a § 924(c) conviction because a defendant can be convicted of the attempt without proof that he or she used, attempted to use, or threatened to use force, then it stands to reason that if the defendant can be convicted of aiding or abetting a Hobbs Act robbery without proof that he or she used, attempted to use, or threatened to use force, “aiding and abetting” likewise will not support a § 924(c) conviction.

In separate dissents, Justice Clarence Thomas and Justice Samuel Alito argued that the lower court should have been reversed. Justice Thomas said the court’s holding “exemplifies just how this Court’s ‘categorical approach’ has led the Federal Judiciary on a ‘journey Through the Looking Glass,’ during which we have found many ‘strange things.’”

violence180508Indeed, a layperson would find it baffling that Justin could shoot his target to death without the government being able to prove he used a gun in a crime of violence. But Justice Thomas’s ire is misplaced. One should not blame the sword for the hand that wields it. Congress wrote the statute. It can surely change it if it is not satisfied with how the Court says its plain terms require its application.

United States v. Taylor, Case No. 20-1459 2022 U.S. LEXIS 3017 (June 21, 2022).

– Thomas L. Root

Is Trying To Be Violent All It Takes? – Update for December 8, 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.

AIDING, ABETTING, ATTEMPTING, AND GUNNING

drugripoff211208Gary D. Harris got convicted of aiding and abetting 2nd-degree murder, aiding and abetting attempted robbery, and aiding and abetting using or carrying a firearm during and in relation to a crime of violence. He got hammered: 420 months for the aiding and abetting murder, and an extra 60 months for the 18 USC § 924(c) charge.

Gary filed a post-conviction habeas corpus motion under 28 USC § 2255, but it failed like most of them do. After United States v. Davis changed the landscape on what crimes were and were not crimes of violence, Gary filed a second 28 USC § 2255 motion.

A second § 2255 is not easy to file. A prisoner must get permission from the Court of Appeals to file one, and the standards are tough: you’ve got to have newly-discovered evidence that pretty much exonerates you or be the beneficiary of a new Supreme Court constitutional decision that is retroactive.

Gary asked the 6th Circuit for permission. Last week the 6th Circuit turned him down.

aidabett211208Gary argued his consecutive 60-month sentence had to be vacated because the district court might have imposed that sentence under the unconstitutionally vague “residual clause.” What’s more, Gary argued, his § 924(c) sentence couldn’t fall under the “elements clause” either, because neither his conviction for aiding and abetting second-degree murder nor his conviction for aiding and abetting attempted robbery could have constituted  a “crime of violence.”

It’s an appealing argument. It seems like you could aid or abet a violent crime without committing an act of violence yourself, like loaning your car to someone who uses it to rob a bank. But the Circuit didn’t buy it. “To justify relief under § 2255,” the 6th said, Gary had to not only show “constitutional error but also harm that he suffered from that error.” He had to “establish that he could not have been sentenced to the consecutive 60-month prison term under § 924(c)(3)’s elements clause. Because the 18 USC § 2113 crime of aiding and abetting attempted robbery necessarily constitutes a crime of violence,” the Court said, Gary cannot do that.

So aiding and abetting and attempted crimes of violence are themselves violent. And the Garys of the world lose. Right?

corso170112As Lee Corso might say, “Not so fast, my friend.” Yesterday, the Supreme Court heard argument in United States v. Taylor, where the issue is whether an attempt to commit a Hobbs Act robbery is a crime of violence. The outcome of that case could reopen the aiding and abetting/attempt issue for hundreds, if not thousands, of inmates.

Justin Taylor was a Richmond, Virginia, pot dealer who robbed his buyers. This was a business model with great short-term results, but lousy for building customer loyalty. In August 2003, Justin and his sidekick planned just such a robbery. Justin sat in the getaway car while his partner pulled off the heist. The buyer was unwilling to turn over his money, so Justin’s buddy shot him dead. Justin and his partner fled without the money.

Justin was convicted of Hobbs Act conspiracy and a crime of violence under § 924(c). He got 20 years for the conspiracy and another ten for using a gun during a crime of violence.

violent160620After Davis, Justin filed a § 2255 motion, arguing that his crime – because it was a mere attempt – was not a crime of violence. That meant that the 10-year sentence for using the gun would have to be thrown out. The U.S. Court of Appeals agreed, vacating Justin’s § 924(c) conviction. “Because the elements of attempted Hobbs Act robbery do not invariably require ‘the use, attempted use, or threatened use of physical force,’ the offense does not qualify as a ‘crime of violence’ under § 924(c),” the appeals court said.

