Tag Archives: crime of violence

Meanwhile, Back At The Courtroom… – Update for April 17, 2020

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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.

I THINK, THEREFORE I AM…

Watch me write an entire post without ever using the words “coronavirus” or “COVID-19.”

Despite our fixation-in-place with the pandemic, some legal news beyond The CARES Act release to home confinement of Michael Cohen is still being made.

violent170315A 9th Circuit decision last week held that even after the Supreme Court’s United States v. Davis decision last summer, a Hobbs Act armed robbery remains a crime of violence for purposes of 18 USC 924(c)(3)(A). That’s unsurprising: other than the pending 9th Circuit case United States v. Chea, there is hardly a groundswell to declare robberies to be non-violent.

But the 9th went beyond that and held, in a 2-1 decision, that – where a substantive offense is a crime of violence under 18 USC § 924(c)(3)(A) – an attempt to commit that offense is also a crime of violence.

The defendant, who had previously pulled off an armored car heist for a $900,000 score, decided to reprise his success. Unfortunately for him, the FBI had offered a $100,000 reward for information leading to his arrest, a pot of legit money that was enough to convince his sidekick to rat him out.

As the defendant drove toward the armored car garage, he got spooked by too much law enforcement activity in the area, and decided to abort. He was arrested a few days later, and convicted of attempted Hobbs Act robbery and carrying a gun during a crime of violence under 18 USC § 924(c).

The Circuit upheld the conviction, holding:

We agree with the Eleventh Circuit that attempted Hobbs Act armed robbery is a crime of violence for purposes of § 924(c) because its commission requires proof of both the specific intent to complete a crime of violence, and a substantial step actually (not theoretically) taken toward its completion… It does not matter that the substantial step—be it donning gloves and a mask before walking into a bank with a gun, or buying legal chemicals with which to make a bomb — is not itself a violent act or even a crime. What matters is that the defendant specifically intended to commit a crime of violence and took a substantial step toward committing it. The definition of “crime of violence” in § 924(c)(3)(A) explicitly includes not just completed crimes, but those felonies that have the “attempted use” of physical force as an element. It is impossible to commit attempted Hobbs Act robbery without specifically intending to commit every element of the completed crime, which includes the commission or threat of physical violence. 18 U.S.C. § 1951. Since Hobbs Act robbery is a crime of violence, it follows that the attempt to commit Hobbs Act robbery is a crime of violence.

Judge Nguyen dissented, succinctly observing that “as the majority acknowledges, an attempted Hobbs Act robbery can be committed without any actual use, attempted use, or threatened use of physical force. Therefore, it plainly does not fit the definition of a crime of violence under the elements clause. Yet in a leap of logic, the majority nevertheless holds that “when a substantive offense is a crime of violence under 18 U.S.C. § 924(c)(3)(A), an attempt to commit that offense is also a crime of violence.”

Several district courts in the Second Circuit have held that attempted Hobbs Act robberies are not crimes of violence. I suspect this question will ultimately be settled at the Supreme Court.

Ithink200417French philosopher René Descartes famously posited, “Cogito, ergo sum.” For those of you who did not have Emily Bernges for high school Latin, this translates as, “I think, therefore I am.”

The 9th Circuit’s corollary is “I think about violence, therefore I have committed violence.” Somehow, it doesn’t have the same ring to it.

