Tag Archives: davis

Supreme Court Loosens 2255 ‘Second or Successive’ Restrictions – Update for January 12, 2026

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SCOTUS GUTS § 2244 LIMITATIONS ON SUCCESSIVE § 2255 MOTIONS

For federal prisoners, the only workable means of challenging an unlawful conviction or sentence after direct appeal rights have lapsed is through a petition for writ of habeas corpus. Such a petition is brought through a mechanism provided by 28 USC § 2255.

The procedure is restricted as to timing and frequency: generally, the motion must be filed within a year of the end of direct appeal rights. What’s more, it is a one-to-a-customer filing: to bring a “second or successive” § 2255 motion, the prisoner must get advance approval from the Court of Appeals, and the new filing must fit within very narrow restrictions described in 28 USC § 2255(h).

Congress adopted the restrictions in the Antiterrorism and Effective Death Penalty Act some 30 years ago. I have railed about the AEDPA often enough, so here I will just mention that constitutional abomination in passing.

Back in 2008, Michael Bowe was convicted of conspiracy to commit a Hobbs Act robbery, attempted Hobbs Act robbery, and using a gun during the offenses in violation of 18 USC § 924. In 2016, after the Supreme Court invalidated the residual clause in the Armed Career Criminal Act, Mike filed a § 2255 motion arguing that § 924(c)’s residual clause was unconstitutional as well. The District Court denied the motion, reasoning that – regardless of the residual clause’s constitutionality – he was not entitled to a second bite of the apple because attempted Hobbs Act robbery qualified as a “crime of violence” under the elements clause of the statute.

In 2019, after United States v. Davis held that conspiracy to commit a violent crime was not itself a violent crime, Mike sought permission from the 11th Circuit under § 2255(h) to file a second or successive motion raising whether his § 924(c) conviction should be thrown out. A three-judge panel found that while Davis announced a new, retroactive constitutional rule (one of the two statutory gateways for successive motions under § 2255(h)(2)), Mike could not show that his § 924(c) conviction was unconstitutional because Circuit precedent still treated attempted Hobbs Act robbery as a crime of violence under the elements clause.

After United States v. Taylor held in 2022 that attempted Hobbs Act was not a crime of violence either, Mike once again asked the 11th Circuit for authorization under § 2255(h), arguing that Davis and Taylor left neither of his Hobbs Act convictions as a valid predicate for a § 924(c) charge. The Circuit dismissed the part of his request resting on Davis, reasoning that the claim had been “presented in a prior application” and that the panel lacked jurisdiction over such old claims under 28 USC § 2244(b)(1). That statute on its face applies to state prisoners seeking leave to file a second 28 USC § 2254 petition in federal court, not federal prisoners proceeding under § 2255. Nevertheless, language in § 2255(h) has led courts to ambiguously apply § 2244(b)(1) to federal § 2255 movants as well.

The Circuit panel also denied the part of Mike’s request that rested on Taylor because Taylor did not announce a new constitutional rule within the meaning of § 2255(h)(2).

Mike didn’t give up, going back to the 11th several times, seeking authorization to pursue a § 2255 motion, asking for an en banc hearing, and seeking reversal of Circuit precedent applying § 2244(b)(1)’s old-claim bar to federal prisoners’ successive § 2255 motions. He also requested certification of the question whether § 2244(b)(1) applied to federal prisoners at all. But the 11th turned down all of his entreaties.

Mike eventually filed for a Supreme Court review, pointing out that while six Circuits apply § 2244(b)(1)’s old-claim bar to federal prisoners, three others held that it only applied to state prisoners seeking leave to file a second § 2254 petition in federal court.

Last Friday, the Supreme Court ruled for Mike.

First, the Justices held 5-4 that while 28 USC § 2244 provides that a denial of authorization “to file a second or successive application” shall not be subject to Supreme Court review, that provision does not apply to federal prisoners. The Supremes reasoned that the limitation is housed within § 2244, “which imposes several strict requirements that apply only to state prisoners.” What’s more, § 2244(b)(3)(E) addresses only “second or successive application’ but “unlike state prisoners who file such ‘applications,’ federal prisoners file ‘motions’.”

The Supreme Court also ruled that § 2244(b)(1)’s “old-claim” bar – that states that “[a] claim presented in a second or successive habeas corpus application under § 2254 that was presented in a prior application shall be dismissed” – applies only to state prisoners alone: “That specific reference to § 2254 was deliberate: Elsewhere in this very section, Congress expressly distinguishes § 2254 “applications” from § 2255 “motions… When interpreting statutes, the Court presumes that “differences in language like this convey differences in meaning.” By its plain terms, § 2244(b)(1)’s old-claim bar applies only to state prisoners.”

In the Bowe decision, SCOTUS resoundingly underscores that “the best textual reading of both § 2255(h) and § 2244(b) is that, when a federal prisoner moves for authorization [to file a successive § 2255], a panel can authorize the filing if the filing makes a prima facie showing that it satisfies one of the two grounds in § 2255(h), the ‘two—and only two—conditions in which a second or successive § 2255 motion may proceed’,” quoting Jones v. Hendrix.

Bowe v. United States, Case No. 24-5438, 2026 U.S. LEXIS 4 (Jan. 9, 2026)

United States v. Davis, 588 U.S. 445 (2019)

United States v. Taylor, 596 U.S. 845 (2022)

Jones v. Hendrix, 599 U.S. 465 (2023)

~ Thomas L. Root

‘Take Your Commutation and Shove It,’ Death Row Inmates Tell Biden – Update for January 7, 2025

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

THANKS BUT NO THANKS

thanksnothanks250107Two federal death row prisoners, who are among the 37 inmates whose death sentences were commuted on December 23 by President Joe Biden, have filed hand-written petitions in the United States District Court for the Southern District of Indiana seeking an injunction against losing their death penalty sentences.

NBC News reported Shannon Agofsky and Len Davis, both housed on death row at USP Terre Haute, filed on December 30, 2024, for injunctive relief to block Biden’s commutation of their death sentences to life in prison without parole.

