Tag Archives: crime of violence

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

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.



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


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

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


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,

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


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

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


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


Monday Morning Odds and Ends… – Update for August 28, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


Jim and his girlfriend “Sweetie” had a brief fling a few years ago. The allure wore off for Sweetie pretty quickly. Now sick of Jim, she moved a thousand miles away.

persist170828Jim did not take rejection well. He began sending emails, texts and Facebook messages demanding that Sweetie apologize to him for breaking it off.

When she refused, Jim used social media to portray Sweetie as a stripper and prostitute, sending the lies to her new employer and generally spreading the meme to the four corners of the Internet. He told Sweetie and her family he would keep it up until she apologized. Sweetie found it pretty upsetting.

Jim was charged with interstate stalking, which he moved to dismiss on the grounds he had a 1st Amendment right to say whatever he wanted to. Problem is that the law is a bit more complex. It holds that “speech integral to criminal conduct” is not protected by the 1st Amendment.

stalk170828The district court said Jim was committing extortion under 18 USC 875(d), making prosecution of him for interstate stalking permissible despite his asserted 1st Amendment right.

Jim argued that he was not extorting Sweetie, because extortion required that one person threaten to injure the reputation of another with the intent to extort a “thing of value” from that person. Jim said all he wanted was an apology, and, after all, what’s an apology worth, anyway?

Last week, the 8th Circuit upheld his conviction. The Court found that a “thing of value” includes intangibles. The focus, the Court said, is on whether the defendant thinks what is demanded is of value. Here, regardless of how much the apology might really have been worth, it was clearly a “thing of value” to Jim. Thus, he was extorting Sweetie, and his speck thus was integral to a crime.

run170828Meanwhile, a couple hundred miles away from Jim and Sweetie, Rod had struck up an Internet friendship with a 17-year girl in another state. The young girlfriend, whom we’ll simply call “Honeybunch,” lived in an unhappy home environment and was aching to get out of there. Rod sent her money for a bus ticket to come to live with him several states away in Texas (where the romance, he conceded, would have included some “honey” from Honeybunch in the form of consensual and loving sex).

The plan fell apart before Honeybunch could even get as far as the state line. Honeybunch’s family found her missing, and panicked. When they found Rod’s phone number among things Honeybunch had left behind, they called him. Rod counseled the girl by phone to go back home, which she did.

That was not enough for the family, whose panic quickly turned to ire. They convinced the feds to prosecute Rod under the Mann Act, for knowingly transporting someone under 18 in interstate commerce “with intent that the individual engage in… sexual activity for which any person can be charged with a criminal offense.” The age of consent in Honeybunch’s home state was 18, but Rod argued that any sex would have occurred in Texas, where the age of consent was 17. Rod argued the 1st Amendment protected his communications with Honeybunch, because he did not urge her to do anything that would have been a crime where he proposed doing it.

hook170828Last week, the 8th Circuit denied Rod’s 2255 motion, too. Sure, it agreed, the age of consent in Texas is 17 years old. But it found another Texas statute that made it a crime to “employ, authorize, or induce a child younger than 18 years of age to engage in sexual conduct,” including “sexual contact, actual or simulated sexual intercourse.” Rod was right that Texas allowed him to have sex with a 17-year old, but Texas nevertheless made it a crime for him to say or do anything that might convince the 17-year old to have sex with him.

So in Texas, you can have sex with a 17-year old if you just lie there. But if you’re at all interested, you could end up with 10 years in federal prison. Charles Dickens was right: “‘If the law supposes that,’ said Mr. Bumble, squeezing his hat emphatically in both hands, ‘the law is a ass – a idiot’.”

United States v. Hobgood, Case No. 16-3778 (8th Cir., Aug. 22, 2017)

United States v. Goodwin, Case No. 16-1669 (8th Cir., Aug. 25, 2017)


Since the Supreme Court decided in the 2010 Curtis Johnson v. United States case that “force” meant “violent force—that is, force capable of causing physical pain or injury to another person,” circuits have been determining whether force was “violent” by asking whether it was likely to cause pain. Trust the 11th Circuit to upend that logical approach with a 67-page en banc decision holding that everyone is wrong: violent force only needs to be “capable” of causing physical pain. Degree of force no longer matters: only the effect does.

