Tag Archives: johnson

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

– Thomas L. Root


Draco Would Be Proud of the 2nd Circuit – Update for October 10, 2017

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


bite171010Not much shocks us anymore, an unfortunate by-product of the equally unfortunate aging process, but a 2nd Circuit decision the other day made us feel like kids again… amazed, disgusted, shocked kids.

Corey Jones, a 39-year old with an IQ of 69, was in his last 5 months of an 8-year felon-in-possession conviction. While a resident of a halfway house, Corey “allegedly grumbled and was insolent to a staff member,” as two concurring judges described it. The halfway house called the U.S. Marshals to haul Corey back to prison to complete his final few months. Corey “resisted arrest,” which – again according to the dissent – did not consist of kicking or punching, or even stepping towards the marshals in a threatening manner. But when the marshals “were trying to lower his head to the ground,” which is a euphemistic way to describe throwing Corey to the floor, “the hand of the marshal who was apprehending Jones slipped down Jones’ face, and Jones bit him, causing the finger to bleed.”

The injured marshal was a tough guy, or maybe just had more common sense that the United States Attorney. He figured it was no big deal. He suffered no loss because of the injury, and – despite the notoriously generous government policies giving paid time off and God knows what else to employees injured on the job, he did not request any compensation.

Even the Assistant United States Attorney admitted that the bite was “not the most serious wound you’ll ever see.” But such a niggling technicality did not inconvenience the U.S. Attorney’s Office, which asked for and got a single-count indictment against Corey for assaulting a federal officer.

Corey was convicted after a trial. His sentencing Guidelines calculation ended up at a whopping 17½ to 20 years. The judge mercifully sentenced him to 15 years.

That’s right. Nip a marshal’s finger, get 15 years in federal prison. Draco would have been proud.

draco171010You couldn’t make this stuff up.

Corey’s sentencing range was so high because 23 years ago, juvenile Corey was convicted of 1st degree robbery in New York, and 20 years ago, he shot a guy in the leg, which netted him an assault conviction. Those two convictions – both of which occurred half a life ago for slow-witted Corey, made him a “career offender” under the Guidelines. (Without the “career offender” label, Corey was looking at 3-4 years.)

On appeal, Corey argued that New York 1st degree robbery was not a “crime of violence” under the Guidelines and that his sentence was unreasonable. Last week, the 2nd Circuit affirmed that Corey will remain in prison until he’s at least 50 years old. All for a bitten finger.

Corey argued that under New York law, 1st degree robbery could be committed using minimal force, not enough to meet the “crime of violence” standard of “physical force.” In a previous opinion, the 2nd Circuit had agreed with Corey, and further concluded that after Johnson v. United States invalidated the “residual clause,” 1st degree robbery could not be counted as a predicate for a “career offender” sentence.

The residual clause in USSG 4B1.2(a)(2) provides that a crime of violence includes any offense that ” involves conduct that presents a serious potential risk of physical injury to another.” The same language used to appear in the Armed Career Criminal Act, but Johnson held it was so vague in its meaning that application of it violated due process.

But after Corey’s sentenced was vacated, the 2nd Circuit vacated the vacation, withdrawing the opinion until the Supreme Court settled whether Johnson’s holding applied equally to the Sentencing Guidelines. After the high court decided in Beckles v. United States that it did not, the 2nd Circuit took up Corey’s case again.

Robber160229“Robbery” is one of the crimes specifically listed in the “career offender” Guideline as categorically being a crime of violence. But, Corey argued that New York’s robbery statute was broader than the generic definition. He contended the generic definition of robbery requires the use or threat of force in the process of taking the property, while the New York statute would be violated by a robber who uses or threatens force after assuming dominion of the property.

