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9TH HOLDS CALIFORNIA ASSAULT WITH DEADLY WEAPON IS NOT A GUIDELINES VIOLENT CRIME
The Sentencing Commission is required by28 USC § 994(h)to include provisions in the Guidelines to ensure that people with more than one prior conviction for crimes of violence or drug trafficking are sentenced “at or near the maximum term authorized” by statute. To carry out that mandate, the Commission created the career offender provision inChapter 4B of the Guidelines.
Jesus Gomez was sentenced to 188 months for a drug distribution offense, being found to be a Guidelines career offender because of a prior conviction for assault with a deadly weapon (ADW) under California Penal Code § 245(a)(1).
Last week, the 9th Circuit vacated his sentence, holding that its prior decisions that California ADW was a crime of violence “are clearly irreconcilable with the Supreme Court’s ruling in Borden v. United States.
In Borden, the Supreme Court held that the mens rea requirement of USSG § 4B1.1 stems from the language requiring that force be used “against the person… of another.” A defendant acts recklessly when he “consciously disregards a substantial and unjustifiable risk.” But the phrase “against another” demands that the defendant “direct his action… at another individual.” Because reckless conduct is not aimed “in that prescribed manner,” the Borden court ruled, it does not satisfy the elements clause of 4B1.1.
California state courts have previously recognized that the ADW statute does not require an intent to cause harm but instead only requires an intent to do the act that results in harm. The Gomezcourt ruled that the ADW’s “intentional act” requirement does not equate to the “intent to harm” or “purpose” mens rea required for a Guidelines crime of violence.
Jesus, whose non-career offender Guidelines are 130-162 months, will go back for resentencing.
United States v. Gomez, Case No. 23-435, 2024 U.S.App. LEXIS 22457 (9th Cir. Sep 4, 2024)
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SCOTUS WILL DECIDE WHETHER DOING NOTHING IS VIOLENT
Today is June 3rd, forever to be remembered as the day Billy Joe McAllister jumped off the Tallahatchie Bridge (if you recall that 1967 earworm by Bobbie Gentry or the forgettable movie that followed it).
But what really happened that fateful day? If Bobbie pushed him, she committed a crime of violence. But what if he slipped, called for her to throw him a rope, and she sat there doing nothing? Would that also be a crime of violence? And why would we care?
We may never know about the star-crossed lovers or Billy’s inner demons, but the Supreme Court decided today that it will decide whether nothing is the same as something in the world of violent crime.
The “categorical approach” to whether an underlying offense is a crime of violence has both complicated 18 USC § 924(c) cases and benefitted a number of people wrongly convicted of possessing a gun during a crime of violence or punished under the Armed Career Criminal Act (18 USC § 924(e)(2)).
Section 924(c)(3) provides that a crime of violence encompasses any felony that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” The “categorical approach” to determine whether a predicate offense is a crime of violence focuses on the elements of the underlying crime rather than the particular facts of the case, considering whether the least culpable conduct that could satisfy the elements in a hypothetical case would necessarily involve the “use, attempted use, or threatened use of physical force against the person or property of another.”
Courts disagree about whether crimes that require proof of a victim’s bodily injury or death but can be committed by failing to take action are crimes of violence because sitting there and doing nothing is not really the use of physical force. At common law and in an overwhelming number of state statutes, no distinction is made between crimes of omission–failing to act in a way that results in a victim’s death or injury–and crimes where physical force is used. Thus, a decision in favor of the defendant could put a lot of § 924(c) convictions at risk.
That defendant, Sal Delligatti, was indicted in 2017 for attempted murder in violation of the Violent Crimes in Aid of Racketeering (VICAR) statute, 18 USC § 1959(a)(5). The Second Circuit ruled that attempted murder (a New York state charge) was necessarily a crime of violence even if it can be committed through inaction. Under the law of some states, a person who has a duty to act but fails to do so—such as by failing to provide medicine to someone who is sick or by neglecting to feed a dependent—may face criminal liability, even a murder charge if the defendant’s nonfeasance results in death.
Most courts of appeal agree, but the Third and Fifth have gone the other way (and the Ninth has suggested it may do so as well).