Shannon said in his petition,

On December 22, 2024, the defendant became aware of the publicity stunt enacted by president Joe Biden, in which he commuted the death sentences of 37 federal prisoners the defendant was part of that group. That defendant never requested commutation the defendant never filed for commutation. The defendant does not want commutation, and refused to sign the paper offered with the commutation.

Len wrote that “there are a host of constitutional violations associated with the executive branch’s attempt to sentence petitioner Davis life sentence without his agreeing to commutation.” Len asked the court to appoint an attorney to represent him and promised to expand on his argument in future filings.

Shannon argued that “[t]o commute his sentence now, while the defendant has active litigation in court, is to strip him of the protection of heightened scrutiny. This constitutes an undue burden, and leaves the defendant in a position of fundamental unfairness, which would decimate his pending appellate procedures.”

The Supreme Court held in Caldwell v. Mississippi that the 8th Amendment imposes a heightened “need for reliability in the determination that death is the appropriate punishment in a specific case.”

Shannon, who maintains his innocence, argued in his petition that he doesn’t want to lose the benefit of that additional scrutiny. Davis, on the other hand, argued that the death sentence draws “attention to the overwhelming misconduct” of the Dept of Justice in his case.

douglassdeathbondage250107Shannon’s and Len’s likelihood of prevailing seems to be a long shot. In Biddle v. Perovich, the Supreme Court 98 years ago pretty clearly held that the president has the authority to commute a death sentence to life and “that the convict’s consent is not required.”

NBC quoted Daniel Kobil, a constitutional law professor at Capital University and a death penalty defense counsel, as explaining that “we impose sentences for the public welfare, the president and governors in states commute sentences for the public welfare.”

Robin Maher, executive director of the nonprofit Death Penalty Information Center, told NBC that the vast majority of inmates on federal death row were grateful for Biden’s decision, “which is constitutionally authorized and absolute.”

Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman said, “[T]hese efforts to refuse a capital commutation seem likely to help ensure these defendants get more attention for their claims of innocence than many others.  And I have often asserted to students in my sentencing classes that convicted murderers claiming to be wrongfully convicted on death row are likely to get more attention for their claims of innocence than convicted murderers given LWOP.“

NBC, Two death row inmates reject Biden’s commutation of their life sentences (January 6, 2025)

Emergency Petition for Injunctive Relief, Agofsky v. United States, Case No. 2:25-cv-1, Doc. 1 (December 30, 2024)

Emergency Petition for Injunctive Relief, Davis v. United States, Case No. 2:25-cv-2, Doc. 1 (December 30, 2024)

Caldwell v. Mississippi, 472 U.S. 320 (1985)

Biddle v. Perovich, 274 U.S. 480 (1927)

– Thomas L. Root

The Fine Print Counts In A Deal With the Devil – Update for February 20, 2024

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

‘SHUT UP AND SIGN’ LEADS TO A LOT OF BUYER REMORSE

About 95% of all federal indictments end with a plea agreement where the defendant agrees to take a guilty plea in exchange for government promises that often seem evanescent if not illusory. If I had a dime for every prisoner who has told me that he or she only signed because defense counsel said to, I would be writing this on the beach of my private Caribbean island instead of at a desk looking out at February snow in Ohio.

plea161116Two cases decided last week remind all prisoners – including those who have already signed their plea agreements – that in a plea agreement, every promise counts. A defense attorney’s disservice to the client is never greater than when he or she rushes them into signing a “good deal” without first painstakingly walking the defendant through every provision and explaining it in detail.

Eric Rudolph (remember him?) decided to express his political views by blowing up Olympic venues and abortion clinics. The innocents he slaughtered in the process were just icing on his demented cake. After five years on the lam, Eric was caught dining out of a dumpster in Murphy, North Carolina, and was later convicted of one 18 USC § 844(i) arson offense and five companion 18 USC § 924(c) counts for using a firearm (bombs studded with nails qualify under the statute as “firearms”) in the commission of the arson.

Eric’s approach to the plea agreement was unrepentant. He said he had “deprived the government of its goal of sentencing me to death,” and that “the fact that I have entered an agreement with the government is purely a tactical choice on my part and in no way legitimates the moral authority of the government to judge this matter or impute my guilt.”

Uh-huh. Eric’s statement brings to mind old Gus McRae (Lonesome Dove) addressing outlaw Dan Suggs, who was about to be executed with his brother but expressed only hatred and contempt:

Gus McCrae: I’ll say this, Suggs; you’re the kind of man it’s a pleasure to hang. If all you can talk is guff, you can talk it to the Devil.

supermaxcell240220I’m no fan of mandatory life sentences and even less of the death penalty, but it’s amazing how malleable our principles can be when we’re punched in the face with pure-D evil. Eric undeservedly got a life sentence, which he’s spending in the mountains of Colorado (although he never gets to see them from his concrete cell at ADX Florence).

As part of the plea deal he was proud of for depriving the Feds of the death penalty, Eric waived the right to collaterally attack his sentence in any post-conviction proceeding, including under 28 USC § 2255. But because of what the Court disapprovingly calls “the evergreen litigation opportunities introduced by the categorical approach” to § 924(c) litigation,” Eric – who has apparently decided that freedom some day isn’t such a bad goal – has filed two § 2255s so far. Last week, the 11th Circuit turned down his second one as barred by the plea agreement and, in so many words, told Eric to enjoy his place in the mountains for the rest of his life.

In the last few years, courts have applied the Supreme Court’s “categorical” approach to determining whether an offense is a “crime of violence” within the meaning of 18 USC § 924(c)(3)(A), that is, “an offense that is a felony and has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Even Eric’s district court agreed that after the Supreme Court’s decision in United States v. Davis, his arson offenses were no longer crimes of violence under the federal statute (because one can be convicted of arson for burning down his or her own property). But that didn’t matter, the district court said, because Eric had given away his right to bring a § 2255 motion to correct the error.