The appellate court rejected the argument. It said the generic definition of robbery, however, is broader than that. Although the common law definition confines robbery to the use or threat of force before, or simultaneous to, the assertion of dominion over property, “a majority of states have departed from the common law definition of robbery, broadening it, either statutorily or by judicial fiat, to also prohibit the peaceful assertion of dominion followed by the use or threat of force.” This broader definition, the court said, “has supplanted the common law meaning as the generic definition of robbery.”

What’s more, the appellate court said, “We have little difficulty concluding that the ‘least of the acts’ of first-degree robbery satisfies the definition of the Guidelines’ residual clause. The least of the acts, both sides agree, is “forcibly stealing property” while “armed with a deadly weapon.” Plainly, a robber who forcibly steals property from a person or from his immediate vicinity, while armed with a deadly weapon, engages in “conduct that presents a serious potential risk of physical injury to another.”

draconian170725Because the sentence fell below the advisory Guideline range, the 2nd held that it was substantively reasonable. The concurring judges agreed that because the court was bound to consider Corey a “career offender” – even though the current version of the Guidelines has dropped the “residual clause” – the sentence was not substantively unreasonable. However, they termed the “result to be close to absurd.” If Corey’s appeal had been a little bit earlier, the reversal would not have been withdrawn. “This means that, as a result of timing quirks (his appeal to us was slightly too late, leading to our decision to pull our earlier opinion), Jones receives a very, very high sentence in contrast with almost every similarly situated defendant.”

United States v. Jones, Case No. 15-1518-cr (2nd Cir., October 5, 2017)

– Thomas L. Root


3rd Circuit Expands Second-and-Successive 2255 Rights – Update for September 12, 2017

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


We reported several weeks ago that the 4th Circuit had joined the 6th in dodging the lingering question of whether Johnson v. United States applied to mandatory Guidelines sentences. Now, the 3rd Circuit has stepped into the breach.

violence151213The Armed Career Criminal Act provides that people with three prior convictions for serious drug offenses or crimes of violence face stiff mandatory minimum sentences. A crime of violence is defined as one of four specific offenses – burglary, extortion, arson or use of explosives – or any other crime that has as an element the actual or threatened use of physical force.

Up to two years ago, the ACCA’s definition has a third subcategory known as the residual clause. A crime of violence also included any crime that carried a substantial risk of physical harm to another. In Johnson, the Supreme Court ruled that this residual clause was so vague that the average person could not tell what offenses counted and what did not. Such a vague statute violates a defendant’s 5th Amendment due process rights. Because Johnson meant that a number of people serving ACCA sentences were in fact innocent of their offense, the Supreme Court held that it was retroactive, that is, that people already convicted could apply to courts with a 28 USC 2255 motion to obtain relief.

At the time, the ACCA definition of “crime of violence” appeared elsewhere in the criminal code as well as in the Guidelines, where it was used in several sections, especially in Chapter 4 to label someone a “career offender.” A “career offender” under the Guidelines faces dramatically increased sentencing ranges. Naturally, defendants serving long career offender sentences promptly filed for relief as well, despite the fact that Johnson only encompassed the ACCA, and not the Guidelines.

limitone170912Every federal criminal defendant is entitled to file one and only one 2255 motion after conviction, that filing being due within a year of the conviction becoming final. In order to file a second 2255, the defendant must request permission from the Court of Appeals first. Permission is granted only under limited circumstances, where there is newly discovered evidence that convincingly proves innocence, or where a new rule of constitutional law – like the Johnson holding – is made retroactive.

Soon after Johnson was decided in June 2015, Tom Hoffner asked the 3rd Circuit for permission to file a second 2255. He argued that Johnson was the new rule of constitutional law that should apply to his career offender sentence, which was handed down in 2000. Back then, judges were required by law to follow the Guidelines, which only changed in 2005 when the Supreme Court declared mandatory Guidelines unconstitutional in United States v. Booker.

zax170912Remember Dr. Seuss’s story of a North-Going Zax and a South-Going Zax, who run into each other? Both are trying to get to their desired locations, but neither will move out of the way to let the other one pass. While both stand facing each other, unmoving, the world continues on moving and time passes by.

