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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.
Last 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.
Not 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.
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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 ACCAtreatment, 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…
That’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 ACCAsentence. 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.
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The Supreme Court handed down the long-awaited Dimayadecision yesterday, a 96-page tome with splintering concurrences and dissents going everywhere, but holding by a 5-4 majority that the residual clause of the 18 USC 16(b) crime of violence definition is unconstitutionally vague.
For those who just joined us, 18 USC 16 defines “crime of violence” as the term is used throughout the criminal code. The statute in it entirety reads:
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and 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.
The focus, ever since Johnson v. United States, has been on the vagueness of subsection (b). Mr. Dimaya is a noncitizen being deported because of two California burglaries. He challenged whether those were crimes of violence. While his case was pending, Johnson was handed down, so he added a Johnson claim. The government argued Johnson did not apply to 18 USC 16(b).
The liberal wing of the Court – Kagan, Sotomayor, Brennen and Ginsburg – were joined in a concurrence by newest Justice Neil Gorsuch – in holding that “a straightforward application of Johnson effectively resolves” Dimaya. The majority said that Section 16(b) of the Criminal Code has the same two features as the residual clause of the Armed Career Criminal Act struck down in Johnson — an ordinary-case requirement and an ill-defined risk threshold — combined in the same constitutionally problematic way.
The opinion noted that the ACCA’s residual clause created “grave uncertainty about how to estimate the risk posed by a crime” because it “tied the judicial assessment of risk” to a speculative hypothesis about the crime’s “ordinary case,” but provided no guidance on how to figure out what that ordinary case was. Compounding that uncertainty, ACCA’s residual clause layered an imprecise “serious potential risk” standard on top of the requisite “ordinary case” inquiry. The combination of “indeterminacy about how to measure the risk posed by a crime and indeterminacy about how much risk it takes for the crime to qualify as a violent felony,” resulted in “more unpredictability and arbitrariness than the Due Process Clause tolerates.”
The majority said Section 16(b) suffers from those same two flaws. Like ACCA’s residual clause, 16(b) calls for a court to identify a crime’s “ordinary case” in order to measure the crime’s risk but “offers no reliable way” to discern what the ordinary version of any offense looks like. And its “substantial risk” threshold is no more determinate than ACCA’s “serious potential risk” standard. Thus, the majority concluded, the same “two features” that “conspired to make” ACCA’s residual clause unconstitutionally vague also exist in 16(b), with the same result.
The Court’s “ordinary-case requirement and an ill-defined risk threshold” test for determining vagueness strikes us as a bludgeon that inmates should be able to use in attacking vagueness in 18 USC 924(c) crime of violence residual clause, as well as anywhere else the “crime of violence” definition appears.
There’s a lot to this case (especially if you take time to read the dissents), and the politics of the majority opinion, four liberal bomb-throwers joined by cool, conservative Neil Gorsuch, should engender its own comment. But for now, we can say this is a big win for criminal justice (and we mean “criminal justice” in a good way). But beware: as law professor Leah Litman noted at the Harvard Law Review blog this morning, because the devil’s in the details:
Dimaya was right to correct a wrong of the past. But while Dimaya may prevent another rerun of the ACCA insanity, it’s not yet clear how many wrongs of the past Dimaya will ultimately right. Whether Dimaya rights wrongful convictions will depend on how courts interpret a slew of procedural restrictions on federal resentencing and federal post-conviction review.
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WHEN IT COMES TO VIOLENCE, A CONSPIRACY WITHOUT AN OVERT ACT JUST AIN’T A CONSPIRACY
Taison McCollum was a felon in possession of a gun, a violation of 18 USC 922(g). At sentencing, his district court applied the Guidelines 2K2.1(a)(4)(A) sentencing enhancement, which sets a higher sentencing range for felons-in-possession if they have a prior conviction for a crime of violence. The enhancement was based on Taison’s prior conviction under 18 USC 1959(a)(5) for conspiracy to commit murder in aid of racketeering.
To most reasonable people, a conspiracy to commit murder sounds like it ought to be a crime of violence. But in a remarkable decision last week, the 11th Circuit disagreed, and vacated Taison’s sentence.
