Litigating Crime-of-Violence Issues: Johnson, Beckles, and Beyond
Litigating Crime-of-Violence Issues:
Johnson
,
Beckles
, and Where We
Go From Here
May 31, 2017
May 31, 2017
New Orleans, Louisiana
New Orleans, Louisiana
Overview
Overview
I.
Pre-
Johnson
world
II.
Summary of
Johnson
III.
Implications:
A.
Armed Career Criminal Act
B.
Career Offender
C.
U.S.S.G. §§ 2K2.1, 7B1.1
D.
18 U.S.C. § 16
E.
18 U.S.C. § 924(c)
Pre-
Pre-
Johnson
Johnson
Residual Clause Analysis
Residual Clause Analysis
Inquiry under
Inquiry under
James, Begay, Chambers, Sykes
James, Begay, Chambers, Sykes
:
:
categorical
categorical
approach + ordinary case
approach + ordinary case
Do
Do
elements
elements
of offense
of offense
in ordinary case
in ordinary case
:
:
a.
a.
present risk of injury at similar level to
present risk of injury at similar level to
enumerated offenses (generic burglary,
enumerated offenses (generic burglary,
arson, extortion, use of explosives)+
arson, extortion, use of explosives)+
b.
b.
require purposeful, violent, and
require purposeful, violent, and
aggressive conduct?
aggressive conduct?
Johnson:
Johnson:
Residual Clause Void for Vagueness
Residual Clause Void for Vagueness
Reasons turn on uncertainty of
Reasons turn on uncertainty of
ordinary case inquiry:
ordinary case inquiry:
1.
1.
Grave uncertainty about how to estimate risk
Grave uncertainty about how to estimate risk
because no one knows how to determine what
because no one knows how to determine what
the
the
ordinary case
ordinary case
of a crime is:
of a crime is:
Gut instinct, common
Gut instinct, common
sense, statistics, google search – not sufficient guides.
sense, statistics, google search – not sufficient guides.
2.
2.
Grave uncertainty about how to determine quantum of
Grave uncertainty about how to determine quantum of
risk (i.e., how much risk) because quantum of risk is
risk (i.e., how much risk) because quantum of risk is
tied to
tied to
ordinary case
ordinary case
. Again, back to
. Again, back to
ordinary case
ordinary case
problem.
problem.
Denies fair notice
Denies fair notice
and
and
invites arbitrary enforcement
invites arbitrary enforcement
Johnson
Johnson
:
:
Expressly overrules precedent
Expressly overrules precedent
James
James
(2007):
(2007):
Florida attempted burglary qualifies as a
Florida attempted burglary qualifies as a
“violent felony” under the residual clause.
“violent felony” under the residual clause.
Sykes
Sykes
(2011):
(2011):
Indiana offense of vehicular flight from an
Indiana offense of vehicular flight from an
officer qualifies as a “violent felony” under the residual clause.
officer qualifies as a “violent felony” under the residual clause.
What’s left of the ACCA?
What’s left of the ACCA?
ACCA “violent felony” =
ACCA “violent felony” =
1.
1.
Force Clause
Force Clause
: Has an element the use, attempted use,
: Has an element the use, attempted use,
or threatened use of physical force against a person, or
or threatened use of physical force against a person, or
2.
2.
Enumerated offenses
Enumerated offenses
: burglary, arson, extortion,
: burglary, arson, extortion,
use
use
of explosives (determined by generic definition).
of explosives (determined by generic definition).
Categorical approach applies:
Categorical approach applies:
If “
If “
most innocent conduct
most innocent conduct
” or
” or
“
“
full range of conduct
full range of conduct
” covered by the
” covered by the
elements
elements
of the statute
of the statute
does not match these definitions, prior cannot qualify as
does not match these definitions, prior cannot qualify as
“violent felony.”
“violent felony.”
United States v. Torres-Miguel
United States v. Torres-Miguel
, 701 F.3d
, 701 F.3d
165 (4
165 (4
th
th
Cir. 2012).
Cir. 2012).
ACCA
ACCA
Force Clause:
Force Clause:
Be Careful
Be Careful
Almost Nothing Counts As
Almost Nothing Counts As
“Violent Felony”
“Violent Felony”
Fighting Against the Force Clause
Fighting Against the Force Clause
Four Key Issues to look for:
Four Key Issues to look for:
Requires “violent force,” not “unwanted touching”
Requires “violent force,” not “unwanted touching”
Force must be directed against a person, not
Force must be directed against a person, not
property
property
Requires the use of force, not merely the causation
Requires the use of force, not merely the causation
of physical injury.
of physical injury.
Force must be used intentionally, not recklessly or
Force must be used intentionally, not recklessly or
negligently
negligently
Practice Point:
Practice Point:
Many of the best force-clause cases
Many of the best force-clause cases
have been litigated under U.S.S.G. 2L1.2.
have been litigated under U.S.S.G. 2L1.2.
Issue 1: “Violent Force” Requirement
Issue 1: “Violent Force” Requirement
“Violent Force” means
“Violent Force” means
“strong physical force”
“strong physical force”
that is
that is
“capable of causing physical injury or pain” to another
“capable of causing physical injury or pain” to another
person.
person.
Johnson v. United States
Johnson v. United States
, 559 U.S. 133 (2010)
, 559 U.S. 133 (2010)
Examples of “unwanted touching” or “offensive touching”:
Examples of “unwanted touching” or “offensive touching”:
Federal assault under 18 U.S.C. § 111(a).
Federal assault under 18 U.S.C. § 111(a).