Sal has asked the Supreme Court to conclusively resolve whether a crime that requires proof of bodily injury or death but can be committed by failing to take action, has as an element the use, attempted use, or threatened use of physical force. Surprisingly, the government supports the grant of certiorari (although it wants the Supremes to uphold the Second Circuit). The National Association for Public Defense and National Association of Criminal Defense Lawyers have filed briefs in support of the grant of certiorari as well.
The Supreme Court granted the petition for certiorari today, so it will be argued next fall.
Delligatti v US, Case No 18-2432 (petition for cert pending)
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THE 10TH GIVETH, THE 10TH TAKETH AWAY
In the world of gun restrictions, all eyes are on the Supreme Court, which will decide United States v. Rahimi – and maybe the future of the 2nd Amendment – sometime between now and June. But litigation over 18 USC § 922(g), the laundry list of people who the government says should not have guns or ammo, in the lower courts continues unabated.
Out in the wild, wild west, the 10th Circuit last week handed down a pair of 18 USC § 922(g) decisions, giving defendants a mixed bag.
In one case, Colorado defendant Kenneth Devereaux was convicted of being a felon in possession of a gun (violation of 18 USC § 922(g)(1)). He received a 2-level enhancement in his Guidelines range because the district judge considered a prior conviction for assault under 18 USC § 113(a)(6) to be a crime of violence.
Last week, the 10th Circuit disagreed. A “§ 113(a)(6) assault can be committed recklessly,” the Circuit observed, but since the 2021 Supreme Court decision in Borden v. United States, “a reckless offense categorically does not have as an element the use, attempted use, or threatened use of physical force against the person of another.”
Section 113(a)(6) “sets forth a single indivisible assault offense, to which only the categorical… approach [applies],” the 10th ruled. “Because an assault resulting in serious bodily injury under § 113(a)(6) can be committed recklessly, after Borden it cannot qualify as a crime of violence…”
Things did not go so well for Jonathan Morales-Lopez. He and a buddy were caught stealing guns from a Utah gun store. When he was frisked, the police found a loaded Smith and Wesson he had previously stolen from the same store stuffed in his pants and a personal-use amount of meth in a plastic bag.
The State of Utah did its number on Jonathan for the theft, but the Feds picked up the gun case. He was charged as an unlawful drug user in possession of a gun under 18 USC § 922(g)(3). After he was convicted, Jon argued that § 922(g)(3) was unconstitutionally vague, violating his 5th Amendment rights. The district court agreed with Jon, and the government appealed.
“When the validity of a statute is drawn in question, and even if a serious doubt of constitutionality is raised,” the Circuit wrote, “it is a cardinal principle that courts]will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” To avoid the vagueness problem, the 10th said, courts have interpreted § 922(g)(3) to convict a defendant only if the Government “introduced sufficient evidence of a temporal nexus between the drug use and firearm possession.”
Here, the appeals court said, that wasn’t even a close call. Jon was carrying his personal meth stash in his pocket and told the police after his arrest that he couldn’t remember much because he was high on the controlled substance at the time. “The facts presented at trial, coupled with reasonable inferences drawn from those facts, could support the conclusion that Morales-Lopez was an “unlawful user” of methamphetamine,” the Circuit held, “one whose use was ‘regular and ongoing, while in possession of a stolen firearm.”
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9TH CIRCUIT HOLDS HOBBS ACT AIDER AND ABETTOR COMMITS CRIME OF VIOLENCE
Call me dense (you wouldn’t be the first), but I have never understood how an attempt to commit a Hobbs Act robbery could not be a crime of violence – as the Supreme Court held in United States v. Taylor – but aiding and abetting a Hobbs Act robbery was a crime of violence under 18 USC § 924(c)(1)(A)(3).
In Taylor, the Supremes held that attempted Hobbs Act robbery was not a crime of violence, because one could attempt a Hobbs Act robbery without actually attempting, threatening or using violence. If, for example, Peter Perp is arrested in a jewelry store parking lot with masks and a gun as he approaches the front door, he could be convicted of an attempted Hobbs Act robbery without ever having gotten to the point of attempting to threaten or employ violence at all. In fact, the people inside the store might not even be aware that they were about to be robbed. Sure, Petey can go down for an attempted Hobbs Act robbery (and get plenty of time for that), but he could not be convicted of a § 924(c) offense.