Garden-variety conspiracy, both federal and state, requires an overt act. If you all get drunk one night during the NCAA Final Four games, and agree to shoot an especially blind referee, you haven’t committed a crime if you wake up the next morning sober and think better of it. But if after you agree to shoot the ref (which may have even seemed like a good idea when you were drunk), your buddy goes out and buys a gun and tickets to the next playoff game, an overt act has been committed toward the conspiracy’s goal. Then, even if you never shoot the guy, that overt act makes you guilty of the conspiracy.
The Feds have passed several conspiracy laws that do not require an overt act, such as 21 USC 846 drug conspiracies and conspiracy in aid of racketeering, (which is what Taison had been convicted of). The 11th Circuit noted that 36 US states and territories, regular federal conspiracy under 18 USC 371, and two other circuits, the 9th and 10th, all hold that the general conspiracy needs an overt act.
Because 1959(a)(5) does not require an overt act, the 11th said, the statute “criminalizes a broader range of conduct than that covered by generic conspiracy.” Taison’s 1959(a)(5) conviction “therefore cannot support his enhanced sentence because it is not categorically a crime of violence.”
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4TH CIRCUIT SAYS SOUTH CAROLINA INVOLUNTARY MANSLAUGHTER NOT ‘CRIME OF VIOLENCE’
Dylan Thomas adjured us to “not go gentle into that good night.” In the topsy-turvy world of violent crimes (by legal definition, if not in fact), the 4th Circuit has just held that sending someone into that good night can be done gently, at least if it’s involuntary manslaughter in South Carolina.
Back in 2005, Jarnaro Middleton was sentenced to a 15-year mandatory minimum under the Armed Career Criminal Act. In a motion filed under 28 USC 2255, he challenged the district court’s determination that his prior conviction for South Carolina involuntary manslaughter qualified as a crime of violence under the ACCA.
Under the ACCA, a crime of violence must employ physical force against a person. ‘Physical force’ means “violent force – that is, force capable of causing physical pain or injury to another person.” “Physical force” must be both physical (exerted through concrete bodies) and violent (capable of causing pain or injury to another).
Involuntary manslaughter in South Carolina occurs when the defendant kills another person without malice and unintentionally while he or she was engaged in “either an unlawful activity not amounting to a felony and not naturally tending to cause death or great bodily harm, or a lawful activity with a reckless disregard of the safety of others.” To determine whether the crime calls for “physical force,” a court said it must apply the categorical approach by looking for the least culpable conduct that this offense encompasses. South Carolina courts have held that a defendant can be convicted of involuntary manslaughter by selling alcohol to a minor who later has a car accident because he is drunk. The government argued that the defendant used violent force because the drunk driver died, but the Circuit rejected that as “conflated.” In the drunk driving case, there is a distinction between use of violent force and what causes the injury. A crime may result in death or serious injury without involving the use of physical force.
Because a defendant may be convicted of involuntary manslaughter without using physical force against the victim, the offense is not a crime of violence as a matter of law, no matter what the facts of Jarnaro’s particular offense might have been.
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HE SHOOTS, BUT MISSES…
At some point in his reckless past, Daryl Higdon pumped a few rounds into somebody’s house. The somebody was there at the time, but no one was hurt. Maybe Daryl was a lousy shot. Maybe he was just sending a message. Maybe he didn’t know the house was occupied, and was just being stupid.
Well, we can all agree that whatever else, he was being stupid. But – even if we haven’t shot up the neighbor’s place – who among us hasn’t been stupid once or twice our lives? Or even more?
Years later, when Daryl was caught with a gun (which, as a convicted felon, he was not supposed to have), he was sentenced under the Armed Career Criminal Act. The ACCA requires that a defendant have three prior crimes of violence or controlled substance offenses. Daryl’s three priors (we don’t know what the other two were) included the North Carolina conviction for discharging a firearm into an occupied structure.
Regular readers of this blog know that since Mathis v. United States and Johnson v. United States, a lot of crimes that might intuitively seem to us to be violent are nonetheless not “crimes of violence” as the term is used in the ACCA. Whether busting a few caps into somebody’s castle was a crime of violence is what the 6th Circuit took up last week, and while Daryl may have missed what he was shooting at many years ago, he sure hit the target last week.
