Tag Archives: descamps

Hobbs Act “Attempt” Not Crime of Violence, 4th Says – Update for October 16, 2020

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.

4TH CIRCUIT CHIPS AWAY AT HOBBS ACT

Ever since the Supreme Court’s United States v. Davis decision a year ago – indeed, even before Davis with Mathis, Descamps and the line of Johnson cases – commentators have been asking “whither violence?”

chip201016OK, maybe nothing that fancy. But appellate courts have traditionally and dismissively held that if a crime is a crime of violence (and here we’re talking about crimes of violence for purposes of apply the 18 USC § 924(c) offense of using or carrying a gun during and in relation to a crime of violence), then any conspiracy or attempt to commit such a crime is necessarily a crime of violence as well.

(A “crime of violence,” for those of you joining us late, is defined in 18 USC § 924(c)(3)(A) as being one that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Read Davis, and then report back here).

The appellate courts’ formula that an attempt to commit a crime of violence is violent as well has the virtue of being easy to apply, if a little formulaic. And so what if defendants find themselves serving additional mandatory sentences of five, seven, ten or 25 years?

The Supreme Court made it clear in Davis (if not before) that the formula is wrong, at least where conspiracy is concerned. If people possess guns while conspiring to commit a violent crime – say, for example, while practicing to kidnap, try and shoot the governor of Michigan – the conspiracy certainly is punishable, but they cannot get a mandatory additional sentence under § 924(c) while maturing their felonious little plans.

That has left unanswered the question of whether an attempt to commit a crime of violence remains violent itself, even after Davis. Clearly, attempts to commit crimes of violence can carried out without force or threat of force. A carload of armed would-be bank robbers drive up to a bank, but before they can even get out of the car, they are surrounded by the police. Another bank robber approaches the bank’s front door, but an alert employee sees him coming and hits the button that automatically locks the door. The law says that’s an attempted bank robbery: the bad guy intended to rob the bank and carried out at least one significant step toward accomplishing it. But he at no time used force or attempted to do so.

I have written before about how a few district courts have rejected attempts to commit Hobbs Act robberies (18 USC § 1951) as crimes of violence. This week, the 4th Circuit did so, too, a necessary and bold step (in the face of three other circuits – the 7th, the 9th and the 11th – who have gone the other way).

robbery160321The facts were ugly. Justin Taylor – known to his friends as “Mookie” – and a buddy set up a drug buy. Their plan was not to buy weed from the hapless victim, Sylvester, but instead to rob him of his pot. Mookie’s friend brought a gun to the caper, and mishanded it somehow, shooting Sylvester dead. Mookie and his friend ran without taking the marijuana, thus making the Hobbs Act robbery an “attempt” instead of a completed act.

Justin got 20 years for the attempted robbery, and another 10 for firing a gun during the crime. (His friend fired the gun, but Justin was equally liable for that, a legal doctrine we won’t get into now).

After Johnson was decided in 2015, Justin brought a post-conviction motion under 28 USC § 2255, arguing that an attempted Hobbs Act robbery is not a crime of violence that will support a § 924(c) conviction. He wanted the court to take back the extra 10 years on his sentence.

Earlier this week, the 4th Circuit agreed in a most significant holding.

A Hobbs Act robbery may be accomplished by use of force (I hit you over the head and steal your pot) or a threat of force (I threaten to hit you over the head to make you hand over your pot). The Circuit found this alternative crucial:

[U]nlike substantive Hobbs Act robbery, attempted Hobbs Act robbery does not invariably require the use, attempted use, or threatened use of physical force. The Government may obtain a conviction for attempted Hobbs Act robbery by proving that: (1) the defendant specifically intended to commit robbery by means of a threat to use physical force; and (2) the defendant took a substantial step corroborating that intent. The substantial step need not be violent. See United States v. McFadden… (concluding that defendants took a substantial step toward bank robbery where they “discussed their plans,” “reconnoitered the banks in question,” “assembled weapons and disguises,” and “proceeded to the area of the bank”). Where a defendant takes a nonviolent substantial step toward threatening to use physical force — conduct that undoubtedly satisfies the elements of attempted Hobbs Act robbery — the defendant has not used, attempted to use, or threatened to use physical force. Rather, the defendant has merely attempted to threaten to use physical force. The plain text of § 924(c)(3)(A) does not cover such conduct.