Taylor seemed to focus on what elements would have to be proven for the particular defendant to be convicted of the Hobbs Act crime. The principals in the crime – the guys who actually waved guns in the jewelry store clerks’ faces – must be shown to have employed violence or threatened to do so. But how about the guy sitting behind the wheel of the getaway car? He’s aiding and abetting, and certainly can be convicted of the Hobbs Act offense just like the gun-wielders. But that’s not the point. The point is whether he is also guilty of a 924(c) offense, too.
Leon Eckford is as disappointed as I am (maybe more, because he’s doing the time) that the 9th Circuit went the other way on my pet legal argument the other day. Leon pleaded guilty to aiding and abetting two Hobbs Act jewelry store robberies. He was sentenced to 11 years’ imprisonment, including a mandatory minimum sentence for the use of a firearm during a crime of violence under § 924(c).
On appeal, Leon argues that aiding and abetting Hobbs Act robbery is not a crime of violence and therefore could not serve as a predicate for his § 924(c) conviction and mandatory minimum sentence. A couple of days ago, the 9th rejected his argument.
The Circuit claimed that Leon’s argument “misunderstands the nature of aiding and abetting liability. At common law, aiding and abetting was considered a separate offense from the crime committed by the principal actor, but “we no longer distinguish between principals and aiders and abettors; principals and accomplices “are equally culpable and may be convicted of the same offense.”
The 9th complained that Leon “would have us return to the era when we treated principals and accomplices as guilty of different crimes. We have long moved past such distinctions for purposes of determining criminal culpability, although the terminology may be useful for other reasons.” This is nonsense. Leon freely admitted that his aiding and abetting the Hobbs Actrobberies made him as guilty of the offense as if he had been inside the stores. He did not ask to be treated as having been convicted of a “different crime.”
Instead, as the Circuit admitted without appreciating its significance, the law has moved past distinguishing principal versus accomplice “for purposes of determining criminal culpability,” that is, for figuring out whether Leon was guilty of a Hobbs Act offense. But, as the 9th admitted, “the terminology may be useful for other reasons.”
Primary among those reasons is to determine whether the defendant’s commission of the Hobbs Act was a crime of violence. This is not to say that the court should focus on what Leon himself did. The categorical approach to determining whether aiding and abetting a Hobbs Act robbery is violent does not look at the facts of the case. Instead, it focuses on what must be proven to prove a defendant was an aider-and-abettor.
The 9th Circuit noted that it had “repeatedly upheld § 924(c) convictions based on accomplice liability.” So what? The 9th Circuit had previously held that an attempted Hobbs Act robbery was a crime of violence until Taylor reversed the holding. Being wrong once is hardly an argument that you aren’t wrong now.
The Circuit argues that nothing in its analysis in Leon’s case is “clearly irreconcilable with Taylor. Taylor dealt with an inchoate crime, an attempt, and does not undermine our precedent on aiding and abetting liability. There are fundamental differences between attempting to commit a crime, and aiding and abetting its commission… Chief among these differences is that in an attempt case there is no crime apart from the attempt, which is the crime itself, whereas aiding and abetting is a different means of committing a single crime, not a separate offense itself. Put differently, proving the elements of an attempted crime falls short of proving those of the completed crime, whereas a conviction for aiding and abetting requires proof of all the elements of the completed crime plus proof of an additional element: that the defendant intended to facilitate the commission of the crime.
The 9th held that “[o]ne who aids and abets the commission of a violent offense has been convicted of the same elements as one who was convicted as a principal; the same is not true of one who attempts to commit a violent offense. Accordingly, we conclude that our precedent is not clearly irreconcilable with Taylor.”
But if 924(c) is intended to fix extra liability for using a gun in a crime of violence, the element that the defendant employed or threatened violence should be required.
United States v. Eckford, Case No. 17-50167, 2023 U.S. App. LEXIS 21175 (9th Cir. Aug. 15, 2023)
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IS § 924(c) A VIOLENT CRIME?
I still get questions from people asking whether 18 U.S.C. § 924(c) remains a “crime of violence.”
The answer is that § 924(c) – which criminalizes the use of a gun during a crime of violence or drug trafficking offense – has never itself been a “crime of violence.”
“C’mon, man!” I hear people out in TV Land saying, “how can using a gun in a crime not be a “crime of violence?”
To you I say, “Welcome to federal criminal law.”