The North Carolina crime of discharging a firearm into an occupied structure has as its elements (1) willfully and wantonly discharging (2) a firearm (3) into property (4) while it is occupied, and (5) while having reasonable grounds to believe the property might be occupied. When Daryl got his ACCA sentence, the district court counted the shooting offense as a crime of violence “even if no one was actually struck, [because] the defendant fired a bullet toward a location where he knew or believed another person to be.’”
The 6th Circuit said that was not good enough. The ACCA requires that a prior be “a crime of violence,” not just a violent crime. For Daryl’s prior to be a COV, he just did not have to be reckless. As well, force had to be used “against the person of another.” As to that requirement, the 6th said, “it matters very much whether the person was actually struck.” Otherwise, the appellate court said, “by the government’s logic, a defendant who intentionally fired a gun at someone would be guilty of murder even if he missed.
No matter how reckless Daryl had been in shooting at the house, the Circuit said, because no one was hit, discharging a firearm into an occupied structure was not a crime of violence under the ACCA.
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ALABAMA ROBBERY BECOME NONVIOLENT
The 9th Circuit threw out Donnie Lee Walton’s conviction under the Armed Career Criminal Act last week, holding that Alabama first-degree robbery under Criminal Code § 13A-8-41 was not a violent felony under the ACCA, because the force required to support a conviction for 3rd-degree robbery (in the same statute) is not sufficiently violent to render that crime a violent felony under the ACCA, and the Government waived any argument that the statute is divisible.
At the same time, Donnie’s panel held that United States v. Dixon, a 9th Circuit case holding that California robbery is not a violent felony under the ACCA’s force clause because it can be committed where force is only negligently used and because the statute is indivisible), requires a holding that California 2nd-degree robbery under Penal Code § 211 is not violent, either.
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THINGS ARE SELDOM WHAT THEY SEEM
Buttercup: Things are seldom what they seem, Skim milk masquerades as cream; Highlows pass as patent leathers; Jackdaws strut in peacock’s feathers.
Gilbert and Sullivan had nothing on federal criminal law since the Supreme Court’s decisions in Mathis v. United States and Descamps v. United States. There was a time that you would have thought it was easy to tell a crime of violence, or to identified a controlled substance offense. As Justice Potter Stewart famously said in Jacobellis v. Ohio (about obscenity, not violence), “I know it when I see it.”
But no more. Now, courts must go through countless gyrations, looking at whether statutes are divisible, subject to categorical analysis, or are broader than a never-existed federal common law. Thus, even if a defendant beat his grandmother with a ball bat, the crime might not be violent if the state would have applied the same statute to a defendant who nudged his grandma with a down pillow.
Things are seldom what they seem …
Buttercup: Black sheep dwell in every fold; All that glitters is not gold; Storks turn out to be but logs; Bulls are but inflated frogs.
Captain: So they be, Frequentlee.
So some crimes are violent, some are not. And some drug offenses are “controlled substance offenses,” and some are not.
Last week, the 3rd Circuit ruled that Hobbs Act bank robbery by intimidation was met the “elements” test of the career offender Guidelines, and was a crime of violence, regardless of whether it met the enumerated offenses test of the Guidelines (the court suggested it probably did). The Circuit said, “Unarmed bank robbery by intimidation clearly does involve the ‘threatened use of physical force against the person of another’. U.S.S.G. § 4B1.2(a)(1). If a common sense understanding of the word “intimidation” were not enough to prove that, our precedent establishes that § 2113(a)’s prohibition on taking the “property or money or any other thing of value” either “by force and violence, or by intimidation” has as an element the threat of force.”
Meanwhile, the 1st Circuit refused to apply the Armed Career Criminal Act to a defendant who had a prior conviction for two drug offenses and attempted 2nd-degree armed robbery under New York law. The Circuit held that when the defendant had gotten the New York conviction, New York law applied it to conduct – such as purse-snatching where the victim and perp had a tug-of-war – that fell far short of the violent physical force needed to meet the elements test of the ACCA.
The 4th Circuit concluded that the West Virginia offense of unlawful wounding under § 61-2-9(a) “categorically qualifies as a crime of violence under the force clause, because it applies “only to a defendant who “shoots, stabs, cuts or wounds any person, or by any means causes him or her bodily injury with intent to maim, disfigure, disable or kill.” The Circuit held that the minimum conduct required for conviction of unlawful wounding must at least involve “physical force capable of causing physical injury to another person.” Thus, the offense “squarely matches ACCA’s force clause, which requires force that is capable of causing physical pain or injury.”