violence181008The government argued that the 4th’s approach would mean that no attempt to commit a crime of violence would support a § 924(c) conviction. The Circuit responded that “this simply is not so. Rather, as we have repeatedly held, certain crimes of violence — like Hobbs Act robbery, federal bank robbery, and carjacking — may be committed without the use or attempted use of physical force because they may be committed merely by means of threats,” such as “Hobbs Act robbery, when committed by means of causing fear of injury,” bank robbery and carjacking. “But where a crime of violence requires the use of physical force — as is usually the case — the categorical approach produces the opposite outcome: because the substantive crime of violence invariably involves the use of force, the corresponding attempt to commit that crime necessarily involves the attempted use of force. Such an attempt constitutes a “crime of violence” within the meaning of the force clause in § 924(c)(3).” The appeals court cited murder as such an offense.

This decision could very well set up a Supreme Court challenge, given the split between the 4th Circuit and the 7th, 9th and 11th.

United States v. Taylor, Case No. 19-7616, 2020 U.S. App. LEXIS 32393 (4th Cir. Oct. 14, 2020)

– Thomas L. Root

Violence Is Not Always Violent and Drug Cases Are Not Always about Drugs – Update for January 25, 2018

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.

LISAStatHeader2small
THINGS ARE SELDOM WHAT THEY SEEM

Buttercup:        Things are seldom what they seem,
                                Skim milk masquerades as cream;
                           Highlows pass as patent leathers;
                                Jackdaws strut in peacock’s feathers.

Captain:           Very true,
                                So they do.

Things are Seldom What They Seem
(duet with Buttercup and Capt. Corcoran)
Gilbert & Sullivan, H.M.S. Pinafore

pinafore180126Gilbert and Sullivan had nothing on federal criminal law since the Supreme Court’s decisions in Mathis v. United States and Descamps v. United States. There was a time that you would have thought it was easy to tell a crime of violence, or to identified a controlled substance offense. As Justice Potter Stewart famously said in Jacobellis v. Ohio (about obscenity, not violence), “I know it when I see it.”

But no more. Now, courts must go through countless gyrations, looking at whether statutes are divisible, subject to categorical analysis, or are broader than a never-existed federal common law. Thus, even if a defendant beat his grandmother with a ball bat, the crime might not be violent if the state would have applied the same statute to a defendant who nudged his grandma with a down pillow.

Things are seldom what they seem …

Buttercup:    Black sheep dwell in every fold;
                        All that glitters is not gold;
                     Storks turn out to be but logs;
                        Bulls are but inflated frogs.

Captain:     So they be,
                        Frequentlee.

So some crimes are violent, some are not. And some drug offenses are “controlled substance offenses,” and some are not.

rare180126Last week, the 3rd Circuit ruled that Hobbs Act bank robbery by intimidation was met the “elements” test of the career offender Guidelines, and was a crime of violence, regardless of whether it met the enumerated offenses test of the Guidelines (the court suggested it probably did). The Circuit said, “Unarmed bank robbery by intimidation clearly does involve the ‘threatened use of physical force against the person of another’. U.S.S.G. § 4B1.2(a)(1). If a common sense understanding of the word “intimidation” were not enough to prove that, our precedent establishes that § 2113(a)’s prohibition on taking the “property or money or any other thing of value” either “by force and violence, or by intimidation” has as an element the threat of force.”

Meanwhile, the 1st Circuit refused to apply the Armed Career Criminal Act to a defendant who had a prior conviction for two drug offenses and attempted 2nd-degree armed robbery under New York law. The Circuit held that when the defendant had gotten the New York conviction, New York law applied it to conduct – such as purse-snatching where the victim and perp had a tug-of-war – that fell far short of the violent physical force needed to meet the elements test of the ACCA.

