Tag Archives: crime of violence

5th Circuit Holds Conspiracy to Rob Not a Violent Crime – Update for November 8, 2018

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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.

924(c) AND HOBBS ACT ROBBERY GETS EVEN MORE CONFUSING

We have reported over the past few weeks that a number of Circuits have held, in the wake of Sessions v. Dimaya, that determining whether the crime underlying an 18 USC 924(c) conviction for using or carrying a gun during a crime of violence had to be conduct-specific or case-specific, as opposed to a hypothetical ordinary-case categorical approach.

Robber160229The 5th Circuit reminded us last week that, curiously enough, it is the outlier. In United States v. Lewis, the Circuit repeated its holding last summer in United States v. Davis that conspiracy to commit a Hobbs Act robbery cannot support a conviction for using or carrying a gun under 18 USC 924(c).

How long the 5th Circuit’s position lasts is anyone’s guess. The government filed a petition for writ of certiorari in Davis last month, arguing that the 5th Circuit’s use of the ordinary-case categorical approach in 924(c) cases is at odds with everyone else, and is just plain wrong. Given the stark circuit split and the importance of the issue, we think the government’s chance to win certiorari on the issue is better than even.

United States v. Lewis, Case No. 17-50526 (5th Cir. Nov. 1, 2018)

United States v. Davis, Supreme Court Case No. 18-431 (petition for certiorari filed Oct. 3, 2018)

– Thomas L. Root

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Another Circuit Sets Impossible Bar for Dimaya 924(c) Claims – Update for October 8, 2018

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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.

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CIRCUITS BUSY SHUTTING DOWN 924(C) DIMAYA CLAIMS

violence160110In the wake of Sessions v. Dimaya, a lot of people doing time for using or carrying 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 courts of appeals – the most recent one last week – are making that pretty hard. A third circuit may be on the way there.

Section 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, because what might or might not constitute a “substantial risk” was so vague that a reasonable person was unable to determine beforehand what the legal effect of conduct would be. For example, while murder certainly carried a substantial risk that physical force may be used against the victim, how about drunk driving (which, if it were the defendant’s fourth or tenth offense – depending on the state – might be a felony)?

Due to Johnson and Dimaya, all manner of offenses that may sound like they’re violent have been held not to be “crimes of violence.”

Irma Ovalles, convicted of being part of a carjacking crew that used baseball bats and assault rifles, filed a 2255 motion challenging her 924(c) conviction on the grounds that carjacking in its ordinarily sense is not a crime of violence. Last week, the 11th Circuit handed down a ruling that all but dooms her effort.

violent170315To determine whether a prior offense is a “crime of violence,” which is what Johnson and Dimaya address, a court is to use a “categorical approach,” which requires a reviewing court not to look at what the defendant actually did to, for example, assault a police officer in, say, Tennessee. Instead, the court is to ‘imagine’ an “idealized ordinary case of the crime,” and figure out whether it could be done without using violent physical force. Sure punching a cop would use violent physical force. But what if the defendant spit on the police officer instead? If Tennessee state law would permit prosecuting such an act, would that – disgusting though it might be – be held not to be “violent physical force?” If so, the predicate crime is not a “crime of violence.”

So assume the defendant were packing a gun hidden in her waistband while assaulting the officer? Or pulled the gun and pistol-whipped him? Would the fact that she reasonably been prosecuted for spitting on him instead mean that the crime was not violent, and thus render the 924(c) residual clause impermissibly vague?

categorical181008The 11th Circuit cleanly cut the “categorical approach” Gordian knot. “On the flip side,” the Court said, “Johnson and Dimaya also make clear… that if 924(c)(3)’s residual clause is instead interpreted to incorporate what we’ll call a conduct-based approach to the crime-of-violence determination, then the provision is not unconstitutionally vague.” Unlike the categorical approach, the conduct-based approach does not focus on legal definitions and “hypothetical ordinary case,” but instead looks at how the defendant actually committed the underlying crime. The 11th held that where the crime of violence being weighed is not a prior offense, but instead a contemporaneous one (and you cannot commit a 924(c) offense without simultaneously committing a crime of violence or drug trafficking offense), then the conduct-based approach had to be used under the rule of “constitutional doubt.” The rule of “constitutional doubt” holds that any reasonable construction available must be used in order to save a statute from unconstitutionality. “Accordingly,” the Circuit ruled, “we hold that 924(c)(3)(B) prescribes a conduct-based approach, pursuant to which the crime-of-violence determination should be made by reference to the actual facts and circumstances underlying a defendant’s offense.”