At yesterday’s argument, the Government complained that the Fourth Circuit “has excised from § 924(c) a core violent federal crime, based on the imaginary supposition that someone might commit it with a purely non-threatening attempted threat and yet somehow still come to the attention of law enforcement and be prosecuted.”

But just how imaginary would such a supposition? That question consumed the argument session.

Chief Justice John Roberts asked at one point just what charges Woody Allen’s character in “Take the Money and Run” would have faced for handing the note “I have a gub” to the teller. Justin’s lawyer, Michael Dreeben, said the Woody Allen character’s actions would violate the Hobbs Act. “An attempt that fails is still prosecutable as an attempt,” Dreeben said.

Jail151220As always, the Government predicted the collapse of the judicial system and wholesale release of inmates if Justin Taylor’s view prevailed. Justice Sonia Sotomayor was justifiably skeptical, pointed out that whether an attempt could support a § 924(c) was a question of enhancement, not convictability (my word, not the Justice’s). She said the government made it sound like a win for the defense would mean letting out “all of these horrible criminals,” but she emphasized that defendants still face substantial sentences on other charges, like Justin’s 20-year conspiracy term that isn’t at issue here.

Justice Brett Kavanaugh worried about a ruling for the defense. “Congress obviously… imposed this because there’s a huge problem with violent crime committed with firearms and thought that the sentences were not sufficient to protect the public,” he said.

Harris v. United States, Case No. 21-5040, 2021 U.S. App. LEXIS 35494 (6th Cir., December 1, 2021)

United States v. Taylor, Case No. 20-1459 (Supreme Court, oral argument December 7, 2021)

Bloomberg Law, Violent-Crime Definition Gets High-Court Hearing in Gun Case (December 7, 2021)

– Thomas L. Root

Hobbs Is Violent, Hobbs Is Not Violent – Update for May 3, 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.

THE TWO FACES OF HOBBS

Two cases decided in the past few weeks illustrate the strange world of Hobbs Act robbery.

janus210502The Hobbs Act, a post-war legacy of Congressman Sam Hobbs (D-Alabama) federalized robbery of the corner candy store. Sam was a man of his time, close friends of J. Edgar Hoover (and sponsor of a bill that would have let the FBI wiretap anyone suspected of a felony, which ultimately did not pass).

The Hobbs Anti-Racketeering Act of 1946 amended the Anti-Racketeering Act of 1934 after the Supreme Court held in United States v. Teamsters Local 807 that Congress meant to exempt union extortion from criminal liability.  Congress did not so intend, and Sam Hobbs sponsored a bill that made sure the Court got the message.

Like its predecessor, the Hobbs Act prescribes heavy criminal penalties for acts of robbery or extortion that affect interstate commerce. The courts have interpreted the Hobbs Act broadly, requiring only a minimal effect on interstate commerce to justify the exercise of federal jurisdiction. That Clark bar you stole at gunpoint?  It was made over in Altoona, Pennsylvania, by the Boyer Candy Co. Inasmuch as you robbed it from a confectioner in Podunk Center,  Iowa, your robbery affected interstate commerce. Presto – a Hobbs Act robbery.

clark2120503The Hobbs Act has been used as the basis for federal prosecutions in situations not apparently contemplated by Congress in 1946. Just ask Earl McCoy.

Earl rode around in the car while his brothers committed armed home invasions, stealing TVs and the such from Harry and Harriet Homeowner at gunpoint. Convicted of Hobbs Act robbery, Hobbs Act conspiracy, attempted Hobbs Act robbery and of four counts of using a gun in the commission of the crimes, Earl got sentenced to 135 years.

That’s only 15 years less than Bernie Madoff got for a $65 billion swindle, proving Earl was probably in the wrong business. Of course, Bernie didn’t use a gun. It was the gun that got Earl, five stacked 18 USC § 924(c) counts that added 107 years to his sentence. The First Step Act changed the stacking law, so the same offense would net Earl only 35 years today, still substantial time but at least servable in a normal lifetime.

Ernie appealed his conviction, arguing that the attempted robberies, the conspiracy, and aiding and abetting could not support 18 USC 924(c) convictions. Ten days ago, the 2nd Circuit gave him a split decision.

violence181008The 2nd agreed that after United States v. Davis, Hobbs Act conspiracy no longer supports a § 924(c) conviction. No surprise there. But the Circuit held that attempted Hobbs Act robbery and, for that matter, aiding and abetting a Hobbs Act robbery, was a crime of violence that supports a § 924(c) conviction.

