Tag Archives: career offender

For The Want of a Nail… – Update for December 15, 2020

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COMPASSIONATE RELEASE AIN’T JUST ANOTHER 2255

career160509Stephen Fine pled guilty in 2014 to a methamphetamine distribution conspiracy (21 USC § 846) and money laundering (18 USC § 1956). At sentencing, the district court found Steve was a Guidelines career offender (USSG § 4B1.1) based on two prior state drug convictions.

As regular readers know, being christened a “career offender” exposes a defendant to dramatically higher Guidelines sentencing ranges.

After conviction, Steve attacked his conviction in a 28 USC § 2255 habeas corpus action, alleging his lawyer had been ineffective. The motion failed. Then in July 2019, Steve filed an 18 USC § 3582(c)(1)(A)(i) sentence reduction motion, asking the court for what is generally known as “compassionate release.”

kleenix201215A momentary frolic into grammar and language: The statute calls the action of a court modifying a sentence in response to a proper motion under § 3582(c) as a “sentence reduction.” Originally, the § 3582(c)(1)(A) motion could only be brought on a prisoner’s behalf by the Bureau of Prisons, something that happened seldom enough to make a Blue Moon seem commonplace by comparison. Nevertheless, the BOP started referring to the motion it alone was authorized to bring as “compassionate release,” and the term – like a brandnomer – stuck. Think “tissue” (sentence reduction) versus “Kleenex” (compassionate release).

A § 3582(c)(1)(A)(i) compassionate release motion must show “extraordinary and compelling reasons” for a sentence reduction. Steve’s extraordinary and compelling reasons were (1) his “post-sentencing rehabilitation” and (2) that he was actually innocent of his sentence, because court decisions since his sentencing had held that the state convictions his judge relied on in declaring him a career offender should not have been counted in that calculus.

His district court turned down the compassionate release motion. Last week, the 8th Circuit agreed.

rehabilitation201215Citing Guideline § 1B1.13 (which, by the way, the 2nd, 4th, 6th and 7th have held does not apply to an inmate-filed compassionate release motion), the 8th Circuit held that rehabilitation alone was not a proper basis for a sentence reduction motion. As for Steve’s claim that he was not properly a career offender – his other extraordinary and compelling reason – the Court noted that his “challenge to the career offender determination was still a challenge to his sentence. A federal inmate generally must challenge a sentence through a § 2255 motion, and a post-judgment motion that fits the description of a motion to vacate, set aside, or correct a sentence should be treated as a § 2255 motion… Even an intervening change in the law does not take a motion outside the realm of § 2255 when it seeks to set aside a sentence… The district court was therefore correct that his challenge to the career offender determination and resulting sentence was an unauthorized successive motion to vacate, set aside, or correct a sentence.”

In a compassionate release motion, a defendant who has established an extraordinary and compelling reason must also show that grant of the motion would be reasonably consistent with the sentencing factors set out in 18 USC § 3553(a). That was where Steve’s sentence argument would have fit. Had he suggested that a sentence reduction would have been consistent with § 3553(a) factors, because the correct punishment – and thus, the punishment society suggests would be adequate but not too great – was really a lot less than what he got.

nail201215Of course, Steve still would have lost, because he was missing an “extraordinary and compelling reason.” Without one of those, none of the rest of § 3582(c)(1)(A)(i) matters at all. For the want of a nail…

United States v. Fine, Case No 19-3485, 2020 U.S. App. LEXIS 38786 (8th Cir Dec 11, 2020)

– Thomas L. Root

1st Circuit Gives Pre-Booker Career Offenders Some Relief– Update for October 5, 2020

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NO DEFENDANT LEFT BEHIND

vagueness160110The 2015 Supreme Court decision Johnson v. United States was a landmark, holding that the residual clause in the Armed Career Criminal Act’s definition of “crime of violence” was unconstitutionally vague. Johnson’s reasoning led to Sessions v. Dimaya (extending Johnson to the criminal code’s general definition of “crime of violence” at 18 USC § 16(b)) and 2019’s United States v. Davis holding extending Johnson to 18 USC § 924(c), the “use or carry a firearm” statute.

But thousands of inmates who were held to be Guidelines “career offenders” because of prior crimes of violence got no relief. A Guidelines “career offender” is very different from an ACCA armed career criminal. A Guidelines career offender is someone with two prior crimes of violence or serious drug convictions (federal or state). If a defendant qualifies as a Guidelines career offender, he or she will be deemed to have the highest possible criminal history score and a Guidelines offense level that ensures a whopping sentencing range.