Last week, the 11th Circuit agreed. It held that “a plea agreement is, in essence, a contract between the Government and a criminal defendant. And because it functions as a contract, a plea agreement should be interpreted in accord with what the parties intended. In discerning that intent, the court should avoid construing a plea agreement in a way that would deprive the government of the benefit that it has bargained for and obtained in the plea agreement.”

Eric’s plea deal, the 11th said, contained the common waiver of the right to bring a collateral attack on his sentence. But Eric argued that the plea deal only prohibited collateral attacks on the sentence, while his collateral attack was on the § 924(c) convictions.

dumpsterfire249220Eric’s argument was a dumpster fire, the Circuit said. “The text of 28 USC § 2255, the history of that same statute, and the habeas corpus right that it codified, all point in the same direction: 2255 is a vehicle for attacking sentences, not convictions.” Starting with the origins of English habeas corpus through the codification of 2255 up to last summer’s Supreme Court Jones v. Hendrix decision (where SCOTUS said “Congress created 2255 as a separate remedial vehicle specifically designed for federal prisoners’ collateral attacks on their sentences”), the 11th concluded that the history, the plain text of the statute “shows the same, as does Rudolph’s requested relief… [His] motions are collateral attacks on his sentences, so his plea agreements do not allow them.”

Winning his § 2255 would have been a huge deal for Eric. The 18 USC § 844(i) conviction carries a maximum 10-year sentence. Each of the § 924(c) convictions carries a maximum of life. Had Eric been allowed to bring the § 2255, he would have gone from his concrete cell straight to walking the streets (something most of his victims would never enjoy again).

*     *     *

Meanwhile, over in Louisiana, Keesha Dinkins – a front-office worker at Positive Change healthcare clinic – was swept up in a Medicaid billing fraud. She didn’t make a dime from the fraud beyond her normal salary, but her lawyer had her sign a plea agreement for 24 months and restitution of $3.5 million.

positivechange240220Despite the deal she made, she argued that she should not be on the hook to share the restitution equally with Positive Change’s owner (who got a lot more time than she did). Last week, the 5th Circuit told her that it was Positive that it would not Change her restitution:

The criminal justice system in this country relies on plea agreements to provide efficient resolutions to criminal cases. Indeed, over 95 percent of federal criminal cases are resolved without trial. It would undermine the principle that plea bargains are contracts to hold that a party can agree to a specific amount of restitution, supported by record evidence, and then in the next breath, challenge an order imposing that exact amount of restitution.

The 5th observed that her plea agreement provided that “Dinkins — not Positive Change — was responsible for the $3.5 million loss.” That is how the judgment will remain.

Rudolph v. United States, Case No 21-12828, 2024 U.S. App.  LEXIS 3278 (11th Cir., February 12, 2024)

United States v. Johnson, Case No 22-30242, 2024 U.S. App. LEXIS 3487 (5th Cir., February 14, 2024)

– Thomas L. Root

Late is Still Late, But Early Is Not, 4th Circuit Says – Update for May 25, 2023

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

2255 THAT WAS TOO EARLY IS NOT TOO LATE, 4TH CIRCUIT SAYS

hobbsact200218Andra Green was convicted of a series of Hobbs Act robberies, attempted robberies and conspiracies, along with several 18 USC § 924(c) offenses for using a gun during a crime of violence. Such § 924(c) offenses come with mandatory consecutive sentences and are thus beloved by prosecutors.

The reason for prosecutorial affection is illustrated in Andra’s case. Because someone died during one of the Hobbs Act robberies – a violation of 18 USC § 924(j) – Andra was sentenced to life in prison.

But a few years after Andra’s conviction, the Supreme Court decided Johnson v. United States in 2015. Johnson held that the residual clause of the definition of “crime of violence” – the part that said that a crime was violent if it carried a substantial likelihood that physical violence would result – was so vague as to be unconstitutional. Andra connected the dots – like a lot of prisoners did at the time – and figured that if Johnson invalidated the crime-of-violence residual clause for the Armed Career Criminal Act, the similarly-worded residual clause in 18 USC § 924(c) must be equally unconstitutional.

Andra filed a 28 USC § 2255 motion to vacate his § 924(c) and § 924(j) convictions based on his notion that Johnson should logically extend to § 924(c) crimes of violence. Such a § 2255 motion must be filed within strict time limits, such as within a year of the underlying conviction becoming final or within a year of a new constitutional holding that invalidates the conviction. (You can read the limitations in 28 USC § 2255(f)).

Andra was wrong: Johnson did not affect § 924(c) at all. The government argued that Andra’s petition was hopelessly late because it could not rely on Johnson, but instead had to be filed within a year of conviction (and it was four years late for that).

canary230525But Andra was prescient. Johnson may have had nothing to do with § 924(c) offenses directly, but it was the canary in the mine: the Supreme Court over the next few years would extend Johnson’s logic to 18 USC § 16(b) in Sessions v. Dimaya and then to § 924(c) in United States v. Davis. Andra’s petition was held in abeyance by the District Court and later the Fourth Circuit as all of this unfolded. Four years after Johnson, Davis held that the residual clause in § 924(c)’s definition was unconstitutionally vague as well.

Clearly, Andra’s § 2255 motion was untimely when he filed, because Johnson was not a constitutional ruling that would restart Andra’s § 2255 clock. That, as the 4th Circuit put it, made “the key question… whether Davis renders Green’s Johnson-based motion timely” after the fact.

