Tag Archives: Force Clause

Newspeak Redux: Another Violent Crime is not a Crime of Violence – Update for November 2, 2017

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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.

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10TH CIRCUIT SAYS HOBBS ACT ROBBERY NOT A GUIDELINES “CRIME OF VIOLENCE”

angels170726The debate over whether criminal offenses that any viewer of Law and Order would have no problem labeling as violent are in fact “crimes of violence” continues to rage. In the Newspeakean world that remains after United States v. Curtis Johnson and United States v. Mathis, determining whether a violent crime is a “crime of violence” has come to occupy the same station as counting the number of angels on the head of a pin.

Whether a crime is a “crime of violence” has great relevance, because it can qualify the unlucky defendant for a 15-year mandatory minimum sentence (Armed Career Criminal Act), a mandatory consecutive sentence of at least five years (use of a firearm during crime of violence under 18 USC 924(c)), a much higher Guidelines sentencing range as a “career offender,” and a host of other statutory and Guidelines burdens. That’s not to mention the impact on legal residents subject to deportation for crimes of violence, an issue that is part of the Sessions and Dimaya case awaiting decision in the Supreme Court.

The latest entrant into the debate comes from the 10th Circuit, where Darnell O’Connor faced a Guidelines enhancement under USSG 2K2.1(a)(4)(A) because he had a prior conviction for a Hobbs Act robbery. Darnell’s advisory sentencing range for his felon-in-possession-of-a-gun conviction (18 USC 922(g)(11)) was increased by about six months because of the prior.

There are three ways a prior offense may be a crime of violence under the Guidelines. It may be either (1) an enumerated offense listed in the Guidelines (burglary, arson, extortion or use of explosive”); (2) an offense that has as an element the threatened use or actual use of physical force against a person; or (3) an offense that presents a significant risk of physical harm to others.

Robber160229The first clause is called the “enumerated clause,” because it enumerates certain offenses that count, period. The second is called the “force clause” or “elements clause,” because it relates to crimes that include elements of purposeful force. The third is called the “residual clause,” because it sweeps up what’s left. The “residual clause” was declared unconstitutionally vague two years ago in United States v. Johnson, at least as it applies to the ACCA, but the Supreme Court subsequently decided it could be applied in the Guidelines definition of “crime of violence.”

The definition of a “crime of violence” is the same whether its figuring out whether someone is an armed career offender under the ACCA or whether figuring out whether it’s a crime a violence under 18 USC 16(b), or whether figuring out whether the Guidelines make one a “career offender” under the Guidelines.

violence160110On appeal, Darnell argued that a Hobbs Act robbery was not a “crime of violence” under the Guidelines definition – which is fundamentally the same as the statutory definition – because it encompassed conduct that was broader than “robbery.” If some conduct that would be a crime under the statute would not be a “crime of violence” under the Guidelines, then any conviction under that statute will not qualify as a “crime of violence” for a sentence enhancement under the Guidelines, regardless of whether the conduct that led to the prior conviction was in fact violent.

Under the force clause, the court looks at whether the statute underlying the prior conviction “has as an element the use, attempted use, or threatened use of physical force against the person of another.” If the statute criminalizes only conduct that fits within the force clause, then a sentencing enhancement is valid. But if the Hobbs Act robbery statute covers conduct that falls outside the force clause—such as threatening property rather than “the person of another”—then Hobbs Act robbery would not categorically be a crime of violence under that clause.

The Hobbs Act defines robbery is the unlawful taking of someone’s personal property against his will by use or threat of force “to his person or property.” The Government argued that the Court had to focus on the “minimum conduct” criminalized by the underlying statute without applying “legal imagination” to consider hypothetical situations that technically violate the law but have no “realistic probability” of falling within its application. It argued it Darnell could point to no case where the government would prosecute” threats to property as a Hobbs Act robbery.

The Court held that was immaterial, because Darnell “does not have to make that showing.

Hobbs Act robbery reaches conduct directed at “property” because the statute specifically says so. We cannot ignore the statutory text and construct a narrower statute than the plain language supports.” Because Hobbs Act robbery can be committed against property, where generic robbery cannot, it is broader than enumerated robbery, and cannot qualify as violent crime under the “enumerated clause.”

Likewise, the enumerated offense of extortion cannot include the Hobbs Act within its sweep, because the Guidelines now define extortion as being focused only on physical injury to a person. Hobbs Act extortion includes threats to property, and thus is too broad under that term as well.

Finally, the Court said, Hobbs Act robbery cannot qualify as a crime of violence under the Guidelines “force clause,” because Hobbs Act robbery can include force against property, while the “force clause” requires physical force against a person.

