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No Vacation for the Courts: Davis and Johnson Decisions Abound – Update for September 5, 2019

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THE DAVIS REPORT – AND A JOHNSON ‘CAREER OFFENDER’ DECISION


vacation190905Last week, typically the final slow week of summer, as vacationers return for a new school year and dreary office, was uncharacteristically busy for application of last June’s Supreme Court United States v. Davis decision.

In United States v. Barrett, the 2nd Circuit reluctantly held that a Hobbs Act conspiracy was not a crime of violence in light of Davis, despite the “murderous” nature of the particular conspiracy. For that reason, one of the defendant’s four § 924(c) convictions (for using a gun in a crime of violence) – the one related to the Hobbs Act conspiracy – was vacated. The Court sighed, “If there is anything Davis makes clear, it is the Supreme Court’s conviction that the substantially similar residual clause definitions for a violent crime in the Armed Career Criminal Act, in § 16(b), and in § 924(c)(3)(B) are unconstitutionally vague, and its aversion to new arguments that attempt to avoid that conclusion.”

In the 6th Circuit’s Knight v. United States decision, one of the defendant’s § 924(c) conviction was vacated because it was based on use of a gun during a kidnapping, but another based on assault and robbery of a postal employee under 18 USC § 2114 was held to require the use or threat of physical force. Thus, it is a crime of violence that supported the § 924(c) conviction.

Robber160229In United States v. Pervis, the 5th Circuit held that garden-variety bank robbery under 18 USC 2113(a) is a crime of violence under the § 924(c) “elements” test, and therefore supported the defendants’ multiple § 924(c) convictions.

The 5th Circuit also handed down a disappointing holding that an inmate found to be a career offender under the old mandatory Guidelines could not file a second-or-successive § 2255 motion to challenge the “career offender” status because of the Supreme Court’s 2015 Johnson v. United States holding. Bobbie London was convicted in 1996 of drug offenses and sentenced to 327 months as a Guidelines career offender. One of the prior convictions making him a career offender clearly no longer counts after Johnson.

vagueness160110Under Beckles v. United States, Bobbie would clearly not be entitled to relief if his sentence had been imposed under the advisory Guidelines. But he was sentenced nine years before United States v. Booker invalidated the mandatory Guidelines, so the judge had no choice but to hang the 327 months on him. Bobbie argued that a sentence determined by the vague language of the pre-Booker career offender residual clause violates due process.

The Circuit disagreed:

This asserted right, we think, is not dictated by Johnson; London’s assertion is more properly described as a “new right” to the extent that it is a right that has not yet been recognized by the Supreme Court. The Supreme Court has yet to decide whether a vagueness challenge can be raised under the pre-Booker Sentencing Guidelines. Instead, the Court’s decisions up until this point evince a distinction between statutes that fix sentences and Guidelines that attempt to constrain the discretion of sentencing judges…

In short, it is debatable whether the right recognized in Johnson applies to the pre-Booker Sentencing Guidelines—an administrative regime that governs a judge’s discretion to a range within the statutory minimum and maximum sentences. Consequently, London does not assert a right dictated by Johnson but instead asserts a right that would extend, as opposed to apply, Johnson to the pre-Booker Guidelines. His claim is therefore not entitled to the benefit of a new statute of limitations.”

United States v. Barrett, Case No. 14-2641-cr (2nd Cir. Aug. 30, 2019)

Knight v. United States, Case No. 17-6370 (6th Cir. Aug. 27, 2019)

United States v. Pervis, Case No. 17-20689 (5th Cir. Aug. 30, 2019)

London v. United States, Case No. 17-30675 (5th Cir. Aug. 29, 2019)

– Thomas L. Root

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

THE SHORT ROCKET

Inmate has Right to Video at DHO

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

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

Transgender Inmate Has 8th Amendment Right to Surgery

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

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

Murder Most Foul… But Not Violent

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

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

Serving Mankind Has Its Limits

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

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

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

– Thomas L. Root

Sentence Reduction and Davis Decisions Continue Apace – Update for August 20, 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.