After Johnson, a number of Guidelines career offenders, whose status had been fixed by including some dubious prior convictions as “violent,” sought the same kind of relief that Johnson afforded armed career criminals. But in 2017 the Supremes said that Johnson did not apply to the Guidelines. Beckles v. United States held that the Guidelines were not subject to the same kind of “vagueness” challenge that worked in Johnson, because the Guidelines did not “fix the permissible range of sentences, but merely guided the exercise of discretion in choosing a sentence within the statutory range.”

This may have been so for people sentenced under the advisory Guidelines. However, back before the 2005 Supreme Court decision in United States v. Booker, those “advisory” Guidelines were mandatory. They did not guide a judge’s discretion. Instead, the law required a judge to sentence within the applicable Guidelines sentencing range except in very narrow circumstances, and then only if the sentencing court jumped through the many hoops the Guidelines erected.

Robber160229So, how about guys like Tony Shea, who was sentenced after a bank robbery spree as a career offender back in 1998? Tony’s prior crimes of violence were pretty shaky bases for a career offender enhancement (not that Tony didn’t have plenty of problems for his string of armed robberies, but that’s another story). Tony was looking at minimum 430 months under normal Guidelines, nothing to sneeze at, but with the career offender label, Tony’s minimum sentence shot that up to 567 months (that’s 47-plus years, or 330 dog years).

Tony filed a § 2255 motion arguing that because his Guidelines career offender sentence was mandatory, not “advisory,” the Johnson holding should apply to wipe out his career offender status.

Last Monday, the 1st Circuit agreed. The appeals court noted that while Beckles was right that advisory Guidelines guide a judge’s discretion rather than “fix the permissible range of sentences,” the pre-Booker Guidelines did much more than this. The Circuit said “when the pre-Booker Guidelines ‘bound the judge to impose a sentence within’ a prescribed range, as they ordinarily did, they necessarily “fixed the permissible range of sentences” she could impose.”

Judicial despotism... probably not a good thing.
         Judicial despotism… probably not a good thing.

“It’s easy,” the 1st said “to see why vague laws that fix sentences… violate the Due Process Clause. The… rule applied in Booker serves two main functions. First, fair notice: requiring the indictment to allege ‘every fact which is legally essential to the punishment to be inflicted… enables the defendant to determine the species of offence with which he is charged in order that he may prepare his defense accordingly…” Second, “the rule also guards against the threat of ‘judicial despotism’ that could arise from ‘arbitrary punishments upon arbitrary convictions,’ by requiring the jury to find each fact the law makes essential to his punishment.”

Only the 11th Circuit has explicitly held that Beckles does not apply to mandatory Guidelines career offender enhancements. The 5th, 8th and 10th Circuits are on the fence. This 1st Circuit decision is the first to emphatically apply Johnson to give relief to people like Tony, who is already well into his third decade of imprisonment.

Shea v. United States, 2020 U.S. App. LEXIS 30776 (1st Cir., September 28, 2020)

– Thomas L. Root

Havis: the 6th Circuit Gift That Keeps on Giving – Update for September 9, 2020

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HAVIS MEANS CONSPIRACY DOESN’T COUNT FOR CAREER OFFENDER, EITHER

You remember United States v. Havis, the 2019 en banc decision in which the 6th Circuit held that the Guidelines’ definition of ‘controlled substance offense’ did not include attempt crimes, meaning that a defendant’s prior conviction for attempted drug distribution could not be counted to make him a career criminal. (If you don’t recall it, refresh yourself here).

snakes200909Eddie Valesquez made a deal over the phone with a buddy of his to kill a troublesome witness. (Note: Contrary to popular culture’s suggestions to the contrary, murdering a witness is both illegal and a bad idea). In fact, Eddie found out that the mere planning such a murder problematical: he was convicted of an 18 USC § 1958 conspiracy to commit murder for hire.

Eddie’s prior drug conspiracy conviction was used at sentencing to make him a career offender under the Sentencing Guidelines, which raised his sentencing range to stratospheric heights, resulting in a 262-month term in prison.

Last week, the 6th Circuit reversed the sentence. It ruled that “although the specific facts of Havis involved an attempt crime, its reasoning applies with equal force to other inchoate crimes not listed in the text of § 4B1.2(b). Accordingly, we have acknowledged that, in light of Havis, conspiracy to distribute controlled substances is not a “controlled substances offense” under § 4B1.2(b).”

