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Lousy Lawyering and Other Stories – Update for April 27, 2021

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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.

“DID I SAY FIVE YEARS? I MEANT FIVE DECADES…”

Four decisions of note last week:

stupidlawyr191202Oops, My Bad: Dave Mayhew was charged with white-collar fraud. The government offered him a plea deal that promised a maximum sentence of five years.

“C’mon, man,” his lawyer said. “That’s no deal. If we go to trial, five years is the worst we can do.” Dave, who paid big bucks for this professional advice, followed his attorney’s guidance and went to trial.

You can guess what happened. Dave lost, and he was sentenced to 27 years.

After appeals were over, Dave filed a habeas corpus motion under 28 USC § 2255, arguing that his lawyer was ineffective for giving him such bad advice. The district court denied the petition, pointing out that Dave was told at his re-arraignment that he could get up to 55 years on all of the charges and the court – no one else – would decide the sentence. So Dave knew what he was getting into, the judge claimed, and that cured any prejudice he would have suffered from his lawyer’s idiocy.

Last week, the 4th Circuit reversed. The re-arraignment came only after Dave had rejected the plea deal. The Circuit admitted that in the usual lousy-advice-on-sentence-exposure case, the law is clear that if the defendant pleads guilty after a Rule 11 change-of-plea hearing, the court’s warning that only it would determine the sentence and that the maximum the defendant faces, “taken together, may well have been enough to cure… counsel’s misadvice. But there is a fundamental problem,” the 4th held, “with applying that principle here, and it has to do with timing: The court’s admonitions in this case came only after Dave already had rejected the government’s plea offer, and there is no indication — in the record or from the government on appeal — that the offer remained open at that point.”

Bait and Switch: Rebecca Stampe made a deal on her drug case, agreeing to a Rule 11(c)(1)(C) plea locking her sentence at 168 months. An 11(c)(1)(C) plea sets a particular sentence or sentence range, with the court’s role limited to honoring the sentence deal or rejecting the guilty plea.

Deal170216Becky’s deal came with a government promise that if she testified against her co-defendant, she might get a substantial-cooperation sentence reduction under USSG § 5K1.1. But after she made the plea deal, the government dismissed the case against her co-defendant because of some unspecified misconduct by the informant (which presumedly made the informant’s testimony worthless).

Becky demanded information about the misconduct under Brady v Maryland, arguing that it was material to her guilt as well. She also moved to withdraw from her plea agreement (but not her guilty plea), figuring she’d do better with an open plea that let the court sentence her than she would with a Rule 11(c)(1)(C) plea.

Last week, the 6th Circuit shot her down. The Circuit ruled that the evidence could not possibly be material to Becky’s defense, because she had already pled guilty, so there was no defense left to make. As for the plea agreement, the Circuit said, “While we do not doubt that Stampe sincerely believed that she might avoid some prison time because of her putative cooperation in her co-defendant’s case, the plea agreement contemplated but did not require that possibility. So contrary to her assertion on appeal, it was not the ‘principal purpose’ of the agreement. The main purpose was the exchange of her plea for the government dropping the other charge against her and agreeing to a 168-month sentence.”

mathisEnd Run: John Ham filed a 28 USC § 2241 habeas petition claiming that Mathis v United States – a Supreme court decision that dictated how a sentencing court should apply the “categorical approach” in deciding whether a prior crime was a “crime of violence” under the Armed Career Criminal Act – required that he be resentenced to a lot less time.

John figured that the 4th Circuit’s United States v. Wheeler decision authorized the district court to address his § 2241 petition on the merits. The district court disagreed, and Jim appealed.

Wheeler adopted a four-part test for using § 2241 petitions to attack a defective sentence where a § 2255 motion would be “inadequate or ineffective.” One of those tests is that a petitioner must show a retroactive change in substantive law that happened after the direct appeal and first § 2255 motion.

John claimed that Mathis satisfies that requirement, changing “well-settled substantive law” about how a sentencing court should apply the categorical approach. Last week, the 4th Circuit disagreed.