A COUPLE OF 3582(c)(2) DECISIONS… AND A HANDFUL OF DAVISES

The 9th Circuit issued two decisions last week affecting 18 USC § 3582(c)(2) sentence reductions, one good, one not so good.

... and he's getting a better sentence reduction deal than you are.
… and he’s getting a better sentence reduction deal than you are.

United States v. Hernandez-Martinez: Some people seeking 2-level reductions in their drug sentences under the 2014 Guidelines Amendment 782 were denied because at sentencing, their courts had varied downward from their Guidelines sentencing ranges, and even the new 2-level reduction would have been above their original sentence. But if a defendant had a downward departure for helping the government, the 2-level reduction remained available, regardless of how sweet the original sentence might have been.

A number of defendants have argued that the 9th’s decision in United States v. Padilla-Diaz, which upheld the limited exception for substantial assistance departures as consistent with both the governing statutes and constitutional requirements, was irreconcilable with the Supreme Court’s later decision in Hughes v. United States. Last week, the 9th Circuit shot down 23 defendants making the claim.

The 9th held that Hughes only held that a sentence imposed under a Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement is “based on” the defendant’s Guidelines as long as that range was part of the framework the district court relied on in imposing the sentence or accepting the agreement. Because the intervening Hughes decision did not conflict with Padilla-Diaz, Padilla-Diaz’s conclusion still binds the Circuit to prohibiting 2-level reductions for defendants with downward variances below the amended sentencing range.

In United States v. Sainz, the defendant filed for the 2014 sentence reduction, and the government did not oppose it. The district court, however, ruled that the defendant’s plea agreement waived the right to seek relief under § 3582(c)(2). The 9th held that if the government does not raise the plea agreement as a defense, the issue is forfeited. The district court may not raise the issue itself.

Meanwhile, several cases applying the Supreme Court’s June 2019 United States v. Davis decision came down last week:

kidnapping190820In United States v. Brazier, the 7th Circuit held that kidnapping did not categorically match the “elements clause” of 18 USC § 924(c), because it may be accomplished without force, by “inveigling” or “decoying” a person without a threat of force, and by holding the person simply by locking him or her in a room, again without threat of violence. Because Davis invalidated the “residual clause” of 18 USC § 924(c), a kidnapping conviction could no longer support a § 924(c) consecutive sentence.

In the 5th Circuit United States v. Jones case, defendants were convicted of RICO and drug crimes, and add-on § 924(c) offenses. The jury verdict did not specify which crimes were relied on as the underlying counts for the § 924(c) convictions. Because Davis held that conspiracies to commit violent crimes (such as a RICO conspiracy) could not support a § 924(c) count, the case had to be remanded for the jury to decide whether the remaining drug offenses could support the § 924(c) convictions.

Finally, the 3rd Circuit followed the lead of the 11th, and ruled that five petitioners seeking to raise Davis issues on their 18 USC § 924(c) convictions were allowed to file second-or-successive 28 USC § 2255 motions doing so.

United States v. Hernandez-Martinez, Case No. 15-30309 (9th Cir. Aug. 13, 2019)

United States v. Sainz, Case No. 17-10310 (9th Cir., Aug. 12, 2019)

United States v. Brazier, Case No. 17-2269 (7th Cir. Aug. 12, 2019)

United States v. Jones, Case No. 18-30256 (5th Cir. Aug. 12, 2019)

In re Matthews, Case No. 16-2273 (3rd Cir. Aug. 14, 2019)

– Thomas L. Root

4th Circuit Holds Plea Agreement Waiver Does Not Block Johnson/Dimaya/Davis Claims – Update for August 5, 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.

DODGING THE WAIVER

190805myopiaA type of myopia common among federal defendants filing post-conviction § 2255 motions is understandable: people get so focused on their substantive issues – the prosecutor lied, the defense attorney slept, the judge was inept – that no one ever asks whether some arcane issue of procedure will defeat his or her claim before the merits are ever reached.