•
United States v. Bell
United States v. Bell
, 158 F. Supp.3d 906 (N.D. Cal. 2016) (collecting federal appellate cases);
, 158 F. Supp.3d 906 (N.D. Cal. 2016) (collecting federal appellate cases);
United States v. Ama
United States v. Ama
,__ Fed. Appx. __, 2017 WL 1325247 (10
,__ Fed. Appx. __, 2017 WL 1325247 (10
th
th
Cir. 2017) (same).
Cir. 2017) (same).
Assault or Battery.
Assault or Battery.
•
United States v. Johnson
United States v. Johnson
, 559 U.S. 133 (2010) (Florida);
, 559 U.S. 133 (2010) (Florida);
United States v. Holloway
United States v. Holloway
, 630 F.3d 252
, 630 F.3d 252
(1
(1
st
st
Cir. 2011)(Massachusetts simple assault and battery);
Cir. 2011)(Massachusetts simple assault and battery);
United States v. Lattanzio,
United States v. Lattanzio,
__F.
__F.
Supp.3d__, 2017 WL 519241 (D. Mass. 2017) (Massachusetts assault and battery with a
Supp.3d__, 2017 WL 519241 (D. Mass. 2017) (Massachusetts assault and battery with a
dangerous weapon);
dangerous weapon);
United States v. Fish
United States v. Fish
, 758 F.3d 1 (1
, 758 F.3d 1 (1
st
st
Cir. 2014) (same);
Cir. 2014) (same);
United States v.
United States v.
Royal,
Royal,
731 F.3d 333 (4
731 F.3d 333 (4
th
th
Cir. 2013) (Maryland second degree assault).
Cir. 2013) (Maryland second degree assault).
Resisting arrest.
Resisting arrest.
•
United States v. Aparico-Soria,
United States v. Aparico-Soria,
740 F.3d 152 (4
740 F.3d 152 (4
th
th
Cir. 2014) (en banc) (Maryland);
Cir. 2014) (en banc) (Maryland);
United States v.
United States v.
Flores-Cordero
Flores-Cordero
, 723 F.3d 1085 (9th Cir. 2013) (Arizona);
, 723 F.3d 1085 (9th Cir. 2013) (Arizona);
United States v. Almenas
United States v. Almenas
, 553 F.3d 27
, 553 F.3d 27
(1st Cir. 2009) (Massachusetts);
(1st Cir. 2009) (Massachusetts);
United States v. Lee
United States v. Lee
, 821 F.3d 1124 (9
, 821 F.3d 1124 (9
th
th
Cir. 2016) (California)
Cir. 2016) (California)
Battery on a law enforcement officer; Battery on pregnant woman.
Battery on a law enforcement officer; Battery on pregnant woman.
•
United States v. Carthorne
United States v. Carthorne
, 726 F.3d 503 )(4th Cir. 2013) (Virginia);
, 726 F.3d 503 )(4th Cir. 2013) (Virginia);
United States v. Braun
United States v. Braun
, 801
, 801
F.3d 1301 (11
F.3d 1301 (11
th
th
Cir. 2015) (Florida).
Cir. 2015) (Florida).
Issue 1: “Violent Force” Requirement
Issue 1: “Violent Force” Requirement
Don’t be deceived by labels:
Don’t be deceived by labels:
Sometimes offense will have element labeled
Sometimes offense will have element labeled
“force or
“force or
violence,”
violence,”
but that does not mean it has element of ACCA “violent force.”
but that does not mean it has element of ACCA “violent force.”
Examples:
Examples:
Federal robbery of government property
Federal robbery of government property
.
.
United States v. Bell
United States v. Bell
,
,
158 F. Supp.3d
158 F. Supp.3d
906 (N.D. Cal. 2016)
906 (N.D. Cal. 2016)
(“violence” can be accomplished by de minimis force).
(“violence” can be accomplished by de minimis force).
Virginia robbery.
Virginia robbery.
United States v. Winston
United States v. Winston
, __ F.3d__, 2017 WL 977031 (4
, __ F.3d__, 2017 WL 977031 (4
th
th
Cir.
Cir.
2017)
2017)
(
“violence” can be accomplished by de minimis force – i.e, “physical
jerking”).
Missouri second degree robbery.
Missouri second degree robbery.
United States v. Bell,
United States v. Bell,
840 F.3d 963 (8
840 F.3d 963 (8
th
th
Cir.
Cir.
2016)
2016)
(“force” can be accomplished by any physical contact, even a nudge).
(“force” can be accomplished by any physical contact, even a nudge).
North Carolina robbery.
North Carolina robbery.
United States v. Gardner
United States v. Gardner
, 823 F.3d 793 (4
, 823 F.3d 793 (4
th
th
Cir. 2016)
Cir. 2016)
(“force” can be accomplished by de minimis force, i.e., pushing someone to the
(“force” can be accomplished by de minimis force, i.e., pushing someone to the
ground).
ground).
Massachusetts armed robbery
Massachusetts armed robbery
.
.
United States v. Parnell
United States v. Parnell
,
,
818 F.3d 974 (9
818 F.3d 974 (9
th
th
Cir.
Cir.
2016)
2016)
(“force and violence” can be accomplished by de minimis force);
(“force and violence” can be accomplished by de minimis force);
United
United
States v. Lattanzio
States v. Lattanzio
, __ F.Supp.3d__, 2017 WL 519241 (D. Mass. 2017).
, __ F.Supp.3d__, 2017 WL 519241 (D. Mass. 2017).
