We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
5TH CIRCUIT UNDOES HERROLD DECISION
A lot of people were jubilant last year when the 5th Circuit reversed its long-standing United States v. Uribe decision, and held that Texas burglary was no longer a generic burglary under the Armed Career Criminal Act. If you were benefitted by the decision, we hope you got your petition in fast, because last week, the Circuit reversed course yet again.
The Herrold case has had a topsy-turvy history. A 5th Circuit panel originally affirmed Mike Herrold’s ACCA sentence on the basis that Texas burglary fit the generic definition. Then the Supreme Court, based on its intervening decision in Mathis v. United States, sent the case back for further consideration. Applying the Uribe decision, the 5th Circuit reimposed the ACCA sentence. But the hearing the case en banc, the Circuit reversed Uribe, holding that to be guilty of generic burglary, a defendant must have the intent to commit a crime when he enters or remains in the building or structure. The Court said held the Texas statute “contains no textual requirement that a defendant’s intent to commit a crime contemporaneously accompany a defendant’s unauthorized entry,” and thus was nongeneric and could not support an ACCA sentence.
On remand after the en banc decision, the district court sentenced Mike to time served. Meanwhile, the government filed a petition for certiorari. Two intervening Supreme Court decisions, Quarles v. United Statesand United States v. Stitt, foreclosed the two principal grounds on which Mike had contested his ACCA sentencing enhancement, so the Supreme Court sent the case back to the Circuit again.
Before Quarles and Stitt, the Circuit held the Texas burglary statute is non-generic “because it criminalizes entry and subsequent intent formation rather than entry with intent to commit a crime.” But because of the Supreme Court decisions, the 5th said, Mike’s “old arguments no longer avail and his new ones lack merit. We hold that Section 30.02(a)(3) is generic — and Herrold’s three prior felonies are therefore qualifying predicates for a sentence enhancement under the ACCA.”
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 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.
In 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 Statesdefined 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.
The 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.”
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 TO REVIEW FELON-IN-POSSESSION STATUTE
The 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.
Certiorari 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.
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
The 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.”
In 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.
At 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.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
KNOCK ME OVER WITH A FEATHER
After a federal court of appeals decides a case, it issues a mandate, which is the appellate court’s transmittal of its order to the lower court for that court to carry out what the appeals court has ordered be done.
There is a procedure – a Hail Mary if ever there was one – known as recall of the mandate, in which the unsuccessful litigant asks the appellate court to recall its mandate to take another look at the decision. The standard for getting a mandate recalled varies by court, but the 5th Circuit’s Local Rule 41.2 is not atypical: “Once issued a mandate will not be recalled except to prevent injustice.”
Regardless of the announced standard, appellate advocates know that getting a court to actually recall its mandate is well-nigh impossible.
At least that was the case until last week brought a remarkable 5th Circuit decision. In 2015, Jesus Montalvo pleaded guilty to reentering the United States. The presentence report recommended applying a 16-level “crime of violence” enhancement pursuant to 2L1.2(b)(1)(A)(ii) of the Guidelines based on Jesus’s prior conviction for burglary under Texas Penal Code 30.02(a).
At the time, Jesus argued his prior conviction did not qualify for the enhancement because Texas Penal Code 30.02(a) is an “indivisible” statute and is categorically broader than generic “burglary of a dwelling. But at time, 5th Circuit precedent in United States v. Uribeheld otherwise, so Jesus’ sentence was upheld in May 2017.
But 10 months later, the en banc 5th Circuit issued United States v. Herrold, holding that the Texas burglary statute was indivisible and overruling Uribe. Jesus promptly filed a motion to recall the mandate and for leave to file an out-of-time petition for panel rehearing.
Last week, the 5th Circuit granted the motion. The Court agreed that Jesus was entitled to recall because Herrold had rendered the Court’s decision in his case was “demonstrably wrong,” and that failure to recall the mandate “would produce an unwarranted disparity between him and similarly situated defendants in other cases.” The Court said that “both of these factors favor recall and find that a third consideration — Montalvo’s demonstrated diligence in asserting his claim — does as well.” The Court said that “the interest in correcting our decision, now that Herroldhas rendered it ‘demonstrably wrong’ weighs heavily in favor of recalling the mandate in this case.”
The government faulted Jesus for not filing a petition for rehearing en banc or a petition for a writ of certiorari. But the Court said Jesus had “objected to his sentence enhancement in the district court, not just on appeal. That shows sufficient diligence on his part.”
The notable aspect of the case is that Jesus, who undoubtedly was entitled to recall, is really in no different position that many other petitioners. The Court said “here, recalling the mandate is necessary ‘to prevent injustice’” (a rarely-used expression in a 5th Circuit that gave us prizes like Buck v. Davis,overturned by the Supreme Court last year). The 5th Circuit, carrying on about “unwarranted disparities” and justice for criminal defendants: You could have knocked me over with a feather.