Darnell’s two prior Hobbs Act convictions thus were not crimes of violence, despite the fact that they were undoubtedly violent crimes.

United States v. O’Connor, Case No. 16-3300 (10th Cir., Oct. 30, 2017)

– Thomas L. Root

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1st Circuit Says Bank Robbery is Still Violent – Update for October 19, 2017

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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.

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VIVA LA DIFFERENCE

paperwork171019Since the Supreme Court ruled two years ago in Johnson v. United States that the “residual clause” of the Armed Career Criminal Act was unconstitutional, many forests have been felled to produce the paperwork blizzard that has buried federal courts in sentence challenges.

The ACCA requires that if a convicted felon caught with a gun has three prior convictions for crimes of violence or drug offenses, the sentence that must be imposed is no longer zero to 10 years, but rather 15 years to life. There are three ways a prior offense may be a “crime of violence” under the ACCA. The offense must be either

(1) an enumerated offense (burglary, arson, extortion or use of explosive”); or

(2) an offense that has as an element the threatened use or actual use of physical force against a person; or

(3) an offense that presents a significant risk of physical harm to others.

The first clause is called the “enumerated clause,” because it enumerates certain offenses that count, period. The second is called the “force clause” or “elements clause,” because it relates to crimes that include elements of purposeful force. The third is called the “residual clause,” because it sweeps up what’s left.

violence160110In Johnson, the Supreme Court said the residual clause was so vague that no one could figure out what it meant. For that reason, it was unconstitutional to use the residual clause to make someone liable under the ACCA. The problem was that the same (or very similar) language was used elsewhere in the same statute (18 USC 924) and the criminal code (such as in 18 USC 16(b)). One might think that Johnson invalidated the residual clause in those definitions, too. But one might be wrong…

Whether Johnson invalidates the residual clause in the 18 USC 16(b) “crime of violence” definition was argued a little over two weeks ago in the Supreme Court. That decision will issue before next summer. Meanwhile, battle continues to rage in the lower courts, leading to some rather surprising claims.

butch171019We confess here that we like bank robbery. It’s old fashioned – you know, Jesse James, Bonnie and Clyde, Willie Sutton – and an easy crime to understand. In a federal criminal world of meth labs, insider trading, trading in incorrectly-packeted lobster and throwing back undersized fish, bank robbery is a crime that’s pretty easy to understand. We suspect that someone like Virginia Governor Bob McDonnell never felt a frisson of illicit thrill when a political donor bought his wife an Oscar de la Renta dress, not the way Butch Cassidy was pumped when he knocked over the San Miguel Valley Bank. After all, when was the last time you saw a movie about the Feds trying to take down a CEO for selling tainted peanut butter?

Jeff Hunter was a bank robber, now doing 270 months for the offense. The last 60 months are a consecutive sentence for using a gun during a crime of violence. After Johnson, Jeff filed a post-conviction motion claiming that the extra 60 months was unwarranted, because while he had a gun, a bank robbery is no longer a crime of violence after Johnson.

knifegunB170404This might seem counter-intuitive to you. Of course a bank robbery is a crime of violence, you say. Just as you never should take a knife to a gunfight, you need never take a gun to a nonviolent crime. Who’s ever heard of an armed inside trader?

Last week, the 1st Circuit agreed that while Johnson may sweep broadly, it doesn’t sweep that broadly. No matter what the constitutional status of the residual clause might be, the Circuit said, Jeff’s offense remains a “crime of violence” because of the force clause. The 1st has already held that a bank robbery “has as an element the use, attempted use, or threatened use of physical force against the person of another” for purposes of the career offender guidelines (USSG 4B1.2(a)(1)), which use the same “crime of violence” definition as does the ACCA.

But the 924(c) definition varies slightly. All of the others refer to using physical force against another person. The 924(c) subsection definition refers “use of physical force against the person or property of another.”

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Aha! Jeff argued that there is a difference. The 1st agreed, but said that difference does not help him. “The addition of ‘or property’ renders § 924(c)(3)(A)’s scope greater than that of § 4B1.2(a)(1),” the court said. In other words, under the ACCA, if Butch Cassidy had robbed the Union Pacific Overland Flyer by threatening to shoot the engineer, that would have been a crime of violence. If he had robbed it by threatening to shoot the engineer’s dog, it would not have been. shootdog171019However, if he robbed the First National Bank of Winnemucca by threatening to shoot the branch manager’s dog (which was “property”), the offense would been just as much a “crime of violence” as if he had threatened to shoot the manager himself.