Puerto Rico robbery.
Puerto Rico robbery.
United States v. Castro-Vasquez
United States v. Castro-Vasquez
,
,
802 F.3d 28 (1
802 F.3d 28 (1
st
st
Cir.
Cir.
2015)
2015)
(“violence or intimidation” can be accomplished by “slightest use of
(“violence or intimidation” can be accomplished by “slightest use of
force”).
force”).
Issue 1: “Violent Force” Requirement
Issue 1: “Violent Force” Requirement
Don’t be deceived by labels:
Don’t be deceived by labels:
Sometimes offense will have element labeled
Sometimes offense will have element labeled
“force or
“force or
violence,”
violence,”
but that does not mean it has element of ACCA “violent force.”
but that does not mean it has element of ACCA “violent force.”
Examples:
Examples:
Arkansas robbery.
Arkansas robbery.
United States v. Eason
United States v. Eason
, 829 F.3d
, 829 F.3d
963 (8
963 (8
th
th
Cir. 2016)
Cir. 2016)
(court could not
(court could not
conclude that degree of physical force required under offense requires violent force).
conclude that degree of physical force required under offense requires violent force).
Maine robbery.
Maine robbery.
United States v. Mulkern
United States v. Mulkern
, __ F.3d__, 2017 WL 1363791 (1
, __ F.3d__, 2017 WL 1363791 (1
st
st
Cir. 2017)
Cir. 2017)
(“any physical force suffices to satisfy physical force element”).
(“any physical force suffices to satisfy physical force element”).
Kansas robbery.
Kansas robbery.
United States v. Nicholas
United States v. Nicholas
, __ Fed. Appx.__, 2017 WL 1429788 (10
, __ Fed. Appx.__, 2017 WL 1429788 (10
th
th
Cir.
Cir.
2017)
2017)
(“violence” element of robbery includes purse snatching).
(“violence” element of robbery includes purse snatching).
Wisconsin/Oregon//New York/Nevada/Penn. robberies.
Wisconsin/Oregon//New York/Nevada/Penn. robberies.
United States v. Robinson
United States v. Robinson
,
,
Case
Case
No. 16-C-156 (D. Wisc. May 24, 2016)
No. 16-C-156 (D. Wisc. May 24, 2016)
;
;
United States v. Dunlap
United States v. Dunlap
,
,
162 F. Supp.3d 1106 (D.
162 F. Supp.3d 1106 (D.
Ore. 2016);
Ore. 2016);
United States v. Batista
United States v. Batista
, 2017 WL 2105692 (W. D. Va. May 11, 2017);
, 2017 WL 2105692 (W. D. Va. May 11, 2017);
United
United
States v. Johnson
States v. Johnson
, __ F. Supp.3d __, 2016 WL 6684211 (E.D.N.Y. Nov. 12, 2016);
, __ F. Supp.3d __, 2016 WL 6684211 (E.D.N.Y. Nov. 12, 2016);
United
United
States v. Avery
States v. Avery
, 2017 WL 29667 (D. Nev. Jan. 3, 2017);
, 2017 WL 29667 (D. Nev. Jan. 3, 2017);
Thrower v. United States
Thrower v. United States
, __ F.
, __ F.
Supp.3d__, 2017 WL 1102871 (E.D.N.Y. 2017);
Supp.3d__, 2017 WL 1102871 (E.D.N.Y. 2017);
United States v. Singleton,
United States v. Singleton,
2017 WL
2017 WL
1508955 (E. D. Pa. April 26, 2017).
1508955 (E. D. Pa. April 26, 2017).
Maryland robbery
Maryland robbery
.
.
United States v. Martin
United States v. Martin
,
,
Case No. 14-4779 (4
Case No. 14-4779 (4
th
th
Cir. Sept. 16, 2016)
Cir. Sept. 16, 2016)
(upon gov’t.’s concession, court found it is not a “violent felony” but no reasoning given);
(upon gov’t.’s concession, court found it is not a “violent felony” but no reasoning given);
United States v. Wilson
United States v. Wilson
, __ F. Supp.3d__, 2017 WL 1383644 (D.D.C. 2017).
, __ F. Supp.3d__, 2017 WL 1383644 (D.D.C. 2017).
D.C. robbery.
D.C. robbery.
In re Sealed Case
In re Sealed Case
,
,
548 F.3d 1085 (D.C. 2008
548 F.3d 1085 (D.C. 2008
) (“force or violence” defined
) (“force or violence” defined
by statute to include purse-snatching offenses: “sudden or stealthy seizure or snatching”).
by statute to include purse-snatching offenses: “sudden or stealthy seizure or snatching”).
•
Note: same argument excludes similar offenses, such as “larceny from the person”
Note: same argument excludes similar offenses, such as “larceny from the person”
or “pickpocketing”
or “pickpocketing”
Issue 1: “Violent Force” Requirement
Issue 1: “Violent Force” Requirement
Kidnapping / False Imprisonment/Hostage Taking: “physical restraint,” detention,” “holding,”
“mental restraint” does not automatically equal “physical force.”
Delgado-Hernandez v. Holder
, 697 F.3d 1125 (9th 2012)
(California kidnapping does not satisfy force clause
because restraint can be accomplished through “any means of instilling fear” even through deception).
United States v. Moreno-Florean
United States v. Moreno-Florean
, 542 F.3d 445, 450-52 (5th Cir. 2008)
, 542 F.3d 445, 450-52 (5th Cir. 2008)
(determining that California
(determining that California
kidnapping statute did not include physical force as an
kidnapping statute did not include physical force as an
element
element
because the crime could be accomplished
because the crime could be accomplished
through non-physical means).
through non-physical means).