The 4th Circuit concluded that the West Virginia offense of unlawful wounding under § 61-2-9(a) “categorically qualifies as a crime of violence under the force clause, because it applies “only to a defendant who “shoots, stabs, cuts or wounds any person, or by any means causes him or her bodily injury with intent to maim, disfigure, disable or kill.” The Circuit held that the minimum conduct required for conviction of unlawful wounding must at least involve “physical force capable of causing physical injury to another person.” Thus, the offense “squarely matches ACCA’s force clause, which requires force that is capable of causing physical pain or injury.”

buttercup180126The 9th Circuit ruled that a drug conspiracy under the laws of the State of Washington was not a “controlled substance offense” for purposes of Guidelines § 2K2.1(a)(4)(A), because under Washington state law, a defendant could be convicted even if the only other conspirator was an undercover cop. The Circuit held that, as a result, “the Washington drug conspiracy statute covers conduct that would not be covered under federal law, and the Washington drug conspiracy statute is therefore not a categorical match to conspiracy under federal law.”

Finally, the 1st Circuit ruled yesterday that a conviction under Massachusett’s assault and battery with a dangerous weapon law (“ABDW”) was not a crime of violence when done recklessly, and concluded that the defendant’s state records, which reported he had attacked someone “with a shod foot,” were not clear enough to show that he was convicted of intentional ABDW instead of the merely reckless kind. Thus, the defendant did not have three prior crimes of violence, and could not be sentenced under the ACCA.

Buttercup:    Drops the wind and stops the mill;
                        Turbot is ambitious brill;
                    Gild the farthing if you will,
                        Yet it is a farthing still.

Captain:     Yes, I know.
                        That is so.

United States v. Wilson, Case No. 16-3845 (3rd Cir. Jan. 17, 2018)

United States v. Steed, Case No. 17-1011 (1st Cir. Jan. 12, 2018)

United States v. Covington, Case No. 17-4120 (4th Cir. Jan. 18, 2018)

United States v. Brown, Case No. 16-30218 (9th Cir. Jan. 16, 2018)

United States v. Kennedy, Case No. 15-2298 (1st Cir. Jan. 24, 2018)

– Thomas L. Root

LISAStatHeader2small

11th Circuit Holds Florida 2nd Degree Burglary No Crime of Violence – Update for January 13, 2017

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.

LISAStatHeader2small
ANOTHER ONE BITES THE DUST

Idust170113t’s been rough sailing for “crimes of violence” in the last few years, as courts have repeatedly limited the types of prior offenses that may be considered by federal courts as crimes of violence. This week, another one – a Florida burglary offense – fell.

This may seem rather dry to a lot of people. Who cares whether a past conviction was violent or not? A lot of people, it turns out, because whether a defendant’s prior crimes are crimes of violence or not makes a dramatic difference in sentencing. Under the Armed Career Criminal Act, for example, a convicted felon caught during deer season with a shotgun faces a maximum sentence of 10 years for violating 18 USC 922(g). But if his criminal history includes three crimes of violence, the minimum sentence starts at 15 years and maxes out at life. A number of other statutes and Guidelines also mete out additional punishment depending on whether a defendant’s criminal history is violent or not.

But doesn’t that sound like a good idea? Who needs violent criminals stalking our streets? After all, you convicted felons out there, sow the wind, reap the whirlwind. If you can’t do the time, don’t do the crime…

kermit170113Sure, piling on additional punishment for already-punished misdeeds is viscerally appealing, until you get into the fine print of what the law considers a violent crime to be. Right now, it’s defined as any burglary, extortion, arson or crime involving an explosive. Additionally, it’s any other crime that involves force or the threat of force.