“Mathis itself made clear that it was not changing, but rather clarifying, the law,” the 4th held. “The categorical approach has always required a look at the elements of an offense, not the facts underlying it… Indeed, Mathis merely repeated the ‘simple point’ that served as ‘a mantra’ in its ACCA decisions: ‘a sentencing judge may look only to the elements of the offense, not to the facts of the defendant’s conduct’.”

abandoned210427jpgSee You Around, Chump: Finally, in the 8th Circuit, Charles Ahumada filed a § 2255 motion arguing his attorney abandoned him by failing to file a petition for rehearing on his direct appeal. Not so, the Circuit said. In order to make a 6th Amendment ineffective assistance, a defendant first has to have a constitutional right to counsel. There is no constitutional right to counsel on a discretionary appeal, and a petition for rehearing is exactly that.

Chuck admitted as much, but argued that the Circuit’s Criminal Justice Act plan requiring counsel to file non-frivolous appeals gave him a due process right to effective counsel. “Even assuming there was a breach of the statute, the CJA,” the 8th said, “it does not give rise to a claim for ineffective representation of counsel.”

United States v. Mayhew, Case No 19-6560, 2021 U.S.App. LEXIS 11248 (4th Cir., April 19, 2021)

United States v. Stampe, Case No 19-6293, 2021 U.S.App. LEXIS 11459 (6th Cir., April 20, 2021)

Ham v. Breckon, Case No 20-6972, 2021 U.S.App. LEXIS 11493 (4th Cir., April 20, 2021)

Ahumada v. United States, Case No 19-3632, 2021 U.S.App. LEXIS 11861 (8th Cir., April 22, 2021)

– Thomas L. Root

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

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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

Racketeering Conspiracy Held Not to be Crime of Violence – Update for December 30, 2019

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3RD CIRCUIT FINDS A RACKETEERING CONSPIRACY IS NO CRIME OF VIOLENCE

Nelson Quinteros was being deported to his native El Salvador on the grounds that a prior criminal conviction under 18 USC § 1959(a)(6) was a crime of violence, and thus an “aggravated felony” under the immigration laws. (An aggravated felony conviction will get a non-citizen deported).

violent160620Sec. 1959(a)(6), a subsection of an offense entitled “Violent Crimes In Aid of Racketeering,” provides that whoever, for payment or to join or advance in a racketeering enterprise, “murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in serious bodily injury upon, or threatens to commit a crime of violence against any individual in violation of the laws of any State or the United States, or attempts or conspires so to do, shall be punished… for attempting or conspiring to commit a crime involving maiming, assault with a dangerous weapon, or assault resulting in serious bodily injury…”

Sound violent? Well, yes, rather. But in the weird legal world that “crimes of violence” have inhabited since Curtis Johnson v. United States, back in 2010, sought to define what violence is, what appears to be a violent crime cannot be counted on to necessarily be a “crime of violence” under the statute.

The Board of Immigration Appeals originally held that Nelson’s § 1959(a)(6) conviction was a crime of violence under 18 USC § 16(b), a statute that defined what constituted a crime of violence under the criminal code. However, after the BIA decision on Nelson’s case, the Supreme Court in Sessions v. Dimaya threw out § 16(b) as unconstitutionally vague. That meant that the § 1959(a)(6) offense was no longer a crime of violence unless it could qualify under § 18 USC § 16(a). Last week, the 3rd Circuit ruled that Nelson’s prior conviction did not qualify as a crime of violence under that subsection, either.

violence151213Section 16(a) defines crime of violence as an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, substantially the same definition used in 18 USC § 924(c) and in the Armed Career Criminal Act. “Looking at the least culpable conduct,” the Court wrote (as it must), “an individual could be convicted of conspiracy under 18 USC § 1959(a)(6) without the use, attempted use, or threatened use of physical force.” What’s more, because a § 1959(a)(6) conviction does not require that a defendant commit any overt act in furtherance of the conspiracy, the statute could conceivably punish for “evil intent alone.”

In other words, Nelson and his cronies could sit around with a few brewskis talking about how they would later commit bodily mayhem on some old lady crossing the street. That would violate § 1959(a)(6), even if later, on the way to do so, they passed a storefront church and were saved, thus abandoning their lives of sin. The conspiracy offense would still have been committed, but nowhere would they have threatened or committed an act of violence.

religion191230

Nelson’s case was about deportation, but its holding suggests that many of the statutes in Chapter 95 of the criminal code, which includes the Hobbs Act and murder-for-hire, may be vulnerable to a Mathis v. United States-type analysis in the wake of Johnson, Dimaya, and United States v. Davis.

The world of “crimes of violence” keeps getting stranger.