Tom’s case was something like that. The statute directs courts of appeal to decide applications to file second 2255s within 30 days. Holding that the 30-day language in 28 USC 2244 is merely “advisory,” the 3rd Circuit required over two years to decide whether Tom should be allowed to file a second 2255.

While Tom patiently waited, toe to toe with the government like the two Zaxes, the world did not stand still. First, the Supreme Court decided in Welch v. United States that the Johnson holding should be retroactive. Then, the Supreme decided last March in Beckles v. United States that Johnson would not be extended to people who were career offenders under the advisory Guidelines, leaving open the question of whether Johnson could be extended to people like Tom who had become career offenders under the mandatory Guidelines.

After that, two cases that many thought would decide whether Johnson extended to mandatory Guidelines people the 6th Circuit in United States v. Raybon and the 4th Circuit in United States v. Brown – ended up turning on the decidedly procedural question of whether the 2255s had been filed on time.

rely170912Finally, Tom’s time came last Thursday. The 3rd Circuit handed down 25 pages of careful thought-out analysis on the issue, concluding that while Johnson did not necessarily address Tom’s precise issue, 2244(b) only looks at whether the movant’s claim “relies” on the new rule of constitutional law. Nothing mandates that it be precisely the same point that the movant wants to claim. Thus, if Johnson is a new rule of constitutional law applying to language in the ACCA, and Tom “relies” on that rule in his argument that the same vagueness infirmity afflicts a guideline used to sentence him, that reliance is enough to come within the statute.

The Circuit held that in analyzing 2244 motions, the court needed to lean toward grant.

The context of Section 2244(b)… supports interpreting “relies” permissibly and flexibly… As explained above, Congress has mandated that the “grant or denial of an authorization… shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.” 28 U.S.C. § 2244(b)(3)(E). This creates an asymmetry in the impact of our gatekeeping decision on a particular case… On one hand, if we erroneously deny authorization, the petitioner “will have no opportunity to appeal or seek rehearing.” On the other hand, “if we err in granting certification, ample opportunity for correcting that error will remain.” The district court will have the opportunity to determine anew whether the petitioner has “shown that the claim satisfies the requirements of this section,” and whether the habeas petition has merit… In turn, we may review the district court’s decision.

It’s not a done deal that Tom will win the 2255 motion he now has permission to file (although you could be forgiven for reading it like the 3rd thinks he will). But the Circuit seems pretty convinced that there’s some merit in his claim.

The significance of this decision, which the 3rd Circuit issued as precedential, is its thoroughness in discussing the 2244 process. In a world where most decisions on second-and-successive 2255s are three-page affairs, and where the statutory limitations on certiorari mean that the Supreme Court will never be able to opine on the matter, this decision is as much guidance as any court has ever given on 2244 practice.

In re Hoffner, Case No. 15-2883 (3rd Circuit, Sept. 7, 2017)

– Thomas L. Root


4th Circuit Hands Down a ‘Catch-22’ in Brown Case – Update for August 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.


catch22cvr170823Those of us approaching social security age lament that the younger among us (and that’s getting to be just about everyone) no longer recalls Joseph Heller’s classic satirical novel about allied bomber pilots in World War II named Catch-22.

The expression “Catch-22” has since entered the lexicon, referring to a type of unsolvable logic puzzle sometimes called a double bind. According to the novel, people who were crazy were not obligated to fly missions, but anyone who applied to stop flying was showing a rational concern for his safety and was, therefore, sane and had to fly.

It’s not a perfect analogy, but the 4th Circuit came pretty close to defining a “Catch-22” on Monday. Thilo Brown had been sentenced as a career offender back in the bad old days, when the Guidelines were mandatory. He had been enhanced as a “career offender” for prior crimes of violence, among those being a prior state conviction for resisting arrest. After the Supreme Court held in Johnson v. United States that the residual clause of the Armed Career Criminal Act’s definition of a “crime of violence” was unconstitutionally vague, people who had been sentenced under the ACCA because of priors like Thilo’s won substantial sentence relief.