Last week, the 4th said that being early ended up making Andra on time. For starters, it said, “[t]he Davis Court extended the holding of Johnson” to invalidate the “analogous” residual clause in § 924(c). Indeed, in concluding that § 924(c)’s residual clause is unconstitutionally vague, the Supreme Court noted that the clause “bear[s] more than a passing resemblance” to the ACCA residual clause it had struck down in Johnson. Davis thus confirmed what Andra’s motion asserted: that the vagueness analysis in Johnson also called into question the constitutionality of § 924(c)’s residual clause.

early230525The Circuit said the text of § 2255(f)(3) “is silent on how to address this particular scenario, where a petitioner filed a § 2255 motion within a year of a Supreme Court decision recognizing a closely analogous right, and the Supreme Court then recognized the specific right at issue during the pendency of the § 2255 proceedings.” The purpose of the statute of limitations supports extending the limitations period here, the 4th held, because the goal of the limitations in § 2255(f) is to “curb the abuse of the statutory writ of habeas corpus… including undue delays. A petitioner certainly does not contribute to undue delays by filing a § 2255 motion too early. And a petitioner does not abuse the writ by raising an argument, based on very persuasive but non-controlling Supreme Court precedent that the Supreme Court then endorses in a controlling decision.”

United States v. Green, Case No. 16-7168, 2023 U.S.App. LEXIS 11961 (4th Cir., May 16, 2023)

– Thomas L. Root

Man Bites Dog; 2255 Movants Win A Few – Update for February 23, 2023

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

PAIR OF 2255 WAIVER RULINGS VALUE SUBSTANCE MORE THAN PROCEDURE

Two appellate decisions last week – from the 4th and 10th Circuits – reminded even the most jaded critics of criminal justice that sometimes fairness can triumph.

robbbq230223In the 4th Circuit, Donzell McKinney and friends robbed a barbeque joint with a gun back in 2011. He pled guilty to Hobbs Act conspiracy and using a gun in a crime of violence under 18 USC 924(c). In the plea agreement, the government dropped the Hobbs Act robbery count. After the 2015 Johnson v United States ruling, Donzell filed a § 2255 motion arguing that the 924(c) count should be vacated.

After over five years of being held in abeyance, Donzell’s district court agreed that he was innocent of the § 924(c) because of the Supreme Court’s 2019 United States v. Davis ruling that conspiracy to commit a violent crime was not itself violent and thus could not support a § 924(c) conviction. But that didn’t help Donzell, the district court ruled, for a bunch of reasons including that his plea agreement waived his right to bring the § 2255, Donzell procedurally defaulted the claim, and anyway, if Donzell had been able to raise the issue back in 2011, the government would not have dismissed the Hobbs Act robbery count but instead would have hitched the § 924(c) charge to that count instead of the conspiracy.

Last week, the 4th Circuit reversed it all, ruling that enforcement of Donzell’s appeal waiver to bar his claim would result in a miscarriage of justice and that he had shown both cause and prejudice for his procedural default.

An appellate court can refuse to enforce an appeal waiver when a sentence is imposed in excess of the statutory maximum or is based on a constitutionally impermissible factor. Among these is the most fundamental reason, where enforcing an appeal waiver would result in a miscarriage of justice. Donzell’s § 924(c) conviction and punishment are for an act that the law does not make criminal. “There can be no room for doubt,” the 4th said, “that such a circumstance inherently results in a complete miscarriage of justice and presents exceptional circumstances that justify collateral relief under 28 USC § 2255.”

Robber160229But, the government protested, Donzell really was guilty of the robbery, and would have pled to it if the government hadn’t agreed to drop it. So he wasn’t prejudiced by the Davis error.

That’s not how it works, the Circuit replied. “Where the record in a case shows that a count of conviction is now invalid, no precedent authorizes a court to then rely on a dismissed count to negate that demonstrated prejudice. Rather, in determining prejudice for purposes of excusing procedural default, the court asks whether it is likely a defendant, had he known of the error, would not have pled guilty to the count of conviction. The court does not look to whether it is likely a defendant, had he known of the error, would not have pled guilty to a dismissed count.”

Fraud170406Meanwhile, in the 10th Circuit, Joe Chatwin pled guilty to bank fraud and a § 924(c), an unusual combination to be sure. Joe’s offenses were pretty prosaic, identity theft, turning a $30 cashier’s check into a $30,000 check that he used to buy an RV from a guy, but he apparently pulled a gun when the Marshals came to arrest him. The 18 USC § 111 assaulting a fed charge was dismissed, but it underlay the § 924(c) conviction.

After Johnson, Joe filed a bare-bones § 2255 that said simply, “police chase not a violent crime.” He later amended after Davis to argue that the district court had relied solely on the § 924(c) residual clause (which Davis held was unconstitutionally vague). The government never argued Joe’s merits, instead moving to dismiss the § 2255 motion because Joe had “knowingly and voluntarily waived his § 2255 rights in a Rule 11(c)(1)(C) plea agreement.”

Lose200615The district court agreed with the government, holding that enforcing the waiver would not be a miscarriage of justice because Joe’s Davis claim was a dead-bang loser. Joe’s appealed, raising for the first time the argument that his collateral-attack waiver must fail because his conviction-based § 2255 motion fell outside the scope of his plea agreement collateral-attack waiver. He argued that his waiver barred any collateral attacks to his sentence but not to his convictions.

The 10th applied “plain error” review to the issue Joe hadn’t argued in the district court, but it agreed Joe was right that the waiver applied only to challenging the sentence, not the conviction. The government argued the error did not affect Joe’s “substantial rights,” that is, it did not change the outcome of the proceeding because Joe would have lost his § 2255 motion anyway.

Plain error in real life...
Plain error in real life…

But because the district court only addressed the motion to dismiss, not the merits of the § 2255 claim, the Circuit held that “the ‘outcome of the proceeding’ here means the outcome of the motion to dismiss—not matters beyond that.” The 10th ruled that Joe “has shown substantial prejudice based on the dismissal of his § 2255 motion. He has shown that the outcome of ‘the proceeding’ would have been different in that the district court could not have dismissed on the issue of the collateral-attack waiver’s scope. Absent plainly erring on the waiver’s scope, the district court could not have dismissed on that ground.”