One of the first procedural issues I usually worry about is the waiver. Face it, 97% of federal inmates plead guilty, and almost all of them sign some kind of plea agreement. And almost all plea agreements include a waiver section, in which a defendant waives the right to appeal or to collaterally attack (as in, file a § 2255 motion) the conviction or sentence. There is always an exception in the case of prosecutorial misconduct or ineffective assistance of counsel, but what happens when something like Johnson v. United States or Sessions v. Dimaya or United States v. Davis comes along?

Randall Cornette, convicted of a felon-in-possession charge, challenged his Armed Career Criminal Act sentence. The trial court had relied on some old Georgia burglaries that Randy said could no longer count under Johnson. The government replied that Randy had signed a plea agreement waiver that prevented him from raising a Johnson issue.Waivers160215

Last week, the 4th Circuit ruled that a plea agreement waiver does not prevent a defendant from taking advantage of Supreme Court decisions like Johnson or Davis. The appeals court ruled that an otherwise valid appeal waiver did not bar Randy from now arguing that by imposing a sentence under the unconstitutional residual clause of the ACCA, the district court exceeded its statutory authority to sentence him.

The Court said that an appeal waiver does not preclude a defendant from challenging a sentence “based on a constitutionally impermissible factor” or “a sentence imposed in excess of the maximum penalty provided by statute.” Randy’s sentence challenge is based on the assertion that the district court did not have the statutory authority to impose the sentence under to the residual clause. Because Johnson was made retroactive by the Supreme Court, the Circuit said, “all sentences rendered under the residual clause became unconstitutional. Therefore, Randy’s sentence was imposed in excess of the maximum penalty provided by ACCA.”

The 4th said that this doesn’t mean that a non-retroactive change in the law, like Booker or Alleyne, can be challenged where there is a collateral-attack waiver. But where a Supreme Court case (like Davis, for instance) “announces a substantive rule that applies retroactively, the district court is now deemed to have had no statutory authority to impose [a] sentence,” and a court may review a sentencing challenge “notwithstanding the appeal waiver.”

United States v. Cornette, 2019 U.S. App. LEXIS 22554 (4th Cir. July 30, 2019)

– Thomas L. Root

Supreme Court Davis Decision Declared Retroactive By 11th Circuit – Update for July 29, 2019

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11th CIRCUIT HOLDS DAVIS TO BE RETROACTIVE

I have been asked a lot in the last month whether the Supreme Court decision in United States v. Davis would apply retroactively to convictions for using or carrying a gun during a violent or drug crime (violation of 18 U.S.C. § 924(c)) that were already final when the Davis decision was handed down June 24th. While I have always been sure that Davis ought to be retroactive, I was never completely confident that the courts of appeal would agree with me.

retro190729Last Tuesday, the 11th Circuit surprised me in a good way. Faced with a motion for permission to file a second-or-successive § 2255 motion (known as a “2244” because the request is filed under 28 USC § 2244) by a defendant whose § 924(c) conviction was based on a solicitation-to-murder count (and thus was invalid under Davis), the Circuit ruled that Davis is retroactive.

This retroactivity rule is important, because it opens the door for people who have filed 2255 motions already to get permission to file a second one challenging their § 924(c) convictions under the Davis ruling. Davis, you may recall, (1) affirmed that the categorical approach to judging whether a prior conviction was a crime of violence is the appropriate standard, rejecting several circuits’ claims that in a § 924(c) review, the court should look at a defendant’s actual conduct; (2) effectively ruled that conspiracies to commit crimes of violence (as well as solicitations and, quite possibly, attempts and accessories charges) are not crimes of violence; and (3) ruled that the § 924(c) residual clause, like the Armed Career Criminal Act and 18 USC § 16(b) residual clauses, was unconstitutionally vague.