United States v. Dominguez, 2020 U.S. App. LEXIS 10863 (9th Cir., April 7, 2020)

– Thomas L. Root

Racketeering Conspiracy Held Not to be Crime of Violence – Update for December 30, 2019

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3RD CIRCUIT FINDS A RACKETEERING CONSPIRACY IS NO CRIME OF VIOLENCE

Nelson Quinteros was being deported to his native El Salvador on the grounds that a prior criminal conviction under 18 USC § 1959(a)(6) was a crime of violence, and thus an “aggravated felony” under the immigration laws. (An aggravated felony conviction will get a non-citizen deported).

violent160620Sec. 1959(a)(6), a subsection of an offense entitled “Violent Crimes In Aid of Racketeering,” provides that whoever, for payment or to join or advance in a racketeering enterprise, “murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in serious bodily injury upon, or threatens to commit a crime of violence against any individual in violation of the laws of any State or the United States, or attempts or conspires so to do, shall be punished… for attempting or conspiring to commit a crime involving maiming, assault with a dangerous weapon, or assault resulting in serious bodily injury…”

Sound violent? Well, yes, rather. But in the weird legal world that “crimes of violence” have inhabited since Curtis Johnson v. United States, back in 2010, sought to define what violence is, what appears to be a violent crime cannot be counted on to necessarily be a “crime of violence” under the statute.

The Board of Immigration Appeals originally held that Nelson’s § 1959(a)(6) conviction was a crime of violence under 18 USC § 16(b), a statute that defined what constituted a crime of violence under the criminal code. However, after the BIA decision on Nelson’s case, the Supreme Court in Sessions v. Dimaya threw out § 16(b) as unconstitutionally vague. That meant that the § 1959(a)(6) offense was no longer a crime of violence unless it could qualify under § 18 USC § 16(a). Last week, the 3rd Circuit ruled that Nelson’s prior conviction did not qualify as a crime of violence under that subsection, either.

violence151213Section 16(a) defines crime of violence as an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, substantially the same definition used in 18 USC § 924(c) and in the Armed Career Criminal Act. “Looking at the least culpable conduct,” the Court wrote (as it must), “an individual could be convicted of conspiracy under 18 USC § 1959(a)(6) without the use, attempted use, or threatened use of physical force.” What’s more, because a § 1959(a)(6) conviction does not require that a defendant commit any overt act in furtherance of the conspiracy, the statute could conceivably punish for “evil intent alone.”

In other words, Nelson and his cronies could sit around with a few brewskis talking about how they would later commit bodily mayhem on some old lady crossing the street. That would violate § 1959(a)(6), even if later, on the way to do so, they passed a storefront church and were saved, thus abandoning their lives of sin. The conspiracy offense would still have been committed, but nowhere would they have threatened or committed an act of violence.

religion191230

Nelson’s case was about deportation, but its holding suggests that many of the statutes in Chapter 95 of the criminal code, which includes the Hobbs Act and murder-for-hire, may be vulnerable to a Mathis v. United States-type analysis in the wake of Johnson, Dimaya, and United States v. Davis.

The world of “crimes of violence” keeps getting stranger.

Quinteros v. Attorney General, 2019 U.S. App. LEXIS 37237 (3rd Cir. Dec.17, 2019)

– Thomas L. Root

District Court Weighs in on Post-Davis “Attempt” Crime – Update for October 23, 2019

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EDNY DISTRICT COURT SAYS ATTEMPTED HOBBS ACT ROBBERY IS CRIME OF VIOLENCE

Last June’s Supreme Court United States v. Davis decision held that conspiracy to commit a violent crime is not itself a crime of violence. That has raised the obvious question of whether an attempt to commit a violent crime is itself a violent crime.

Robber160229Two weeks ago, an Eastern District of New York court said it was. A defendant had moved to dismiss an 18 USC § 924(c) count on the grounds that the underlying offense, attempted Hobbs Act robbery, was not a crime a violence after the Davis decision. The district court disagreed:

A completed Hobbs Act robbery itself qualifies as a crime of violence under 924(c)(3)(A) and, therefore, attempt to commit Hobbs Act robbery requires that the defendant intended to commit every element of Hobbs Act robbery, including the taking of property in a forcible manner. The definition of a crime of violence in 924(c)(3)(A) equates the use of force with attempted force, and thus the text of 924(c)(3)(A) makes clear that actual force need not be used for a crime to qualify under 924(c)(3)(A). Thus… given 924(c)’s ‘statutory specification that an element of attempted force operates the same as an element of completed force, and the rule that conviction of attempt requires proof of intent to commit all elements of the completed crime,’ attempted Hobbs Act robbery qualifies as a crime of violence under 924(c)(3)(A) as well.

