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Circuit Split Happens Fast on § 2113(a) ‘Crime of Violence’ Holding – Update for December 13, 2024

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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.

PAY YOUR MONEY AND TAKE YOUR CHANCE

I had a contracts professor in law school a half-century ago who would every so often wave his arm expansively in the general direction of the library and remind us, “Remember, there’s enough law in there for everyone.”

circuitsplit220516Fifty years later, I get his point.

This week, two federal courts of appeal found enough law to let them answer the same question in opposite ways.

For a criminal statute to constitute a crime of violence that will support a conviction under 18 USC § 924(c) – possessing or using a gun during a crime of violence or drug offense – an offender must be unable to commit the crime without attempting or using or threatening to use physical force. Kidnapping? Sounds violent as hell, but one can kidnap someone by walking out of a room they’re in and locking the door so they cannot get out. You and your friends can plan to shoot the CEO of the Wesayso Corporation for poisoning society with low-quality honeybuns, but conspiring to murder someone is not a crime of violence, because you can conspire without using physical force.

Here’s the rub. In order to avoid the crime of violence label, the crime cannot be divisible. The statute must express the alternatives as “means” and not “elements.” If in a statute such as the bank robbery statute (18 USC § 2113), Congress created two separate criminal offenses —one violent (done by force or threat of force) and the other not—the statute is divisible. Then, the part of the statute that defines a violent crime will support the § 924(c) conviction. But if the statute is indivisible and merely sets forth three alternative means—such as force, threat of force, and extortion—of completing the same crime, then if extortion can be done without violence, the statute will not support a § 924(c) conviction, no matter how weird it might seem that a law prohibiting armed bank robbery cannot support a mandatory gun penalty statute like 18 USC § 924(c).

violence181008Bryan Burwell and Aaron Perkins have spent the last 23 years or so in prison for their bit parts in a string of armed bank robberies. Unfortunately, the ringleaders armed themselves with fully automatic AK-47s, which led to 18 USC § 924(c) consecutive sentences of 30 years apiece.

Even more unfortunately, the ringleaders had the foresight to make deals to testify against Bryan and Aaron. The ringleaders had their § 924(c) counts dropped and are out of prison. Bryan and Aaron have another 15 years to go.

On Monday, the D.C. Circuit ruled that the federal bank robbery statute is not divisible. It prohibits bank robbery committed by use of force, threat of force, attempted use of force or extortion. Because extortion is committed not only by threatening someone with future violence but with the future accusation of a crime, an embarrassing revelation or loathsome disease, a bank robbery could conceivably be accomplished by threatening to tell the branch manager’s wife that he was having an affair if he didn’t empty the vault into your duffel bag.

The Circuit concluded that the statute, which criminalizes bank robbery completed “by force and violence, or by intimidation,” or “by extortion” is not divisible. Because of that, a § 2113(a) bank robbery cannot support a § 924(c) conviction:

Force and violence, intimidation, and extortion are three ways a person might rob a bank. The text and structure of the statute indicate that extortion is a factual means of bank robbery, rather than an element of an entirely separate offense. That conclusion is reinforced by the statutory history and common law roots of robbery and extortion. As an indivisible offense, bank robbery is not a § 924(c) crime of violence

As a result, Bryan and Aaron will walk free after over 20 years in prison.

violence180508Not so John Armstrong, convicted in Florida of § 2113(a) bank robbery and multiple § 924(c) offenses. Like Bryan and Aaron, John argued that § 2113(a) cannot be a crime of violence because it can be committed through use of extortion. Two days after the D.C. Circuit said extortion and force were just means of violating § 2113(a), the 11th Circuit said they were really elements, meaning that § 2113(a) describes two divisible crime, robbery by force and robbery by extortion.

John was convicted of aiding and abetting a robbery by force, and thus must continue serving his 35-year sentence (resulting from multiple § 924(c) counts).

Agreeing with a prior 1st Circuit decision, the 11th held that “the fact that the language ‘or obtains or attempts to obtain’ immediately precedes the phrase ‘by extortion’ (as opposed to ‘takes, or attempts to take,’ which relates to the ‘by force or violence’ and ‘intimidation’)… suggests that extortion is not an alternative means of commission. We agree that a plain reading of the text supports the conclusion that robbery and extortion are alternate elements—amounting to separate crimes—not alternate means of committing one crime.”

The 11th ruled that § 2113(a)’s distinction between ‘taking’ and ‘obtaining’ “reflects the fundamental division between robbery and extortion, namely, that robbery involves taking possession of the property of another against his will while extortion involves taking possession of the property of another with consent—albeit grudging or coerced.”

splithair170727Circuit splits – where two federal appellate courts reach diametrically opposed conclusions – happen regularly enough. Such matters are routinely settled by the Supreme Court, as this one surely will be. However, rarely do the conflicting decisions get handed down within 48 hours.