violence160110The 11th Circuit held that Davis met all of the requirements for retroactivity. Davis announced a new substantive rule, because just as Johnson narrowed the scope of the ACCA, Davis narrowed the scope of 924(c) by interpreting the term “crime of violence.” And, the Circuit said, the rule announced in Davis is “new” because it extended Johnson and Dimaya to a new statute and context. “The Supreme Court in Davis restricted for the first time the class of persons § 924(c) could punish,” the appeals court said, “and, thus, the government’s ability to impose punishments on defendants under that statute. Moreover, the Supreme Court’s grant of certiorari in Davis to resolve the circuit split on whether § 924(c)(3)(B) was unconstitutionally vague illustrates that the rule in Davis was not necessarily dictated by precedent or ‘apparent to all reasonable jurists’.”

While the Supreme Court has not held Davis to be retroactive, the 11th said, “the Supreme Court holdings in “multiple cases… necessarily dictates retroactivity of the new rule.” Davis announced a new substantive rule, the 11th held, “and Welch tells us that a new rule such as the one announced in Davis applies retroactively to criminal cases that became final before the new substantive rule was announced.”

Two days later, the 11th Circuit held that another defendant would be allowed to pursue his 924(c) claims under Davis, despite the fact he had tried and failed to do the same under Johnson and Dimaya. The fact that he had previously lost the same issue would not preclude a successive 2255, despite the fact that 11th Circuit precedent in In re Baptiste suggested otherwise. The court said the defendant’s “proposed Davis claim is not barred under In re Baptiste (concluding that a repeat § 2255 claim that was raised and rejected in a prior successive application is barred by [28 USC] 2244(b)(1)).” Although the rationale underlying Johnson and Dimaya on which the defendant’s prior successive applications were based is the same rationale that underlies Davis, his prior losses do not bar him raising the Johnson/Dimaya claim again, because “Davis announced a new substantive rule of constitutional law in its own right, separate and apart from (albeit primarily based on) Johnson and Dimaya.”

knuckles190729Other courts of appeal will have to weigh in on Davis retroactivity for inmates seeking 2244 permission in those circuits, but the 11th position, laid out in a detailed and well-reasoned published opinion, will wield substantial influence on those courts. The 11th, after, is notoriously stingy in granting 2244 motions (it was the circuit that turned down Greg Welch, whose case went on to establish that Johnson was retroactive in Welch v. United States), as well as the appeals court whose Ovalles opinion was directly contrary to what the Supreme Court decided in Davis). That this Circuit has articulated a basis for Davis retroactivity so soon after having its figurative knuckles rapped is a welcome surprise.

In re Hammoud, 2019 U.S. App. LEXIS 21950 (11th Cir. July 23, 2019)

In re Cannon, 2019 U.S. App. LEXIS 22238 (11th Cir. July 25. 2019)

– Thomas L. Root

SCOTUS Davis Decision Already Cutting Sentences – Update for July 16, 2019

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DAVIS IS ALREADY HELPING DEFENDANTS

The ink isn’t yet dry on the Supreme Court’s United States v. Davis decision, but it is already being applied by lower courts.

shortnorth190716The 6th Circuit didn’t do many favors to the Short North Posse when it upheld the convictions and sentences of five defendants who had been found guilty of all sorts of drug-related mayhem in Columbus, Ohio. Almost all of their appeal issues were shot down. Two of the five, however, won on a single issue, and it was a whopper.

For their participation in a home invasion and murder, Chris Harris and Cliff Robinson were convicted of murder by firearm during a crime of violence under 18 USC §§ 924(c) and (j)(1). The government, loving conspiracies as it does, based the pair’s § 924(c) convictions on conspiracy to commit a Hobbs Act robbery under 18 USC § 1951(a). After all, proving a conspiracy is much easier than proving a substantive act (like a robbery).

