Tag Archives: robbery

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

Texas Robbery Is Kinder and Gentler No Longer – Update for April 16, 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.

5TH CIRCUIT FLIPS, DEFENDANT WINNER IS NOW A LOSER

Last June, we reported that the 5th Circuit had ruled that a conviction for Texas robbery is not a crime of violence under the Armed Career Criminal Act.

Latroy Burris, who was convicted of being a felon-in-possession of a gun under 18 USC § 922(g)(1), was sentenced under the ACCA due to prior convictions for Texas robbery and Texas aggravated robbery. (The ACCA provides that a defendant with three prior convictions for crimes of violence or serious drug offenses must receive a sentence of 15 years to life instead of 922(g)’s usual zero-to-ten years.) Last year, Latroy argued that Texas robbery under § 29.02(a) of the Texas Penal Code was not a crime of violence, and the 5th Circuit agreed.

Afterwards, the government moved for rehearing en banc, and the Court withdrew its Burris decision pending the en banc court’s decision in United States v. Reyes-Contreras, and the Supreme Court decision in Stokeling v. United States, which held that Florida robbery qualified as a crime of violence under the ACCA.crimeofviolence190416

The 5th has now held that Sec 29.02(a)(1) is a crime of violence. It requires that a defendant “cause bodily injury.” Whether “caus[ing] bodily injury” requires the use of physical force under federal law “involves two issues,” the Court said, “(1) the relationship between causing bodily injury and the use of physical force and (2) the degree of force necessary to qualify as a violent felony under the ACCA’s elements clause. The en banc court resolved the first issue in Reyes-Contreras, and the Supreme Court resolved the second issue in Stokeling.”

The Court also concluded that Sec. 29.02(a)(2), which outlaws “robbery-by-threat,” has as an element the attempted or threatened use of physical force. That subsection criminalizes “intentionally or knowingly threaten[ing] or plac[ing] another in fear of imminent bodily injury or death.” The Court said that because Sec. 29.02(a)(1), robbery-by-injury, requires the use of physical force, it necessarily followed that 29.02(a)(2), “threatening to cause imminent bodily injury,” also requires the “attempted use, or threatened use of physical force.”

Latroy Burris’ ACCA sentence was upheld.

United States v. Burris, 2019 U.S.App.LEXIS 10606 (5th Cir. Apr. 10, 2019)

– Thomas L. Root

Kinder and Gentler Robbery Not ACCA ‘Violent’ – Update for June 25, 2018

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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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5TH CIRCUIT HOLDS TEXAS SIMPLE ROBBERY IS NOT CRIME OF VIOLENCE

The 5th Circuit last week ruled that a conviction for Texas robbery is not a crime of violence for purposes of the Armed Career Criminal Act.

BettyWhiteACCA180503Latroy Burris, convicted of being a felon-in-possession of a gun, was sentenced under the ACCA for priors of drug distribution, robbery and aggravated robbery. He conceded the drug conviction counted for ACCA purposes, and the 5th Circuit last year said aggravated robbery was a crime of violence. But Latroy argued that Texas robbery under § 29.02(a) of the Texas Penal Code was not a crime of violence.

Texas robbery requires that in the course of committing theft, a person intentionally, knowingly, or recklessly cause bodily injury to another; or intentionally or knowingly threaten or place someone in fear of imminent bodily injury or death.

The Circuit agreed with Latroy, finding that Texas law interprets “bodily injury” expansively, encompassing even “relatively minor physical contacts so long as they constitute more than mere offensive touching.” The Circuit said the Supreme Court decision on “physical force,” Curtis Johnson v. United States, suggests that causing “relatively minor physical contacts” does not entail the “violent force” required to make the state robbery offense a “crime of violence.”

Latroy will be resentenced without the ACCA 15-year mandatory minimum.

United States v. Burris, Case No. 17-10478 (5th Cir. June 18, 2018)

– Thomas L. Root

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A Kinder, Gentler Robbery – Update for February 14, 2018

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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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ALABAMA ROBBERY BECOME NONVIOLENT

violence160110The 9th Circuit threw out Donnie Lee Walton’s conviction under the Armed Career Criminal Act last week, holding that Alabama first-degree robbery under Criminal Code § 13A-8-41 was not a violent felony under the ACCA, because the force required to support a conviction for 3rd-degree robbery (in the same statute) is not sufficiently violent to render that crime a violent felony under the ACCA, and the Government waived any argument that the statute is divisible.

At the same time, Donnie’s panel held that United States v. Dixon, a 9th Circuit case holding that California robbery is not a violent felony under the ACCA’s force clause because it can be committed where force is only negligently used and because the statute is indivisible), requires a holding that California 2nd-degree robbery under Penal Code § 211 is not violent, either.

United States v. Walton, Case No. 15-50358 (9th Cir., Feb. 1, 2018)

– Thomas L. Root

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