Quinteros v. Attorney General, 2019 U.S. App. LEXIS 37237 (3rd Cir. Dec.17, 2019)

– Thomas L. Root

7th Circuit Oks 2241 Filings for Mathis ACCA Claims – Update for September 16, 2019

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7TH CIRCUIT DOES NOT REQUIRE TILTING AT WINDMILLS

“Tilting at windmills,” taken from Cervantes’ classic “Don Quixote,” is typically used to suggest engaging in an activity that is completely futile.

quixote190916Engaging in a hopeless venture is more common than you think. A lot of post-conviction defendants trying to raise Mathis claims – that prior offenses are not violent or overbroad controlled substance crimes using the categorical approach – have run into a procedural brick wall. Mathis provides procedural guidance on how to interpret statutes. It does not announce a new constitutional rule, and it does not narrow the application of a substantive criminal statute to make prior conduct no longer criminal. People trying to file Mathis § 2255 motions have been frustrated, and people filing § 2241 petitions for habeas corpus have often found the going rough.

Last week, the 7th Circuit tackled the issue, ruling that Mathis was “an intervening case of statutory interpretation” that “opens the door to a previously foreclosed claim.” Todd Chazen, who is in a federal prison within the 7th Circuit, filed a petition for habeas corpus under 28 USC § 2241, arguing that under Mathis, his prior conviction for Minnesota third-degree burglary no longer counted for his Armed Career Criminal Act sentence. He was right: under both 7th and 8th Circuit law, the second- and third-degree Minnesota burglary statute had been held to no longer count for ACCA purposes.

The government, however, argued that when Todd filed his § 2255 motion six years ago, he could have made the same argument, even though Mathis had not yet been decided. The Circuit disagreed:

“In 2013—at the time Chazen first moved for post-conviction relief under § 2255—”the law was squarely against” him in that it foreclosed the position he currently advances—that Minnesota burglary is not a violent felony under the Act.

“We also conclude that Mathis can provide the basis for Chazen’s § 2241 petition… Our precedent has focused on whether an intervening case of statutory interpretation opens the door to a previously foreclosed claim. Mathis fits the bill. Mathis injected much-needed clarity and direction into the law under the Armed Career Criminal Act… It is only after Mathis — a case decided after Chazen’s § 2255 petition that the government concedes is retroactive — that courts, including our court and the 8th Circuit, have concluded that Minnesota burglary is indivisible because it lists alternative means of committing a single crime…

notiltquixote190916“In these circumstances, where the government has conceded that Mathis is retroactive and Chazen was so clearly foreclosed by the law of his circuit of conviction at the time of his original § 2255 petition, we conclude that Chazen has done enough to satisfy the savings clause requirements.”

In other words, if the Circuit law is settled, you don’t have to tilt at windmills in your § 2255 motion. If the interpretation of the statute changes later, you can take advantage with a § 2241 petition.

Chazen v. Marske, 2019 U.S.App.LEXIS 27142 (7th Cir. Sept. 9, 2019)

– Thomas L. Root

Knock Me Over With a Feather: 5th Circuit Seeks to Correct Unjust Sentence – Update for May 22, 2018

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KNOCK ME OVER WITH A FEATHER

After a federal court of appeals decides a case, it issues a mandate, which is the appellate court’s transmittal of its order to the lower court for that court to carry out what the appeals court has ordered be done.  

hailmary180522There is a procedure – a Hail Mary if ever there was one – known as recall of the mandate, in which the unsuccessful litigant asks the appellate court to recall its mandate to take another look at the decision. The standard for getting a mandate recalled varies by court, but the 5th Circuit’s Local Rule 41.2 is not atypical: “Once issued a mandate will not be recalled except to prevent injustice.”

Regardless of the announced standard, appellate advocates know that getting a court to actually recall its mandate is well-nigh impossible.

At least that was the case until last week brought a remarkable 5th Circuit decision. In 2015, Jesus Montalvo pleaded guilty to reentering the United States. The presentence report recommended applying a 16-level “crime of violence” enhancement pursuant to 2L1.2(b)(1)(A)(ii) of the Guidelines based on Jesus’s prior conviction for burglary under Texas Penal Code 30.02(a).

injustice180522At the time, Jesus argued his prior conviction did not qualify for the enhancement because Texas Penal Code 30.02(a) is an “indivisible” statute and is categorically broader than generic “burglary of a dwelling. But at time, 5th Circuit precedent in United States v. Uribe held otherwise, so Jesus’ sentence was upheld in May 2017.