Under the conduct-based approach, Irma is clearly going to be in deep trouble when her case gets back to the district court. As one 11th Circuit judge asked in his concurring opinion, “How did we ever reach the point where this Court, sitting en banc, must debate whether a carjacking in which an assailant struck a 13-year-old girl in the mouth with a baseball bat and a cohort fired an AK-47 at her family is a crime of violence? It’s nuts.”

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The 4th Circuit just last month heard en banc arguments in United States v. Simms, which may go the same way as Barrett and Ovalles.

Ovalles v. United States, Case No. 17-10172 (11th Cir., Oct. 4, 2018)

United States v. Barrett, Case No. 14-2641 (2nd Cir., Sept. 10, 2018)

United States v. Simms, Case No. 15-4640 (4th Cir., decision pending)

– Thomas L. Root

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We’ve Got the Shorts (Again) – Update for September 25, 2018

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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. Today, a few short takes from last week’s federal criminal news…

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CASE SHORTS

Hobbs Act Robbery “Violent Crime” in Another Circuit: The 1st Circuit last week held that Hobbs Act robbery is a crime of violence under 18 USC 924(c), a statute that sets extra punishment for carrying or using a gun during a crime of violence. The Circuit joins a number of others that have reached the same conclusion.

United States v. Garcia-Ortiz, Case No. 16-1405 (1st Cir. Sept. 17, 2018)

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bathsalt180925DEA Takes a “Bath” in Analogue Case: In a case full of organic chemistry and implications for the regulatory state, the 6th Circuit held that the DEA rules criminalizing the possession of a “positional isomer” of a banned drug require the rule of lenity to be applied. The rule of lenity is a principle of criminal statutory interpretation that requires a court to apply any unclear or ambiguous law in the manner most favorable to the defendant. In this case, the defendant was tried for possessing ethylone, which under the DEA definition was a “positional isomer” of butylone, a scheduled drug. The problem was that under one of several accepted scientific definitions of “positional isomer,” ethylone is not a positional isomer of butylone at all. The Court ruled that where there was more than one definition, and the DEA rules were unclear what definition was to apply, the defendant gets the benefit of the less restrictive definition under the rule of lenity.

United States v. Phifer, Case No. 17-10397 (6th Cir. Sept. 21, 2018)

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Motion Claiming Juror Lied About Her Background is Structural Error: A couple of guys being tried for a pot-growing operation discovered after the trial that one juror’s son had been convicted of being a marijuana trafficker, a fact the juror concealed on her jury questionnaire. When the defendants raised the juror problem in a motion for new trial, the district court ruled there was no proof of prejudice resulting from of the juror’s false statement, because the overwhelming evidence would have convicted the defendants anyway. The 1st Circuit reversed, ruling that a biased juror would “deprive defendants of ‘basic protections’ without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence.” Thus, it is what is known as a “structural error.” Generally, a constitutional error that does not contribute to the verdict is considered harmless, which means the defendant is not entitled to reversal. However, a structural error, one which “affects the framework within which the trial proceeds,” as defined in Arizona v. Fulminante, defies harmless error analysis. When a structural error is raised on direct review, the defendant is entitled to relief without any inquiry into harm. The Circuit granted French a new trial.

United States v. French, Case No. 16-2386 (1st Cir. Sept. 17, 2018)

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polygraph180925Written Judgment Cannot Add Anything to Terms Imposed at Sentencing: Lincoln R. Washington was sentenced on a conviction for failure to register as a sex offender. In the judgment form entering his sentence into the record, the district court added a supervised release term that Linc submit to polygraph testing, a requirement the court had not mentioned at the sentencing hearing. The 2nd Circuit ruled last week that imposing such a duty in the written judgment without doing so during the spoken sentence was an impermissible modification of the spoken sentence, notwithstanding the fact that the Presentence Report had made reference to the polygraph requirement.

United States v. Washington, Case No. 17-2841 (2nd Cir. Sept. 18, 2018)

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Two Circuits Split on Whether Conspiracy to Be Violent Is Itself Violent – Update for September 20, 2018

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TWO CIRCUITS SPLIT ON HOBBS ACT CONSPIRACY AS VIOLENT CRIME

Two more federal circuits last week joined the chorus of appellate courts holding that a Hobbs Act robbery supports a conviction under 18 USC 924(c) for using a gun during crimes of violence, but they split on whether a conspiracy to commit Hobbs Act robbery is itself violent.

violence180508The 2nd Circuit continues to hold that the conspiracy to commit a violent crime is also a violent crime. The 5th Circuit, however, ruled that a conspiracy to commit Hobbs Act robbery can only be violent under the 924(c) residual clause, and it held that the residual clause is unconstitutionally vague in light of last April’s Supreme Court decision in Sessions v. Dimaya.