The ruling came last Friday in a reversal of an earlier 3-judge decision that Florida’s felony battery offense is categorically not a violent crime.

violence160110Five dissenting judges point out that Florida felony battery “criminalizes a mere touching that happens to cause great bodily harm… A mere touching is not violent—it does not involve a substantial degree of force. A tap on a jogger’s shoulder that happens to cause the jogger to suffer a concussion is still just a tap.” The dissenters complaint that “the Majority’s decision cannot be reconciled with Curtis Johnson… Johnson explain[s] over the course of several pages that “physical force” refers to a threshold degree of force. But the Majority, reading this lengthy analysis out of Curtis Johnson, creates a new test for “physical force” that disregards degree of force. Although the Supreme Court has cautioned against reading a statement from one of its opinions “in isolation” rather than “alongside” the rest of the opinion, the Majority does exactly that.”

United States v. Vail-Bailon, Case No. 15-1035 (11th Cir., Aug, 25, 2017)



We have written before about the Circuit split on whether a prisoner can use a 28 USC 2241 to challenge his or her guilt when there has been an intervening change in statute. Nine circuits say the saving clause of 28 USC 2255(e) permits it. Two, the 10th and 11th, do not.

A case challenging the 11th Circuit’s ban is awaiting grant of review by the Supreme Court, and some heavyweight legal talent is lining up to urge the issue on the high court. Meanwhile, the 3rd Circuit last week recognized the circuit split while reaffirming its commitment to maintaining 2241 as a safety valve.

violent160620Gary Bruce was involved in a rather ugly robbery/murder years ago in Tennessee. Among other crimes, he was convicted of witness tampering murder, for killing to “prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense.” Gary’s jury was not instructed at all about whether it had to find Gary thought the witnesses might communicate with a federal officer. At the time, the law said that “no state of mind need be proved with respect to the circumstance… that the law enforcement officer is an officer or employee of the Federal Government.”

Later, the Supreme Court held that the statute required that the jury find that it was “reasonably likely under the circumstances that (in the absence of the killing) at least one of the relevant communications would have been made to a federal officer.” This was a new rule of substantive law not dictated by precedent existing at the time Gary was convicted, that narrowed the scope of the statute.

The Court said it permitted a 2241 when two conditions are satisfied: First, a prisoner must assert a “claim of actual innocence’ on the theory that… an intervening Supreme Court decision” has changed the statutory case law in a way that applies retroactively in cases on collateral review. Second, the prisoner must have had no earlier opportunity to challenge the conviction with a 2255 since the intervening Supreme Court decision issued.

Some of the people who say this really are...
‘Actual innocence’ is a standard all circuits apply to 2241 motions…

Some other circuits allowing 2241s have stricter standards, requiring that prisoners show that circuit precedent foreclosed the issue at the time the 2255 was due. Here, Gary’s brother Bob was locked up in a different circuit that had such a rule. The 3rd noted the unfairness of the disparate treatment, noting that while Congress enacted Sec. 2255 to “alleviate the inefficiencies that attend 2241’s… rules, now those difficulties have returned, though in a new form. And so they will remain, at least until Congress or the Supreme Court speaks on the matter.”

Bruce v. Warden, Case No. 14-4284 (3rd Cir., Aug. 22, 2017)

McCarthan v. Goodwill Industries, Petition for Writ of Certiorari, Case No. 17-85 (Supreme Ct., filed July 17, 2017)

– Thomas L. Root


6th Circuit Holds Mandatory Guidelines Johnson Issue Not Timely – Update for August 17, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


split170818Back in medieval times (before 2005), when Guidelines sentencing ranges were mandatory, Jerome Raybon was convicted in federal court of drug distribution. His prior state convictions qualified him under the Guidelines as a “career offender,” thus mandating a much more severe sentence.

One of those prior convictions was the Michigan offense of assault with intent to do great bodily harm. On its face, such an offense sounds like a crime of violence, which is what it had to be to help qualify Jerome as a career offender. But after the Supreme Court handed down Johnson v. United States in 2015, Jerome filed a petition under 28 USC 2255, arguing that the assault conviction was no longer a crime of violence, and his “career offender” status was incorrect.