There are plenty of people in the same boat as is Jesus Montalvo. If this holding is faithfully applied, those folks may be entitled to similar relief.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues. Today, we’re doing clean-up with a number of short takes from our most recent newsletter to inmates.
8TH CIRCUIT RULES MISSOURI 2ND DEGREE BURGLARY DOES NOT COUNT FOR ACCA
Chuck Naylor pleaded guilty to being a felon in possession of a firearm. The district court found that four of his prior Missouri 2nd-degree burglary convictions qualified as violent felonies under the Armed Career Criminal Act. On appeal, the 8th Circuit agreed, because it was bound by United States v. Sykes.
But in an April 5 rehearing en banc, the Circuit changed its mind, holding that “convictions under Mo. Rev. Stat. § 569.170 (1979) do not qualify as violent felonies under the ACCA. To the extent Sykes concluded otherwise, it is overruled.”
The decision suggests that a lot of people doing ACCA time because of the Sykes decision will be visiting their local district courts soon with 28 USC 2241 petitions.
Mike, an alert reader, brought to our attention that the FDA and Trump Administration have asked the public to comment on the “abuse potential, actual abuse, medical usefulness, trafficking, and impact of scheduling changes on availability for medical use of” marijuana and its derivatives. Mike noted that “there are medical benefits, jobs to be had, taxes to be made to go to education, a sure way to help get the people off opioids, not to mention a drop in schedule would help all those incarcerated with mandatory mins.”
Any interested person can comment on the proposal online.
We wrote about Judge Posner’s new pro se assistance organization a few weeks ago, and since then, we’ve heard from a number of people wanting contact information. We still do not have an address, but the editor at Litigation Daily provided us with the organization’s web address:
When a federal defendant assists the authorities prior to his or her being sentenced, the government returns the favor by filing a motion with the sentencing court under Sec. 5K1.1 of the Guidelines, asking for a sentence cut. Sec. 5K1.1 is about the only way a defendant can get a substantial reduction in sentence (the cut averages about 52%), and only the government can make the motion.
An unnamed defendant who helped out the government received his USSG Sec. 5K1.1 motion at sentencing, but the Feds only recommended dropping his 235-293 sentencing range to 135-168 months. That was a nice reduction, but was still above his 120-month statutory minimum sentence. The sentencing judge granted the 5K1.1, but departed downward to 80 months. The government thought that was too much, and appealed.
Last week, the 5th Circuit reversed, holding that the law is clear a court cannot impose a sentence below a statutory minimum for substantial assistance unless the government, in its 5K1.1, specifically moves to go below the minimum. The district court knew this, but justified its sentencing decision by citing its authority “to review a prosecutor’s refusal to file a substantial-assistance motion and to grant a remedy if they find the refusal was based on an unconstitutional motive.” The district court said its bigger reduction was warranted because the government did not take into account the lower Guidelines sentencing range the district court had applied, and overlooked other grounds, such as the fact that Appellee voluntarily withdrew from the conspiracy early on, encouraging others in the conspiracy to quit, volunteering at a local church, and maintaining a job. The district judge said he “disagrees with the concept of mandatory minimum sentencing by which members of the legislature and the executive who do not see the human beings before the Court nevertheless impose on the judiciary arbitrary minimum sentences.”
Tough, the Circuit said. Regardless of the district court’s own policy views about the use of mandatory minimum sentences, the law in this area is clear. And we must faithfully apply it. A motion by the government was required for the district court to depart below the minimum term of imprisonment established by Congress for the drug offense Appellee committed. Thus, it was error for the district court to sua sponte depart from the minimum.”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
ANOTHER ONE BITES THE DUST
It’s been rough sailing for “crimes of violence” in the last few years, as courts have repeatedly limited the types of prior offenses that may be considered by federal courts as crimes of violence. This week, another one – a Florida burglary offense – fell.
This may seem rather dry to a lot of people. Who cares whether a past conviction was violent or not? A lot of people, it turns out, because whether a defendant’s prior crimes are crimes of violence or not makes a dramatic difference in sentencing. Under the Armed Career Criminal Act, for example, a convicted felon caught during deer season with a shotgun faces a maximum sentence of 10 years for violating 18 USC 922(g). But if his criminal history includes three crimes of violence, the minimum sentence starts at 15 years and maxes out at life. A number of other statutes and Guidelines also mete out additional punishment depending on whether a defendant’s criminal history is violent or not.
But doesn’t that sound like a good idea? Who needs violent criminals stalking our streets? After all, you convicted felons out there, sow the wind, reap the whirlwind. If you can’t do the time, don’t do the crime…
Sure, piling on additional punishment for already-punished misdeeds is viscerally appealing, until you get into the fine print of what the law considers a violent crime to be. Right now, it’s defined as any burglary, extortion, arson or crime involving an explosive. Additionally, it’s any other crime that involves force or the threat of force.