United States v. Cordero, Case No. 19-3543, 2020 U.S. App. LEXIS 28128 (6th Cir. Sep 3, 2020)

– Thomas L. Root

Mistakes Were Made… and Tough Luck to You, Ezralee – Update for June 26, 2020

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9TH CIRCUIT SAYS COURTS MUST KEEP THE OLD ERRORS IN FSA RESENTENCING

You’d think that if a court had a chance to fix an old mistake when it resentenced someone, the judge would welcome the opportunity to do it right. You would be wrong.

mistake170417Ezralee Kelley was sentenced in 2006 on a crack distribution charge, with a sentencing range of 262-327 months due to her being a Guidelines “career offender.” After the First Step Act made the 2010 Fair Sentencing Act (FSA) retroactive, she filed for a reduced sentence.

A word about “career offenders”: Back many, many years ago, I was in the Air Force. It being the dawn of the recreational drug era, we all had to fill out a questionnaire about our drug use (or abstinence). Being smart airmen (no women in our unit back then), we all knew how much the brass would appreciate our candor, so we lied like a president on Twitter.

What struck me about the questionnaire was its categories. If you admitted to a single dalliance with controlled substances, you were classified as an “experimenter.” If you admitted to two or more uses of controlled substances, you were a “chronic abuser.” While how many drug abuse events were necessary to rank one as a “chronic abuser,” we were all pretty sure that number was a lot larger than two. Nevertheless, the categories were useful, because it informed us of the Air Force’s view of drug abuse. If we were to admit to “getting high,” we had better be talking about flying an airplane.

USAF200626Chapter 4B of the Guidelines is like that. If you have two prior convictions for a drug trafficking offense or crime of violence, or a mix, the Guidelines calls you a “career offender.” Under the Guidelines, a career offender’s offense level automatically shoots into low earth orbit (usually a 37) and your criminal history is deemed to be Category VI (which is the max).  If you sold me 50 lbs of pot, and you had two prior pot-selling convictions – federal or state – you could easily have a Criminal History score of II and a Guidelines Level of 12 (USSG. § 2D1.1(c)(12) for you technical folks). Your sentencing range would be 24-30 months, a veritable vacation.

But because of your two prior state felony convictions  – even if you only got probation for those – you would be a Guidelines career offender. Your offense level would shoot up to a 32 and your Criminal History category to VI. Your sentencing range would be 210-262 months (that’s 17.5 years to almost 22 years).

Like the Air Force “chronic abuser,” your two prior flirtations with the law (even if they were 14 years before), just turned two years in a federal prison camp into almost two decades in a place with guards with guns and razor wire.

(The foregoing is a mere illustration: you could not sell me 50 lbs of marijuana, because I have never, never even once used the stuff. Just check my Air Force questionnaire response if you doubt me.)

In today’s case, Ezralee’s youthful indiscretions had netted her two prior Washington state convictions for drugs. When she got a federal crack distribution case, she was “careered out,” as they say, and got a fearsomely long sentence. But when First Step made her eligible for an FSA reduction, she hoped to hit a home run.

bettethanezra200626A few years ago, the 9th Circuit had ruled that the some of Ezralee’s Washington state convictions used back in 2006 to make her a career offender do not count toward career offender. As a result, Ezralee said, she should be resentenced without the career status, which should drop her from 262-327 to a 51-month range.

The district court ruled that, mistake or not, it could not reconsider on an FSA resentencing whether she was a career offender.

neverhappened200626Last week, the 9th Circuit agreed. The Circuit explained that First Step permits the court to sentence as if parts of the FSA had been in place at the time the offense occurred, not as if every subsequent change in the law benefitting the defendant had occurred. In an FSA resentencing, the 9th said, the district court has to apply the laws that existed when the defendant’s crack offese was committed, only adding the FSA’s statutory reductions.

Thus, Ezralee’s new sentence assumed only that the FSA was in existence, resulting in a recalculated Guidelines range of 188 to 255 months. The Court gave her 180 months at resentencing.

United States v. Kelley, 2020 US App LEXIS 18834 (9th Cir Jun 15, 2020)

– Thomas L. Root

Virus or No, The World Keeps Turning on Hobbs Act and FSA – Update for March 31, 2020

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MEANWHILE, A COUPLE OF IMPORTANT FAIR SENTENCING ACT/HOBBS ACT CASES…

Two appellate cases handed down last week would have been headliners any other time except for now, with the coronavirus crowding everything else out of the news.

crackpowder160606In 2001, Brandon Gravatt was convicted of conspiracy to possess with intent to distribute 5 kilograms or more of powder cocaine and 50 grams or more of crack cocaine (21 USC § 846). He pled guilty to the dual-object drug conspiracy charge, facing sentences of 10 years-to-life for the coke and 10-to-life for the crack. The court sentenced him to just short of 22 years.