The split may set up a Supreme Court decision on conspiracy as a violent crime down the road, but probably not in the 2018-2019 term, which starts in two weeks.

United State v. Barrett, Case No. 14-2641-cr (2nd Cir. Sept. 10, 2018)

United State v. Davis, Case No. 16-10330 (5th Cir. Sept. 7, 2018)

– Thomas L. Root

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“Sort of Violent” Is Kind of Like “Sort of Pregnant” – Update for September 11, 2018

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HOBBS ACT ROBBERY ONLY SORT OF VIOLENT

In what may to some seem like hair-splitting, the 6th Circuit last week held that a Hobbs Act robbery under 18 USC 1951 is a crime of violence for purposes of 18 USC 924(c), but it is not a crime of violence for purposes of Guidelines 4B1.2 “career offender” status.

violence180508Desmond Camp robbed a dollar store at gunpoint. Because he had a prior 924(c) conviction, he faced a 300-month (25 year) mandatory minimum on the gun charge. But on top of that, Des had two priors that qualified as crimes of violence under Chapter 4B of the Guidelines. With the Hobbs Act robbery in his current case as a third violent offense, Des got 72 month stacked on top of the 300 months.

Last week, the 6th Circuit upheld the 924(c) conviction, joining every other circuit in America in holding that a Hobbs Act robbery was a crime of violence under that statute. However, the appeals court ruled, the Guidelines “career offender” section is different. The Circuit said that “an offense is a crime of violence under that clause if it has as an element the use, attempted use, or threatened use of physical force against the person of another. The plain text of the Hobbs Act criminalizes robbery accomplished by using or threatening force against “person or property.” Though this may be sufficient under 924(c), it is not under the Guidelines. Given their definitional differences, “[t]here is nothing incongruous about holding that Hobbs Act robbery is a crime of violence for purposes of 18 USC 924(c), which includes force against a person or property, but not for purposes of USSG 4B1.2(a)(1), which is limited to force against a person.” Therefore, Hobbs Act robbery is not a crime of violence under the Guidelines’ use-of-force clause.

kindofpregnant180911So Hobbs Act robbery is only kind of violent.

Robbery is listed in the Guidelines as a crime that by definition is a crime of violence. But that, the Circuit said, does not matter. Recognizing that “most modern statutes limit robbery to force or threats against a person,” the court held that because Hobbs Act robbery encompassed “mere threats to property,” it was not categorically ‘robbery’ as used in the Guideline.

Not that all of this helps Desmond that much. On resentencing, he will still get somewhere between 300 and 372 months.

United States v. Camp, Case No. 17-1879 (6th Cir. Sept. 7, 2018)

– Thomas L. Root

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The House Giveth and the House Taketh Away – Update for September 10, 2018

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HOUSE PULLS A FAST ONE ON ‘CRIME OF VIOLENCE’

violence151213While everyone was watching the Supreme Court confirmation last week, the House of Representatives passed a bill at the speed of light that would reclassify dozens of federal crimes as “crimes of violence,” making them deportable offenses under immigration law. Criminal justice advocacy groups say the bill, rushed to the floor without a single hearing, is unnecessary, is overbroad, and will intensify the problem of over-criminalization.

The Community Safety and Security Act of 2018, H.R. 6691, passed by a largely party-line vote of 247–152. Among the crimes that it would make violent offenses are burglary, fleeing, and coercion through fraud. The bill, introduced only a week before, sailed to the House floor without a single hearing or markup prior to last Friday’s vote.

The Supreme Court ruled in Sessions v. Dimaya last spring that the definition of a “crime of violence” used in 18 USC 16(b) was unconstitutionally vague. House Republicans say they crafted the bill in response to the Court’s recommendations in that case. But the criminal justice reform advocacy group FAMM warned that the bill “would label seemingly nonviolent offenses such as burglary of an unoccupied home and fleeing as violent offenses.” The bill was also opposed by the House Liberty Caucus, which released a statement saying that the legislation “expands unconstitutional federal crimes and provides grossly disproportionate consequences for nonviolent offenses.”