United States v. Gonzalez-Perez
, 472 F.3d 1158 (11th Cir. 2012)
(
Florida false imprisonment does not
satisfy force clause because restraint can be accomplished “secretly”).
United States v. Sherbondy
, 865 F.2d 996 (9th Cir. 1988)
(Model Penal Code definition of kidnapping does
not require force because it covers kidnapping by trickery or deceit).
United States v. Marquez-Lobos
, 697 F.3d 759 (9
th
Cir. 2012)
(Arizona kidnapping , which includes abduction
of minor, requires lack of consent by lawful abduction but no use or threat of force).
United States v. Phelps
, 17 F.3d 1334 (10
th
Cir. 1994)
(Missouri kidnapping does not require force or threat
of force).
United States v. Cervantes-Blanco
, 594 F.3d 576 (5
th
Cir. 2007)
(Colorado kidnapping does not require force
or threat of force because can be accomplished by deceit).
United States v. Williams,
110 F.3d 50 (9
th
Cir. 1997)
(Oregon kidnapping does not require force or threat
of force because it can be committed by deception).
United States v. Najera-Mendoza
, 683 F.3d 627 (5
th
Cir. 2012)
(Oklahoma kidnapping can be committed by
de minimis force; therefore, not “crime of violence” under force clause).
United States v. Martinez-Romero
, 817 F.3d 917 (5
th
Cir. 2016)
(Florida kidnapping does not require force or
threat of force).
Issue 1: “Violent Force” Requirement
Issue 1: “Violent Force” Requirement
Kidnapping/False Imprisonment/Hostage Taking: “physical
restraint,” detention,” “holding” does not automatically equal
“physical force.”
Federal kidnapping:
Federal kidnapping:
United States v. Jenkins
United States v. Jenkins
, 849 F.3d 390 (7
, 849 F.3d 390 (7
th
th
Cir. 2017)
Cir. 2017)
(federal kidnapping does not have a force
(federal kidnapping does not have a force
requirement because it can be accomplished by deception).
requirement because it can be accomplished by deception).
United States v. Bustos,
2016 WL 6821853 (E.D. Cal. Nov. 17, 2016)
(federal kidnapping does not
have element of violent force because it can be accomplished by trickery or deceit);
United States v.
Rubio,
2016 WL 6821854 (E. D. Cal. Nov. 17, 2016)
(same).
United States v. Hughes
United States v. Hughes
, 716 F.2d 234, 239 (4th Cir. 1983)
, 716 F.2d 234, 239 (4th Cir. 1983)
(noting that a kidnapper may
(noting that a kidnapper may
“use[]
“use[]
deceit and trickery to accomplish his purpose rather than overt force”);
deceit and trickery to accomplish his purpose rather than overt force”);
see also United States v.
see also United States v.
Wills
Wills
, 234 F.3d 174, 177 (4th Cir. 2000)
, 234 F.3d 174, 177 (4th Cir. 2000)
(“By its terms, § 1201(a) criminalizes kidnappings
(“By its terms, § 1201(a) criminalizes kidnappings
accomplished through physical, forcible means and also by nonphysical, nonforcible means.”);
accomplished through physical, forcible means and also by nonphysical, nonforcible means.”);
see
see
Torres v. Lynch
Torres v. Lynch
, 136 S. Ct. 1619 (2016)
, 136 S. Ct. 1619 (2016)
(suggesting that kidnapping is not cv).
(suggesting that kidnapping is not cv).
Federal hostage taking:
Federal hostage taking:
United States v. Carrion-Caliz
, 944 F.2d 220 (5
th
Cir. 1991);
United States v. Si Lu Tian
, 339 F.3d
143 (2d Cir. 2003)
(hostage taking can be accomplished by deception).
Hernandez v. United States,
2016 WL 8078311 (S. D. Fla. 2016)
(federal hostage taking requires no
use or threatened use of force);
Juan Becerra-Perez v. United States
, CR 04-0235 (C.D. Cal. Feb. 15,
2017)
(same).
Issue 1: “Violent Force” Requirement
Issue 1: “Violent Force” Requirement
Sex offenses based on absence of legally valid consent do not
Sex offenses based on absence of legally valid consent do not
qualify under the force clause.
qualify under the force clause.
•
Statutory Rape
Statutory Rape
United States v. Rangel-Castaneda
United States v. Rangel-Castaneda
, 709 F.3d 373 (4th Cir.
, 709 F.3d 373 (4th Cir.
2013)
2013)
(Tennessee aggravated statutory rape);
(Tennessee aggravated statutory rape);
United States
United States
v. Daye
v. Daye
, 571 F.3d 225 (2d Cir. 2009)
, 571 F.3d 225 (2d Cir. 2009)
(Vermont statutory
(Vermont statutory
rape);
rape);
United States v. Madrid
United States v. Madrid
, 805 F.3d 1204 (10
, 805 F.3d 1204 (10
th
th
Cir.
Cir.
2015)
2015)
(Texas aggravated sexual assault of a child).
(Texas aggravated sexual assault of a child).
•
Involuntary or Incompetent Consent
Involuntary or Incompetent Consent
United States v. Shell
United States v. Shell
, 789 F.3d 335 (4th Cir. 2015)
, 789 F.3d 335 (4th Cir. 2015)
(North
(North
Carolina second-degree rape of victim who is “mentally
Carolina second-degree rape of victim who is “mentally
disabled, mentally incapacitated, or physically helpless”).
disabled, mentally incapacitated, or physically helpless”).