The decision, which is rather thinly justified, is hardly the last word on the issue.

United States v. Jefferys, 2019 U.S. Dist. LEXIS 177234 (EDNY, Oct. 11, 2019).

– Thomas L. Root

What’s Old Is New Again As 5th Circuit Reverses Herrold – Update for October 22, 2019

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5TH CIRCUIT UNDOES HERROLD DECISION

A lot of people were jubilant last year when the 5th Circuit reversed its long-standing United States v. Uribe decision, and held that Texas burglary was no longer a generic burglary under the Armed Career Criminal Act. If you were benefitted by the decision, we hope you got your petition in fast, because last week, the Circuit reversed course yet again.

rollercoaster191022The Herrold case has had a topsy-turvy history. A 5th Circuit panel originally affirmed Mike Herrold’s ACCA sentence on the basis that Texas burglary fit the generic definition. Then the Supreme Court, based on its intervening decision in Mathis v. United States, sent the case back for further consideration. Applying the Uribe decision, the 5th Circuit reimposed the ACCA sentence. But the hearing the case en banc, the Circuit reversed Uribe, holding that to be guilty of generic burglary, a defendant must have the intent to commit a crime when he enters or remains in the building or structure. The Court said held the Texas statute “contains no textual requirement that a defendant’s intent to commit a crime contemporaneously accompany a defendant’s unauthorized entry,” and thus was nongeneric and could not support an ACCA sentence.

On remand after the en banc decision, the district court sentenced Mike to time served. Meanwhile, the government filed a petition for certiorari. Two intervening Supreme Court decisions, Quarles v. United States and United States v. Stitt, foreclosed the two principal grounds on which Mike had contested his ACCA sentencing enhancement, so the Supreme Court sent the case back to the Circuit again.

texasburglary191022Before Quarles and Stitt, the Circuit held the Texas burglary statute is non-generic “because it criminalizes entry and subsequent intent formation rather than entry with intent to commit a crime.” But because of the Supreme Court decisions, the 5th said, Mike’s “old arguments no longer avail and his new ones lack merit. We hold that Section 30.02(a)(3) is generic — and Herrold’s three prior felonies are therefore qualifying predicates for a sentence enhancement under the ACCA.”

United States v. Herrold, 2019 U.S. App. LEXIS 31139 (5th Cir. Oct. 18, 2019)
– Thomas L. Root

Spray Paint and Violence – What is Physical Force Against Property? – Update for September 11, 2019

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10TH CIRCUIT ADDRESSES WHEN FORCE AGAINST PROPERTY IS VIOLENT

giphyOne twist in 18 USC § 924(c)’s definition of “crime of violence” is that, unlike 18 USC § 16(b) or the Armed Career Criminal Act, the use of physical force under § 924(c) can be either against a person or his property. For a offense to be a “crime of violence,” it must require violent physical force. But when is force against someone’s property “violent physical force?”

Aaron Bowen was convicted of witness intimidation and brandishing a gun while doing so, in violation of 18 USC § 924. The witness intimidation statute, 18 USC § 1513, required that one retaliate against a witness by causing bodily injury to a person or by damaging the person’s property. Aaron filed a post-conviction motion under 28 USC § 2255 arguing that after Johnson and Davis, witness intimidation was not a crime of violence, and cannot support a § 924(c) conviction.

