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2255 Hair-Splitting and the Power of Advertising – Update for August 15, 2023

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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.

A 2255 PAIR

Two federal appellate court decisions last week of interest on motions for post-conviction relief under 28 USC § 2255:

Denaturalization is Too Collateral for Padilla, Circuit Says: In 2006, Abe Farhane – a naturalized American citizen – pled guilty to lying to the government and conspiring to commit money laundering. After Abe was released in 2017, the government started denaturalization proceedings to strip him of his citizenship under 8 USC § 1451(a) for having become a citizen by “concealment of a material fact or by willful misrepresentation.”

deport170113Abe was still on supervised release after his prison sentence, which entitled him to file a 28 USC § 2255 motion for post-conviction relief. Abe filed a § 2255 motion claiming he received ineffective assistance of counsel because his lawyer never told him he might lose his citizenship and be deported due to his guilty plea. Had he known that, Abe argued, he never would have entered a guilty plea.

His § 2255 was denied, and last week, the 2nd Circuit upheld the decision.

splithair170727The Supreme Court held in the 2009 Padilla v. Kentucky decision that a lawyer has a duty to “inform her client whether his plea carries a risk of deportation,” noting that there was no “distinction between direct and collateral consequences” of a guilty plea when measuring the effectiveness of counsel. But the 2nd Circuit said that Padilla had no role in this case, because “civil denaturalization is a separate proceeding that may or may not occur following the plea. The government exercises considerable discretion in bringing denaturalization cases, as does the district court in evaluating the evidence… indeed, the government could seek to denaturalize Farhane without relying on his guilty plea. Instead, it turns on the defendant’s actual conduct.”

The Court’s hair-splitting seems to be a distinction without a difference, as the dissenting judge in the 2-1 decision pointed out.

Farhane v. United States, Case No. 20-1666, 2023 U.S.App. LEXIS 20960 (2d Cir. Aug. 11, 2023)

Advertising Makes Illinois Drug Statute Overbroad: After Otis Elion pled guilty to distributing meth, and he was sentenced as a career offender under USSG § 4B1.1. That Guideline increases sentencing exposure dramatically for someone with two prior convictions for crimes of violence or serious drug felonies.

Otis’s attorney did not challenge that designation, and the court imposed a 167-month prison term.

In a § 2255 motion, Otis argued his attorney’s failure to object amounted to ineffective assistance because two of the three predicates were convictions under Illinois law for “look-alike” drugs, and those offenses did not fit within the statute’s definition of serious drug felonies.

Otis’s district court denied relief.

Last week, the 7th Circuit reversed, concluding that Otis was properly sentenced as a career offender and, therefore, did not suffer prejudice from counsel’s performance.

A “serious drug felony” is a federal drug trafficking offense or a state offense that matches the Guidelines definition of controlled substance offense. If the elements of the state crime are the same as, or narrower than, the elements of the Guidelines offense, “the crime of conviction qualifies as a predicate offense.”

advertising230815Otis’s Illinois offense made it “unlawful for any person knowingly to manufacture, distribute, advertise, or possess with intent to manufacture or distribute a lookalike substance,” and defines advertise as “the attempt, by publication, dissemination, solicitation or circulation, to induce directly or indirectly any person to acquire, or enter into an obligation to acquire” a controlled substance.

The 7th said the Illinois statute is broader than 21 USC § 841 and thus could not be a predicate for Guidelines “career offender” status. “Advertise is an independent word in the statute, and its definition uses the term induce, not sell or distribute. Given this, we decline to read ‘advertise’ as merely restating, in narrower terms, what other statutory language already covers. For these reasons, the look-alike statute’s inclusion of ‘advertise’ means it punishes a broader range of conduct than the Guidelines controlled substance offense.”

The Circuit reversed the denial of his § 2255 motion and remanded the case “for an evaluation of counsel’s performance.”

Elion v. United States, Case No. 20-1725, 2023 U.S.App. LEXIS 20286 (7th Cir. Aug. 7, 2023)

– Thomas L. Root

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

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

THE LAST JOHNSON DOMINO FALLS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

Another Circuit Rejects Categorical Approach to Hobbs Act/924(c) Case – Update for October 24, 2018

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1ST CIRCUIT HOLD 924(c) IMMUNE TO DIMAYA ATTACK

After Sessions v. Dimaya, a lot of people doing time for using a gun during a crime of violence have hoped to attack their 18 USC 924(c) convictions by arguing the underlying crime was not violent. Two weeks ago, we reported that the 2nd and 11th Circuits had shut down Dimaya attacks on 924(c). Last week, the 1st Circuit joined them.

gunfreezone170330Section 924(c) makes it punishable by a minimum five-year consecutive sentence, to use, carry, or possess a firearm in connection with a “crime of violence.” The “residual clause” of 924(c) defines “crime of violence” to mean a felony “that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” In Johnson v. United States and, later, in Dimaya, the Supreme Court invalidated similar residual clauses on vagueness grounds. 