United States v. McKinney, Case No. 20-6396, 2023 U.S. App. LEXIS 3715 (4th Cir. Feb. 16, 2023)

United States v. Chatwin, Case No. 21-4003, 2023 U.S. App. LEXIS 3889 (10th Cir. Feb. 17, 2023)

– Thomas L. Root

The Short Rocket – Update for January 27, 2023

Leave a comment

rocket190620We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

Today, the short rocket – decisions from around the federal circuits…

SOME CASE SHORTS

Timing is Everything: In 2015, Benny Hall pled guilty to conspiracy to commit Hobbs Act robbery and using a gun in a crime of violence, (an 18 U.S.C. § 924(c) offense). After the Supreme Court decided in United States v. Davis that conspiracy to commit a crime of violence was not itself a crime of violence that supported a § 924(c) conviction for using a gun in a crime of violence, Benny filed a 28 U.S.C. §2255 post-conviction motion asking that the § 924(c) be thrown out.

corso170112The government convinced the district court that Benny’s § 924(c) conviction didn’t depend only on the conspiracy, but also on his admissions in open court that established that he had actually attempted to commit the robbery.

‘Gotcha!’ the government cried.

‘Not so fast!’ the 2nd Circuit replied last week. Last summer, the  Supreme Court ruled in United States v. Taylor that an attempted Hobbs Act robbery is not a crime of violence. The Circuit threw out § 924(c) conviction and the mandatory 10-year add-on sentence it represented.

Hall v. United States, Case No 17-1513, 2023 U.S.App. LEXIS 1256 (2d Cir., January 19, 2023)
rocket190620

11th Holds Drug Conspiracy Can’t Lead to Guidelines ‘Career Offender’: Brandon Dupree was convicted of a 21 U.S.C. § 846 drug conspiracy, and was hammered at sentencing as a Guidelines “career offender” (which dramatically increased the advisory sentencing range). An 11th Circuit panel rejected Brandon’s argument that an inchoate offense (that is, a mere plan to commit a crime) does not qualify as a “controlled substance offense” for purposes of the Guidelines ‘career offender’ enhancement.

brandon230127Last week, the full Circuit sitting en banc said, ‘Let’s go, Brandon,’ and reversed his ‘career offender’ sentence. The 11th ruled that “application of the enhancement turns on whether the ‘instant offense of conviction’ is ‘a controlled substance offense’ [under USSG] 4B1.1(a)… The plain text of 4B1.2(b) unambiguously excludes inchoate crimes. Dupree must be resentenced without application of the career offender enhancement.”

United States v. Dupree, Case No 19-13776, 2023 U.S.App. LEXIS 1183 (11th Cir., January 18, 2023)
rocket190620

Channeling Your Inner Habeas: People are always asking why they can’t point out in their 18 U.S.C. § 3582(c)(1)(A) compassionate release motions that their sentences were wrongly calculated, that their lawyers were ineffective imbeciles, that something was very wrong with how they were convicted.

reallawyer170216Mike Escajeda was convicted of selling drugs and carrying a gun. After losing his direct appeal, Mike filed a compassionate release motion, arguing that the “extraordinary and compelling reasons” required by an 18 U.S.C. § 3582(c)(1)(A) compassionate release motion were that (1) his sentence exceeded the statutory maximum and (2) he received ineffective assistance of counsel. He even admitted in his motion that he had filed for compassionate release because he figured that he could not win relief under § 2255.

Last week, the 5th Circuit ruled that the habeas-channeling rule prevented Mike from raising 2255-type issues in a compassionate release motion. The Circuit said, “Congress provided specific avenues for post-conviction relief that permit prisoners to challenge the legality of their confinement in federal court… The Supreme Court has repeatedly held that by codifying these specific provisions, Congress required prisoners to bring their legality-of-custody challenges under [28 USC 2241, 2244, 2254, and 2255], and prohibited prisoners from bringing such claims under other, more-general statutes like 42 U.S.C. § 1983.

[A] prisoner cannot use § 3582(c) to challenge the legality or the duration of his sentence,” the 5th held. “Such arguments can, and hence must, be raised under [the habeas statutes]… Because Escajeda’s claims would have been cognizable under § 2255, they are not cognizable under § 3582(c).”

United States v. Escajeda, Case No 21-50870, 2023 U.S.App. LEXIS 1041 (5th Cir., January 17, 2023)
rocket190620

DOJ SORNA Rule Blocked: The U.S. District Court for Central District of California last week issued a preliminary injunction blocking the Dept of Justice’s new Sex Offender Registration and Notification Act rule because it violated due process and the 1st Amendment.

injunction230127The rule requires people who had been convicted of a sex crime to register as sex offenders in their state, even if the sex crime convictions have been expunged and the people are not allowed by the state to register. Because plaintiff John Doe could not register, the DOJ’s rule said that he could be prosecuted at any time, and he would have been forced to prove that registration was impossible — “an affirmative defense,” Doe’s lawyer said, “that turns the presumption of innocence on its head.

The court ruled that it was likely an unconstitutional violation of due process to require anyone to affirmatively prove his innocence when he had never been convicted.

Preliminary injunction, ECF 55, Doe v. DOJ, Case No 5:22-cv-855 (CD Cal., Jan 13, 2023)

Reason, A Federal Judge Says the DOJ’s Sex Offender Registration Rules Violate Due Process by Requiring the Impossible (January 19, 2023)

– Thomas L. Root

How Many Angels with Guns Can Fit on the Head of a Pin? – Update for August 4, 2022

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

‘WAIVING’ DAVIS RETROACTIVE RELIEF GOODBYE

Robber160229Deandre King was convicted of conspiracy to rob a bank and using or carrying a gun while doing so (an 18 USC § 924(c) violation). He signed a plea deal that, among other things, included a waiver giving up “the right to appeal his conviction and sentence and the right to collaterally attack his conviction and sentence in any post-conviction proceeding unless the sentence exceeded the statutory maximum.”  The waiver language included waiving post-conviction motions filed pursuant to 28 USC § 2255.