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Rep. Karen Handel (R-Georgia), however, one of H.R. 6691’s sponsors, claims the bill is urgently needed to keep communities safe from violent crime. “We don’t have the privilege to squabble over hypotheticals that have no bearing on the application of this law,” Handel argued during floor debate. “I can assure my colleagues this bill is not overly broad. It’s not a dangerous overexpansion. Instead, it’s a carefully crafted response to the Supreme Court’s recommendations.”

OSU law professor Doug Berman wrote in his Sentencing Law and Policy blog last Friday that “because the definition of “crime of violence” under federal law matters in lots of arenas beyond immigration, I am hopeful that the Senate will take a more careful and deliberative approach to this issue than has the House.” Although usually a bill introduced so late in the 2-year Congressional session stands no chance of becoming law, there is a risk that if criminal justice reform legislation passes the Senate, the House may try to force inclusion of H.R. 6691 in the final, compromise package.

Reason.com, House Passes Bill to Reclassify Dozens of Offenses as ‘Crimes of Violence’ (Sept. 7, 2018)

Sentencing Law and Policy, US House passes broad rewrite of the federal definition of “crime of violence” without any hearings (Sept. 7, 2018)

H.R.6691 – Community Safety and Security Act of 2018

– Thomas L. Root

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Kinder and Gentler Robbery Not ACCA ‘Violent’ – Update for June 25, 2018

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5TH CIRCUIT HOLDS TEXAS SIMPLE ROBBERY IS NOT CRIME OF VIOLENCE

The 5th Circuit last week ruled that a conviction for Texas robbery is not a crime of violence for purposes of the Armed Career Criminal Act.

BettyWhiteACCA180503Latroy Burris, convicted of being a felon-in-possession of a gun, was sentenced under the ACCA for priors of drug distribution, robbery and aggravated robbery. He conceded the drug conviction counted for ACCA purposes, and the 5th Circuit last year said aggravated robbery was a crime of violence. But Latroy argued that Texas robbery under § 29.02(a) of the Texas Penal Code was not a crime of violence.

Texas robbery requires that in the course of committing theft, a person intentionally, knowingly, or recklessly cause bodily injury to another; or intentionally or knowingly threaten or place someone in fear of imminent bodily injury or death.

The Circuit agreed with Latroy, finding that Texas law interprets “bodily injury” expansively, encompassing even “relatively minor physical contacts so long as they constitute more than mere offensive touching.” The Circuit said the Supreme Court decision on “physical force,” Curtis Johnson v. United States, suggests that causing “relatively minor physical contacts” does not entail the “violent force” required to make the state robbery offense a “crime of violence.”

Latroy will be resentenced without the ACCA 15-year mandatory minimum.

United States v. Burris, Case No. 17-10478 (5th Cir. June 18, 2018)

– Thomas L. Root

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Tenth Circuit Firebombs 924(c) Residual Clause – Update for May 15, 2018

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10th CIRCUIT SAYS DIMAYA MEANS 924(c) RESIDUAL CLAUSE IS UNCONSTITUTIONAL

regrets180515Cliff Salas was convicted of conspiracy to commit arson under 18 USC 844 for using a Molotov cocktail to firebomb a tattoo parlor, which came with an add-on 30-year sentence for using a destructive device in a crime of violence.

Under 18 USC 924(c), a defendant who uses or possesses a firearm or destructive device in a drug trafficking offense or crime of violence receives a mandatory consecutive sentence of from five years to life, depending on the type of gun or device, on whether it’s a first 924(c) offense or subsequent offense, and on how the weapon was used. A “crime of violence” is defined as either (1)  an offense that has as an element the threatened use or actual use of physical force against a person or property; or (3) an offense that presents a significant risk of physical harm to people or property.

Because an 18 USC 844 arson conviction is too broad for generic arson, the enumerated clause of 18 USC 924(c) does not encompass Sec. 844 arson. Likewise, the elements clause, which requires use of force against the property of another, does not encompass Sec. 844 arson, because the property burned up may be one’s own. That meant that that arson must come under the 924(c) residual clause.

vaguenes160516Two weeks ago, the 10th Circuit hurled its own Molotov cocktail at the 924(c) residual clause, striking it as unconstitutional under the 5th Amendment. The Court concluded that the Supreme Court’s recent Dimaya decision required that the 924(c) residual clause be declared too vague. “Ultimately,” the Court said, “Sec. 924(c)(3)(B) possesses the same features as the ACCA’s residual clause and Sec. 16(b) that combine to produce ‘more unpredictability and arbitrariness than the Due Process Clause tolerates,’ and Dimaya’s reasoning for invalidating Sec. 16(b) applies equally to Sec. 924(c)(3)(B). Sec. 924(c)(3)(B) is likewise unconstitutionally vague.”