Earl argued that one could attempt a Hobbs Act robbery without ever using force. After all, scoping out a store to rob while carrying a gun is enough to constitute an attempt, and no violence was ever used. Doesn’t matter, the 2nd said. To be guilty of Hobbs Act attempted robbery, a defendant necessarily must intend to commit all of the elements of robbery and must take a substantial step towards committing the crime. Even if a defendant’s substantial step didn’t itself involve the use of physical force, he or she must necessarily have intended to use physical force and have taken a substantial step towards using physical force. That constitutes “attempted use of physical force” within the meaning of § 924(c)(3)(A).

For aiding-and-abetting to be enough to convict someone of a crime, the underlying offense must have been committed by someone other than the defendant, and the defendant must have acted with the intent of aiding the commission of that underlying crime. An aider and abetter is as guilty of the underlying crime as the person who committed it.

Because an aider and abettor is responsible for the acts of the person who committed the crime, the Circuit held, “an aider and abettor of a Hobbs Act robbery necessarily commits all the elements of a principal Hobbs Act robbery.”

lock200601Earl will get 25 years knocked off his sentence, leaving him with a mere 110 years to do. As for whether “attempts” to commit a crime of violence is itself a crime of violence, that question may not be settled short of the Supreme Court.

But the Hobbs Act has a split personality: it is not a crime of violence for all purposes. In the 4th Circuit, Rick Green pled to Hobbs Act robbery, with an agreed sentence of 120 months. But the presentence report used the Hobbs Act robbery as a crime of violence to make him a Guidelines career offender, with an elevated 151-188 month sentencing range. At sentencing, Rick argued Hobbs Act robbery was not a crime of violence under the Guidelines “career offender” definition. His sentencing judge disagreed.

But last week, the 4th Circuit sided with Rick. Applying the categorical approach, the Circuit observed that Hobbs Act robbery can be committed “by means of actual or threatened force, or violence, or fear of injury, immediate or future,” to a victim’s person or property.” The 4th said, “this definition, by express terms, goes beyond the use of force or threats of force against a person and reaches the use of force or threats of force against property, as well… So to the extent the Guidelines definition of “crime of violence” requires the use of force or threats of force against persons, there can be no categorical match.”

Thus, Rick was not a “career offender,” and will get resentenced to his agreed-upon 120 months.

United States v. McCoy, Case No 17-3515(L), 2021 US App. LEXIS 11873 (2nd Cir Apr 22, 2021)

United States v. Green, Case No 19-4703, 2021 US App. LEXIS 12844 (4th Cir Apr 29, 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

Meanwhile, Back At The Courtroom… – Update for April 17, 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.

I THINK, THEREFORE I AM…

Watch me write an entire post without ever using the words “coronavirus” or “COVID-19.”

Despite our fixation-in-place with the pandemic, some legal news beyond The CARES Act release to home confinement of Michael Cohen is still being made.

violent170315A 9th Circuit decision last week held that even after the Supreme Court’s United States v. Davis decision last summer, a Hobbs Act armed robbery remains a crime of violence for purposes of 18 USC 924(c)(3)(A). That’s unsurprising: other than the pending 9th Circuit case United States v. Chea, there is hardly a groundswell to declare robberies to be non-violent.

But the 9th went beyond that and held, in a 2-1 decision, that – where a substantive offense is a crime of violence under 18 USC § 924(c)(3)(A) – an attempt to commit that offense is also a crime of violence.

The defendant, who had previously pulled off an armored car heist for a $900,000 score, decided to reprise his success. Unfortunately for him, the FBI had offered a $100,000 reward for information leading to his arrest, a pot of legit money that was enough to convince his sidekick to rat him out.

As the defendant drove toward the armored car garage, he got spooked by too much law enforcement activity in the area, and decided to abort. He was arrested a few days later, and convicted of attempted Hobbs Act robbery and carrying a gun during a crime of violence under 18 USC § 924(c).