After the Fair Sentencing Act became retroactive due to the  provision at Section 404 of the First Step Act (passed in December 2018), Brandon filed for a sentence reduction because the crack statutory minimum had fallen to five years. But the District Court denied his motion, because the 10-to-life sentence for the powder cocaine remained the same.

Last week, in a decision awaited by a lot of people, the 4th Circuit reversed. It held that even in a multi-object conspiracy like Brandon’s – where the penalties of one object (possession of crack) were reduced by the FSA while the penalties of the other (powder cocaine) were not – if the crack minimum sentence fell, Brandon was eligible for resentencing. The Circuit said because Brandon’s “sentence involved a covered offense under Section 404(a) [of the First Step Act], the district court should have reviewed Gravatt’s motion on the merits, applying its discretion under Sections 404(b) and (c).”

Of course, the 4th said, the quantity of powder cocaine in Gravatt’s case could mean the district court would decide not to lower his sentence. “Our decision today,” the Circuit said, “only requires that Gravatt’s sentence receive a substantive review. It should not be construed as expressing any view on how the district court should rule.”

Meanwhile, the 11th Circuit held last week that a Hobbs Act robbery was not a crime of violence for purposes of determining whether a defendant was a “career offender” under Chapter 4B of the Guidelines.

violence151213Joining the 6th and 9th Circuits, the 11th held that because the Guidelines definition of robbery and extortion only extends to physical force against persons, while under Hobbs Act robbery and extortion, the force can be employed or threatened against property as well, the Hobbs Act (18 USC § 1951) is broader than the Guidelines definition, and thus cannot be a crime of violence for career offender purposes.

Unfortunately, because 18 USC § 924(c) does include threats to property as well as to people, the 11th Circuit holding does not apply to defendants with § 924(c) counts supported by Hobbs Act convictions.

United States v. Gravatt, 2020 U.S. App. LEXIS 9053 (4th Cir Mar 23, 2020)

United States v. Eason, 2020 U.S. App. LEXIS 9096 (11th Cir Mar 24, 2020)

– Thomas L. Root

Guidelines Career Offenders Out of Luck on 2255s – Update for September 9, 2019

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6th CIRCUIT SAYS GUIDELINES CAREER OFFENDERS WANTING HAVIS OR DAVIS ADJUSTMENTS ARE OUT OF LUCK

toughluck180419Dwight Bullard pleaded guilty to distributing heroin and being a felon in possession of a firearm. At sentencing, the district court determined that he qualified as a career offender under the Sentencing Guidelines, a provision that sets sentencing ranges stratospherically high for people convicted of two prior drug crimes or crimes of violence.

One of Dwight’s prior drug offenses was for attempted to sell drugs. After the 6th Circuit’s decision in United States v. Havis, which held that attempted drug crimes did not qualify a predicate offense for Guidelines career offender status, Ballard challenged his own Guidelines career offender status in a post-conviction motion under 28 USC § 2255.

The difference between being a career offender and not being a career offender is huge, sometimes the difference between under five years and nearly 20 years in prison. The sentencing ranges are advisory, of course – courts are not obligated to follow them, but do over half of the time – but nevertheless the sentencing ranges are very influential.

The district court denied his 2255 motion, so Dwight appealed.

On appeal, the government admitted that Dwight was right, because Havis held the Guidelines definition of a controlled substance offense does not include attempt crimes. The 6th Circuit agreed that if Dwight received his sentence today, he would not be a Guidelines career offender.

lawyermistake170227But a non-constitutional challenge to an advisory guidelines range may not be raised in a post-conviction motion such as a 2255. Ballard tried to get around that problem by claiming that his trial and appeals attorneys were ineffective, because they did not raise the argument that ultimately won in Havis. Ineffective of counsel is a Sixth Amendment claim, and thus a constitutional issue.

Nevertheless, the 6th Circuit upheld dismissal of Dwight’s 2255. While his claim was cognizable under 2255, the Court said, Dwight could not show that his attorneys were ineffective for not raising the issue, and even if they had been, he had suffered no prejudice.

lovelawyerB170811Before Havis, there was no case precedent in the Circuit that would have held Dwight’s Arizona prior not to be a controlled substance offense. That being the case, the Circuit held, it was entirely reasonable for Dwight’s trial counsel not to object that the prior was used to make Dwight a career offender. As it is, his trial attorney argued at sentencing that Dwight was not “an authentic career offender,” and thus got him sentenced 152 months under his minimum Guidelines.