But 10 months later, the en banc 5th Circuit issued United States v. Herrold, holding that the Texas burglary statute was indivisible and overruling Uribe. Jesus promptly filed a motion to recall the mandate and for leave to file an out-of-time petition for panel rehearing.

Last week, the 5th Circuit granted the motion. The Court agreed that Jesus was entitled to recall because Herrold had rendered the Court’s decision in his case was “demonstrably wrong,” and that failure to recall the mandate “would produce an unwarranted disparity between him and similarly situated defendants in other cases.” The Court said that “both of these factors favor recall and find that a third consideration — Montalvo’s demonstrated diligence in asserting his claim — does as well.” The Court said that “the interest in correcting our decision, now that Herrold has rendered it ‘demonstrably wrong’ weighs heavily in favor of recalling the mandate in this case.”

The government faulted Jesus for not filing a petition for rehearing en banc or a petition for a writ of certiorari. But the Court said Jesus had “objected to his sentence enhancement in the district court, not just on appeal. That shows sufficient diligence on his part.”

feather180533The notable aspect of the case is that Jesus, who undoubtedly was entitled to recall, is really in no different position that many other petitioners. The Court said “here, recalling the mandate is necessary ‘to prevent injustice’” (a rarely-used expression in a 5th Circuit that gave us prizes like Buck v. Davis, overturned by the Supreme Court last year).  The 5th Circuit, carrying on about “unwarranted disparities” and justice for criminal defendants: You could have knocked me over with a feather.

There are plenty of people in the same boat as is Jesus Montalvo. If this holding is faithfully applied, those folks may be entitled to similar relief.

United States v. Montalvo-Davila, Case No. 16-20081 (5th Cir., May 16, 2018).

– Thomas L. Root

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Supreme Court Taking Another Look at ACCA Predicates – Update for May 3, 2018

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IT’S DEJA VU ALL OVER AGAIN

deja171017It will seem like old times – James, Begay, Chambers, Sykes, Johnson, Mathis, and Beckles – as the Supreme Court has granted review to yet another pair of Armed Career Criminal Act cases last week. These companion cases focus on the question of whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the ACCA. The cases will be decided together during the Supreme Court term beginning in October 2018.

At the same time, we’re watching a trio of cases that are awaiting a decision by SCOTUS on certiorari. The petitions for certiorari have been “relisted” eight times, an astounding number of deferrals by the Court. (A relist is when the Supreme Court schedules a case for a decision on certiorari at the weekly Friday justices’ conference, but then defers decision until the next conference, essentially “relisting” it on the next week’s conference list).

The three cases, Allen v. United States, Gates v. United States, and James v. United States, all ask whether under the Supreme Court’s opinions in United States v. Booker, Johnson v. United States and Beckles v. United States – all of which depended heavily upon the distinction between advisory and mandatory sentencing schemes – the residual clause of the mandatory sentencing guidelines is unconstitutionally vague.

BettyWhiteACCA180503Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog last week, noted that the Stitt and Sims cases are being heard “because the government was seeking cert on these cases after losing in big Circuit rulings and because there is a split in the circuits.” Still, he admitted to “growing somewhat annoyed that issues related to the application of the Armed Career Criminal Act continued to be the focal point of so much SCOTUS activity… Many other issues that are so very consequential to so many more cases – e.g., the functioning of reasonableness review or the proper application of Graham and Miller — have been unable to get the Justices’ attention while nearly a dozen ACCA cases have been taken up by SCOTUS in the last decade.”

United States v. Stitt, Case No. 17-765 (cert. granted Apr. 23, 2018)

United States v. Sims, Case No. 17-766 (cert. granted Apr. 23, 2018)

Allen v. United States, Case No. 17-5864 (certiorari decision pending)

Gates v. United States, Case No. 17-6262 (certiorari decision pending)

James v. United States, Case No. 17-6769 (certiorari decision pending)

Sentencing Law and Policy, SCOTUS grants cert on yet another set of ACCA cases, this time to explore when burglary qualifies as “burglary” (Apr. 23, 2018)

SCOTUSBlog.com, Relist Watch (Apr. 27, 2018)

– Thomas L. Root

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Thanks to Mathis, Chances Are It’s No Longer Violent – Update for May 1, 2018