If “force” is an element, look for state case law extending the provision to
If “force” is an element, look for state case law extending the provision to
“constructive force” (i.e., mental compulsion – not physical force)
“constructive force” (i.e., mental compulsion – not physical force)
situations.
situations.
Issue 1: “Violent Force” Requirement
Issue 1: “Violent Force” Requirement
Offenses with a weapon element do not qualify if no active use
Offenses with a weapon element do not qualify if no active use
required of weapon:
required of weapon:
United States v. Parnell
United States v. Parnell
, 818 F.3d 974 (9
, 818 F.3d 974 (9
th
th
Cir. 2016)
Cir. 2016)
(armed
(armed
robbery not a crime of violence because weapon need not be
robbery not a crime of violence because weapon need not be
“fired, employed to effectuate robbery, used in a threatening
“fired, employed to effectuate robbery, used in a threatening
manner, or even generally or openly displayed”).
manner, or even generally or openly displayed”).
United States v. Werle
United States v. Werle
, 815 F.3d 614 (9
, 815 F.3d 614 (9
th
th
Cir. 2016)
Cir. 2016)
(Washington
(Washington
riot statute not a crime of violence because weapon need not be
riot statute not a crime of violence because weapon need not be
used but just “readily available”).
used but just “readily available”).
Issue 2: Property vs. Person
Issue 2: Property vs. Person
Force, even violent, against
Force, even violent, against
property
property
does not qualify under ACCA force
does not qualify under ACCA force
clause.
clause.
Examples:
Examples:
Hobbs Act robbery/ federal bank robbery includes threatening to injure one’s property. That
Hobbs Act robbery/ federal bank robbery includes threatening to injure one’s property. That
should disqualify Hobbs Act robbery/bank robbery from qualifying under the force clause:
should disqualify Hobbs Act robbery/bank robbery from qualifying under the force clause:
United States v. Giddins,
United States v. Giddins,
Case No. 15-4039
Case No. 15-4039
(issue pending in the 4
(issue pending in the 4
th
th
Cir. as to whether federal bank
Cir. as to whether federal bank
robbery qualifies as “crime of violence” under force clause because it can be violated by extortionate means
robbery qualifies as “crime of violence” under force clause because it can be violated by extortionate means
including threat of economic harm
including threat of economic harm
);
);
United States v. Hunt,
United States v. Hunt,
Case No. 16-4521
Case No. 16-4521
(issue pending in 4
(issue pending in 4
th
th
Cir. as
Cir. as
to whether federal Hobbs Act robbery qualifies as a “crime of violence” for same reasons).
to whether federal Hobbs Act robbery qualifies as a “crime of violence” for same reasons).
Washington state first and second degree robbery includes threatening injury to property; therefore,
Washington state first and second degree robbery includes threatening injury to property; therefore,
cannot qualify.
cannot qualify.
United States v. Navarro,
United States v. Navarro,
2016 WL 1253830 (E.D. Wash. March 10, 2016);
2016 WL 1253830 (E.D. Wash. March 10, 2016);
United States v.
United States v.
Bercier
Bercier
, 192 F. Supp.3d 1142 (E. D. Wash. 2016);
, 192 F. Supp.3d 1142 (E. D. Wash. 2016);
Lilley v. United States
Lilley v. United States
, 2016 WL 6997037 (W. D. Wash.
, 2016 WL 6997037 (W. D. Wash.
Nov. 30, 2016).
Nov. 30, 2016).
Maryland robbery includes threatening injury to property; therefore, cannot qualify
Maryland robbery includes threatening injury to property; therefore, cannot qualify
.
.
Douglas v. State
, 9
Md. App. 647 (Md. Ct. Spec. App. 1970);
Giles v. State,
8 Md. App. 721 (Md. Ct. Spec. App. 1970);
United
States v. Martin
, Case No. 14-4779 (4
th
Cir. Sept. 16, 2016).
Ohio robbery includes threat against things - not persons; therefore, cannot qualify.
Ohio robbery includes threat against things - not persons; therefore, cannot qualify.
United States v. Litzy
United States v. Litzy
,
,
137 F. Supp.3d 920 (S.D.W.V. 2015).
137 F. Supp.3d 920 (S.D.W.V. 2015).
Ohio robbery with a dangerous weapon also includes threatening injury to things.
Ohio robbery with a dangerous weapon also includes threatening injury to things.
United States v.
United States v.
Patterson
Patterson
, 2015 WL 5675110 (N.D. Ohio Sept. 25, 2015);
, 2015 WL 5675110 (N.D. Ohio Sept. 25, 2015);
United States v. Nagy
United States v. Nagy
, 144 F. Supp.3d 928 (N.D.
, 144 F. Supp.3d 928 (N.D.
Ohio 2015).
Ohio 2015).
North Carolina conviction for discharging firearm into occupied building does not qualify because it is force
North Carolina conviction for discharging firearm into occupied building does not qualify because it is force
against property – not a person.
against property – not a person.
United States v. Parral-Dominguez,
United States v. Parral-Dominguez,
794 F.3d 440 (4
794 F.3d 440 (4
th
th
Cir. 2015).
Cir. 2015).
Issue 3: Using Force vs. Causing Injury
Issue 3: Using Force vs. Causing Injury
Offenses with elements requiring
Offenses with elements requiring
physical injury, serious
physical injury, serious
physical injury, or even death
physical injury, or even death
do not equal “violent force.”
do not equal “violent force.”