The Circuit upheld the conviction, holding:

We agree with the Eleventh Circuit that attempted Hobbs Act armed robbery is a crime of violence for purposes of § 924(c) because its commission requires proof of both the specific intent to complete a crime of violence, and a substantial step actually (not theoretically) taken toward its completion… It does not matter that the substantial step—be it donning gloves and a mask before walking into a bank with a gun, or buying legal chemicals with which to make a bomb — is not itself a violent act or even a crime. What matters is that the defendant specifically intended to commit a crime of violence and took a substantial step toward committing it. The definition of “crime of violence” in § 924(c)(3)(A) explicitly includes not just completed crimes, but those felonies that have the “attempted use” of physical force as an element. It is impossible to commit attempted Hobbs Act robbery without specifically intending to commit every element of the completed crime, which includes the commission or threat of physical violence. 18 U.S.C. § 1951. Since Hobbs Act robbery is a crime of violence, it follows that the attempt to commit Hobbs Act robbery is a crime of violence.

Judge Nguyen dissented, succinctly observing that “as the majority acknowledges, an attempted Hobbs Act robbery can be committed without any actual use, attempted use, or threatened use of physical force. Therefore, it plainly does not fit the definition of a crime of violence under the elements clause. Yet in a leap of logic, the majority nevertheless holds that “when a substantive offense is a crime of violence under 18 U.S.C. § 924(c)(3)(A), an attempt to commit that offense is also a crime of violence.”

Several district courts in the Second Circuit have held that attempted Hobbs Act robberies are not crimes of violence. I suspect this question will ultimately be settled at the Supreme Court.

Ithink200417French philosopher René Descartes famously posited, “Cogito, ergo sum.” For those of you who did not have Emily Bernges for high school Latin, this translates as, “I think, therefore I am.”

The 9th Circuit’s corollary is “I think about violence, therefore I have committed violence.” Somehow, it doesn’t have the same ring to it.

United States v. Dominguez, 2020 U.S. App. LEXIS 10863 (9th Cir., April 7, 2020)

– Thomas L. Root

Gun Case Misfires, Shoots Government in the Foot – Update for March 3, 2020

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GENERAL VERDICT DOOMS HOBBS ACT CONSPIRACY/ ATTEMPT CONVICTION

Defendant Stacy Berry was found guilty of a using a gun in a crime of violence (an 18 USC § 924(c) offense) based on both an underlying conspiracy to commit Hobbs Act and an attempted Hobbs Act robbery. A § 924(c) violation, of course, carries a mandatory additional sentence of at least five years.

guns200304Time was, the government liked attaching § 924(c) counts to conspiracies, because conspiracies are so long-lived and squishy that essentially, a defendant’s possession of a gun at any time during a months-long or years-long conspiracy was enough to ensure the § 924 conviction. It was may, prove that during a robbery on a particular date and at a particular location, the defendant knew that his accomplice was going to pull his .44 Klutzman and pistol-whip a store clerk.

Prior to the Supreme Court’s United States v. Davis decision in June 2019, courts generally held that if a crime was violent, then, ipso facto, a conspiracy to commit the crime was violent, too, and any attempt to commit the crime had to be violent. That made securing the § 924(c) conviction a cinch.

sowwind200205Sow the wind, reap the whirlwind. Last month, a district court granted the defendant’s post-conviction 28 USC § 2255 motion, because the government had cleverly attached a § 924(c) count to both a Hobbs Act conspiracy and an attempted Hobbs Act robbery. By now, everyone knows that a Hobbs Act conspiracy is not a crime of violence, and courts are coming around to the view that an attempted crime of violence is not necessarily a crime of violence, either.

Stacy argued that neither the conspiracy nor the attempted robbery was a crime of violence. The government argued that while the conspiracy was not, the attempt certainly was.

The district court held that “it need not rule whether attempted Hobbs Act robbery qualifies as a crime of violence… The parties acknowledge that the jury instructions allowed for a conviction on either conspiracy or attempted Hobbs Act robbery, and the jury verdict was a general verdict which does not specify which was the basis of the conviction.” For that reason, the § 924(c) conviction was thrown out.

United States v. Berry, 2020 U.S.Dist. LEXIS 20380 (W.D.Va. Feb 6, 2020)

– Thomas L. Root

Nasty, Brutish Week for the Hobbs Act… But a Ray of Sunshine, Maybe? – Update for January 22, 2020

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DARKEST HOUR FOR HOBBS ACT JUST BEFORE DAWN?

violent170315In the wake of last summer’s United States v. Davis Supreme Court decision, a number of federal defendants began asking whether attempting to commit or aiding and abetting a Hobbs Act robbery (18 USC § 1951) can be considered a “crime of violence” that will support an 18 USC § 924(c) conviction and mandatory add-on sentence for possession or use of a gun in the underlying offense. In other words, a crime that any reasonable person might think is violent may not be quite violent enough.