As you may recall the § 924(c) count is the darling of the prosecution set. A § 924(c) count (for using, carrying or possessing a gun during and in relation to a drug offense or a crime of violence) carries a mandatory sentence of at least five years. Plus, the law requires the mandatory sentence be imposed consecutively to any other sentence imposed. So while the conspiracy to rob might carry an 51-month sentence (as Deandre’s did), piling a § 924 count on top ensured another 84 months (the mandatory minimum where the gun is “brandished”), for  a 135-month stay.

deal160516Deandre’s plea deal probably didn’t seem too bad to him, because the government dropped some other counts, including another § 924(c) count that would have added another five years. Besides, the law was clear: bank robbery was a crime of violence, and all the Circuits had long since agreed that a conspiracy to commit a crime of violence was itself a violant crime.

However, four years after Deandre’s conviction, the Supreme Court held that all the Circuits were wrong. In United States v. Davis, the Supreme Court held that conspiracy to commit a violent offense could not be used as an underlying crime of violence supporting a § 924(c) conviction.

The Davis holding has since been held to be retroactive, so Deandre jumped on it, filing a § 2255 asking his district court to throw out the § 924(c) conviction.

His district court refused, however, holding that Deandre’s plea agreement waiver prevented such a filing. Last week, the 11th Circuit agreed, holding that the mere fact that no one foresaw a change in the law that would nullify a conviction did not invalidate a waiver.

angels170726Deandre argued that the Davis change was the equivalent to his being sentenced in excess of his stastutoery maximum. The argument has some appeal. After all, if he was not guilty of the § 924 count, then the statutory maximum sentence would be zero, and any § 924(c) sentence in excess of zero would exceed the statutory maximum (at least in some metaphysical way).

But the 11th Circuit was uninterested in counting the angels on the head of the pin:

Forcing constitutional claims into the statutory-maximum exception would render the promise of waiver virtually meaningless, robbing defendants of a powerful bargaining tool,” the Circuit held. “Defendants who agree to waive their appeals receive the immediate benefit of reduced penalties in return—as King’s case shows. But if that waiver becomes contingent, whether the defendant wishes it to be or not, a bargain will be much harder to strike… We are not the only circuit court to recognize the value of enforcing appeal waivers against claims based on new constitutional rules… Two of our sister circuits have recently held that such waivers prohibit § 2255 motions based on Davis. The 7th Circuit explained that a Davis challenge did not “satisfy any of its recognized bases for avoiding a valid collateral-attack waiver…” and the 6th Circuit interpreted an explicit carve-out in an appeal waiver for sentences exceeding “the statutory maximum” to refer to “the maximum sentence at the time of sentencing, not to maximum sentences throughout a defendant’s prison term based on future changes to the law.

What this means is that while Deandre is not guilty of the § 924(c) conviction, he’ll do the time for it.

King v. United States, Case No 20-14100, 2022 US App LEXIS 20910 (11th Cir Jul 28, 2022)

– Thomas L. Root

Attempted Crime of Violence Does Not Support 18 USC 924(c) – Update for June 22, 2022

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

TAYLOR-MADE DECISION

The Supreme Court ruled yesterday in a 7-2 decision that an attempt to commit a crime of violence is not in itself a “crime of violence” for purposes of 18 USC § 924(c).

gunknot181009A little review: under 18 USC § 924(c), possessing, using or carrying a gun during and in relation to a crime of violence or drug offense will earn a defendant a mandatory minimum consecutive sentence of at least five years (and much worse if the defendant waves it around or fires it). A “crime of violence” is one that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”

This fairly straightforward question of what constitutes a crime of violence has spawned a series of Supreme Court decisions since Johnson v. United States in 2015. The last words on the subject were United States v. Davis, a 2019 decision holding that conspiracy to commit a crime of violence was not a “crime of violence” that would support a conviction under 18 USC § 924(c), and last summer’s Borden v. United States (an offense that can be committed recklessly cannot be a “crime of violence,” because a “crime of violence” has to be committed knowingly or intentionally).

The Court has directed that interpretation of whether a statute constitutes a crime of violence is a decision made categorically. The Court’s “categorical approach” determines whether a federal felony may serve as a predicate “crime of violence” within the meaning of the statute if it “has as an element the use, attempted use, or threatened use of physical force.” This definition is commonly known as the “elements” clause.

The question is not how any particular defendant may have committed the crime. Instead, the issue is whether the federal felony that was charged requires the government to prove beyond a reasonable doubt as an element of its case, that the defendant used, attempted to use, or threatened to use force.

knifegunB170404This approach has caused a lot of mischief. The facts underlying yesterday’s decision, Taylor v. United States, were particularly ugly. Justin Taylor, the defendant, went to a drug buy intending to rip off the seller of his drugs. Before he could try to rob the seller, the seller smelled a setup, and a gunfight erupted. Justin was wounded. The drug dealer was killed.

Because Justin never actually robbed the seller – he didn’t have time to do so – he was convicted of an attempted Hobbs Act robbery under 18 USC § 1951 (a robbery that affects interstate commerce) and of an 18 USC § 924(c) offense for using a gun during a crime of violence. Justin argued that while he was guilty of the attempted Hobbs Act robbery, he could not be convicted of a § 924(c) offense because it’s possible to commit an attempted robbery without actually using or threatening to commit a violent act. Under Borden and Davis, Justin argued, merely attempting a crime of violence was not itself a crime of violence.

Yesterday, the Supreme Court agreed.

Justice Gorsuch ruled that an attempted Hobbs Act robbery does not satisfy the “elements clause.” To secure a conviction for attempted Hobbs Act robbery, the government must prove that the defendant intended to complete the offense and completed a “substantial step” toward that end. An intention, the Court said, is just that and no more. And whatever a “substantial step” requires, it does not require the government to prove that the defendant used, attempted to use, or even threatened to use force against another person or his property. This is true even if the facts would allow the government to do so in many cases (as it obviously could have done in Taylor’s case).

maskgun200218The Court cited the Model Penal Code’s explanation of common-law robbery, which Justice Gorsuch called an “analogue” to the Hobbs Act. The MPC notes that “there will be cases, appropriately reached by a charge of attempted robbery, where the actor does not actually harm anyone or even threaten harm.” Likewise, the Supreme Court ruled, no element of attempted Hobbs Act robbery requires proof that the defendant used, attempted to use, or threatened to use force.