This is true because physical injury can be committed
This is true because physical injury can be committed
without use of
without use of
strong physical force
strong physical force
:
:
-
-
poisoning,
poisoning,
-
-
laying a trap,
laying a trap,
-
-
exposing someone to hazardous chemicals,
exposing someone to hazardous chemicals,
-
-
withholding medicine,
withholding medicine,
-
-
locking someone in car on a hot day,
locking someone in car on a hot day,
-
-
starving someone to death, neglecting a child, etc.,
starving someone to death, neglecting a child, etc.,
-
-
placing a barrier in front of a car, which causes an
placing a barrier in front of a car, which causes an
accident,
accident,
-
-
leaving an unconscious person in middle of road
leaving an unconscious person in middle of road
Issue 3: Using Force vs. Causing Injury
Issue 3: Using Force vs. Causing Injury
Examples
Examples
: Offenses with
: Offenses with
physical injury, serious physical injury, or even
physical injury, serious physical injury, or even
death
death
elements that do not qualify as violent felonies under the force
elements that do not qualify as violent felonies under the force
clause:
clause:
Assault Offenses
Assault Offenses
Connecticut assault requiring intentionally causing physical injury.
Connecticut assault requiring intentionally causing physical injury.
Whyte v. Lynch,
Whyte v. Lynch,
807 F.3d 463 (1
807 F.3d 463 (1
st
st
Cir.
Cir.
2015) (
2015) (
post-
post-
Johnson
Johnson
)
)
;
;
Chrzanoski v. Ashcroft
Chrzanoski v. Ashcroft
, 327 F.3d 188 (2d Cir. 2003).
, 327 F.3d 188 (2d Cir. 2003).
Puerto Rico aggravated battery requiring intentional infliction of physical injury.
Puerto Rico aggravated battery requiring intentional infliction of physical injury.
Matter of Guzman-
Matter of Guzman-
Polanco
Polanco
, 26 I & N Dec. 713 (BIA 2016) (
, 26 I & N Dec. 713 (BIA 2016) (
post-
post-
Johnson
Johnson
).
).
Texas aggravated assault requiring intentionally causing physical injury.
Texas aggravated assault requiring intentionally causing physical injury.
United States v. Zuniga-Soto
United States v. Zuniga-Soto
,
,
527 F.3d 1110, 1125 n.3 (10th Cir. 2008);
527 F.3d 1110, 1125 n.3 (10th Cir. 2008);
United States v. Villegas-Hernandez
United States v. Villegas-Hernandez
, 468 F.3d 874, 879 (5
, 468 F.3d 874, 879 (5
th
th
Cir. 2006).
Cir. 2006).
Colorado assault requiring defendant to cause bodily injury
Colorado assault requiring defendant to cause bodily injury
using a deadly weapon
using a deadly weapon
.
.
United States v.
United States v.
Perez-Vargas
Perez-Vargas
, 414 F.3d 1282 (10th Cir. 2005);
, 414 F.3d 1282 (10th Cir. 2005);
Colorado assault by drugging.
Colorado assault by drugging.
United States v. Rodriguez-
United States v. Rodriguez-
Enriquez
Enriquez
, 518 F.3d 1191 (10th Cir. 2008).
, 518 F.3d 1191 (10th Cir. 2008).
New Jersey aggravated assault requiring a defendant to cause significant bodily injury.
New Jersey aggravated assault requiring a defendant to cause significant bodily injury.
United States v.
United States v.
Martinez-Flores
Martinez-Flores
, 720 F.3d 293, 299 (5th Cir. 2013).
, 720 F.3d 293, 299 (5th Cir. 2013).
Arizona aggravated assault requiring attempt to cause injury with use of dangerous weapon.
Arizona aggravated assault requiring attempt to cause injury with use of dangerous weapon.
United
United
States v. Gomez-Hernandez,
States v. Gomez-Hernandez,
680 F.3d 1171 (9
680 F.3d 1171 (9
th
th
Cir. 2012).
Cir. 2012).
Arizona endangerment requiring action that creates risk of imminent death or physical injury
Arizona endangerment requiring action that creates risk of imminent death or physical injury
.
.
United
United
States v. Hernandez-Castellanos
States v. Hernandez-Castellanos
, 287 F.3d 876, 881 (9
, 287 F.3d 876, 881 (9
th
th
Cir. 2002).
Cir. 2002).
North Carolina assault with dangerous weapon with intent to kill.
North Carolina assault with dangerous weapon with intent to kill.
United States v. Brown
United States v. Brown
, __ F. Supp.3d
, __ F. Supp.3d
__, 2017 WL 1383640 )(D. D. C. 2017)(
__, 2017 WL 1383640 )(D. D. C. 2017)(
post-
post-
Johnson
Johnson
).
).
Pennsylvania aggravated assault.
Pennsylvania aggravated assault.
United States v. Fisher,
United States v. Fisher,
2017 WL 1426049 (E. D. Pa. 2017) (
2017 WL 1426049 (E. D. Pa. 2017) (
post-
post-
Johnson
Johnson
).
).