The 9th Circuit ruled that a drug conspiracy under the laws of the State of Washington was not a “controlled substance offense” for purposes of Guidelines § 2K2.1(a)(4)(A), because under Washington state law, a defendant could be convicted even if the only other conspirator was an undercover cop. The Circuit held that, as a result, “the Washington drug conspiracy statute covers conduct that would not be covered under federal law, and the Washington drug conspiracy statute is therefore not a categorical match to conspiracy under federal law.”
Finally, the 1st Circuit ruled yesterday that a conviction under Massachusett’s assault and battery with a dangerous weapon law (“ABDW”) was not a crime of violence when done recklessly, and concluded that the defendant’s state records, which reported he had attacked someone “with a shod foot,” were not clear enough to show that he was convicted of intentional ABDW instead of the merely reckless kind. Thus, the defendant did not have three prior crimes of violence, and could not be sentenced under the ACCA.
Buttercup: Drops the wind and stops the mill; Turbot is ambitious brill; Gild the farthing if you will, Yet it is a farthing still.
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10TH CIRCUIT SAYS HOBBS ACT ROBBERY NOT A GUIDELINES “CRIME OF VIOLENCE”
The debate over whether criminal offenses that any viewer of Law and Order would have no problem labeling as violent are in fact “crimes of violence” continues to rage. In the Newspeakean world that remains after United States v. Curtis Johnson and United States v. Mathis, determining whether a violent crime is a “crime of violence” has come to occupy the same station as counting the number of angels on the head of a pin.
Whether a crime is a “crime of violence” has great relevance, because it can qualify the unlucky defendant for a 15-year mandatory minimum sentence (Armed Career Criminal Act), a mandatory consecutive sentence of at least five years (use of a firearm during crime of violence under 18 USC 924(c)), a much higher Guidelines sentencing range as a “career offender,” and a host of other statutory and Guidelines burdens. That’s not to mention the impact on legal residents subject to deportation for crimes of violence, an issue that is part of the Sessions and Dimaya case awaiting decision in the Supreme Court.
The latest entrant into the debate comes from the 10th Circuit, where Darnell O’Connor faced a Guidelines enhancement under USSG 2K2.1(a)(4)(A) because he had a prior conviction for a Hobbs Actrobbery. Darnell’s advisory sentencing range for his felon-in-possession-of-a-gun conviction (18 USC 922(g)(11)) was increased by about six months because of the prior.
There are three ways a prior offense may be a crime of violence under the Guidelines. It may be either (1) an enumerated offense listed in the Guidelines (burglary, arson, extortion or use of explosive”); (2) an offense that has as an element the threatened use or actual use of physical force against a person; or (3) an offense that presents a significant risk of physical harm to others.
The first clause is called the “enumerated clause,” because it enumerates certain offenses that count, period. The second is called the “force clause” or “elements clause,” because it relates to crimes that include elements of purposeful force. The third is called the “residual clause,” because it sweeps up what’s left. The “residual clause” was declared unconstitutionally vague two years ago in United States v. Johnson, at least as it applies to the ACCA, but the Supreme Court subsequently decided it could be applied in the Guidelines definition of “crime of violence.”
The definition of a “crime of violence” is the same whether its figuring out whether someone is an armed career offender under the ACCA or whether figuring out whether it’s a crime a violence under 18 USC 16(b), or whether figuring out whether the Guidelines make one a “career offender” under the Guidelines.
On appeal, Darnell argued that a Hobbs Act robbery was not a “crime of violence” under the Guidelines definition – which is fundamentally the same as the statutory definition – because it encompassed conduct that was broader than “robbery.” If some conduct that would be a crime under the statute would not be a “crime of violence” under the Guidelines, then any conviction under that statute will not qualify as a “crime of violence” for a sentence enhancement under the Guidelines, regardless of whether the conduct that led to the prior conviction was in fact violent.
Under the force clause, the court looks at whether the statute underlying the prior conviction “has as an element the use, attempted use, or threatened use of physical force against the person of another.” If the statute criminalizes only conduct that fits within the force clause, then a sentencing enhancement is valid. But if the Hobbs Act robbery statute covers conduct that falls outside the force clause—such as threatening property rather than “the person of another”—then Hobbs Act robbery would not categorically be a crime of violence under that clause.