Last week, the 10th Circuit agreed. It first joined other circuits in holding that Davis is retroactive for § 2255 purposes. Because Davis declared § 924(c)’s residual clause unconstitutional, Aaron’s witness intimidation conviction could only support a § 924(c) conviction if it required violent physical force against a person or property.

paintcar190911

The 10th concluded that one could damage property without using violent physical force. It suggested, for example, that “although spray-painting another’s car damages that person’s property, we cannot conclude that the mere fact that it damages property means that it requires ‘violent force’.” Because the statute was not divisible between injuring people and damaging property, and because damaging property does not require violent force, the statute is not a crime of violence. Thus, Aaron’s § 924(c) conviction was thrown out.

United States v. Bowen, 2019 U.S. App. LEXIS 26554 (10th Cir. Sept. 3, 2019)

– Thomas L. Root

We’ve Got the Shorts – Update for August 29, 2019

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THE SHORT ROCKET

Inmate has Right to Video at DHO

rocket190620The 4th Circuit held last week that an inmate defending himself in a disciplinary proceeding, where he could lose good time as a punishment, has a qualified right of access to BOP video surveillance evidence and the qualified right to compel official review of such evidence. The Court relied on Wolff v. McDonnell, a 1974 Supreme Court decision defining the extent of inmates’ procedural due process rights in disciplinary proceedings.

Lennear v. Wilson, 2019 U.S. App. LEXIS 25340 (4th Cir. Aug. 23, 2019)

Transgender Inmate Has 8th Amendment Right to Surgery

The 9th Circuit last week held that an Idaho state inmate had shown that he suffered from gender dysphoria (believed he was a different gender than his body reflected), that his need for surgery to change his gender was a serious medical need, and that prison authorities had not provided that treatment despite knowledge of his ongoing and extreme suffering and medical needs. The Court rejected the State’s position that there was a “reasoned disagreement between qualified medical professionals. The Court emphasized that its analysis was individual to the inmate plaintiff, “and rested on the record of this case.”

Edmo v. Corizon, Inc., 2019 U.S. App. LEXIS 25330 (9th Cir. Aug. 23, 2019)

Murder Most Foul… But Not Violent

violent170315The 9th Circuit last week also held that 2nd-degree murder (18 USC §§ 1111 and 1153) is not a crime of violence that can support an 18 USC § 924(c) conviction. The Court held that because 2nd-degree murder can be committed recklessly, it does not categorically constitute a “crime of violence” under the elements clause (924(c)(3)(A)), and under the Supreme Court’s June United States v. Davis decision, the crime likewise cannot constitute a crime of violence under the residual clause.

Begay v. United States, 2019 U.S. App. LEXIS 25196 (9th Cir. Aug. 22, 2019)

Serving Mankind Has Its Limits

The 2nd Circuit ruled last week that a supervised release condition that a defendant perform 300 hours of community service a year during supervision exceeded the Guidelines and was not reasonably related to any of the applicable purposes of sentencing listed at 18 USC § 3553(a), and involved a “greater deprivation of liberty than needed to effectuate the goals of sentencing.” The Court concluded that USSG §5F1.3 advised sentences to not call for more than 400 hours of community service as a condition of supervised release.

Hoodie reading 'Crime and community service'.What’s more, the community service, imposed on a defendant convicted of insurance fraud, was not reasonably related to any relevant sentencing factor and involved a greater deprivation of liberty than is reasonably needed to achieve the purposes of sentencing. The district court observed the defendant lived with his parents, has a young daughter, worked as an Uber and Lyft driver, and “was convicted of two serious crimes of fraud which adversely impacted the community at large.” But, the 2nd Circuit complained, the sentencing court did not explain how the defendant’s “particular circumstances‐‐his criminal history, his cooperation, the nature of his offense‐‐reasonably related to the need for community service.”

United States v. Parkins, 2019 U.S. App. LEXIS 24563 (2nd Cir. Aug. 19, 2019)

– Thomas L. Root

Texas Robbery Is Kinder and Gentler No Longer – Update for April 16, 2019

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5TH CIRCUIT FLIPS, DEFENDANT WINNER IS NOW A LOSER

Last June, we reported that the 5th Circuit had ruled that a conviction for Texas robbery is not a crime of violence under the Armed Career Criminal Act.

