Tag Archives: residual clause

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


5th Circuit Says Defendant Need Not Prove Sentencing Under Residual Clause – Update for October 16, 2017

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


Lawrence Taylor was convicted of being a felon in possession of a gun, and received a 15-year Armed Career Criminal Act sentence because he had three prior state convictions that the judge held to be crimes of violence.

After the Supreme Court’s Johnson v. United States decision, Lawrence filed a post-conviction motion under 28 USC 2255 claiming that one of his prior offenses, a Texas conviction for injury to a child, no longer qualified as one of the three offenses needed to impose an ACCA sentence.

Up until Johnson, the ACCA definition of a crime of violence had three subsections. First, four specific offenses – burglary, arson, extortion and use of explosives – were categorically included. This subset is known as the “enumerated crimes” clause. Second, all crimes that involved use or threat of physical force against another person were included. This subset is known as the “elements” clause. Finally, a “residual clause” held that a any crime posing a substantial risk of physical harm to another was considered a crime of violence as well. Johnson held that the “residual clause” was unconstitutionally vague, because no one could reasonably tell whether an offense would qualify under it or not.

McBryde171016When Lawrence was sentenced back in 2006, the district court did not specify whether the injury-to-a-child predicate offense qualified under the residual clause or the elements clause. At the time, no courts were parsing ACCA convictions that finely. That did not prevent the District Judge – John H. McBryde, who for our money is as poor a federal district judge as can be found in America – from peremptorily deciding 10 years after the fact that the ACCA’s residual clause “did not play any role” in Lawrence’s sentencing. Judge McBryde additionally complained that Lawrence should have asked at sentencing which clause – “elements” or “residual” – the court relied on to make the injury-to-a-child prior into a predicate ACCA offense.

Last week, the 5th Circuit reversed Judge McBryde. It held Lawrence was not to blame for not objecting that the district court did not specify “elements” or “residual,” because at the time, a defendant had “no legal right to such a determination.”

win171916It turned out Lawrence had two ways to win. First, the Circuit said Texas’ injury-to-a-child offense is clearly broader than the ACCA’s elements clause, which is to say that commission of that crime does not necessarily require use or threat of physical force. Because the offense is too broad to rely on the “elements” clause, the district court must have relied the residual clause, no matter what Judge McBryde may say now, and that clause has been declared unconstitutional. So under either element, the injury-to-a-child offense does not qualify him for an ACCA enhancement.

But was it Lawrence’s fault for not objecting to the paucity of the record back in 2006? The appeals court said no. “Theoretically,” the 5th said, “the district court mistakenly could have been thinking of the elements clause when sentencing Taylor. But this court will not hold a defendant responsible for what may or may not have crossed a judge’s mind during sentencing.”

release160523Without the ACCA conviction, Lawrence’s felon-in-possession offense carries a statutory maximum sentence of 10 years. He has already served nine months more than that. Although opposing Lawrence’s position that a defendant making a Johnson claim need not prove which element a sentencing court relied on when it imposed an ACCA sentence, the government nevertheless conceded that “if this Court determines that Taylor’s current motion presents a constitutional claim… we would agree to relief.” Thus, the 5th Circuit vacated Lawrence’s ACCA enhancement and ordered his immediate release.

United States v. Taylor, Case No. 16-11384 (5th Cir., Oct. 12, 2017)

– Thomas L. Root