Taylor raises interesting questions about “aiding and abetting.” In Rosemond v. United States, the Supreme Court ruled that a defendant can be convicted as an aider and abettor under 18 USC § 2 “without proof that he participated in each and every element of the offense.” Instead, Congress used language in the statute that “comprehends all assistance rendered by words, acts, encouragement, support, or presence… even if that aid relates to only one (or some) of a crime’s phases or elements.”

Taylor’s finding that attempted Hobbs Act robbery cannot support a § 924(c) conviction because a defendant can be convicted of the attempt without proof that he or she used, attempted to use, or threatened to use force, then it stands to reason that if the defendant can be convicted of aiding or abetting a Hobbs Act robbery without proof that he or she used, attempted to use, or threatened to use force, “aiding and abetting” likewise will not support a § 924(c) conviction.

In separate dissents, Justice Clarence Thomas and Justice Samuel Alito argued that the lower court should have been reversed. Justice Thomas said the court’s holding “exemplifies just how this Court’s ‘categorical approach’ has led the Federal Judiciary on a ‘journey Through the Looking Glass,’ during which we have found many ‘strange things.’”

violence180508Indeed, a layperson would find it baffling that Justin could shoot his target to death without the government being able to prove he used a gun in a crime of violence. But Justice Thomas’s ire is misplaced. One should not blame the sword for the hand that wields it. Congress wrote the statute. It can surely change it if it is not satisfied with how the Court says its plain terms require its application.

United States v. Taylor, Case No. 20-1459 2022 U.S. LEXIS 3017 (June 21, 2022).

– Thomas L. Root

Procedure Matters… Innocence? Not So Much – Update for March 24, 2022

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

IN § 2255 CASES, PROCEDURE MATTERS

procedure220324Over the past three weeks, Russia has been reminded of the truth of General Omar Bradley’s old saw that “amateurs talk strategy, professionals talk logistics.” Likewise, two cases handed down last week underscore the truth that inmates talk substance, judges talk procedure.”

DeMarko Collins pled guilty to being a felon in possession under 18 USC § 922(g)(1). DeMarko’s presentence report determined he had two prior felony convictions for crimes of violence, including a Missouri 2nd-degree robbery, which enhanced his Guidelines advisory sentencing range under USSG § 2K1.1.

Five months before DeMarko’s sentencing hearing, a divided 8th Circuit panel held in United States v. Bell that Missouri 2nd-degree robbery was not a crime of violence, but DeMarko’s attorney goofed and did not cite the decision in opposing the § 2K2.1 enhancement. The district court granted the government’s motion for an upward variance, and sentenced DeMarko to 216 months.

DeMarko appealed his sentence. Relying on Bell, he argued the § 2K2.1 enhancement should not have applied. But while his appeal was pending, the 8th Circuit en banc overruled Bell and held that a Missouri 2nd-degree robbery is a violent felony after all. Because of that, Demarko lost his appeal.

stupidlawyr191202DeMarko then filed a § 2255 post-conviction motion, arguing that his lawyer should have cited Bell, which had been controlling authority and good law at the time of his sentencing. The district court denied the § 2255, finding that even if DeMarko was right that his lawyer should have raised Bell at sentencing, “he cannot demonstrate he was prejudiced by” the error.

Last week, the 8th Circuit agreed, holding that by the time DeMarko on “direct appeal cited Bell in challenging his § 2K2.1 enhancement based on a Missouri 2nd-degree robbery conviction, Bell had been overruled… and this prior conviction was once again a predicate crime of violence under the Guidelines. Strickland prejudice ‘focuses on the question whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair…’ DeMarko was not deprived of a substantive or procedural right to which the law entitles him, so he ‘suffered no legally cognizable prejudice’.”

Meanwhile, in the 9th Circuit, Cesar Gonzalez filed a 28 USC § 2244 application for permission to file a second § 2255 motion. He wanted to argue that his 18 USC § 924(c) conviction for having a gun in furtherance of a crime of violence was invalid because his predicate crime – racketeering – was no longer a categorical crime of violenceunder a new rule of constitutional law announced in the Supreme Court’s United States v. Davis decision.

Last week, the 9th Circuit shot Cesar down, finding that his new Davis argument was not “previously unavailable” as required by 28 USC § 2255(h)(2).

When Davis was handed down, Cesar had filed his § 2255 motion, and the government had responded. Cesar, however, had not yet filed his reply. The 9th Circuit ruled that to show the argument was “previously unavailable” to him, he had to show “that the real-world circumstances that he faced prevented him, as a practical matter, from asserting his claim based on a new rule of law in his initial habeas proceeding.”

The Circuit said it “recognized that pro se prisoners face unique difficulties when litigating habeas relief or anything else, and that language barriers, as Cesar cited in his case, add to those difficulties.” However, the 9th ruled, “nothing in the text or context of AEDPA‘s previously-unavailable-claim requirement suggesting that this limited exception to the otherwise broad prohibition against filing second or successive habeas proceedings was intended to be applied subjectively.”

innocent210504The 9th concluded that Cesar could show that his new Davis argument was unavailable during his initial § 2255, where Davis issued shortly before Cesar filed his reply brief and a few months before the § 2255 was decided. Cesar had the facts that he needed for his claim, the Circuit held, and no systemic or external barrier prevented him from presenting his claim in his initial habeas proceeding.

So it did not matter that Cesar stood convicted of a § 924(c) offense unlawfully, because a hypothetical reasonable inmate would have tried to raise Davis in the nearly-completed § 2255 proceeding.

Substance? Who cares about substance when procedure triumphs?