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8TH CIRCUIT SAYS NORTH DAKOTA BURGLARY TOO BROAD FOR ACCA

Courts are still struggling over the application of Mathis v. United States, the 2016 case that changed the way state statutes are interpreted for imposing Armed Career Criminal Act sentences. Mathis says that in determining whether a statute can be divided into crimes that qualify for ACCA treatment and crimes that are too broad for ACCA treatment, you first read the plain text, then see whether the separate offenses have different punishments, then look at state court decisions in the issue, and then check out state jury instructions. If none of that works, chances are it may still not count for an ACCA punishment…

mathis180501That’s what the 8th Circuit ran into last week with defendant Jon Kinney. He had a prior North Dakota burglary conviction of a “building or occupied structure” that helped qualify him for an ACCA sentence. But the state statute provided that an occupied structure could include a vehicle, and vehicle burglary falls beyond the kind of generic burglary that counts against the ACCA.

The Circuit looked at the statute, state court decisions and jury instructions, but could not tell whether “building or occupied structure” described two elements or just two means of committing the crime. Frustrated, the court gave just a “peek” at the record of Jon’s prior conviction “for the sole and limited purpose of determining whether the listed items are elements of the offense.”

It turned out that each of Jon’s charges just accused him of burgling “a building or occupied structure.” The fact that his indictments listed both, the Court held, was “as clear an indication as any that each alternative is only a possible means of commission, not an element that the prosecutor must prove to a jury beyond a reasonable doubt.” Thus, the Circuit held, Jon’s prior North Dakota convictions can’t count as predicates for the ACCA.

United States v. Kinney, Case No. 16-3764 (8th Cir. Apr. 23, 2018)

– Thomas L. Root

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

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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

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Cleaning Up After the Long Weekend – Update for September 5, 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.

We had a lot of short notes included in yesterday’s newsletter to federal inmates. We’re publishing those posts below.

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10TH CIRCUIT DECLARES SUPERVISED RELEASE REVOCATION STATUTE UNCONSTITUTIONAL

The supervised release statute, 18 USC § 3583, provide that if a person on supervision violates, the court may send him or her back to prison for a specified term, and then impose more supervised release. The maximum terms of reimprisonment authorized by the statute for an supervised release violation of are limited based on the severity of the original crime of conviction, not the conduct that resulted in the revocation.

Some types of offenses are just too offensive. Today, it's kiddie porn... tomorrow, it may be jaywalking. That's why we have laws, to save us from the Flavor of the Day.

However, 18 USC § 3583(k) provides an exception. If the person subject to supervised release is a sex offender, and the conduct resulting in the revocation is a specified sex offense, the court is required to “revoke the term of supervised release and require the defendant to serve a term of imprisonment… [for] not less than 5 years.”

Last Thursday, the 10th Circuit ruled that 3583(k) violated Apprendi v. New Jersey and Alleyne v. United States, in that a mandatory prison sentence was increased based on a judge’s finding of fact instead of a jury finding beyond a reasonable doubt. The Court said § 3583(k) “strips the sentencing judge of discretion to impose punishment within the statutorily prescribed range, and… imposes heightened punishment on sex offenders expressly based, not on their original crimes of conviction, but on new conduct for which they have not been convicted by a jury beyond a reasonable doubt and for which they may be separately charged, convicted, and punished.

United States v. Haymond, Case No. 16-5156 (10th Cir., Aug. 31, 2017)

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MESSY FOIA REQUEST DOES NOT MERIT DISMISSAL

Inmates are notorious for filing badly-written Freedom of Information Act requests. It’s surprising however, to see a lawyer file a request as convoluted as the one attorney Steve Yagman sent to the CIA.

Steve asked for “records/information” on “the names and company/organization affiliations of any CIA employees, agents, operatives, contractors, mercenaries, and/or companies who are alleged to have engaged in torture of persons.” Specifically, he wanted the names and affiliations of those “as to whom President Obama stated that ‘we tortured some folks’ on August 1, 2014: that is, who are the individuals whom the word ‘we’ refers to?”

spy170905The CIA wrote Steve back, explaining correctly that FOIA does not require agencies to answer questions. The agency invited Steve to rewrite his request. Steve did not, but instead sued. The district court ruled Steve’s letter did not constitute a request for records, and thus that he had not exhausted administrative remedies. For that reason, the district court said, it lacked subject-matter jurisdiction to hear the case.