Thilo’s problem was that he wasn’t sentenced under the ACCA, despite the fact that the “career offender” Guidelines used the identical, word-for-word language defining a “crime of violence” that the Johnson court threw out of the ACCA. But he dutifully filed a post-conviction motion under 28 USC 2255 asking that his “career offender” status be vacated because of Johnson.

The government argued vociferously against Thilo, maintaining that the Guidelines are different that the ACCA, and that the same language that is unconstitutional in one is hunky dory in the other. The Supreme Court took up the question last spring in Beckles v. United States, and agreed that because the Guidelines merely recommended to the judge how to sentence offenders, if they were a little too vague, there’s no harm done.

But the Beckles Court was careful to explain that it was only deciding the case in front of it, in which the prisoner had been sentenced after the Guidelines became advisory in 2005. The Supreme Court said it was not considering whether the vague “crime of violence” language might violate a prisoner’s due process rights if used to sentence someone under the mandatory Guidelines.

catch22vis170823So Thilo pursued his 2255 motion, arguing that Johnson is a new right recognized by the Supreme Court which does extend to mandatory Guidelines people like himself. This is an important argument, because Thilo’s 2255 motion fell within the time deadline set out in 28 USC 2255(f)(3) only if it was filed within a year of the right he was asserting being recognized by the Supreme Court, and being made retroactively applicable to cases on collateral review.

Everyone had high hopes for Brown. Countless other lower court cases were stayed awaiting the decision. In fact, a 6th Circuit decision last week cited the pending Brown decision as being the one to resolve the question that went unanswered in Beckles: is the “career offender” residual clause unconstitutional when applied to mandatory Guidelines offenders?

The 4th Circuit has now ruled, and it has dodged the issue slickly. The Circuit, in a 2-1 decision, held that Brown’s 2255 petition was untimely.

The panel said the right under which an inmate proceeds has to be a right recognized by the Supreme Court. This means, the Circuit said, that only the Supreme Court can recognize the right. There is no derivative authority. That is, a lower court cannot recognize a right it may believe is implicit in analogous holdings by the Supreme Court.

vaguenes160516The Supreme Court recognized in Johnson that the residual clause of the Armed Career Criminal Act was unconstitutionally vague (a due process violation, because everyone has a 5th Amendment right to understand what conduct is or is not unlawful). However, this recognition does not mean that the right was recognized for “career offenders” sentenced under Guidelines using the same language.

The 4th noted that the Supreme Court said in Beckles that it was not deciding Johnson’s applicability to mandatory Guidelines career offender cases. This merely proved, according to the Brown court, that the Supremes had definitely not yet recognized the right being asserted by Thilo.

Here’s the Catch-22 with the 4th Circuit’s approach. First, accept that no one who has a career offender sentence under the mandatory Guidelines could have possibly been sentenced after 2004, because it would not have been final when United States v. Booker was issued in January 2005, and would have gotten the benefit of a resentencing.

If a “career offender” Guidelines sentence was final on December 31, 2004, a timely 28 USC 2255 motion had to be filed by December 31, 2005. But as of that time, the right to not be sentenced for vague residual-clause offenses was still more than nine years in the future. No 2255 raising the unconstitutionality of the residual clause had any realistic chance of success until the end of June 2015, when Johnson was handed down.

But if the Brown decision is right, in order for such a 2255 to be successful, it had to be timely under 2255(f)(3), because no other subsection would have made such a filing timely.

Except that it could not possibly be timely under (f)(3). The identical “residual clause” language found to be unconstitutional in Johnson could be tested under the advisory Guidelines, because at the time Johnson was decided, people were still being sentenced as career offenders under the Guidelines. Someone could test the language in a 2255 motion filed within a year of finality. But no one could test whether the language remained constitutional if applied to a mandatory Guidelines sentence, because no timely 2255 could be filed challenging its application to a sentence that necessarily had to have been imposed more than nine years before.