Even if Dwight’s lawyer should have raised the same argument that later won in Havis, the 6th Circuit held, the district court outcome would not have been different. This is because under the case law at the time, the district court would have counted the Arizona conviction toward career offender status even if Dwight’s lawyer had objected.

In so many words, the 6th Circuit says people who received career offender sentences because of what courts now recognize as a mistake, people who would never qualify for such a status today because of Havis or Davis, are simply out of luck.

Bullard v. United States, 2019 U.S. App. LEXIS 26643 (6th Cir. Sept. 4, 2019)

– Thomas L. Root

F.R.Crim.P. 36: There’s Life in the Old Carcass – Update for July 2, 2019

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MAYBE RULE 36 IS NOT TOOTHLESS AFTER ALL

Everyone knows that Rule 36 of the Federal Rules of Criminal Procedure permits a defendant to move to correct a clerical error in the criminal case judgment. Over the years, I have found it useful mainly to correct mistakes in the defendant’s name, which invariably become part of the BOP record. Beyond that, we all are aware that Rule 36 cannot correct mistakes of fact or law, and for sure cannot lead to a reduced sentencing.

error161101Last week, the 4th Circuit suggested that maybe we have it wrong. Lamont Vanderhorst’s district court denied his Rule 36 motion to correct a clerical error in his Presentence Report. The PSR characterized one of his state convictions as “conspiracy to sell and deliver cocaine.” In fact, the conviction was “conspiracy to traffick [sic] cocaine by transportation.”

As a result of the clerical error, the district court wrongly sentenced Lamont as a career offender.

The district court denied the motion, holding that Rule 36 cannot serve as a means of pursuing resentencing. The Circuit disagreed, holding that “Rule 36 may serve as an appropriate vehicle for a defendant to obtain resentencing when a clerical error likely resulted in the imposition of a longer sentence than would have been imposed absent the error.” The 4th said that “when an error is purely a ‘clerical error in a judgment, order, or other part of the record, “the policy of finality is trumped and a court is authorized to correct the error at any time.”

Unfortunately, Lamont had four other priors that supported his career offender designation, so he was denied relief anyway. But the principle makes Rule 36 potentially a powerful gadget in the collateral-relief toolbox.

United States v. Vanderhorst, 2019 U.S. App. LEXIS 18886 (4th Cir. June 25, 2019)

– Thomas L. Root

Sentencing Commission Cannot Add to Drug Offense Definition, 6th Circuit Says – Update for June 10, 2019

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NEITHER FISH NOR FOWL

fishfowl170803Everyone who paid attention in high school government class knows there are three branches of the federal government, the legislative (Congress), the executive (President and the agencies), and the judicial.

And then there’s the United States Sentencing Commission. It is part of the judicial branch, but it is part legislative, too, answering to Congress (which has the right to pass on any amendments, and veto those of which it disapproves). Legal scholars might say it’s neither fish nor fowl.

In 2017, Jim Harvey pled guilty to felon-in-possession of a firearm. Under the Sentencing Guidelines, a defendant convicted of a 18 USC 922(g)(1) offense starts with a base offense level of 14, but that level increases to 20 under USSG § 2K2.1(a)(4) or (6) if he or she has a prior conviction for a “controlled substance offense.” At sentencing, the district court decided that Jim’s 17-year-old Tennessee conviction for selling or delivering cocaine was a “controlled substance offense” under the Guidelines.

Jim objected because the Tennessee statute criminalized both sale and delivery of cocaine. Under state law, “delivery” of drugs includes the “attempted transfer from one person to another of a controlled substance.” Jim argued that the prior conviction was not a controlled substance offense because the Guidelines’ definition of “controlled substance offense” does not include “attempt” crimes.

Jim was right that the Guidelines themselves do not include “attempt” offenses. However, each of the Guidelines comes with its own handy commentary and application notes, helpful annotations by the Sentencing Commission to aid users in what it considers the “proper” way to apply each Guideline. The commentary at the end of USSG § 4B1.2(b), which (among other things) defines a controlled substance offense for Guidelines purposes, directs that the definition of controlled substance offense in the text necessarily includes ‘the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.’

robbank190610Not so, Jim argued. The Guidelines text itself says nothing about attempt, and the Sentencing Commission, he complained, has no power to add attempt crimes to the list of offenses in § 4B1.2(b) through its own commentary. It would be like West Publishing adding a note after the bank robbery statute saying that bank robbery includes the offense of shaking a few quarters out of your kid’s piggy bank for bus fare.