Last week, the 9th Circuit reversed. The Court ruled that because the goal of the FOIA was to provide government information to ordinary citizens, FOIA requests from citizens had to be construed liberally. Sure, Steve’s request was a hot mess, but the Court said Steve’s failure to reasonably describe the records he wanted went to the merits of his claim, and was not a jurisdictional issue.

The Circuit rejected the argument that the request had to reasonably describe the records sought to satisfy “exhaustion and exhaustion itself is jurisdictional,” the Circuit said, “we reject that argument as well. Significantly, FOIA does not expressly require exhaustion, much less label it jurisdictional, nor does FOIA include exhaustion in its jurisdiction-granting provision… Therefore, exhaustion cannot be considered a jurisdictional requirement.”

Yagman v. CIA, Case No. 15-55442 (9th Cir., Aug, 28, 2017)

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CALIFORNIA PWITD OFFENSE NOT CATEGORICAL, BUT NOT DRUG FELONY, EITHER

The enhancements on the catch-all federal drug offense, 21 USC § 841(b), are tough: any prior state “felony drug offense” can double the mandatory minimum, or even pop it up to life. The term “felony drug offense” is defined in 21 USC § 802(44) as “an offense that is punishable by imprisonment for more than one year… that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.”

Luis Ocampo-Estrada had a prior conviction under Cal. Health & Safety Code 11378, a drug trafficking offense. California law makes the particular illegal drug an element of the offense, and federal courts used the modified categorical approach to determine whether the crime fits within the “felony drug offense” definition.

yellowpill170905The documents filed by the government showed that Luis had pled to an 11378 offense, but did not specify exactly what kind of drug was the basis for the conviction. The government has the burden to prove a prior conviction qualifies as a felony drug offense, but here offered only the abstract of judgment and the state-court minutes from the pronouncement of judgment, neither of which answered “the central question before us: whether Ocampo pleaded guilty to a controlled-substance element of § 11378, which is encompassed by the federal “felony drug offense” definition…”

United States v. Ocampo-Estrada, Case No. 15-50471 (9th Cir., Aug. 29, 2017)

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TWO STATE STATUTES GET MATHIS TREATMENT

The 8th Circuit last week ruled that the Wisconsin felony of battery of a law enforcement officer is categorically a crime of violence.

violent170315The defendant, Patrick Jones – who had been convicted of being a felon-in-possession of a firearm under 18 USC § 921(g) and the Armed Career Criminal Act, 18 USC 924(e) – argued that the Wisconsin statute’s definition of bodily harm includes “illness,” a person could be convicted under Wisconsin Statute 940.20(2) merely for attempting to give an officer a cold. But the Circuit found that Wisconsin cases provided “no realistic basis to conclude that courts would find such low-level conduct sufficient to support a conviction under the statute.” A theoretical possibility that a state may apply its statute to conduct falling short of violent force is not enough to disqualify a conviction; only a realistic probability will do.

The 8th said “The simple fact that the word “illness” is included in the definition of bodily harm is insufficient to render the statute overbroad.”

Meanwhile, 2,500 miles northwest of Minneapolis, the 9th Circuit sitting in Anchorage, Alaska, heard a case in which Dave Geozos – also sentenced under the ACCA – argued that his conviction for armed robbery in Florida was not a crime of violence. The Circuit agreed, holding first that the fact that a robbery is committed while carrying a gun does not make the offense any more violent, because the gun can remain concealed and unused. As for robbery, while it requires more force “than the force necessary to remove the property from the person. Rather, there must be resistance by the victim that is overcome by the physical force of the offender.” However, the amount of resistance can be minimal.

The 9th held that “neither robbery, armed robbery, nor use of a firearm in the commission of a felony under Florida law is categorically a ‘violent felony’. We recognize that this holding puts us at odds with the Eleventh Circuit, which has held, post-Johnson I, that both Florida robbery and (necessarily) armed robbery are ‘violent felonies’ under the force clause.”

The split could set up a Supreme Court review, if the government decides to push the issue. Meanwhile, prisoners with Florida robbery predicates may start figuring out how to get transferred to a joint in the 9th Circuit.