Johnson151213Of course, Johnson – which held that the part of the “crime of violence” definition that included any offense that carried a significance of injury was unconstitutionally vague – applied to the Armed Career Criminal Act. Two other means by which a prior conviction could be considered a crime of violence were not affected by the decision. Also, the definition of “crime of violence” in Chapter 4B of the Sentencing Guidelines, although identical, was never considered by the Johnson court.

Unsurprisingly, a subsequent case – United States v. Beckles – found its way to the Supreme Court in short order, asking whether Johnson should apply to Guidelines career offender sentences. Last spring, the Supreme Court said it did not, at least not to “career offenders” sentenced under the advisory Guidelines. The Court pointedly said that its decision did not extend to any old sentences under the mandatory Guidelines that might be knocking around.

For their first 16 years of operation, as everyone knows, the Sentencing Guidelines were mandatory, and a judge had to sentence within the specified range except in the rarest of circumstances, when the court could justify a “departure” up or down from the range. Even then, the departure was strictly regulated by the Guidelines.

However, in 2005, the Supreme Court held in United States v. Booker that mandatory sentencing guidelines were unconstitutional. The Court struck the requirement that the Guidelines be followed from the statute, and the Guidelines have been advisory ever since.

So we have split a hair in Johnson, and split that split hair in Beckles. It was inevitable that a case like Jerome’s would arise.

splitB170818The district court said that Jerome’s 2255 motion was untimely, because his argument against the Michigan assault conviction was not that Johnson made it inapplicable, but rather that another case addressing one of the other means of defining a crime as violent – which had been handed down in 2010 – was what disqualified the assault.

Jerome appealed. Earlier this week, the 6th Circuit agreed with the district court, but for a very different reason.

Jerome’s problem, the Court said, was that for his 2255 motion to be timely, it had to be filed within one year of “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” 28 USC 2255(f)(3). But due to the Supreme Court’s repeated hair-splitting, the precise issue – whether Johnson applied to an old mandatory Guidelines sentence – has not been decided. In fact, the Supreme Court explicitly said in Beckles that it was not deciding the question of whether Johnson applied to Jerome’s situation.

violent160620Because of that, Jerome’s petition was untimely, and it had to be dismissed. While you would think that settled the matter, the 6th Circuit decided to address his argument anyway, and quickly concluded that, of course, Michigan’s “assault with intent to do great bodily harm” statute remained a crime of violence under the definition even if Johnson did apply. No surprise there.

Whether Johnson will offer relief to any of the 7% or so of federal inmates serving the old mandatory Guidelines sentences is being litigated in several Circuits. The closest case to decision is probably the 4th Circuit case, United States v. Brown, Case No. 16-7056, argued May 11, 2017.

United States v. Raybon, Case No. 16-2522 (6th Cir., Aug. 14, 2017)

– Thomas L. Root


Legal Shotgun Misses in Missouri ‘Crime of Violence’ Case – Update for March 23, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


The first appellate casualty relying in part on the Supreme Court’s March 6th Beckles decision was reported this week.

gunb160201Steve Hudson pleaded guilty to felon-in-possession of a gun under in 18 U.S.C. 922(g). The district court enhanced Steve’s sentence under USSG 2K2.1(a)(4)(A) based on Steve having a prior conviction for a “crime of violence,” that being a conviction for unlawful use of a firearm under Missouri Rev. Stat. § 571.030.1(4). The district court relied on an 8th Circuit 2009 holding in United States v. Pulliam, that a violation of that Missouri statute is a “violent felony” for purposes of the Armed Career Criminal Act.

In Pulliam, the 8th found the same Missouri statute to be a crime of violence under the ACCA, because the crime fell under the Force Clause, that is, it “has as an element the use, attempted use, or threatened use of physical force against the person of another.” Pulliam held that “[i]t goes without saying that displaying an operational weapon before another in an angry or threatening manner” fits the Force Clause to a “T.”