Thus, if the 4th Circuit is right in Brown, to assert a constitutional right just recently defined by the Supreme Court, a mandatory Guidelines prisoner would have to have filed the petition challenging it a decade ago, when the right did not exist and he or she would be laughed out of court.

It’s not quite a Catch-22, but it certainly carries the same level of arbitrariness and frustration.

The dissenting judge argued persuasively that the right recognized by the Supreme Court does not have to be the precise application being sought by the petitioner. Instead, alleging a rational and supportable extension of the newly-recognized to a similar fact situation is enough. Certainly, it is more efficient, and is reasonably calculated to do justice.

And should that not count for something?

United States v. Brown, Case No. 16-7056 (4th Cir., August 21, 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


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


A Trio of Significant Decisions – Update for February 27, 2017

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


Antwon Jenkins was convicted of kidnapping and carrying a firearm during a crime of violence. He appealed, claiming the government had violated the plea agreement. He got 188 months for the kidnapping and another 120 months for the 18 USC 924(c) charge.

kidnap170227Before the appeal was decided, Johnson v. United States was decided by the Supreme Court, holding the residual clause of the Armed Career Criminal Act was unconstitutionally vague. Antwon amended his appeal to claim that the 924(c) conviction was void, because kidnapping could only be a crime of violence under the residual clause, making the conviction unconstitutional under Johnson.

Last Friday, the 7th Circuit agreed. It found that the first element of kidnapping – unlawfully seizing, confining, inveigling, decoying, kidnapping, abducting, or carrying away — does not necessarily require the use of force. The government argued that because the second element, holding for ransom or reward or otherwise, must be unlawful, it necessarily requires at a minimum the threat of physical force, but the Circuit disagreed. “Holding can be accomplished without physical force. For example, a perpetrator could lure his victim into a room and lock the victim inside against his or her will. This would satisfy the holding element of kidnapping under 18 USC § 1201(a) without using, threatening to use, or attempting to use physical force.”

The decision brings the 7th Circuit into harmony with other circuits that have held that similar crimes of false imprisonment and kidnapping by deception do not have physical force as an element.”

Antwon had not raised the issue in the trial court, but the 7th found that despite this, he had met the stringent FRCrimP 52(b) “plain error” standard for bringing it up for the first time on appeal. The Court said, “A 120‐month prison sentence for a nonexistent crime undermines the fairness of the judicial proceedings and cannot stand.”

United States v. Jenkins, Case No. 14-2898 (7th Cir., Feb. 24, 2017)


For state prisoners who have exhausted their habeas corpus claims, 28 USC § 2254 permits filing the claims in federal court. Such cases are not easy to win, because federal courts will go with the state court’s decision unless it’s absolutely unreasonable. Even filing the cases on time is tough.

Mostly, 2254 does not affect federal prisoners, but a decision last Friday by the 11th Circuit delivers a stark message that federal inmate litigants should take to heart: if your lawyer drops your case without telling you, that’s one thing. But if he or she is just stupid – even really, really stupid – you’re bound by counsel’s mistakes.

Ernest Cadet, a Florida prisoner, was denied habeas corpus relief in state court. Under the convoluted rules that apply to 2254 motions, his one-year clock then started running for filing in federal court. It stopped with only 5 days left when he filed for review with the Florida Supreme Court.

But even an average lawyer should know how to count...
But even an average lawyer should know how to count…

While his Supreme Court petition was pending, Ernie hired Attorney Goodman, a guy who may have been a “good man” but was a lousy attorney. When the Supreme Court turned Ernie’s motion down, the inmate told Goodman they didn’t have much time to file a 2254. He said inmates in the law library warned him that he had to act fast. Goodwin replied he had read the statute, and Ernie had a full year, asking “who are you going to believe, the real lawyer or the jailhouse lawyer?”