Issue 3: Using Force vs. Causing Injury
Issue 3: Using Force vs. Causing Injury
Examples
Examples
: Offenses with
: Offenses with
physical injury, serious physical
physical injury, serious physical
injury, or even death
injury, or even death
elements that do not qualify as
elements that do not qualify as
violent felonies under the force clause:
violent felonies under the force clause:
Threat Offenses
Threat Offenses
United States v. Torres-Miguel,
United States v. Torres-Miguel,
701 F.3d 165 (4
701 F.3d 165 (4
th
th
Cir. 2012)
Cir. 2012)
(Cal. terroristic
(Cal. terroristic
threats: threatening an act that results in serious bodily injury or death);
threats: threatening an act that results in serious bodily injury or death);
United
United
States v. Rico-Mejia,
States v. Rico-Mejia,
2017 WL 568331 (5
2017 WL 568331 (5
th
th
Cir. Feb. 10, 2017)
Cir. Feb. 10, 2017)
(Arkansas
(Arkansas
terroristic threats: threatening an act that results in serious physical injury or
terroristic threats: threatening an act that results in serious physical injury or
death)
death)
(post-
(post-
Johnson
Johnson
).
).
Child Abuse Offenses
Child Abuse Offenses
United States v. Gomez
United States v. Gomez
, 690 F.3d 194 (4
, 690 F.3d 194 (4
th
th
Cir. 2012)
Cir. 2012)
(child abuse resulting in
(child abuse resulting in
physical injury);
physical injury);
United States v. Andino-Ortega,
United States v. Andino-Ortega,
608 F.3d 305 (5
608 F.3d 305 (5
th
th
Cir. 2010)
Cir. 2010)
(causing physical injury to a child);
(causing physical injury to a child);
United States v. Lopez-Patino
United States v. Lopez-Patino
, 391 F.3d
, 391 F.3d
1034, 1037 (9
1034, 1037 (9
th
th
Cir. 2004)
Cir. 2004)
(causing child physical injury does not require use of
(causing child physical injury does not require use of
force)
force)
.
.
Manslaughter Offenses
Manslaughter Offenses
United States v. Garcia-Perez,
United States v. Garcia-Perez,
779 F.3d 278 (5
779 F.3d 278 (5
th
th
Cir. 2015)
Cir. 2015)
(Florida
(Florida
manslaughter).
manslaughter).
Issue 3: Using Force vs. Causing Injury
Issue 3: Using Force vs. Causing Injury
Examples continued
Examples continued
: Common offenses with
: Common offenses with
physical injury,
physical injury,
serious physical injury, or even death
serious physical injury, or even death
elements that do not
elements that do not
qualify as violent felonies under the force clause:
qualify as violent felonies under the force clause:
Murder
Murder
See
See
United States v. Hernandez,
United States v. Hernandez,
831 F.3d 284 (5
831 F.3d 284 (5
th
th
Cir. 2016)
Cir. 2016)
(Florida second degree attempted murder);
(Florida second degree attempted murder);
United States v. Watts
United States v. Watts
,
,
2017 WL 411341 (D. Kan. Jan. 31, 2017)
2017 WL 411341 (D. Kan. Jan. 31, 2017)
(Missouri second degree
(Missouri second degree
felony murder);
felony murder);
United States v. Martinez
United States v. Martinez
, Case No. 07-cr-00236-
, Case No. 07-cr-00236-
REB-1 (D. Co. Feb. 1, 2017)
REB-1 (D. Co. Feb. 1, 2017)
(Nevada second degree murder);
(Nevada second degree murder);
United
United
States v. Nicks
States v. Nicks
,
,
Case No. WJM-15-0321 (D. Co. April 4, 2016)
Case No. WJM-15-0321 (D. Co. April 4, 2016)
(Colorado second degree murder);
(Colorado second degree murder);
United States v. McCutcheon,
United States v. McCutcheon,
Case No. JFM-15-654 (D. Md. Aug. 24, 2016
Case No. JFM-15-654 (D. Md. Aug. 24, 2016
)(attempted Maryland
)(attempted Maryland
second degree murder).
second degree murder).
Issue 3: Using Force vs. Causing Injury
Issue 3: Using Force vs. Causing Injury
Examples Continued
Examples Continued
: Common offenses with
: Common offenses with
physical
physical
injury, serious physical injury, or even death
injury, serious physical injury, or even death
elements that
elements that
do not qualify as violent felonies under the force clause:
do not qualify as violent felonies under the force clause:
Federal crimes:
Federal crimes:
Hobbs Act robbery, bank robbery, armed bank robbery,
Hobbs Act robbery, bank robbery, armed bank robbery,
VICAR, carjacking, murder, assault, use of weapon of mass destruction
VICAR, carjacking, murder, assault, use of weapon of mass destruction
All can be accomplished by putting someone
All can be accomplished by putting someone
in fear of physical injury
in fear of physical injury
or
or
actually causing physical injury or death
actually causing physical injury or death
, but violent force not
, but violent force not
required.
required.
But see
But see
United States v. McNeal
United States v. McNeal
, 818 F.3d 141 (4
, 818 F.3d 141 (4
th
th
Cir.
Cir.
2016)
2016)
(finding that
(finding that
federal bank robbery
federal bank robbery
satisfies
satisfies
force clause because it will be “rare” case that offense is
force clause because it will be “rare” case that offense is
accomplished by non-violent force such as poisoning);
accomplished by non-violent force such as poisoning);
United States v. Evans,
United States v. Evans,
848 F.3d 242
848 F.3d 242
(4
(4
th
th
Cir. 2016)
Cir. 2016)
(finding same for federal carjacking).
(finding same for federal carjacking).