Ishmael Douglas was convicted of a Hobbs Act robbery and a 924(c) count. He argued that under the categorical approach, which looks at the minimum conduct sufficient to violate the statute regardless of what the defendant may actually have done, his robbery could not be considered to be a crime of violence.

The 1st Circuit rejected Ishmael’s argument that 924(c)’s crime of violence definition is void for vagueness. “That is because,” the Circuit said, “the statute reasonably allows for a case-specific approach, considering real-world conduct, rather than a categorical approach, and because Douglas’s conspiracy to commit a Hobbs Act robbery qualifies as a ‘crime of violence’.” Agreeing with the 2nd and 11th Circuits, the 1st held that because 924(c) “requires consideration of a contemporaneous offense rather than a prior conviction, this residual clause does not raise either the practical or the Sixth Amendment right-to-trial concerns that led the Supreme Court to adopt the categorical approach in Taylor v. United States [and] Descamps v. United States.”

United States v. Douglas, Case No. 18-1129 (1st Cir. Oct. 12, 2018)

– Thomas L. Root

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Dept. of Justice Gets Tough With Sentencing Commission – Update for August 10, 2017

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HANG ‘EM HIGH HUDSON

The United States Sentencing Commission, a 7-member judicial agency charged with writing and amending the federal sentencing guidelines faced a manpower crisis earlier this year, as only two voting members remained. The Senate increased that number to the minimum needed for a quorum by approving two Obama holdover nominations in March.

Nevertheless, the shortage of a voting quorum for three months left the Commission unable to assemble a slate of sentencing guidelines amendments for 2017. To get the Commission back to fighting trim will require three more commissioners be appointed by President Trump and approved by the Senate.

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Attorney General Jefferson Beauregard Sessions III

Enter everyone’s favorite compassionate conservative, Attorney General Jefferson Beauregard Sessions III. Sessions yesterday urged the White House to nominate federal judge and ex-prosecutor Henry E. Hudson to the Commission. Judge Hudson, who as a prosecutor was nicknamed “Hang ’Um High” Henry Hudson and said he lived to put people in jail, earned fame as a prosecutor for railroading a developmentally disabled man into prison for a rape he didn’t commit. Hudson’s successor exonerated the man when inconsistencies in the case led detectives to pursue other leads, ultimately linking a serial killer to the murder. Faced with the evidence that he had convicted the wrong guy, Hudson wrote in his memoirs, “I certainly wish him the best, and regret what happened. However, I offer no apologies.”

HudsonA170811At the same time, Sessions is urging the commission to toughen sentences for certain violent criminals, drug offenders, illegal immigrant smugglers and so-called career offenders. In public comments filed with the Sentencing Commission on July 31, the Dept. of Justice asked it to preserve mandatory-minimum sentences that supporters say help fight crime but critics say inflate prison costs and disproportionately hurt minority communities without improving public safety.

hudsonB170811DOJ also encouraged the Commission to abandon the categorical approach (Mathis v. United States) for determining which state crimes are crimes of violence supporting much higher sentencing ranges for “career offenders.” The Department complains that the “categorical approach,” which requires courts to “focus solely on whether the elements of the crime of conviction sufficiently match the elements of a generic version of the crime,” focuses on the abstract elements of the statute “and largely ignores the conduct that the defendant actually committed. This approach has resulted in some repeat violent offenders… receiving a sentencing range that is lower than their conduct and criminal history warrant. The categorical approach also consumes an inordinate amount of time for trial court judges, appellate court judges, probation officers, prosecutors, and defense attorneys.”

hangem170811DOJ argues that “the time has come to abandon the categorical approach in those cases involving the enumerated felonies clause. The Department would be pleased to work with the Commission to develop a workable and fair approach that focuses less on formalism and more on the defendant’s conduct.”

Of course it would. And Judge Henry “Hang ‘Em High” Hudson is just the kind of commissioner with whom DOJ would like to work.

Dept. of Justice, Response to Request for Public Comment, Proposed Priorities for Amendment Cycle, 82 FR 28381(filed July 31 2017)

Wall Street Journal, Sessions Promotes Tough-On-Crime Judge for Sentencing Panel (Aug. 10, 2017)

– Thomas L. Root

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