A primer: Under 18 USC § 924(c), anyone who commits a drug trafficking offense or a crime of violence while possessing a firearm is sentenced for the underlying crime, and then hit with a mandatory additional sentence of at least five year and up to life in prison. The minimum sentences increase if the defendant brandished the gun (minimum additional seven-year sentence) or actually fired it (minimum additional seven-year sentence). The hot arguments over the past decade have been what makes an underlying crime a “crime of violence,” with Davis being only the latest case to take up the question.

And yesterday, the Supreme Court heard arguments in Shular v. United States, which could bring the same kind of scrutiny to what constitutes a drug offense that Davis and its antecedents brought to crimes of violence.

Enough background… now for the news. Last week was not especially helpful to defendants hoping that Hobbs Act robbery might be found to be other than a crime of violence. Parts were nasty and brutish. But, mercifully, those may also be short.

First, the Supreme Court denied certiorari on a closely-watched petition filed in Mojica v. United States, which asked indirectly whether a § 924(c) conviction could be based on a conviction for aiding and abetting a Hobbs Act robbery. Mojica argued that aiding or abetting a Hobbs Act robbery was not a “crime of violence” after Davis, because viewed categorically, a Hobbs Act robbery could be committed without using or threatening force. Although there were early signs of Supreme Court interest in the case, brought by talented post-conviction attorney Brandon Sample, certiorari was denied on Jan. 10.

violence180508Meanwhile, the 7th Circuit rejected claims that an attempt to commit a Hobbs Act robbery is not a crime of violence under the elements test of § 924. Because a Hobbs Act robbery qualifies as a crime of violence, the Circuit said, and because a jury has to find the defendant intended to commit the robbery in order to convict him for attempt, attempted Hobbs Act robbery is a “valid predicate offense” for 924(c).

One ray of sunshine fell in the 9th Circuit, which in an unpublished opinion said, “We accept the government’s concession that conspiracy to commit Hobbs Act robbery is not a crime of violence under 18 USC 924(c)(3) in light of the Supreme Court’s decision in U.S. v Davis… Therefore, we vacate defendants’ convictions for carrying and discharging a firearm in furtherance of a crime of violence.”

Robber160229A second ray of light may have flickered the week before. An alert reader commended my attention to Judge Sterling Johnson’s fascinating holding in United States v. Tucker, handed down January 8th. A defendant was charged with conspiracy to rob a Brooklyn gas station and an attempt to rob the station, both Hobbs Act offenses. (How something so criminally prosaic as robbing a gas station became a federal offense is a question I’ll leave for another day.) He was also charged with two § 924(c) offenses, one for possessing a gun during the conspiracy to rob and another for possessing a gun during the attempt to rob. If convicted of the 924(c) offenses, defendant Tambhia Tucker would have had a minimum of ten extra years added to whatever he might get for the conspiracy and the attempted robbery.

Tambhia filed a pretrial motion to dismiss both 924(c) counts, arguing that after Davis, neither a conspiracy nor an attempt could support a 924(c) conviction. Judge Johnson agreed, holding that Davis made short work of the 924(c) connected to the conspiracy. As for the attempt, the Judge noted that in the 2nd Circuit, previous holdings have established that conducting surveillance of an intended robbery target, or even just obtaining a getaway car for use in a robbery, was enough to convict for attempted Hobbs Act robbery. The Judge concluded that

it is incorrect to say that a person necessarily attempts to use physical force within the meaning of 924(c)’s elements clause just  because he attempts a crime that, if completed would be violent… The defense reasonably interprets “surveillance” as the “minimum criminal conduct,” necessary to convict for attempted Hobbs Act robbery.  Thus, the question becomes whether a person conducting surveillance of a target with the intent to commit robbery necessarily uses, attempts to use, or threatens the use of force… A person may engage in an overt act — in the case of robbery, for example, overt acts might include renting a getaway van, parking the van a block from the bank, and approaching the bank’s door before being thwarted — without having used, attempted to use, or threatened to use force. Would this would-be robber have intended to use, attempt to use, or threaten to use force? Sure. Would he necessarily have attempted to use force? No.

As Tucker has pointed out, in the Second Circuit, even less severe conduct, such as “reconnoitering” a target location or possessing “paraphernalia to be employed in the commission of the crime,” can constitute a substantial step and lead to an attempt conviction… Accordingly… this court finds that given the broad spectrum of attempt liability, the elements of attempt to commit robbery could clearly be met without any use, attempted use, or threatened use of violence.