Collins v. United States, Case No. 20-3662, 2022 U.S. App. LEXIS 6725 (8th Cir., March 16, 2022)

Gonzalez v. United States, Case No 20-71709, 2022 U.S. App. LEXIS 6943 (9th Cir., March 17, 2022)

– Thomas L. Root

Havis – Not Just for Drugs Anymore, 6th Circuit Says – Update for March 12, 2021

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

6TH CIRCUIT EXPANDS HAVIS HOLDING TO FRAUD GUIDELINES

The 6th Circuit expanded its groundbreaking United States v. Havis decision to white-collar cases last week in a fraud decision that suggests a Guidelines defense for a lot of defendants.

devil180418The devil’s in the details. Most federal crimes carry a statutory penalty of from a minimum to a maximum sentence. Distributing 100 grams of powder cocaine, for example, carries a punishment of zero-to-20 years. Where precisely within that range a judge should sentence a defendant is where the Sentencing Guidelines come in.

The Guidelines consider a variety of factors in determining an offense level – such as, in our cocaine example, the quantity of drugs, whether the defendant supervised other people, lied to the authorities, had a weapon in hand while dealing the powder, entered a guilty plea, and so on. Then, the defendant gets points for prior convictions (varying – drunk driving doesn’t score like a prior bank robbery, for instance), and a sentencing range is determined from a matrix with the criminal history as the abscissa and the total offense level as the ordinate.

The Guidelines are written by the U.S. Sentencing Commission, a judicial branch agency established by Congress. When a Guideline is written or amended, the provision is adopted by the Commission. Congress then has six months to either reject the change (kind of a legislative veto) or do nothing. If Congress does nothing, the Guideline provision is deemed adopted.

All of which brings us to Havis. I wrote about this decision in summer 2019 (way back before the pandemic). Each Guideline has appended to it commentary, which may be Application Notes – instructing a court on how to apply the provision – or just background. This is often useful stuff, but – unlike the Guideline itself – commentary is added by the Commission but not subject to Congressional approval.

humpty210312In Havis, the 6th Circuit was considering a particular piece of commentary attached to USSG § 4B1.2.  That Guideline defined “drug trafficking” crime in detail, but it did not specify that an attempt to commit a drug trafficking crime (or, for that matter, to conspire to commit such a crime), was included in the definition. No problem for the Commission staff – it just wrote into the commentary that attempts and conspiracies were included.

“Not so fast,” the 6th Circuit said in Havis. The Commission is not allowed to add to a Guideline definition approved by Congress with its own gloss. Sure, the definition could be expanded to include attempts and conspiracies, but to do so, it had to be approved by the Commission and subjected to Congressional oversight first.

Whew! Time for a break.  Get a cup of coffee and then let’s resume.

Last week, the 6th Circuit took up the case of Jennifer Riccardi, a postal employee who pled guilty to stealing 1,505 gift cards from the mail.

mail210312Jen worked in the Cleveland, Ohio, U.S. Postal Service distribution center (Motto: ‘Where Quality is a Slogan, and Chaos is a Lifestyle‘). In September 2017, an Ohioan mailed a $25 Starbucks gift card from Mentor, Ohio, to nearby Parma.  The card never arrived.  The sender complained to the U.S. Postal Service, which – in perhaps the only recorded instance in history – took the complaint seriously. opened an investigation. Investigators learned that supervisors at a Cleveland distribution center had been finding lots of opened mail in the processing area. Now you’d think this would have caused some puzzlement, but it did not until investigators followed the trail to Jen. When confronted, she admitted that she had been stealing mail that might contain cash or gift cards for quite some time. A search of her home uncovered over 100 pieces of mail that she had taken just that day, $42,102 in cash, and 1,505 gift cards.  The gift cards were laid out on the floor organized by the 230 or so merchants at which they could be redeemed.  Sad she hadn’t used such organizational skills at the Postal distribution center.

Most of the cards were worth about $35.00, for a total value of about $47,000. Under § 2B1.1 of the Guidelines, Jen’s offense level based on the amount of the loss, something § 2B1.1 does not define. But the Guidelines commentary to § 2B1.1 helpfully “instructs that the loss shall be not less than $500.00 for each unauthorized access device, a phrase that… covers stolen gift cards. Applying that definition, the district court pumped Jen’s loss up from $47,000 (which what the stolen cards were actually worth) to $752,500 (that is, 1,505 cards multiplied by $500.00 per card).

“So what?” you might ask. The ‘so what’ is that Jen’s Guidelines offense level depends a lot on the amount of loss.  A loss of $47,000 elevated her range by six levels. But if you pretend the loss was $752,500 – and it would really be pretending – her offense level would shoot up 14 levels. In Jen’s case, the difference was a sentencing range of 10-16 months and a range of 46-57 months. The district court gave Jen 56 months.

loss210312Based on its Havis holding, the 6th rejected the loss calculation and sentence. Havis held “guidelines commentary may only interpret, not add to, the guidelines themselves… And even if there is some ambiguity in 2B1.1’s use of the word “loss,” the commentary’s bright-line rule requiring a $500 loss amount for every gift card does not fall “within the zone of ambiguity” that exists. So this bright-line rule cannot be considered a reasonable interpretation of — as opposed to an improper expansion beyond — 2B1.1’s text.”

Ohio State University law prof Doug Berman thinks this case is a big deal. He wrote in his Sentencing Law and Policy blog, “the fraud guideline is not the only one important part of the federal sentencing guideline with an intricate set of commentary instructions that might be challenged as full of ‘improper expansions.’ I sense a growing number of litigants and courts are starting to hone on potentially problematical guideline commentary and that some variation of this issue with be getting to the U.S. Supreme Court before too long. In the meantime, defense attorneys would be wise to challenge (and preserve arguments around) any application of guideline commentary that even might be viewed as ‘expansionary’.”

United States v. Riccardi, Case No 19-4232, 2021 U.S. App. LEXIS 6163 (6th Cir. March 3, 2021)

Sentencing Law and Policy, Did a Sixth Circuit panel largely decimate the federal sentencing fraud guidelines (and perhaps many others)? (March 5)

– Thomas L. Root