Most of that sounds good, but what about the guy who 20 years ago, used to sneak into the neighbors’ chicken coops and steal some eggs? Or boosted some Twinkies from Walmart? Those are burglaries in most states. Those “crimes of violence” hardly make him a likely chainsaw killer on a rampage.

Part of the problem is that the parameters of the law of burglary vary widely from state to state. What’s called a burglary in one state may be called a simple breaking and entering elsewhere. In other words, the “crime of violence” definition was punishing people depending on whether state legislatures decided to use the “b”-word – burglary – in a statute.

shoplift170113In Taylor v. United States, the U.S. Supreme Court limited the term “burglary” to “generic” burglary – unlawful entry into a building or other fixed structure. Breaking into a car, boat, or airplane wouldn’t count. Taylor further made the fateful determination that the analysis of whether a prior conviction for “burglary” satisfied the generic definition of burglary was to be performed on a “categorical” basis. That is, the sentencing court was not to look at the actual facts of the case to decide whether the defendant’s conduct constituted generic burglary; rather, the court was to analyze the statute under which he was convicted to determine whether it “categorically” qualified as generic burglary.

The Supreme Court followed that decision in 2013 with Descamps v. United States, which expanded the use of the “categorical” approach. Johnson v. United States followed two years later, in which the Supreme Court eviscerated the statutory definition of “crime of violence” by invalidating the catch-all residual clause, which included in the definition any offense that carried the risk of harm to a victim, regardless of a defendant’s intent.

burglary160502Then, last summer, the Supreme Court decided Mathis v. United States, which resoundingly endorsed and further broadened the use of Descamps’ “categorical approach.”

One of the guys who cares about it is Juan Gabriel Garcia-Martinez. In 2009 Juan, a Mexican citizen in the United States illegally, was convicted in Florida of 2nd-degree burglary of a dwelling under Florida Statute § 810.02(3).

Florida defines burglary as “[e]ntering a dwelling, a structure, or a conveyance with the intent to commit an offense therein…” with the intent to commit an offense or a forcible felony. A 2nd degree burglary is one in which while committing the offense, the offender does not make an assault or battery and is not and does not become armed with a dangerous weapon or explosive. A “dwelling” is “a building or conveyance of any kind, including any attached porch, whether such building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the curtilage thereof.” § 810.011(2)

deport170113After his Florida 2nd degree burglary conviction, Juan got booted from the United States and told never to come back. But he did. However, four years later, Juan was back, and immigration agents caught up with him in a Florida jail after he had been arrested for battery. He later pled guilty to illegal reentry after deportation.

The presentence investigation report assigned a base offense level of 8 under USSG § 2L1.2(a) and a 16-level increase under USSG § 2L1.2(b)(1)(A)(ii) for having committed a crime of violence – the 2nd degree burglary – prior to being deported. As a result, Juan faced a sentence of 41 to 51 months imprisonment.

On Wednesday, the 11th Circuit vacated the sentence. It held that the Florida 2nd-degree burglary statute was broader than the generic definition of burglary. The Florida definition of a “dwelling” included not just the building itself, but the curtilage as well. Curtilage is defined in Florida as an enclosure around a residence, such as a law surrounded by a hedgerow or a fenced-in backyard. The Circuit said, “Florida’s inclusion of curtilage in its definition of dwelling makes its burglary of a dwelling offense non-generic. Curtilage… is not categorically used or intended for use as a human habitation, home or residence because it can include the yard and, as the State acknowledges, potentially even outbuildings as long as they are located within the enclosure.”

Everywhere inside the stockade is curtilage...
                                                  Everywhere inside the stockade is curtilage…

Because Florida law defined curtilage as part of the dwelling for purposes of burglary, the 11th held the statute was indivisible, and thus – no matter what the facts of Juan’s burglary might have been – it was not a crime of violence.

The effect of the holding will be to cut Juan’s Guidelines range to a maximum of 14 months.

United States v. Garcia-Martinez, Case No. 14-15725 (11th Cir.  Jan. 11, 2017)

– Thomas L. Root

LISAStatHeader2small