Last Thursday, the 6th Circuit agreed with Jim.

The Guidelines commentary, the Court said, “never passes through the gauntlets of congressional review or notice and comment. That is generally not a problem, the Supreme Court tells us, because such commentary has no independent legal force — it serves only to interpret the Guidelines’ text, not to replace or modify it. Courts need not accept an interpretation that is “plainly erroneous or inconsistent with” the corresponding guideline.

bootstrappingBut the problem comes where the commentary does more than just interpret, but instead tries to bootstrap the Guideline into saying something more than what Congress approved. In this case, the commentary in question does not “interpret,” but rather supplements. The Commission was perfectly capable of adding “attempt” to the Guideline itself. Clearly, the 6th Circuit noted, the “Commission knows how to include attempt crimes when it wants to — in subsection (a) of the same guideline, for example, the Commission defines “crime of violence” as including offenses that have “as an element the use, attempted use, or threatened use of physical force against the person of another.”

To make attempt crimes a part of 4B1.2(b), the Commission did not interpret a term in the guideline itself, but instead used Application Note 1 to add an offense not listed in the Guideline. Application notes, the Court held, are to be “interpretations of, not additions to, the Guidelines themselves.” If that were not so, the institutional constraints that make the Guidelines constitutional in the first place — congressional review and notice and comment — would lose their meaning.

Jim’s case was remanded for resentencing.

United States v. Havis, 2019 U.S. App. LEXIS 17042 (6th Cir. June 6, 2019)

– Thomas L. Root

Dance With The Girl Who Brung You – Update for April 30, 2019

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GOVERNMENT DENIED A MULLIGAN IN § 2255 ARGUMENT

A crusty old judge I once knew liked to warn attorneys they had to “dance with the girl who brung” them. That is, if they made a claim in their opening statement, they had to stick with that claim, and not try to slip in a new theory when the old one started looking weak.

mulligan190430The 4th Circuit told the government the same thing last week. Antwan Winbush filed a post-conviction motion under 28 U.S.C. § 2255 that argued his attorney had been ineffective at his sentencing. Specifically, the court attributed two prior drug convictions to Antwan, making him a “career offender” under the Sentencing Guidelines, and exposing him to a dramatically potential higher sentencing range. Antwan arued his lawyer should have noticed that one of the two priors was inapplicable.

The government admitted Antwan was right about one of the drug prior convictions not counting for “career offender” (because the conduct it addressed was drug possession, not drug trafficking). That did not matter, the government said, because Antwan was not prejudiced. It seems Antwan also had a prior conviction for an Ohio robbery, and that prior offense would have counted to make him a Guidelines “career offender” even without the defective prior drug conviction.

Antwan protested that neither the U.S. Attorney nor the court identified the robbery conviction as a “career offender” qualifier at sentencing. Instead, both relied only on the two prior drug convictions.

The district court said it did not matter which convictions the government brought to the dance back at sentencing, because it was free to watusi with the heretofore-unidentified robbery conviction now. But last week, the 4th Circuit disagreed.

The Circuit, noting that Antwan’s presentence report “did not designate his robbery conviction as a predicate conviction for the career offender designation,” ruled that as a result, Antwan “was given no notice at sentencing that his robbery conviction could be utilized as a predicate conviction for a career offender enhancement.”

uglygirl190430The government “has already been given one full and fair opportunity to offer whatever support for the career offender enhancement it could assemble,” the Court held. Because the government did not identify the robbery as a conviction on which it intended to rely to support a Guidelines “career offender” enhancement at sentencing, it cannot decide to do so later when it finds it convenient, because one of the convictions it did rely on to support the career offender designation ends up not counting.

“To hold otherwise,” the 4th ruled, “would be to allow the government to change its position regarding which convictions support the enhancement now that one of its original choices cannot do the job. Worse yet, allowing the government to change positions for the first time on collateral review would unfairly deprive the defendant of an adequate opportunity to respond to predicate offense designations, especially given the fact that a defendant has the burden of proof at the 2255 stage but no right to counsel.”

You dance with the girl who brung you.

United States v. Winbush, 2019 U.S. App. LEXIS 11853 (4th Cir. Apr. 23, 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