In arguing that Pulliam should be overruled, Steve took a shotgun approach (appropriate for a gun case, perhaps), arguing Pulliam has been superseded by recent Supreme Court decisions in Johnson v. United States, Curtis Johnson v. United States, Descamps v. United States, and Mathis v. United States.

violence160110The 8th Circuit swept aside his arguments. In Johnson, the Court held that a portion of the definition of “violent felony” in the ACCA known as the Residual Clause. Relying on Beckles, the Circuit held Johnson did not apply: “Although the definition of “crime of violence” under the guidelines until recently included an identically-worded residual clause, the guidelines are not subject to constitutional vagueness challenges.”

More to the point, the Circuit noted, Pulliam was a Force Clause case, so that even without Beckles, Johnson would not have applied.

The Circuit agreed with Steve that the Curtis Johnson case addressed the Force Clause, holding that the Clause “requires the use, attempted use, or threatened use of ‘violent force—that is, force capable of causing physical pain or injury to another person’.” But even so, the Missouri statute fit under the Force Clause: Steve was convicted of “exhibiting a weapon that is readily capable of lethal use in an angry or threatening manner.” “Lethal” the Court said, means “capable of causing death.” Therefore, the Court said, “threatening use of such a weapon necessarily involves a threatened use of violent force, not merely an unwanted physical touching. Pulliam, therefore, is consistent with Curtis Johnson.”

anger170322Steve’s final attack was that because the Missouri statute would support a conviction if the gun had been displayed in either a threatening or an angry manner, the statute set forth alternative elements for committing an offense, and categorically the crime was too broad to fit in the Force Clause. His argument, apparently, was that Mathis prohibited the court from figuring out whether the crime had been committed in an “angry” manner or in a “threatening” manner.

The 8th Circuit rejected the argument. Pulliam, it said, “concluded that both means of committing the offense (an angry display or a threatening display) involve the requisite threatened use of force.” Thus, no matter how Steve was convicted – “angry” or “threatening” – the Missouri crime counted as a crime of violence to enhance his federal sentence.

United States v. Hudson, Case No, 15-3744 (Mar. 21, 2017)

– Thomas L. Root


Some Legal Kibbles – Update for March 20, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

kibbles170320Today, we offer a few kibbles of legal interest that have been cluttering our dog pound for the last few days…


There is some indication that the Trump Administration may be expanding violent crime enforcement activities, a category which Attorney General Jeffrey Sessions believes must include gun and drug offenses. In keeping with the President’s fixation on violent crime, Sessions last week ordered United States Attorneys to work with with local and state prosecutors “to investigate, prosecute and deter the most violent offenders.”

Sessions’ directive said, “federal prosecutors should coordinate with state and local counterparts to identify the venue (federal or state) that best ensures an immediate and appropriate penalty for these violent offenders.”

Attorney General Jeffrey Sessions
Attorney General Jeffrey Sessions

In keeping with the new emphasis on violent crime, Sessions has appointed Steve Cook, chief of the Criminal Division for the U. S. Attorney’s Office for the Eastern District of Tennessee, and one of last year’s most vocal opponents of sentencing reform, as associate deputy attorney general with a mandate to focus on violent crime. Cook told a newspaper last year, “When you put criminals in jail, crime goes down. That’s what incapacitation is designed to do, and it works.” He called the idea that most offenders in federal prisons are nonviolent drug pushers is a myth.

violent160620Some critics the emphasis on violent crime as federal encroachment. “An expanded federal criminal justice agenda comprised of federal-state-local task forces targeting violent offenses and coupled with tougher federal sentences would be a substantial change in practice and a step in the wrong direction,” says Ryan King, senior fellow at the Urban Institute Justice Policy Center.

Tougher sentences could quickly reverse declines in BOP inmate population, especially in higher-level joints. According to a new Prison Policy Initiative report, 50% of the 189,000 federal prison inmates were convicted of drug offenses. Violent-crime convictions account for just 7% of the federal total.

The Crime Report, At ‘critical moment’ under Trump, report gives hard facts on incarceration (Mar. 14, 2017)

The Trace, Meet the hardliner Jeff Sessions picked to carry out his violent crime crackdown (Mar. 15, 2017)


The U.S. Sentencing Commission last week released its 21st annual Sourcebook of Federal Sentencing Statistics, covering fiscal year.

stats170320The current-year book is available online as an interactive book that defies downloading. It contains a wealth of sentencing stats broken down in over 100 tables (as well as sentencing date by federal district, another 97 tables).