Latroy Burris, who was convicted of being a felon-in-possession of a gun under 18 USC § 922(g)(1), was sentenced under the ACCA due to prior convictions for Texas robbery and Texas aggravated robbery. (The ACCA provides that a defendant with three prior convictions for crimes of violence or serious drug offenses must receive a sentence of 15 years to life instead of 922(g)’s usual zero-to-ten years.) Last year, Latroy argued that Texas robbery under § 29.02(a) of the Texas Penal Code was not a crime of violence, and the 5th Circuit agreed.

Afterwards, the government moved for rehearing en banc, and the Court withdrew its Burris decision pending the en banc court’s decision in United States v. Reyes-Contreras, and the Supreme Court decision in Stokeling v. United States, which held that Florida robbery qualified as a crime of violence under the ACCA.crimeofviolence190416

The 5th has now held that Sec 29.02(a)(1) is a crime of violence. It requires that a defendant “cause bodily injury.” Whether “caus[ing] bodily injury” requires the use of physical force under federal law “involves two issues,” the Court said, “(1) the relationship between causing bodily injury and the use of physical force and (2) the degree of force necessary to qualify as a violent felony under the ACCA’s elements clause. The en banc court resolved the first issue in Reyes-Contreras, and the Supreme Court resolved the second issue in Stokeling.”

The Court also concluded that Sec. 29.02(a)(2), which outlaws “robbery-by-threat,” has as an element the attempted or threatened use of physical force. That subsection criminalizes “intentionally or knowingly threaten[ing] or plac[ing] another in fear of imminent bodily injury or death.” The Court said that because Sec. 29.02(a)(1), robbery-by-injury, requires the use of physical force, it necessarily followed that 29.02(a)(2), “threatening to cause imminent bodily injury,” also requires the “attempted use, or threatened use of physical force.”

Latroy Burris’ ACCA sentence was upheld.

United States v. Burris, 2019 U.S.App.LEXIS 10606 (5th Cir. Apr. 10, 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

Curtis Johnson Suffers Violence at Hands of Supreme Court – Update for January 15, 2019

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SUPREME COURT RULING ON ROBBERY AS ACCA PRIOR IS BAD NEWS FOR PEOPLE ATTACKING ACCA PRIORS

violence180508Back in 2010, the Supreme Court brought some sense to the classification of crimes as “violent” in Curtis Johnson v. United States, holding that “physical force” means “violent force – that is, force capable of causing physical pain or injury to another person.  Applying that standard to a Florida battery law criminalizing “any intentional physical contact,” the Curtis Johnson Court concluded that the law did not require the use of “physical force” within the meaning of Armed Career Criminal Act.  

Since that time, Curtis Johnson has led to a number of state crimes that can be accomplished with something less than force capable of causing physical pain or injury to another person have been found not to require the use of force as contemplated by the ACCA.

Then came Denard Stokeling, who once tried to snatch a necklace from the nape of a female victim. The State of Florida convicted him of robbery for that. Some years later, Denard was caught with a handgun. He pled guilty to being a felon-in-possession under 18 USC 922(g). Based on his priors, including the Florida robbery conviction, he was sentenced to a 15-year mandatory minimum under the ACCA.

Denard appealed, arguing that Florida robbery was not a crime of violence under the ACCA, because it did not require force that could cause physical harm. His district court agreed, but the 11th Circuit reversed.

Today, the Supreme Court sided with the 11th Circuit in an opinion that pretty much sounds a death knell for any arguments that any robbery – state or federal – is not a crime of violence. That includes a number of people who are now arguing that Hobbs Act robbery is not a crime of violence for 18 USC 924(c) purposes.

At one time, the ACCA included robbery among the enumerated crimes that were automatically crimes of violence. Congress changed the law to delete “robbery,” but expanded the elements clause of the ACCA to cover any offense that has as an element “the use, attempted use, or threatened use of physical force.”