Judge Johnson dismissed both 924(c) counts.

lastword200122This will hardly be the last word on an attempted robbery offense, but it certainly advances the debate.

Mojica v. United States, Case No. 19-35 (cert. denied Jan. 13, 2020)

United States v. Ingram, 2020 U.S. App. LEXIS 1531 (7th Cir. Jan 17, 2020)

United States v. Soto-Barraza, Case No. 15-10856 (9th Cir. Jan 17, 2020) (unpublished)

United States v. Tucker, 2020 U.S. Dist. LEXIS 3035 (E.D.N.Y. Jan. 8, 2020)

– Thomas L. Root

District Court Weighs in on Post-Davis “Attempt” Crime – Update for October 23, 2019

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EDNY DISTRICT COURT SAYS ATTEMPTED HOBBS ACT ROBBERY IS CRIME OF VIOLENCE

Last June’s Supreme Court United States v. Davis decision held that conspiracy to commit a violent crime is not itself a crime of violence. That has raised the obvious question of whether an attempt to commit a violent crime is itself a violent crime.

Robber160229Two weeks ago, an Eastern District of New York court said it was. A defendant had moved to dismiss an 18 USC § 924(c) count on the grounds that the underlying offense, attempted Hobbs Act robbery, was not a crime a violence after the Davis decision. The district court disagreed:

A completed Hobbs Act robbery itself qualifies as a crime of violence under 924(c)(3)(A) and, therefore, attempt to commit Hobbs Act robbery requires that the defendant intended to commit every element of Hobbs Act robbery, including the taking of property in a forcible manner. The definition of a crime of violence in 924(c)(3)(A) equates the use of force with attempted force, and thus the text of 924(c)(3)(A) makes clear that actual force need not be used for a crime to qualify under 924(c)(3)(A). Thus… given 924(c)’s ‘statutory specification that an element of attempted force operates the same as an element of completed force, and the rule that conviction of attempt requires proof of intent to commit all elements of the completed crime,’ attempted Hobbs Act robbery qualifies as a crime of violence under 924(c)(3)(A) as well.

The decision, which is rather thinly justified, is hardly the last word on the issue.

United States v. Jefferys, 2019 U.S. Dist. LEXIS 177234 (EDNY, Oct. 11, 2019).

– Thomas L. Root

USSC Commentary Can’t Expand Guideline Coverage? – Update for November 1, 2018

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GUIDELINES “CAREER OFFENDER” COMMENTARY GOES TOO FAR, 6TH CIRCUIT SUGGESTS

Jeff Havis attacked his sentence for gun possession by arguing that a prior Tennessee conviction for selling or delivering cocaine should not count as a “controlled substance offense” under the Guidelines to increase his base offense level. The 6th Circuit last week said it was foreclosed by a prior panel decision that the Tennessee offense did count under the Guidelines, and thus could not give Jeff the relief he wanted.

But remarkably, the opinion does not stop there. Instead, it held that Jeff’s complaint “has legs” despite a panel opinion to the contrary. Thirty years ago, the Supreme Court found the Guidelines not to violate the constitutional separation-of-powers doctrine in Mistretta v. United States, because Congress has a chance to review amendments before they take effect and the United States Sentencing Commission must comply with the notice-and-comment requirements of the Administrative Procedure Act when it adopts them.

Is Sentencing Commission commentary not the last word?
Is Sentencing Commission commentary not the last word?

This is crucial, because Tennessee’s drug trafficking statute includes “attempts” to violate the statute within its definition, something the Guidelines does not include in its text. Thus, the Tennessee law is broader than the Guidelines, meaning the Tennessee statute should not count as a controlled substance offense. However, in the commentary to the Guidelines, the USSC expanded the Guidelines definition to include attempts.

This is a problem, the Circuit said. The procedural requirements governing amendment of Guidelines “are one piece of a larger puzzle. If the Commission can add to or amend the Guidelines solely through commentary, then it possesses a great deal more legislative power than Mistretta envisioned. This means that in order to keep the Sentencing Commission in its proper constitutional position — whatever that is exactly — courts must keep Guidelines text and Guidelines commentary, which are two different vehicles, in their respective lanes.

The 6th Circuit panel quietly begged Jeff to seek en banc review to overturn the prior precedent, and to put USSC commentary into limited role it should occupy.

United States v. Havis, Case No. 17-5772 (6th Cir. Oct. 22, 2018)

– Thomas L. Root

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