The Hobbs Act defines robbery is the unlawful taking of someone’s personal property against his will by use or threat of force “to his person or property.” The Government argued that the Court had to focus on the “minimum conduct” criminalized by the underlying statute without applying “legal imagination” to consider hypothetical situations that technically violate the law but have no “realistic probability” of falling within its application. It argued it Darnell could point to no case where the government would prosecute” threats to property as a Hobbs Act robbery.
The Court held that was immaterial, because Darnell “does not have to make that showing.
Hobbs Actrobbery reaches conduct directed at “property” because the statute specifically says so. We cannot ignore the statutory text and construct a narrower statute than the plain language supports.” Because Hobbs Act robbery can be committed against property, where generic robbery cannot, it is broader than enumerated robbery, and cannot qualify as violent crime under the “enumerated clause.”
Likewise, the enumerated offense of extortion cannot include the Hobbs Act within its sweep, because the Guidelines now define extortion as being focused only on physical injury to a person. Hobbs Act extortion includes threats to property, and thus is too broad under that term as well.
Finally, the Court said, Hobbs Act robbery cannot qualify as a crime of violence under the Guidelines “force clause,” because Hobbs Actrobbery can include force against property, while the “force clause” requires physical force against a person.
Darnell’s two prior Hobbs Act convictions thus were not crimes of violence, despite the fact that they were undoubtedly violent crimes.
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A TALE OF TWO GIRLFRIENDS
Jim and his girlfriend “Sweetie” had a brief fling a few years ago. The allure wore off for Sweetie pretty quickly. Now sick of Jim, she moved a thousand miles away.
Jim did not take rejection well. He began sending emails, texts and Facebook messages demanding that Sweetie apologize to him for breaking it off.
When she refused, Jim used social media to portray Sweetie as a stripper and prostitute, sending the lies to her new employer and generally spreading the meme to the four corners of the Internet. He told Sweetie and her family he would keep it up until she apologized. Sweetie found it pretty upsetting.
Jim was charged with interstate stalking, which he moved to dismiss on the grounds he had a 1st Amendment right to say whatever he wanted to. Problem is that the law is a bit more complex. It holds that “speech integral to criminal conduct” is not protected by the 1st Amendment.
The district court said Jim was committing extortion under 18 USC 875(d), making prosecution of him for interstate stalking permissible despite his asserted 1st Amendment right.
Jim argued that he was not extorting Sweetie, because extortion required that one person threaten to injure the reputation of another with the intent to extort a “thing of value” from that person. Jim said all he wanted was an apology, and, after all, what’s an apology worth, anyway?
Last week, the 8th Circuit upheld his conviction. The Court found that a “thing of value” includes intangibles. The focus, the Court said, is on whether the defendant thinks what is demanded is of value. Here, regardless of how much the apology might really have been worth, it was clearly a “thing of value” to Jim. Thus, he was extorting Sweetie, and his speck thus was integral to a crime.
Meanwhile, a couple hundred miles away from Jim and Sweetie, Rod had struck up an Internet friendship with a 17-year girl in another state. The young girlfriend, whom we’ll simply call “Honeybunch,” lived in an unhappy home environment and was aching to get out of there. Rod sent her money for a bus ticket to come to live with him several states away in Texas (where the romance, he conceded, would have included some “honey” from Honeybunch in the form of consensual and loving sex).
The plan fell apart before Honeybunch could even get as far as the state line. Honeybunch’s family found her missing, and panicked. When they found Rod’s phone number among things Honeybunch had left behind, they called him. Rod counseled the girl by phone to go back home, which she did.
That was not enough for the family, whose panic quickly turned to ire. They convinced the feds to prosecute Rod under the Mann Act, for knowingly transporting someone under 18 in interstate commerce “with intent that the individual engage in… sexual activity for which any person can be charged with a criminal offense.” The age of consent in Honeybunch’s home state was 18, but Rod argued that any sex would have occurred in Texas, where the age of consent was 17. Rod argued the 1st Amendment protected his communications with Honeybunch, because he did not urge her to do anything that would have been a crime where he proposed doing it.