Slogging through the Sourcebook takes awhile, but it yields a lot of fascinating data. Of special interest:

•   the number of cases ending with guilty pleas remained steady at 97%

•   offenses included 32% drug, 30% immigration, white-collar (including fraud) 13%, guns 11%, child porn 3%.

•   14% of people challenging their sentences on direct appeal won reversal, but only 5% ended up with a better sentence.

•  two out of three resentencings resulted from the 2-level reduction for drug offenses, Rule 35(b) reductions for helping the government were 11% of resentencings, and 10% were from wins on 2255 motions.

• continuing the pathetic performance on compassionate release, the courts granted a total of 51 inmates sentence reduction (a mere 0.4% of all resentencings).

•   in new sentencings last year, 49% were within the Guidelines range, a two-percent increase over last year. Only 2% of sentences were above the range, while 19% were below the range for reasons other than government motion. About 20% of sentences were reduced because the defendant helped the government, and another 9% were cut for early disposition of an immigration case.

U.S. Sentencing Commission, Sourcebook of Federal Sentencing Statistics 2016  (Mar. 12, 2017)


Like 97% of other federal defendants, Jim Kirkland made a deal with the government to plead guilty. In exchange, the government agreed to recommend the bottom of the guidelines range at sentencing.

But when Jim stood in front of the judge, the government went crazy on him, not just failing to recommend the bottom, but instead pushing for the very top, and bringing in live testimony of how terrible a few of his prior state crimes had been. The probation officer recommended the dead center of the sentencing range, and the judge gave it to him, saying that was what he had had in mind all along.

betray170320Jim’s sentencing lawyer must have been snoring too loudly to object, but on appeal, Jim raised the government’s plea breach. The AUSA admitted it was a plain breach, but argued the error did not affect Jim’s substantial rights or seriously affect “the fairness, integrity, or public reputation of judicial proceedings,” two of the standard Jim had to meet before proving F.R.Crim.P. 52(b) “plain error.” The government’s rationale was that the district judge said he said the 300-month midpoint sentence “frankly, happens to coincide with my own independent decision,” and that was sufficient evidence that the court would have imposed the same exact sentence even if the AUSA had recommended the bottom of the guidelines.

Last week, the 5th Circuit agreed with Jim. Clearly unhappy at the government’s breach of its promise, the Court said “the government did not merely recommend a high-end sentence but also strongly argued and presented testimony in support of that recommendation, recounting in great detail the graphic and… explicit facts involved in Kirkland’s offense of conviction and a prior offense and emphasizing his criminal history and his violation of the conditions of his supervised release. The testimony and argument by the Government filled more than nine pages of the sentencing transcript. Therefore, the district court may have been influenced not only by the Government’s recommendation, but also by Government’s passionate emphasis of aggravating factors in support of that recommendation, which brought public safety concerns to the forefront.”

When the government breaches a plea agreement, a defendant may either ask the court to order specific performance of the plea agreement and resentencing before a different judge, or withdrawal of the guilty plea. Jim asked for and got resentencing before a new judge.

United States v. Kirkland, Case No. 16-40255 (Mar. 17, 2017)

– Thomas L. Root



All Physical Force is Not “Physical Force” – Update for Wednesday, March 15, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


With all of the recent news about Beckles v. United States, where the Supreme Court held that constitutional vagueness cannot apply to Guidelines sentences, it’s easy to forget that there is still a burgeoning legal industry in weighing whether crimes once thought to be violent for Armed Career Criminal Act cases are still violent.

violent170315The ACCA enhances the sentence of a felon caught with a gun if he (or in rare cases, she) has three prior qualifying convictions. The convictions may be serious drug offenses or “crimes of violence.” A “crime of violence” has traditionally been (1) burglary, arson, extortion or use of explosives (the “Enumerated Clause”); (2) a crime that involves use or attempt to use physical force (the “Force Clause”); or (3) a crime that involves significant risk that physical force may be used (the “Residual Clause”).

In 2015, Johnson v. United States held that the Residual Clause was unconstitutionally vague. In the wake of the decision – which was held by the Supreme Court to retroactively apply to people already convicted of ACCA offenses – prisoners have been returning to court to escape harsh ACCA sentences (which start at 15 years) where their predicate offenses no longer qualify.