To those prisoners with § 924(c) charges because of an underlying drug offense, violence has nothing to do with nothing. The § 924(c) applies because you had a gun in the closet while you sold meth out of your bedroom. Or because you figured it’d be cool to have a Lorcin .380 stuck in your waistband where its principal threat was to your reproductive organs. You can’t have a gun while you’re selling controlled substances. It’s illegal. (Of course, selling controlled substances is illegal, too, but that’s a topic for another day).
To those people with § 924(c) charges because of an underlying crime of violence, the § 924(c) is not the “crime of violence.” It’s just a conviction resulting from another “crime of violence.”
Section 924(c) does define “crime of violence:” It’s (1) a felony; that is either
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) 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.
But after a line of Supreme Court decisions from Johnson v. United States through last year’s United States v. Taylor decision, alternate definition (b) has been invalidated as unconstitutionally vague. As a result, conspiracies to murder are not crimes of violence, because you can conspire with your buddies all night without using or threatening someone with the use of force. Attempts to rob a fellow drug dealer are not crimes of violence because you can complete an attempt just by walking up to the victim’s door with a gun in your hand and evil on your mind. In fact, some folks are starting to think that nothing is a “crime of violence” anymore.
Under the circumstances, Tiffany Janis could be forgiven for thinking that her crime wasn’t violent, either. All she did was to come home, catch her cheatin’-heart husband in flagrante delicto, and express her displeasure by shooting him a few times.
Because the domestic discord played out on Indian reservation land, it ended up in federal court, where Tiffany was convicted of 2nd-degree murder and discharging a gun during and in relation to a crime of violence.
In a § 2255 motion, Tiffany argued that her 2nd-degree murder conviction was not a crime of violence, meaning that her § 924(c) conviction had to be vacated.
Tiffany’s murder conviction required that the government show she had killed another person “with malice aforethought.” She argued that killing a person “with malice aforethought” can be done without “us[ing] force against the person or property of another,” as required by § 924(c)(3)(A). Under SCOTUS’s Borden v. United States holding, Tiffany maintained, § 924(c)’s force clause requires “directing or targeting force” at another person or their property. The 8th’s 2nd-degree murder precedent, however, showed that “malice aforethought” can be established without a perp “targeting” force in the way that the force clause, as interpreted by Borden, requires.
The 8th Circuit disagreed, ruling:
Homicides committed with malice aforethought involve the “use of force against the person or property of another,” so 2nd-degree murder is a “crime of violence.” This holding implements the Supreme Court’s command to interpret statutes using not only “the statutory context, structure, history, and purpose,” but also “common sense…”
“Murder is the ultimate violent crime – irreversible and incomparable in terms of moral depravity,” the Court said. Borden quoted from an opinion by then-Judge Alito holding “the quintessential violent crimes, like murder or rape, involve the intentional use’ of force… Malice aforethought, murder’s defining characteristic, encapsulates the crime’s violent nature.”
Murder is still a crime of violence. Only in federal law could such a question be debatable.
Janis v. United States, Case No. 22-2471, 2023 U.S. App. LEXIS 16993 (8th Cir. July 6, 2023)
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WHO CARES ABOUT TWITTER AND ISIS, ANYWAY?
The Supreme Court has awakened from its slumber, issuing six opinions last Thursday as it begins its annual sprint to finish its work by June 30th. None of the six was a criminal case, but the Court did decide an important question about the liability of social media platforms like Twitter, Meta and Google for spreading terrorism-related content posted by ISIS and its fellow travelers.
Under 18 USC § 2333, U.S. nationals who have been “injured… by reason of an act of international terrorism” may sue for damages both from the terrorists themselves and “any person who aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism.” The plaintiffs in Twitter v. Taamneh argued that social media companies aided and abetted ISIS by letting the terrorists use social media platforms to recruit new terrorists and raise funds.
Recognize the old legal chestnut “aid and abet?” Ever since United States v. Taylor held that an attempted Hobbs Act robbery was not a crime of violence that could support an 18 USC § 924(c) conviction (which comes with a mandatory consecutive sentence starting at five years), I have wondered why the same analysis wouldn’t hold that aiding and abetting a crime of violence was not itself a crime of violence.
