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TWO CIRCUITS REFUSE TO “DAVIS” ATTEMPT CRIMES
It was a rough week for violent crime.
The Supreme Court’s 2019 United States v. Davis decision held that conspiracy to commit a violent crime was not itself a “crime of violence” that fell within the definition in 18 USC § 924(c). That is important, because a § 924(c) for using or carrying a gun during a crime of violence or drug offense carries a hefty mandatory sentence that by law is consecutive to the sentence for the underlying offense.
Since Davis, a hot question facing courts has been whether a mere attempt to commit a violent crime should be lumped with conspiracy as inherently nonviolent.
Last Monday, the 2nd Circuit denied Kevin Collier’s post-conviction motion to throw out his § 924(c) in the wake of Davis, holding that his attempted bank robbery offense (18 USC §2113(a)) was indeed a crime of violence supporting his § 924(c) conviction.
In 2019, the Circuit held in United States v. Moore that § 2113(a) bank robbery was categorically a crime of violence under § 924(c)’s elements clause, and in United States v. Hendricks the Court found that Hobbs Act robbery and New York 3rd-degree robbery were crimes of violence as well. But Kevin argued he could be convicted of an attempt to rob a bank without ever getting to the point that he used force or threatened anyone and that it thus did not fall under § 924(c)’s elements clause. Driving up to the bank with a mask and a gun was enough to get him convicted, and that did not require he first commit any violent act.
The 2nd Circuit disagreed, noting that the crime of attempt requires that the defendant have intended to commit each of the elements of the substantive crime. A § 2113(a) conviction for attempted bank robbery requires that the defendant “by force and violence, or by intimidation… attempt[s] to take” the property at issue. Because Hendricks held that bank robbery by intimidation was a crime of violence, “a conviction for attempted bank robbery is a categorical match for a crime of violence under 924(c)’s elements clause, regardless of whether the substantial step taken involved the use of force.”
The 2nd declined to reach the question of whether all “attempts” to commit other crimes of violence would necessarily be considered “crimes of violence” under § 924(c), limiting its holding to attempted § 2113(a) bank robbery, which expressly requires that the attempt have been committed by force, violence, or intimidation. The Circuit admitted the question might be thornier if the statute of conviction did not clearly state that the elements of the attempt must include an act of force, violence, or intimidation.
The very next day, the 2nd Circuit issued an en banc opinion reversing a prior appellate decision that New York 1st-degree manslaughter was not a crime of violence. Gerald Scott was released in 2018 after serving 11 years of a 22-year Armed Career Criminal Act sentence when the district court held his prior manslaughter convictions were not crimes of violence. The district court reasoned that because someone can cause death by omission, manslaughter could be accomplished without employing any force or threat of force at all.
The en banc decision needed 50 pages to explain why New York 1st-degree manslaughter in New York qualifies as a crime of violence, and 70 more pages for the concurrences and dissents to debate what Ohio State law prof Doug Berman called “a formalistic legal matter that is an awful artifice of poorly conceived and constructed federal sentencing law.” In a nutshell, the majority, relying on the definition of physical force in Curtis Johnson v. United States, held that “1st-degree manslaughter is a categorically violent crime because its elements — (1) the causation of death (2) by a person intent on causing at least serious physical injury — necessarily involve the use of violent force.”
Finally, not to be outdone, last Friday a 3rd Circuit panel held that an attempt to commit a Hobbs Act robbery was categorically a crime of violence under the “elements” clause of 18 USC § 924(c). Defendant Marcus Walker argued that his conviction must be vacated because a person can be convicted of attempted Hobbs Act robbery based on nothing more than an intent to complete the robbery without actually committing a violent act and with only the intent to do so.
But the 3rd, in a decision that described in detail the circuit split on the issue, refused to follow the 4th Circuit’s United States v. Taylor ruling, and instead joined the 5th, 7th, 9th and 11th Circuits in holding tha it is “apparent that Congress meant for all attempted crimes of violence to be captured by the elements clause of § 924(c), and courts are not free to disregard that direction and hold otherwise.”
There is little doubt that this issue, and probably the whole “attempt” furball, is headed for the Supreme Court.
Collier v. United States, Case No 17-2402, 2021 U.S. App. LEXIS 5894 (2d Cir. Mar 1, 2021)
United States v. Scott, Case No 18-163-cr, 2021 U.S. App. LEXIS 6014 (2d Cir. Mar 2, 2021)
United States v. Walker, Case No 15-4062, 2021 U.S. App. LEXIS 6453 (3d Cir. Mar 5, 2021)
Lexology, Second Circuit Holds that Attempted Bank Robbery is Categorically a ‘Crime of Violence’ (March 4, 2021)
Sentencing Law and Policy: En banc Second Circuit needs 120 pages and five opinions to sort out whether NY first-degree manslaughter qualifies as a federal “violent crime” (March 2, 2021)
– Thomas L. Root