Count on this one to be settled by SCOTUS. Meanwhile, Bryan and Aaron will have Christmas at home, John will not – all due to there being enough law out there for two Circuits to answer the same legal question in two irreconcilable ways in the same week.

United States v. Burwell, Case Nos. 16-3009 (D.C. Cir. Dec. 9, 2024), 2024 U.S. App. LEXIS 31086

United States v. Armstrong, Case No. 21-11252 (11th Cir. Dec. 11, 2024), 2024 U.S. App. LEXIS 31549

– Thomas L. Root

Circuit Split Deepens on Using Sentence Law Changes in Compassionate Release Motions – Update for September 19, 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.

9TH CIRCUIT ALLOWS FIRST STEP CHANGE IN § 924(c) STACKING TO SUPPORT COMPASSIONATE RELEASE

In 2007, Howard Chen was busted with a distribution-sized amount of MDMA in his car. Later, the DEA found more MDMA, two guns and cash at his house.

mdma220919A jury convicted Howie of six drug-related counts and two 18 USC § 924(c) counts for possessing a gun during and in furtherance of a drug crime. He got 48 months for the drug counts, 60 more months for the first gun offense and 300 months for the second one: a total of 34 years for a fairly garden-variety non-violent drug case.

In late 2020, Howard filed a motion for sentence reduction, seeking compassionate release for – among other reasons – that the First Step Act changed 18 USC § 924(c) so that he would not have to get a minimum of 300 months for the second gun charge. Although the change was not retroactive, Howie contended that the unfairness of how the 2007 version of the statute mandated 300 months but the current statute did not was an extraordinary and compelling reason for granting him a sentence reduction.

The district court denied the compassionate release motion, holding that because Congress did not make the 18 USC § 924(c) change retroactive, it could not be an extraordinary and compelling reason for grant of compassionate release under 18 USC § 3582(c)(1)(A).

Last week, the 9th Circuit reversed, holding that a district court may consider the First Step Act’s non-retroactive changes to sentencing law – in combination with other factors particular to the individual – when finding extraordinary and compelling reasons for a sentence reduction.

circuitsplit220919Bloomberg said, “The opinion deepens a circuit split on the bipartisan 2018 reform law that has generated much litigation since then-President Donald Trump signed it.”

The 3rd, 7th, and 8th Circuits have ruled that district courts may not consider non-retroactive sentence changes made by First Step, whether offered alone or in combination with other factors, in deciding compassionate release motions. Those circuits reasoned that Congress explicitly made the sentencing changes non-retroactive and that § 3582(c)(1)(A) “should not provide a loophole to get around explicit non-retroactivity.”

For instance, the 3rd Circuit ruled, “We will not construe Congress’s nonretroactivity directive as simultaneously creating an extraordinary and compelling reason for early release.” The 7th held that “the discretionary authority conferred by § 3582(c)(1)(A)… cannot be used to effect a sentencing reduction at odds with Congress’s express determination embodied in… the First Step Act that the amendment to § 924(c)’s sentencing structure appl[ies] only prospectively.” The 8th said, “The compassionate release statute is not a freewheeling opportunity for resentencing based on prospective changes in sentencing policy or philosophy.”

The 3rd and 7th Circuits still allow district courts hearing compassionate release motions to consider First Step’s changes to stacked § 924(c) sentencing when analyzing § 3553(a) sentencing factors.

dontthink220919The 1st, 4rth, and 10th Circuits, on the other hand, have all held that district courts may consider First Step’s non-retroactive changes to penalty provisions, in combination with other factors, when determining whether extraordinary and compelling reasons for compassionate release exist in a particular case. The Circuits have held that the statutes directly addressing “extraordinary and compelling reasons” don’t prohibit district courts from considering non-retroactive changes in sentencing law; and (2) a sentence reduction under § 3582(c)(1)(A)’s “extraordinary and compelling reasons” is “entirely different from automatic eligibility for resentencing as a result of a retroactive change in sentencing law.”

The 6th Circuit swings both ways. In United States v. Jarvis, the Circuit held that the “district court, moreover, correctly concluded that it lacked the authority to reduce Jarvis’s sentence based on a nonretroactive change in the law.” But in United States v. Owens, the panel said that the disparity between a defendant’s actual sentence and the sentence that he would receive if the First Step Act applied can be considered, along with other factors, to be an extraordinary and compelling reason for a reduction.