In a decision written by Justice Thomas, the Supreme Court held earlier today that by replacing robbery with a clause that has “force” as its touchstone, Congress retained the same common-law definition that undergirded the definition of robbery in the original ACCA. The widely-accepted definition of robbery at the state level required nothing more than “a degree of force sufficient only to overcome a victim’s resistance.”

candybaby190117The Court said that the understanding of “physical force” in robbery comports with the definition of force in Curtis Johnson. There, the force necessary for misdemeanor battery required only the “slightest offensive touching” to qualify. Robbery, the Court said, requires force necessary to overcome resistance by a victim, and that is inherently “violent” in the sense contemplated by Johnson and “suggest[s] a degree of power that would not be satisfied by the merest touching.” The Supreme Court held that Curtis Johnson did not purport to establish a force threshold so high as to exclude even robbery from the ACCA’s scope.

Therefore, the Court said, robbery under Florida law qualifies as an ACCA-predicate offense under the elements clause. The term “physical force” in the ACCA encompasses the degree of force necessary to commit common-law robbery.

Curiously, the decision was 5-4, with the dissenters, Chief Justice Roberts and Justices Sotomayor, Ginsburg and Kagan, arguing that the decision eviscerated Curtis Johnson. And they have a point. It is difficult to see what would limit Justice Thomas’ holding that any force sufficient to overcome the will of the victim – such as the yanking a purse away from a woman’s shoulder or even taking candy from the fist of a baby – is not sufficient force to fall within Curtis Johnson.

thThere are those who suspect that today’s decision may limit Curtis Johnson to its facts, which in the law is a nice way to say the court has kneecapped a case.

Not content to vastly expand the reach of the ACCA’s “crime of violence” definition, the decision included the ominous dictum that federal criminal statutes should not be construed in ways that would render them inapplicable in many states. This warning could cause significant problems for people seeking to have state statutory crimes declared to be too broad for ACCA or career offender.

Stokeling v. United States, Case No. 17-5554 (Supreme Court, January 15, 2019)

– Thomas L. Root

Ohio Not as Violent, 6th Circuit Says, Overruling Itself – Update for January 8, 2019

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6TH CIRCUIT FLIPS, DECIDES OHIO ASSAULT IS NO CRIME OF VIOLENCE AFTER ALL

In 2012, the 6th Circuit held Ohio felonious assault and aggravated assault felonies are crimes of violence under the “elements” clause of the Armed Career Criminal Act and the career offender Guidelines. Last week, the Circuit reversed six years of precedent, holding in an en banc ruling that the two Ohio assault offenses are overbroad but divisible: just beating someone up is not violent, but using or trying to use a deadly weapon or dangerous ordnance to do so is.

violence151213The statutes require that a defendant cause physical harm to the victim, but Ohio law defines “physical harm” to include mental harm. Several Ohio cases have convicted where defendants merely failed to prevent their kids from suffering mental trauma. For that reason, the 6th said, the statutes are overbroad.

However, the statutes (ORC 2903.11 and ORC 2903.12) are divisible. A defendant can violate the statutes by causing physical harm to others or by using a deadly weapon to cause or try to cause physical harm to others. The 6th said the first subsection, (a)(1), is clearly overbroad because it is possible to violate the statute by inflicting mental distress on a person without causing physical harm,  and thus cannot count for ACCA or career offender. Subsection (a)(2), however, can be used as a prior for ACCA or career offender.

The government complained that the Circuit’s flip flop, after six years going the other direction, will “excuse thousands of violent career criminals” from the consequences imposed by the ACCA and the Guidelines.” Maybe so, the Court said, but “we are a lower court, and we must follow the Supreme Court’s categorical-approach jurisprudence here.”

United States v. Burris, Case No. 16-3855 (6th Cir., Jan. 3, 2019), 2019 U.S. App. LEXIS 129

– Thomas L. Root