In Taamneh, the Court observed that nothing in the statute defines ‘aids and abets’, but the term “is a familiar common-law term and thus presumably ‘brings the old soil’ with it.” Taamneh holds that
overly broad liability [for aiding and abetting] would allow for one person [to] be made… a felon against his or her consent, and by the mere rashness or precipitancy or overheated zeal of another… To keep aiding-and-abetting liability grounded in culpable misconduct, criminal law thus requires that a defendant in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed before he could be held liable. In other words, the defendant has to take some “affirmative act” with the intent of facilitating the offense’s commission. Such intentional participation can come in many forms, including abetting, inducing, encouraging, soliciting, or advising the commission of the offense, such as through words of encouragement or driving the getaway car.
The ‘so what’ to all of this is that under Taylor, an attempt to commit a crime of violence was held not to be a crime of violence itself under the elements clause. “Yes, to secure a conviction the government must show an intention to take property by force or threat, along with a substantial step toward achieving that object,” the Taylor Court said. “But an intention is just that, no more. And whatever a substantial step requires, it does not require the government to prove that the defendant used, attempted to use, or even threatened to use force against another person or his property.”
The Taamneh Court suggests that “words of encouragement” – such as sitting around drinking a few beers and telling your buddy that robbing the cellphone store tomorrow sounds like a great idea could make you an aider and abettor if the next day he takes down the Verizon outlet at gunpoint. The Taylor court said that if you could be convicted of the underlying crime without attempting, threatening or carrying out an act of violence, you could not be held liable for an 18 USC § 924 offense because of that conviction.
Like an attempt to commit a Hobbs Act robbery, aiding and abetting a Hobbs Act robbery could be committed without the guilty party attempting, threatening or committing an act of violence. Just ask the guy drinking the beer. Or the one who holds your beer while you commit the Hobbs Act crime.
I believe that Taamneh hastens the day that “aiding and abetting” a crime of violence may join “attempting” a crime of violence as falling short of supporting a mandatory consecutive 18 USC § 924(c) sentence.
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SUPREME COURT FACES HISTORIC BACKLOG IN FINAL MONTH OF TERM
The Supreme Court – waiting until the bitter end to do the largest share of its work in more than 70 years – has scheduled a rare second opinion day for today.
At 10 am, the Court will issue one or more opinions. It still has a lot to choose from.
The court is scheduled to hand down 30 more opinions, 48% of its expected total in argued cases, as its 2021-22 term ends in slightly more than three weeks. While most people are awaiting rulings that could hold that abortion is not a constitutional right but carrying a concealed gun is, there are five decisions of particular interest to federal inmates and defendants:
• Ruan v. United States, Case No. 20-1410. Issue: Whether a physician charged with prescribing controlled substances outside the usual course of professional practice may be convicted under 21 USC § 841(a)(1) without regard to whether, in good faith, he or she “reasonably believed” or “subjectively intended” that the prescriptions fall within that course of professional practice.
• United States v. Taylor, Case No. 20-1459: Whether 18 USC § 924(c)’s “crime of violence” definition excludes attempted Hobbs Act robbery (which could end up excluding all attempted crimes of violence from being predicates for § 924(c) offenses).
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IN § 2255 CASES, PROCEDURE MATTERS
Over the past three weeks, Russia has been reminded of the truth of General Omar Bradley’s old saw that “amateurs talk strategy, professionals talk logistics.” Likewise, two cases handed down last week underscore the truth that inmates talk substance, judges talk procedure.”
DeMarko Collins pled guilty to being a felon in possession under 18 USC § 922(g)(1). DeMarko’s presentence report determined he had two prior felony convictions for crimes of violence, including a Missouri 2nd-degree robbery, which enhanced his Guidelines advisory sentencing range under USSG § 2K1.1.
Five months before DeMarko’s sentencing hearing, a divided 8th Circuit panel held in United States v. Bell that Missouri 2nd-degree robbery was not a crime of violence, but DeMarko’s attorney goofed and did not cite the decision in opposing the § 2K2.1 enhancement. The district court granted the government’s motion for an upward variance, and sentenced DeMarko to 216 months.
DeMarko appealed his sentence. Relying on Bell, he argued the § 2K2.1 enhancement should not have applied. But while his appeal was pending, the 8th Circuit en bancoverruled Bell and held that a Missouri 2nd-degree robbery is a violent felony after all. Because of that, Demarko lost his appeal.
