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

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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.

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.

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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

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

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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.

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