When the government charged Chris and Cliff and the rest of the Posse back in 2014, no one foresaw Johnson v. United States, the 2015 case in which the Supreme Court declared the residual clause of 18 USC § 924(e) unconstitutionally vagueness. In the Short North Posse appeal, the government was forced to admit that a conspiracy to commit a Hobbs Act robbery could only be a crime of violence under 18 USC § 924(c)(3)(B)’s residual clause. That clause holds that “a ‘crime of violence’ is a felony offense ‘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.”

violence160110On appeal, Chris and Cliff argued that their 924(c) convictions had to be vacated because § 924(c)’s residual clause is unconstitutionally vague. Naturally, the government argued that Johnson had nothing to do with § 924(c)’s residual clause. However, eight days before the Short North Posse decision, the Supreme Court held in Davis that  the § 924(c) residual clause suffered from the same infirmity that Johnson invalidated. 

Davis conclusively held that a conspiracy to commit a violent act, no matter how violent the act, is not a “crime of violence” under 18 USC § 924(c). Thus, the Short North Posse decision held that “[b]ecause the Government relies only on that now-invalidated clause to support [Chris and Cliff’s] convictions under § 924(c), those convictions must be set aside.”

This is the first Davis win I have seen. There will surely be many to follow.

United States v. Ledbetter, 2019 U.S. App. LEXIS 19918 (6th Cir. July 3, 2019)

– Thomas L. Root

Davis Lives! 924(c)(3)(B) Residual Clause Held to be Unconstitutionally Vague – Update for June 25, 2019

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THE LAST JOHNSON DOMINO FALLS

By a 5-4 vote, the Supreme Court yesterday upheld the categorical approach to judging whether offenses were crimes of violence, ruling that 18 USC § 924(c)(3)(B) is unconstitutionally vague.

Justice Neil Gorsuch wrote in the majority opinion that “[i]n our constitutional order, a vague law is no law at all.”

vagueness160110The vagueness doctrine rests on the twin constitutional pillars of due process and separation of powers. Having applied the doctrine in two cases involving statutes that “bear more than a passing resemblance to § 924(c)(3)(B)’s residual clause” – those being Johnson v. United States (Armed Career Criminal Act residual clause unconstitutional) and Sessions v. Dimaya (18 USC § 16(b) residual clause unconstitutional) – the Court completed its frolic through the residual clauses in the criminal code.

Courts use the “categorical approach” to determine whether an offense qualified as a violent felony or crime of violence. Judges had to disregard how the defendant actually committed the offense and instead imagine the degree of risk that would attend the idealized “‘ordinary case’ ” of the offense.

The lower courts have long held § 924(c)(3)(B) to require the same categorical approach. After the 11th Circuit’s decision in Ovalles, the government advanced the argument everywhere that for § 924(c)(3)(B), courts should abandon the traditional categorical approach and use instead a case-specific approach that would look at the defendant’s actual conduct in the predicate crime.

The Supreme Court rejected that, holding that while the case-specific approach would avoid the vagueness problems that doomed the statutes in Johnson and Dimaya and would not yield to the same practical and Sixth Amendment complications that a case-specific approach under the ACCA and § 16(b) would, “this approach finds no support in § 924(c)’s text, context, and history.”

hathanded190625The government campaign came to a head in Davis, a 5th Circuit case in which the appellate court said that conspiracy to commit a violent crime was not a crime of violence, because it depended on the § 924(c)(3)(B) residual clause. The Dept. of Justice felt confident enough to roll the dice on certiorari. Yesterday, the DOJ had its hat handed to it.

Who does this benefit? Principally, it benefits anyone who received a § 924(c) enhanced sentence for an underlying conspiracy charge. Beyond that, it helps anyone else whose “crime of violence” depended on the discredited § 924(c)(3)(B) residual clause.

The Court did not rule that Davis is retroactive for 28 USC § 2255  post-conviction collateral attack purposes, because that question was not before it. SCOTUS never rules on retroactivity in the same opinion that holds a statute unconstitutional. There is little doubt that, if Johnson was retroactive because of Welch, Davis will be held to be retro as well.

United States v. Davis, Case No. 18-431 (Supreme Court, June 24, 2019)

ARE 59(e) MOTIONS ‘SECOND OR SUCCESSIVE’ 2255s?