Ah, the beauty of the law! Because the statute says bank robbery is effected by “by force and violence, or by intimidation,” the 1st Circuit said, “we hold that federal bank robbery, and a fortiori federal armed bank robbery, are crimes of violence under the force clause of § 924(c)(3).”

Hunter v. United States, Case No. 16-2483 (1st Cir., October 16, 2017)

– Thomas L. Root

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1st Circuit Holds Recklessness Not Enough for ACCA Crime of Violence – Update for July 6, 2017

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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.

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Jackass170707Remember back in 2000 when MTV decided to break Masterpiece Theatre’s hammerlock on classy television programming? The result was Jackass, an ill-conceived piece of televised mayhem in which the show’s participants performed all manner of risky and stupid stunts on themselves and each other. Their viewers  – being not just kids but dumb kids – often imitated what they saw on the show.

Much of what the ensemble cast did to each other – such as branding one participant on his bare kiester with a hot iron – easily blew past  negligence and gross negligence standards on the way to sheer recklessness. And that brings us to today’s case.

George Bennett was convicted of being a felon in possession of as gun under 18 USC 922(g), among other crimes. Because the sentencing court concluded that George had three prior “crimes of violence” within the meaning of the Armed Career Criminal Act, he was sentenced under 18 USC 924(e) to 25 years. Without the ACCA specification, the most he could have gotten for the 922(g) was 10 years.

The legal landscape began shifting with the Supreme Court’s decision in Johnson v. United States that a portion of the ACCA – the “residual clause,” which pretty much defined a violent crime as one in which something bad could have happened, intended or not – was unconstitutionally vague. After Johnson, George filed a motion under 28 USC 2255 for relief from the ACCA sentence, arguing that his priors, all of which were aggravated assault under Maine law, were not “crimes of violence” within the meaning of the ACCA.

An ACCA “crime of violence” is an offense that (1) was burglary, arson, extortion or use of explosives (called the “Enumerated Clause”); or (2) has as an element the use, attempted use, or threatened use of physical force against the person of another (called the “Force Clause”).

George argued in his 2255 motion that Maine’s aggravated assault statute went beyond the Force Clause, in that one could commit aggravated assault through reckless conduct but without intent. The district court agreed with George, but the government appealed.

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Cast member gets branded.

On Wednesday, the 1st Circuit Court of Appeals upheld the district court, not necessarily agreeing with George that recklessness was not enough to come within the Force Clause, but not being sure that it did not. In a 54-page exposition of the state of the law on recklessness and the Force Clause, the Circuit concluded that “the text and purpose of ACCA leave us with a ‘grievous ambiguity,’ as to whether ACCA‘s definition of a “violent felony” encompasses aggravated assault in Maine, insofar as that offense may be committed with a mens rea of mere recklessness, as opposed to purpose or knowledge, we… must apply the rule of lenity… and, in consequence, we conclude that Bennett’s two prior Maine convictions for aggravated assault do not so qualify…”

Maine defines aggravated assault to include “intentionally, knowingly or recklessly causing” bodily injury to another. Maine defines the mens rea of recklessness as acting when a person “consciously disregards a risk.”

violence161122The problem, the Court said, is that “Congress chose in ACCA to denominate ‘the use of force against another’ as a single, undifferentiated element.” The question thus becomes whether “the relevant volitional act that an offense must have as an element for ACCA purposes is not just the ‘use . . . of physical force,’ but the ‘use . . . of physical force against the person of another.” The injury caused to another by the volitional action in a reckless assault, the Court said, is by definition neither the perpetrator’s object nor a result known to the perpetrator to be practically certain to occur. For that reason, a voluntary reckless act – the Court used the example of throwing a plate against a wall in anger, resulting the splinters flying off and injuring one’s spouse. – may endanger another without deliberately endangering another.

The Court could as easily have used the Jackass “branding iron” skit.

The Court traced all of the arguments for and against George’s position, but concluded that “the canon against surplusage does at least suggest that the follow-on ‘against’ phrase in ACCA must be conveying something that the phrase ‘use . . . of physical force’ does not… Nevertheless, we can hardly be sure.”

The Rule of Lenity holds that a court should interpret any ambiguity in a criminal statute in the defendant’s favor. The Circuit said, “We are considering here a sentencing enhancement of great consequence. We should have confidence, therefore, that we are doing Congress’s will in applying this enhancement here.”

The Bennett decision is long but consequential, treating in detail a substantial question on interpreting “use of physical force against the person of another.” The issue may well be the next battleground in ACCA and “crime of violence” litigation.

Bennett v. United States, Case No. 16-2039 (1st Cir., July 5, 2017)

– Thomas L. Root

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