Currently, only the 6th Circuit holds that Sec. 16(b) is unconstitutional while 924(c)(3)(B) is not.

United States v. Salas, Case No. 16-2170 (10th Cir. May 4, 2018).

– Thomas L. Root

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10th Circuit Says Robbery is Still Violent – Update for Tuesday, May 8, 2018

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TENTH CIRCUIT SAYS ROBBERY IS A GUIDELINES VIOLENT CRIME

Ed McCranie pleaded guilty to federal bank robbery, which his presentence report suggested was a crime of violence under United States Sentencing Guidelines 4B1.2(a)(1), just like a prior federal bank robbery and Colorado aggravated robbery. The three convictions made Ed a Guidelines career offender under USSG 4B1.1(a). Ed complained at sentencing that none of his three robberies qualified as a crime of violence, but the district court rejected the argument, sentencing him to 175 months.

violence180508Last week, the 10th Circuit affirmed, holding that federal bank robbery, which is taking property by force, violence, or intimidation, qualifies categorically as a crime of violence. Ed argued that because robbery can be accomplished by threatening something other than physical force, such as releasing poison if the teller does not hand over the case, the crime is not a “crime of violence.” But the Supreme Court’s 2014 decision in United States v. Castleman knocked down that issue.

Still, Ed contended, robbery can be committed by intimidation, and some people can be intimidated by raising an eyebrow, without any real threat of physical force at all. If one robs by scaring some clerk who is scared of his own shadow, Ed argued, it does not rise to a crime of violence.

caspar180508Not so, the Circuit said. “We have defined intimidation… as an act by [the] defendant ‘reasonably calculated to put another in fear, or conduct and words calculated to create the impression that any resistance or defiance by the individual would be met by force’… This definition requires the objective threatened use of physical force.” Even the 10th Circuit pattern jury instructions say that to take ‘by means of intimidation’ is to say or do something in such a way that a person of ordinary sensibilities would be fearful of bodily harm’… And then, putting to rest any concerns of the too-timid teller, the instructions clarify that “a taking would not be by ‘means of intimidation’ if the fear, if any, resulted from the alleged victim’s own timidity rather than some intimidating conduct on the part of the defendant. The essence of the offense is the taking of money or property accompanied by intentional, intimidating behavior on the part of the defendant.”

Because intimidation requires an objectively reasonable fear of bodily harm, Tim’s conviction was upheld.

United States v. McCranie, Case No. 17-1058 (10th Cir. May 3, 2018)

– Thomas L. Root

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Thanks to Mathis, Chances Are It’s No Longer Violent – Update for May 1, 2018

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8TH CIRCUIT SAYS NORTH DAKOTA BURGLARY TOO BROAD FOR ACCA

Courts are still struggling over the application of Mathis v. United States, the 2016 case that changed the way state statutes are interpreted for imposing Armed Career Criminal Act sentences. Mathis says that in determining whether a statute can be divided into crimes that qualify for ACCA treatment and crimes that are too broad for ACCA treatment, you first read the plain text, then see whether the separate offenses have different punishments, then look at state court decisions in the issue, and then check out state jury instructions. If none of that works, chances are it may still not count for an ACCA punishment…

mathis180501That’s what the 8th Circuit ran into last week with defendant Jon Kinney. He had a prior North Dakota burglary conviction of a “building or occupied structure” that helped qualify him for an ACCA sentence. But the state statute provided that an occupied structure could include a vehicle, and vehicle burglary falls beyond the kind of generic burglary that counts against the ACCA.

The Circuit looked at the statute, state court decisions and jury instructions, but could not tell whether “building or occupied structure” described two elements or just two means of committing the crime. Frustrated, the court gave just a “peek” at the record of Jon’s prior conviction “for the sole and limited purpose of determining whether the listed items are elements of the offense.”

It turned out that each of Jon’s charges just accused him of burgling “a building or occupied structure.” The fact that his indictments listed both, the Court held, was “as clear an indication as any that each alternative is only a possible means of commission, not an element that the prosecutor must prove to a jury beyond a reasonable doubt.” Thus, the Circuit held, Jon’s prior North Dakota convictions can’t count as predicates for the ACCA.

United States v. Kinney, Case No. 16-3764 (8th Cir. Apr. 23, 2018)

– Thomas L. Root

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