Jones v. United States, Case No. 16-3458 (8th Cir., Aug. 29, 2017)

United States v. Geozos, Case No. 17-35018 (9th Cir., Aug. 15, 2017)

– Thomas L. Root

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8th Circuit Says Minnesota Riots Aren’t Necessarily Violent – Update for July 27, 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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YOU’RE A RIOT… BUT DON’T KICK MY DOG

Ryan McMillan was a felon with a gun, conduct that violates 18 USC 922(g)(1). The district court sentenced him based in part on Ryan’s prior Minnesota conviction for third degree riot. Under Sec. 2K2.1(a)(2) of the federal sentencing guidelines, that crime of violence jacked up his sentencing range to 92-115 months.

riot170727Rioting sounds to just about anyone to be a crime of violence. The district court thought so, determining that the riot conviction qualified because it had “as an element the use, attempted use, or threatened use of physical force against the person of another.” But Ryan did not think so, and earlier this week, the 8th Circuit agreed with Ryan.

kick170727Minn. Stat. Sec. 609.71, subd. 3 stated that “when three or more persons assembled disturb the public peace by an intentional act or threat of unlawful force or violence to person or property, each participant therein is guilty of riot third degree… “ A prior conviction like this one only qualifies as a crime of violence under the force clause if it “has as an element the use, attempted use, or threatened use of physical force against the person of another.”

Ever since Mathis v. United States, the courts have started their analysis of potential crimes of violence by determining whether the “categorical” or “modified categorical approach” can be used to parse the statute. If a statute provides that only one set of elements must be present to prove a violation, the courts use a “categorical” approach, asking whether the statute can theoretically be violated without employing force or the threat of force against a person. If, however, the statute has alternative elements – sort of like a Chinese restaurant menu – then it is “divisible,” and the court may look at what the defendant actually did to violate the state law, and ask itself whether the way the defendant violated the statute made it a crime of violence.

menu170727Mathis provided a whole new set of rules for a court to use in figuring out whether a statute is divisible. First, it figures out which terms in the statute set out the elements, as opposed to the means of committing the crime. Say, for example, a statute prohibits one from “purposely insulting, taunting or kicking a person or his dog, and if anyone insults, he is guilty of a third-degree felony, if he taunts, a second-degree felony, and if his kicks, a first-degree felony.” Our hypothetical jury instructions require that the jury unanimously find whether the offensive conduct was insulting, or taunting, or kicking. But because the degree of felony (and thus punishment) is the same whether the victim is a person or a dog, the jury does not have unanimously find that the injured party was Waldo as opposed to Fido.

Had Ryan’s prior offense been a violation of our hypothetical, the federal district court could use the modified categorical approach to find out from state court records whether he had been convicted of insulting or taunting (neither one violent conduct), as opposed to kicking (definitely violent conduct). However, because whether the victim is a human or canine is a single element (just alternative means of fulfilling that element, as opposed to kicking a cat or a trash can), the district court could not look at whether Ryan had used his size 12 on a dog versus on its owner. Any way you slice it, because the hypothetical offense could be committed without using force against a person, it would not be a crime of violence (as unfair to Rover as that may seem).

splithair170727In Ryan’s case, the Circuit noted that “the text of Minnesota’s third-degree riot statute does not provide helpful guidance as to whether the phrase ‘person or property’ lists alternative means or alternative elements, because there is a uniform punishment for commission of third degree riot. Two Minnesota appellate courts have held that to convict a defendant of a riot offense, the state only must show that the defendant was one of ‘three or more persons assembled’ and the assembly ‘disturb[ed] the public peace by an intentional act or threat of unlawful force or violence to person or property.'” The appellate panel said, “That statement of the second element of a riot offense suggests that a jury is not required to agree unanimously on whether a person or property was affected by the crime and therefore indicates that they are alternative means, not elements.”

The 8th also reviewed Minnesota’s model jury instructions, which direct that the phrase “person or property” is a list of alternative means, not elements. The model instructions list the same two elements of third degree riot, not separating “person” and “property.”

The government argued that because the disjunctive “or” separates “person” from “property,” those two terms are necessarily elements and not means. The Circuit disagreed, noting that “Mathis held that ‘or’ is not determinative one way or another. Indeed, we have concluded elsewhere that a list of alternatives was a list of means even though the statute used the word ‘or’ between the alternatives.”

Ryan will get resentenced with a substantially lower sentencing range.

United States v. McMillan, Case No. 16-2436 (8th Cir., July 24, 2017)

– Thomas L. Root

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