DeMarko then filed a § 2255 post-conviction motion, arguing that his lawyer should have cited Bell, which had been controlling authority and good law at the time of his sentencing. The district court denied the § 2255, finding that even if DeMarko was right that his lawyer should have raised Bell at sentencing, “he cannot demonstrate he was prejudiced by” the error.
Last week, the 8th Circuit agreed, holding that by the time DeMarko on “direct appeal cited Bell in challenging his § 2K2.1 enhancement based on a Missouri 2nd-degree robbery conviction, Bell had been overruled… and this prior conviction was once again a predicate crime of violence under the Guidelines. Strickland prejudice ‘focuses on the question whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair…’ DeMarko was not deprived of a substantive or procedural right to which the law entitles him, so he ‘suffered no legally cognizable prejudice’.”
Meanwhile, in the 9th Circuit, Cesar Gonzalez filed a 28 USC § 2244 application for permission to file a second § 2255 motion. He wanted to argue that his 18 USC § 924(c) conviction for having a gun in furtherance of a crime of violence was invalid because his predicate crime – racketeering – was no longer a categorical crime of violenceunder a new rule of constitutional law announced in the Supreme Court’s United States v. Davis decision.
Last week, the 9th Circuit shot Cesar down, finding that his new Davis argument was not “previously unavailable” as required by 28 USC § 2255(h)(2).
When Davis was handed down, Cesar had filed his § 2255 motion, and the government had responded. Cesar, however, had not yet filed his reply. The 9th Circuit ruled that to show the argument was “previously unavailable” to him, he had to show “that the real-world circumstances that he faced prevented him, as a practical matter, from asserting his claim based on a new rule of law in his initial habeas proceeding.”
The Circuit said it “recognized that pro se prisoners face unique difficulties when litigating habeas relief or anything else, and that language barriers, as Cesar cited in his case, add to those difficulties.” However, the 9th ruled, “nothing in the text or context of AEDPA‘s previously-unavailable-claim requirement suggesting that this limited exception to the otherwise broad prohibition against filing second or successive habeas proceedings was intended to be applied subjectively.”
The 9th concluded that Cesar could show that his new Davisargument was unavailable during his initial § 2255, where Davis issued shortly before Cesar filed his reply brief and a few months before the § 2255 was decided. Cesar had the facts that he needed for his claim, the Circuit held, and no systemic or external barrier prevented him from presenting his claim in his initial habeas proceeding.
So it did not matter that Cesar stood convicted of a § 924(c) offense unlawfully, because a hypothetical reasonable inmate would have tried to raise Davis in the nearly-completed § 2255 proceeding.
Substance? Who cares about substance when procedure triumphs?
Collins v. United States, Case No. 20-3662, 2022 U.S. App. LEXIS 6725 (8th Cir., March 16, 2022)
Gonzalez v. United States, Case No 20-71709, 2022 U.S. App. LEXIS 6943 (9th Cir., March 17, 2022)
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GIVE ME YOUR MONEY OR I’LL SAY YOU’RE A @#$!&*%+
Terry Antonio White was convicted of an Armed Career Criminal Act violation. He violated 18 USC § 922(g)(1)’s prohibition on being a felon in possession of a firearm and had three prior crimes of violence (COV), including Virginia common law robbery. That was enough to trigger 18 USC § 924(e)’s mandatory 15-year sentence.
On appeal, Terry argued that Virginia common law robbery can be committed without the actual, attempted, or threatened use of physical force. Terry claimed that at common law, one could commit robbery in Virginia by threatening to accuse the victim of having committed sodomy if he didn’t hand over the loot.
Terry’s claim sent the 4th Circuit to the Supreme Court of Virginia. The Circuit asked whether someone can be convicted of Virginia common law robbery by threatening to accuse the victim of having committed sodomy. The Virginia Supreme Court said, “yes if the accusation of ‘sodomy’ involves a crime against nature under extant criminal law.”
Last week, the 4th Circuit, therefore, held that Virginia common law robbery can be committed without proving as an element the “use, attempted use, or threatened use of physical force.” Thus, Virginia common law robbery cannot be a predicate offense for an ACCA conviction.
Terry gets time lopped off his sentence, and – while the Circuit didn’t say this – it means that Virginia common law robbery cannot support any 18 USC § 924(c) offense for using a gun during the commission of a Virginia common law robbery, either.