A number of lower courts have ruled that an unsuccessful § 2255 movant who files a motion to alter the judgment under Fed.R.Civ.P. 59(e) may be filing a second-or-successive § 2255 motion requiring prior approval.

HobsonsChoiceThis leaves § 2255 movants with a Hobson’s choice. Filing a 59(e) stays the time for filing a notice of appeal. But if the court sits on the 59(e) past the notice of appeal deadline, and then dismisses it as second-or-successive, the § 2255 movant has missed the notice of appeal deadline with the Court of Appeals. If the movant files a notice of appeal to preserve his or her rights, that nullifies the 59(e).

Right now, the only logical election is to ignore Rule 59(e) motions altogether.

Yesterday, the Court granted review in yet another “Davis” case, asking whether the 59(e) motion should be considered second or successive such that it requires the grant of permission under 28 USC § 2244. We’ll have an answer next year.

Banister v. Davis, Case No. 18-6943 (certiorari granted, June 24, 2019)

– Thomas L. Root

Simms Raises the Ante on 924(c) Crimes of Violence – Update for January 28, 2019

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4TH CIRCUIT SIMMS DECISION TEES UP 924(c) DEBATE FOR SUPREME COURT

The vigorous debate since the Supreme Court decided Sessions v. Dimaya last year at first seemed to surround whether the residual clause of 18 USC 924(c) – which defines “crime of violence” to include any offense that “by its nature, involves a substantial risk that physical force against the person or property of another” – was unconstitutionally vague. That is what the Supreme Court said about the same language in the Armed Career Criminal Act (in Johnson v. United States) and in Dimaya last spring referring to 18 USC 16(b).

violence181008But in the last few months, the argument has morphed into some more basic: when judging whether the offense underlying an 18 USC 924(c) charge is violent, should a court use the categorical approach (which asks whether the offense in its ordinary form is violent, not what the defendant did in the particular case under review)? Or should the court instead look only at how the defendant in the case under review committed the offense?

Three circuits have embraced the conduct-based approach, the 1st in United States v. Douglas, the 2nd in United States v. Barrett, and the 11th in Ovalles v. United States. Three others have backed the categorical approach, the 5th in United States v. Davis, the 10th in United States v. Salas, and the D.C. Circuit in United States v. Eshetu. Two weeks ago, the Supreme Court granted the government’s petition to review the 5th Circuit’s Davis decision.

The Circuit split deepened last Thursday with the 4th Circuit’s long-awaited decision in United States v. Simms. In a contentious 100-page decision, the en banc Circuit decided 8-7 that whether an underlying offense supporting a 924(c) conviction is a crime of violence, a trial court must use the categorical approach the Supreme Court adopted and used in Leocal v. Ashcroft. What’s more, using the categorical approach, the 4th said, it is clear that a conspiracy to commit a Hobbs Act robbery (18 USC 1951) is not a crime of violence.

By extension, this means that in the 4th Circuit, no conspiracy to commit a violent crime is itself a violent crime (although it is in the 2nd Circuit).

violence160110The 4th Circuit focused on the phrase “by its nature” in 924(c)(3)(B), saying that the language directs courts to consider only the basic or inherent features of “an offense that is a felony,” and that the phrase “directs courts to figure out what an offense normally… entails, not what happened to occur on one occasion. Had Congress intended a conduct-specific analysis instead, it presumably would have said so; other statutes, in other contexts, speak in just that way… We cannot adopt a reading of 924(c)(3)(B) that renders part of the statute superfluous over one that gives effect to its ‘every clause and word’.”

As important as Simms may be to the 924(c) debate, it is clear that it is not the last word. The Supreme Court is going to resolve the sharp circuit split in Davis as early as June, although it is could well hold off oral argument and a decision to the term beginning in October 2019.

United States v. Simms, 2019 U.S. App. LEXIS 2341 (4th Cir. Jan. 24, 2019)

– Thomas L. Root