Last week, the 8th Circuit denied Rod’s 2255 motion, too. Sure, it agreed, the age of consent in Texas is 17 years old. But it found another Texas statute that made it a crime to “employ, authorize, or induce a child younger than 18 years of age to engage in sexual conduct,” including “sexual contact, actual or simulated sexual intercourse.” Rod was right that Texas allowed him to have sex with a 17-year old, but Texas nevertheless made it a crime for him to say or do anything that might convince the 17-year old to have sex with him.
So in Texas, you can have sex with a 17-year old if you just lie there. But if you’re at all interested, you could end up with 10 years in federal prison. Charles Dickens was right: “‘If the law supposes that,’ said Mr. Bumble, squeezing his hat emphatically in both hands, ‘the law is a ass – a idiot’.”
11th CIRCUIT GOES ROGUE AGAIN, THIS TIME ON ‘VIOLENT FORCE’
Since the Supreme Court decided in the 2010 Curtis Johnson v. United States case that “force” meant “violent force—that is, force capable of causing physical pain or injury to another person,” circuits have been determining whether force was “violent” by asking whether it was likely to cause pain. Trust the 11th Circuit to upend that logical approach with a 67-page en banc decision holding that everyone is wrong: violent force only needs to be “capable” of causing physical pain. Degree of force no longer matters: only the effect does.
The ruling came last Friday in a reversal of an earlier 3-judge decision that Florida’s felony battery offense is categorically not a violent crime.
Five dissenting judges point out that Florida felony battery “criminalizes a mere touching that happens to cause great bodily harm… A mere touching is not violent—it does not involve a substantial degree of force. A tap on a jogger’s shoulder that happens to cause the jogger to suffer a concussion is still just a tap.” The dissenters complaint that “the Majority’s decision cannot be reconciled with Curtis Johnson… Johnson explain[s] over the course of several pages that “physical force” refers to a threshold degree of force. But the Majority, reading this lengthy analysis out of Curtis Johnson, creates a new test for “physical force” that disregards degree of force. Although the Supreme Court has cautioned against reading a statement from one of its opinions “in isolation” rather than “alongside” the rest of the opinion, the Majority does exactly that.”
We have written before about the Circuit split on whether a prisoner can use a 28 USC 2241 to challenge his or her guilt when there has been an intervening change in statute. Nine circuits say the saving clause of 28 USC 2255(e) permits it. Two, the 10th and 11th, do not.
A case challenging the 11th Circuit’s ban is awaiting grant of review by the Supreme Court, and some heavyweight legal talent is lining up to urge the issue on the high court. Meanwhile, the 3rd Circuit last week recognized the circuit split while reaffirming its commitment to maintaining 2241 as a safety valve.
Gary Bruce was involved in a rather ugly robbery/murder years ago in Tennessee. Among other crimes, he was convicted of witness tampering murder, for killing to “prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense.” Gary’s jury was not instructed at all about whether it had to find Gary thought the witnesses might communicate with a federal officer. At the time, the law said that “no state of mind need be proved with respect to the circumstance… that the law enforcement officer is an officer or employee of the Federal Government.”
Later, the Supreme Court held that the statute required that the jury find that it was “reasonably likely under the circumstances that (in the absence of the killing) at least one of the relevant communications would have been made to a federal officer.” This was a new rule of substantive law not dictated by precedent existing at the time Gary was convicted, that narrowed the scope of the statute.
The Court said it permitted a 2241 when two conditions are satisfied: First, a prisoner must assert a “claim of actual innocence’ on the theory that… an intervening Supreme Court decision” has changed the statutory case law in a way that applies retroactively in cases on collateral review. Second, the prisoner must have had no earlier opportunity to challenge the conviction with a 2255 since the intervening Supreme Court decision issued.
‘Actual innocence’ is a standard all circuits apply to 2241 motions…
Some other circuits allowing 2241s have stricter standards, requiring that prisoners show that circuit precedent foreclosed the issue at the time the 2255 was due. Here, Gary’s brother Bob was locked up in a different circuit that had such a rule. The 3rd noted the unfairness of the disparate treatment, noting that while Congress enacted Sec. 2255 to “alleviate the inefficiencies that attend 2241’s… rules, now those difficulties have returned, though in a new form. And so they will remain, at least until Congress or the Supreme Court speaks on the matter.”
Last 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.
Not 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.”