The correct answer was “the jailhouse lawyer.” Goodwin filed the motion within the time he thought Ernie had, but it really about a year late. The federal district court threw out the petition as untimely. Ernie appealed.

The 11th Circuit upheld the dismissal. Inmates love to talk about “equitable tolling” as an end run around statutory deadlines, but the plain fact, the Circuit said, is that equitable tolling is an extraordinary remedy “limited to rare and exceptional circumstances and typically applied sparingly.” To warrant equitable tolling, a prisoner has to show he has been pursuing his rights diligently but that some extraordinary circumstance prevented timely filing.

lawyermistake170227The Court said attorney miscalculation of a filing deadline “is simply not sufficient to warrant equitable tolling, particularly in the post-conviction context where prisoners have no constitutional right to counsel.” The relevant distinction should be between attorney negligence – which is “constructively attributable to the client” – and “attorney misconduct that is not constructively attributable” to the client because counsel has abandoned the prisoner. A lawyer’s “near-total failure to communicate with petitioner or to respond to petitioner’s many inquiries and requests over a period of several years” might be abandonment. “Common sense,” Justice Alito concluded in a prior Supreme Court case, “dictates that a litigant cannot be held constructively responsible for the conduct of an attorney who is not operating as his agent in any meaningful sense of that word.”

The problem in this case is that Goodman never abandoned Ernie. He kept communicating, but arrogantly dismissed the possibility Ernie and his jailhouse lawyer friends might be right without doing as much as five minutes’ worth of research to see whether they might be.

Ernie “acted with reasonable diligence,” the Court said, “but the reasonable diligence and extraordinary circumstance requirements are not blended factors; they are separate elements, both of which must be met before there can be any equitable tolling.” Just because an agent (the lawyer) is grossly negligent does not mean he had abandoned his principal (the client).

Goodman was stupid, but he did not disappear on Ernie. The 11th held that “because the attorney is the prisoner’s agent, and under well-settled principles of agency law, the principal bears the risk of negligent conduct on the part of his agent… as a result, when a petitioner’s post-conviction attorney misses a filing deadline, the petitioner is bound by the oversight.

Cadet v. State of Florida DOC, Case No. 12-14518 (11th Cir., Feb. 24, 2017)


In a remarkable decision handed down by the 4th Circuit last Thursday, a deaf inmate’s claim that the BOP violated his 8th Amendment and 1st Amendment rights by denying him a sign-language interpreter and videophone link.

hearme170227The inmate complained that he was denied an interpreter to assist at medical appointments, and to enable him to take a class required because of the nature of his offense. He also said communications with the outside was limited to an antiquated TTY phone device, which he could only use when a BOP staff person trained in TTY was available to supervise. Often, he said, he was denied TTY access because of staff shortages or just because of arbitrary reasons, and he could never use the TTY on nights or weekends.

The Circuit reversed a district court decision that threw out all of the claims, saying the inmate did not have to show he had been harmed by the 8th Amendment deliberate indifference, just that there was a substantial risk of harm. As for the 1st Amendment claim, the Court swept away BOP claims of the security risks of a videophone, holding that the Bureau could easily monitor videophone calls just as it did TTY calls.

The BOP tried to derail the case by promising to provide interpreters in the future, stating that inmates would be provided “with a qualified interpreter… if necessary for effective communication during religious ceremonies or programs.” That was good enough for the district court, but the 4th swept the promises aside: “It is well established that a defendant’s voluntary cessation of a challenged practice moots an action only if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur,” the Court said. “Even if we ignore the equivocation inherent in the promise to provide interpreters ‘if necessary’ the statement amounts to little more than a ‘bald assertion’ of future compliance, which is insufficient to meet BOP’s burden.”

Heyer v. Bureau of Prisons, Case No. 15-6826 (4th Cir., Feb. 23, 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