A substantial procedural problem for a lot of the defendants is that the district courts often did not bother to explain under which ACCA clause their prior crimes fit. It hardly seemed to matter: if someone had been convicted of robbery, it seemed to fit under the Force Clause or the Residual Clause, so it hardly mattered to the outcome which clause it was on which the sentencing judge relied.

After Johnson, however, it suddenly made a big difference. It certainly did to Bobby Winston, who got 275 months back on 2002 for a felon-in-possession charge, where one of the predicate crimes was Virginia common-law robbery. The Johnson retroactivity gave prisoners a one-year window to file motions under 28 U.S.C. Sec. 2255 seeking relief if Residual Clause cases had been used to bootstrap their convictions into ACCA sentences. Bobby filed, arguing that the Virginia common-law robbery could no longer be a predicate for his lengthy sentence.

buzzsaw70315Bobby ran straight into a procedural buzzsaw. The government argued that his 2255 motion had to be dismissed., because the district court had never said Virginia common-law robbery was a Residual Clause offense. The government contended it was a Force Clause offense, which was consistent with a 22-year old 4th Circuit decision that the Virginia crime employed physical force.

Monday, the 4th Circuit handed Bobby a win. First, the Circuit rejected the government’s procedural roadblock, holding that which the sentencing record did not establish that the Residual Clause served as the basis for concluding that Bobby’s common-law robbery conviction was a violent felony, “nothing in the law requires a court to specify which clause… it relied upon in imposing a sentence.” The appellate panel said, “We will not penalize a movant for a court’s discretionary choice not to specify under which clause of Section 924(e)(2)(B) an offense qualified as a violent felony. Thus, imposing the burden on movants urged by the government in the present case would result in selective application of the new rule of constitutional law announced in Johnson, violating the principle of treating similarly situated defendants the same.”

But is Virginia common-law robbery a violent crime? The 4th noted that since its 1995 decision that the offense qualified, the Supreme Court had ruled that the Force Clause only applied to “violent force… capable of causing physical pain or injury to another person.” Applying that standard, the Circuit said, requires that the federal court adhere to how state courts apply the offense, focusing on “the “minimum conduct criminalized by state law, including any conduct giving rise to a realistic probability, not a theoretical possibility that a state would apply the law and uphold a conviction based on such conduct.”

Common-law robbery or a simple purse-snatching?
Common-law robbery or a simple purse-snatching?

Virginia courts have held that commission of common-law robbery by violence requires only a “slight” degree of violence, “for anything which calls out resistance is sufficient.” The violence used to commit common-law robbery “does not need to be great or cause any actual harm to the victim.” Thus, in one case, when a defendant grabbed a woman’s purse with force enough to spin her around but not cause her to fall, the force was enough for common-law robbery, but was not violent force within the U.S. Supreme Court’s definition.

Therefore, the 4th said, Virginia common-law robbery was no longer a crime of violence, and it will not support an ACCA conviction.

United States v. Winston, Case No. 16-7252 (4th Cir., March 13, 2017)

– Thomas L. Root


Does the Beckles Cloud Have a Silver Lining? – Update for March 7, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


In a decision long awaited by federal inmates, the Supreme Court yesterday held that unlike criminal statutes, the federal sentencing guidelines can never be void for vagueness. But in so ruling, the Court may have weakened the guidelines rather than strengthened them.

silverlining170307The history: In 2015, the Supreme Court ruled in Johnson v. United States that a part of the definition of “crime of violence” found in the Armed Career Criminal Act – the “residual clause” that swept up offenses with a significant chance that someone might get hurt as being violent – was unconstitutionally vague. That ruling made sense: crimes such as drunk driving and not stopping for the police were being called “violent,” and on the strength of such dubious definitions, the law was making 51-month sentences into 15-year bits.