In Howard’s case, the 9th said,

Congress has only placed two limitations directly on extraordinary and compelling reasons: the requirement that district courts are bound by the Sentencing Commission’s policy statement, which does not apply here, and the requirement that ‘rehabilitation alone’ is not extraordinary and compelling. Neither of these rules prohibits district courts from considering rehabilitation in combination with other factors. Indeed, Congress has never acted to wholly exclude the consideration of any one factor, but instead affords district courts the discretion to consider a combination of “any” factors particular to the case at hand… To hold that district courts cannot consider nonretroactive changes in sentencing law would be to create a categorical bar against a particular factor, which Congress itself has not done.

United States v. Chen, Case No 20-50333 (9th Cir., September 14, 2022)

Bloomberg, Compassionate Release Gets Another Look Under First Step Act (September 14, 2022)

– Thomas L. Root

The Supremes Finally Take The 2255(e) Debate! – Update for May 16, 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.

LATE-BREAKING NEWS…

The Supreme Court granted certiorari in Jones v. Hendrix by order issued at 9:30 am on Monday, May 16.  

Could the Justices be reading my blog? Doubtful, but the certiorari may be good news for thousands of federal inmates trapped in the 10th and 11th Circuits (depending, of course, on the outcome of this case sometime next year).

SCOTUS MAY FINALLY SETTLE THE 2241 DEBATE
... but a 2255(e) ain't, depending on where you are.
… but a 2255(e) ain’t, depending on where you are.

Let’s say you were standing in front of Sunny’s Cigars with a gun and two prior convictions, one for selling drugs and the other for manslaughter. If the Feds picked you up, you would have been sentenced to a minimum 15 years under 18 U.S.C. § 924(e), the Armed Career Criminal Act.

After the U.S. Supreme Court (generally known by the shorthand “SCOTUS“) ruled in Borden v. United States that a crime committed through recklessness was not a “crime of violence” predicate for ACCA, you would want to file with your sentencing court to get the ACCA sentencing enhancement thrown out.

The Borden ruling was not a constitutional ruling, but instead just an interpretation of a statute. That meant that you could not file a second-or-successive 28 U.S.C. § 2255 motion, because 28 U.S.C.  § 2244(b) limits successive § 2255s to newly discovered evidence or decisions on constitutionality. However, 28 U.S.C. § 2255(e) – known as the “saving clause,” lets you file a traditional 28 U.S.C. § 2241 habeas corpus motion attacking the ACCA sentence where a § 2255 would be inadequate to address the issue.

Or at least it would let you file a § 2241 petition if you’re locked up in, say, Kentucky (in the 6th Circuit). A § 2241 habeas corpus petition is filed in the federal district in which you’re located at the time you file. If you were at FCI Manchester, you’d file in the Eastern District of Kentucky. Go a few miles east of there to do your time in Beckley, West Virginia, for example, and you’d be filing in the Southern District of West Virginia (4th Circuit). Fourth Circuit precedent forecloses you from using a § 2241 petition as a workaround.

gunknot181009Writing in SCOTUSBlog last week, John Elwood noted that Ham v. Breckon, a 4th Circuit decision, and Jones v. Hendrix, an 8th Circuit decision, both asked the same question, and both have been “relisted” by the Supreme Court.

A “relist” is a petition for certiorari that is scheduled to be decided at the Supreme Court’s regular Friday conference, but is “relisted” to be considered further at a subsequent conference. A “relisted” petition is statistically more likely to have review granted by the Court, and that is even more likely where there are two relisted petitions asking the same question.

This is important, because two circuits – the 10th and 11th – don’t permit § 2241 petitions even where the movant is challenging guilt or innocence. A SCOTUS decision on Ham or Jones would not only settle whether a movant could challenge a statutory sentencing enhancement using a § 2241 petition under the “saving clause,” but would address the circuit split between the two outlier circuits (the 10th and 11th) and everyone else on whether guilt and innocence could be challenged as well.

circuitsplit220516Elwood thinks that, while the Court has ducked the issue in the past, it will grant review this time. He wrote, “The government — which generally is a pretty successful respondent as well as a successful petitioner — admits that there is a circuit split on the issue. It would have a hard time saying otherwise, since the government itself petitioned for Supreme Court review on this very issue a couple years back in the much-relisted United States v. Wheeler, before a vehicle problem arose (the prisoner… was released from prison) that apparently persuaded the Supreme Court to deny review in that case.”

Ham v. Breckon, Case No 21-763 (pending certiorari)

Jones v. Hendrix, Case No 21-857 (certiorari granted)

SCOTUSBlog, Challenges to administrative action and retroactive relief for prisoners (May 11, 2022)

– Thomas L. Root