United States v. White, Case No. 19-4886, 2022 U.S. App. LEXIS 2599 (4th Cir., January 27, 2022)
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GRANDMA GOES HOME AS ADVOCATES BEAT UP BIDEN ON HOME CONFINEMENT
FAMM, the American Civil Liberties Union, and the Justice Action Network last week called on President Biden to use his clemency authority to prevent about 4,000 people now on CARES Act home confinement from being sent back to prison when the pandemic ends. Nothing new there. But then, into the middle of this brouhaha stepped the Bureau of Prisons.
A month ago, Gwen Levi, a Baltimore grandmother who had been sent to home confinement under the CARES Act, was returned to prison by the BOP. Her offense was “escape.” In the BOP, that means that she was taking a computer class, and during class, she turned off her phone. The halfway house called to check on her whereabouts, but she did not call back until after class. For that, she went back to prison for another eight years.
The BOP didn’t reckon on the media outcry. After all, who doesn’t like grandmas?The Washington Post trumpeted,“A grandmother didn’t answer her phone during a class. She was sent back to prison.”USA Today blared, “‘Scared and confused’: Elderly inmate sent home during COVID is back in prison after going to computer class.” A grandmother didn’t answer her phone during a class in Baltimore. The Mayor of Baltimore issued a statement complaining that
Following Gwen’s early release from prison last year, the 76-year-old chose to rewrite her story by volunteering for advocacy organizations around Baltimore. But while grace is a rare occurrence, judgment in America flows abundantly. Gwen recently made national headlines after being sent back to prison for failing to answer her phone during a computer class. This lack of patience and empathy was wrong…
However, the media hue-and-cry may be having an effect. Every movement needs an icon, and Gwen may be it. For months advocacy groups have been asking Biden to address the issue, resulting from a Trump DOJ Office of Legal Counsel memo holding that CARES Acthome confinees should be sent back to prison once the COVID-19 emergency ended. Biden has not withdrawn the memo, despite bipartisan calls for the Administration to do so.
Maybe now, the issue will get traction.
Rep. Bonnie Watson Coleman (D-N.J.), who led a letter of 28 House Democrats in April calling for the policy to be rescinded, “is disappointed he hasn’t officially extended the home confinement program,” a spokesperson said. Other advocates are considering it a misstep for Biden to not discuss the program as part of the administration’s crime portfolio.
A BOP spokeswoman said, “This will be an issue only after the pandemic is over. The president recently extended the national emergency and the Department of Health and Human Services has said the public health crisis is likely to last for the rest of the year.” The White House revisits the emergency declaration every three months, leaving the former prisoners in a constant state of limbo. The next deadline is later this month.
“This is not a heavy lift for the Biden administration. All these people were moved out of prison because Trump officials felt it was safe enough for them to go home, said Holly Harris, president and executive director of Justice Action Network. “What more political cover does President Biden possibly need? Lawmakers and advocates from both sides of the aisle agree: it’s time for President Biden to grant clemency to these men and women so they can fully connect with their families, secure jobs, and move on with their lives. Anything less is unconscionable.”
Kristen Brenner was convicted of being a felon in possession of a gun in violation of 18 USC § 922(g)(1). Because of her prior convictions, the government sought to get Krissy a minimum 15-year Armed Career Criminal Act sentence. Her district court refused the government, however, agreeing with Krissy that her Tennessee reckless aggravated assault conviction (related to impaired driving) was not a crime of violence.
Reckless, maybe… but not a crime of violence,
The government appealed, but the case was held in abeyance pending the Supreme Court decision in Borden v. United States. After that June 10 decision held that crimes that could be committed with a “reckless” intent did not fit the “crime-of-violence elements” definition, the government moved to dismiss its appeal in Krissy’s case.
Last week, the 6th Circuit dismissed the government appeal. “Because we apply the law as it currently stands, Borden controls Brenner’s case. Borden analyzed the very statute under which she was convicted, which refers to a person ‘recklessly committing an assault’… Under Borden, that mens rea is insufficient.”
In Borden, the Supreme Court held that the mens rea requirement of USSG § 4B1.1 stems from the language requiring that force be used “against the person… of another.” A defendant acts recklessly when he “consciously disregards a substantial and unjustifiable risk.” But the phrase “against another” demands that the defendant “direct his action… at another individual.” Because reckless conduct is not aimed “in that prescribed manner,” the Borden court ruled, it does not satisfy the elements clause of 4B1.1.