Unfortunately, the definition of “crime of violence” (along with the “residual clause”) was not just an ACCA provision. Instead, the same definition had metastasized throughout the criminal code and guidelines. Under the legal principle that quid est ius gander anserem condimentum (“what’s sauce for the goose is sauce for the gander”), inmates whose sentences had been shot into low-earth orbit by the guidelines’ “career offender” provision immediately began arguing that their sentences were based on an unconstitutionally vague “residual clause” as well.

sauce170307The United States Sentencing Commission lent some support to the argument. After Johnson, the Commission changed the guidelines’ “crime of violence” definition to comport with Johnson. But a few courts of appeal held that guidelines are different from statutes, and could never be void for vagueness.

Yesterday’s Decision: Beckles v. United States was such a case. Travis Beckles had been sentenced to double prison time for possessing a sawed-off shotgun under the “career offender” guideline. If the ACCA “crime of violence” definition was unintelligible, Travis argued, so was the guidelines definition that matched it word for word.

Yesterday, the Supreme Court disagreed. Because guidelines are merely advisory and judges hold the final authority on sentences, the Court held, defendants cannot successfully argue that a sentencing guideline is so vaguely worded as to violate the constitutional right to due process. Laws that “fix” the sentencing range can be challenged in ways that “advisory guidelines” simply cannot.

The Fallout: Beckles hobbles what has up to now been a well-honed defense tool, while exposing contradictions between the guidelines in theory and in practice in a way that almost guarantees further litigation.

Not if it's in the guidelines...
Not if it’s in the guidelines…

One former federal prosecutor notes, “Saying those guidelines can’t be challenged for vagueness takes away a tool for review and puts the onus on the Sentencing Commission to keep going back and looking at how they are being applied.”

Up to 2005, judges had been required by law to apply the Guidelines in sentencing. But in United States v. Booker, the Supreme Court decided mandatory guidelines the Sentencing Reform Act of 1984 created were unconstitutional. Instead of throwing the whole law out, the court decided the guidelines should be considered advisory.

The broad opinion Justice Clarence Thomas wrote in Beckles built on Booker, differentiates between sentencing provisions in laws like the ACCA and the guidelines, which are subject to district courts’ discretion.

A former associate deputy attorney general who is now a law professor said the Beckles decision is a symptom of the hybrid situation that flowed from Booker: “You live in this weird world where the guidelines are both advisory and highly influential.”

Justice Sonia Sotomayor concurred in Beckles with a scathing rejection of the majority’s reasoning. She argued that while the guidelines may be “advisory” in name, in practice judges often consider them a default, meaning they should get the same treatment as a law under the constitution. Ironically, this is the same argument that helped carry the day in a 2011 decision, Peugh v. United States, which held the guidelines could be subject to an ex post facto analysis.

Sotomayor argued that Booker tweaked the guidelines’s status but left them at the heart of the sentencing consideration — or as the court put it last year in Molina-Martinez v. United States, the “basis” for the sentence. “It follows from the central role that the guidelines play at sentencing,” Sotomayor wrote, “that they should be susceptible to vagueness challenges under the due process clause,” she wrote.

sweetbrown170307Another law professor who filed an amicus brief in Beckles argued yesterday that the majority’s ruling ignores the “messy reality” of federal sentencing. “It reads as though the federal sentencing guidelines are just advice for district court judges that they can take or leave as they want, but that’s just not true,” she said.

An optimistic footnote to Beckles: Justice Kennedy’s short concurring opinion may hint at another option for defendants. He wrote that while the legal tests for constitutional vagueness are ill fitted to the sentencing guidelines, a defendant might still run into a sentence that is “so arbitrary that it implicates constitutional concerns.” Kennedy said, “In that instance, a litigant might use the word vague in a general sense — that is to say, imprecise or unclear — in trying to establish that the sentencing decision was flawed.”

Most notably, Beckles underscores to district court judges that the guidelines are not just purely advisory, but occupy a place in the law that is considerably less that statute, and perhaps much less than regulation as well. “It sends a signal to district court judges and reinforces the message that is already out there that these guidelines are purely advisory,” one lawyer said.

That may embolden courts to deviate from guidelines to an even greater extent than they have before. Courts have repeatedly held that a within-guidelines sentence is “presumptively reasonable.” If those guidelines can be so vague as to defy fairness – too vague to survive a constitutional analysis were they statutes – how long can such a reasonableness presumption endure?

Beckles v. United States, Case No. 15–8544 (March 6, 2017)

– Thomas L. Root


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

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


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