Most of that sounds good, but what about the guy who 20 years ago, used to sneak into the neighbors’ chicken coops and steal some eggs? Or boosted some Twinkies from Walmart? Those are burglaries in most states. Those “crimes of violence” hardly make him a likely chainsaw killer on a rampage.
Part of the problem is that the parameters of the law of burglary vary widely from state to state. What’s called a burglary in one state may be called a simple breaking and entering elsewhere. In other words, the “crime of violence” definition was punishing people depending on whether state legislatures decided to use the “b”-word – burglary – in a statute.
In Taylor v. United States, the U.S. Supreme Court limited the term “burglary” to “generic” burglary – unlawful entry into a building or other fixed structure. Breaking into a car, boat, or airplane wouldn’t count. Taylor further made the fateful determination that the analysis of whether a prior conviction for “burglary” satisfied the generic definition of burglary was to be performed on a “categorical” basis. That is, the sentencing court was not to look at the actual facts of the case to decide whether the defendant’s conduct constituted generic burglary; rather, the court was to analyze the statute under which he was convicted to determine whether it “categorically” qualified as generic burglary.
The Supreme Court followed that decision in 2013 with Descamps v. United States, which expanded the use of the “categorical” approach. Johnson v. United States followed two years later, in which the Supreme Court eviscerated the statutory definition of “crime of violence” by invalidating the catch-all residual clause, which included in the definition any offense that carried the risk of harm to a victim, regardless of a defendant’s intent.
Then, last summer, the Supreme Court decided Mathis v. United States, which resoundingly endorsed and further broadened the use of Descamps’ “categorical approach.”
One of the guys who cares about it is Juan Gabriel Garcia-Martinez. In 2009 Juan, a Mexican citizen in the United States illegally, was convicted in Florida of 2nd-degree burglary of a dwelling under Florida Statute § 810.02(3).
Florida defines burglary as “[e]ntering a dwelling, a structure, or a conveyance with the intent to commit an offense therein…” with the intent to commit an offense or a forcible felony. A 2nd degree burglary is one in which while committing the offense, the offender does not make an assault or battery and is not and does not become armed with a dangerous weapon or explosive. A “dwelling” is “a building or conveyance of any kind, including any attached porch, whether such building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the curtilage thereof.” § 810.011(2)
After his Florida 2nd degree burglary conviction, Juan got booted from the United States and told never to come back. But he did. However, four years later, Juan was back, and immigration agents caught up with him in a Florida jail after he had been arrested for battery. He later pled guilty to illegal reentry after deportation.
The presentence investigation report assigned a base offense level of 8 under USSG § 2L1.2(a) and a 16-level increase under USSG § 2L1.2(b)(1)(A)(ii) for having committed a crime of violence – the 2nd degree burglary – prior to being deported. As a result, Juan faced a sentence of 41 to 51 months imprisonment.
On Wednesday, the 11th Circuit vacated the sentence. It held that the Florida 2nd-degree burglary statute was broader than the generic definition of burglary. The Florida definition of a “dwelling” included not just the building itself, but the curtilage as well. Curtilage is defined in Florida as an enclosure around a residence, such as a law surrounded by a hedgerow or a fenced-in backyard. The Circuit said, “Florida’s inclusion of curtilage in its definition of dwelling makes its burglary of a dwelling offense non-generic. Curtilage… is not categorically used or intended for use as a human habitation, home or residence because it can include the yard and, as the State acknowledges, potentially even outbuildings as long as they are located within the enclosure.”
Everywhere inside the stockade is curtilage…
Because Florida law defined curtilage as part of the dwelling for purposes of burglary, the 11th held the statute was indivisible, and thus – no matter what the facts of Juan’s burglary might have been – it was not a crime of violence.
The effect of the holding will be to cut Juan’s Guidelines range to a maximum of 14 months.
The Herrold case has had a topsy-turvy history. A 5th Circuit panel originally affirmed Mike Herrold’s ACCA sentence on the basis that Texas burglary fit the generic definition. Then the Supreme Court, based on its intervening decision in Mathis v. United States, sent the case back for further consideration. Applying the Uribe decision, the 5th Circuit reimposed the ACCA sentence. But the hearing the case en banc, the Circuit reversed Uribe, holding that to be guilty of generic burglary, a defendant must have the intent to commit a crime when he enters or remains in the building or structure. The Court said held the Texas statute “contains no textual requirement that a defendant’s intent to commit a crime contemporaneously accompany a defendant’s unauthorized entry,” and thus was nongeneric and could not support an ACCA sentence.
Before Quarles and Stitt, the Circuit held the Texas burglary statute is non-generic “because it criminalizes entry and subsequent intent formation rather than entry with intent to commit a crime.” But because of the Supreme Court decisions, the 5th said, Mike’s “old arguments no longer avail and his new ones lack merit. We hold that Section 30.02(a)(3) is generic — and Herrold’s three prior felonies are therefore qualifying predicates for a sentence enhancement under the ACCA.”