Issue 3: Using Force vs. Causing Injury
Issue 3: Using Force vs. Causing Injury
Beware:
Beware:
1)
1)
United States v. Castleman,
United States v. Castleman,
134 S. Ct. 1405 (2014) (holding that physical injury
134 S. Ct. 1405 (2014) (holding that physical injury
requires physical force under 18 U.S.C. § 922(g)(9) misdemeanor crime of domestic
requires physical force under 18 U.S.C. § 922(g)(9) misdemeanor crime of domestic
violence definition, but
violence definition, but
not deciding whether physical injury necessarily requires
not deciding whether physical injury necessarily requires
violent physical force
violent physical force
).
).
But see
But see
decisions holding
decisions holding
Castleman
Castleman
is inapposite –
is inapposite –
United States v. Rico-Mejia
United States v. Rico-Mejia
,
,
2017 WL 568331 (5
2017 WL 568331 (5
th
th
Cir. Feb. 10, 2017)
Cir. Feb. 10, 2017)
(rejecting government’s
(rejecting government’s
Castleman
Castleman
theory)
theory)
;
;
Whyte v. Lynch,
Whyte v. Lynch,
807 F.3d 463 (1
807 F.3d 463 (1
st
st
Cir. 2015)
Cir. 2015)
(same);
(same);
United States v.
United States v.
McNeal
McNeal
, 818 F.3d 141 n.10 (4
, 818 F.3d 141 n.10 (4
th
th
Cir. 2016)
Cir. 2016)
(same);
(same);
In re Guzman-Polanco,
In re Guzman-Polanco,
26 I & N
26 I & N
Dec. 713 (BIA 2016)
Dec. 713 (BIA 2016)
(same)
(same)
;
;
United States v. Fennell
United States v. Fennell
, 2016 WL 4702557 (N.D. Tex.
, 2016 WL 4702557 (N.D. Tex.
Sept. 8, 2016)
Sept. 8, 2016)
(same)
(same)
;
;
United States v. Hill,
United States v. Hill,
__ F. Supp.3d__, 2016 WL 7076929
__ F. Supp.3d__, 2016 WL 7076929
(W. D. Penn. 2016)
(W. D. Penn. 2016)
(same)
(same)
;
;
United States v. Villanueva
United States v. Villanueva
, 191 F. Supp. 3d 178 (D.
, 191 F. Supp. 3d 178 (D.
Conn. 2016)
Conn. 2016)
(same)
(same)
;
;
United States v. Watts
United States v. Watts
, 2017 WL 411341 (D. Kan. Jan. 31,
, 2017 WL 411341 (D. Kan. Jan. 31,
2017)
2017)
(same)
(same)
;
;
United States v. Fisher
United States v. Fisher
, 2017 WL 1426049 (E. D. Pa. 2017)
, 2017 WL 1426049 (E. D. Pa. 2017)
(same);
(same);
United States v. Brown
United States v. Brown
,
,
2017 WL 1383640 (D.D.C. 2017)
2017 WL 1383640 (D.D.C. 2017)
(same);
(same);
United States v.
United States v.
Rice
Rice
, 813 F.3d 704 (8
, 813 F.3d 704 (8
th
th
Cir. 2016) (
Cir. 2016) (
see dissent rejecting government’s
see dissent rejecting government’s
Castleman
Castleman
theory
theory
).
).
Issue 4: Intentional vs. Reckless Conduct
Issue 4: Intentional vs. Reckless Conduct
All offenses must require
All offenses must require
intentional
intentional
use of violent force or
use of violent force or
intentional
intentional
threat of violent force; reckless mens rea will not suffice.
threat of violent force; reckless mens rea will not suffice.
See
See
Garcia v.
Garcia v.
Gonzales
Gonzales
, 455 F.3d 465 (4
, 455 F.3d 465 (4
th
th
Cir. 2006)
Cir. 2006)
(assault requiring defendant to recklessly cause
(assault requiring defendant to recklessly cause
serious physical injury using a deadly weapon);
serious physical injury using a deadly weapon);
United States v. McMurray
United States v. McMurray
, 653 F.3d 367, 374-75 (6
, 653 F.3d 367, 374-75 (6
th
th
Cir. 2011)
Cir. 2011)
(aggravated assault requiring defendant to recklessly cause serious bodily injury);
(aggravated assault requiring defendant to recklessly cause serious bodily injury);
Fernandez-Ruiz v. Gonzales
Fernandez-Ruiz v. Gonzales
, 466 F.3d 1121, 1132 (9
, 466 F.3d 1121, 1132 (9
th
th
Cir. 2006)
Cir. 2006)
(en banc) (assault statute requiring
(en banc) (assault statute requiring
reckless physical injury to another);
reckless physical injury to another);
United States v. Vargas-Duran,
United States v. Vargas-Duran,
356 F.3d 598 (5
356 F.3d 598 (5
th
th
Cir. 2004)
Cir. 2004)
(child
(child
endangerment can be satisfied with reckless mens rea);
endangerment can be satisfied with reckless mens rea);
Purohit v. Holder
Purohit v. Holder
, 441 Fed. Appx. 458 (9
, 441 Fed. Appx. 458 (9
th
th
Cir.
Cir.
2011)
2011)
(voluntary manslaughter has reckless mens rea);
(voluntary manslaughter has reckless mens rea);
United States v. Aitken,
United States v. Aitken,
2015 WL 1486925,
2015 WL 1486925,
2015 WL 1486925 (C. D. Cal. 2015)
2015 WL 1486925 (C. D. Cal. 2015)
(same);
(same);
United States v. Dixon
United States v. Dixon
, 805 F.3d 1193 (9th Cir. 2015)
, 805 F.3d 1193 (9th Cir. 2015)
(California robbery does not require intentional use of force);
(California robbery does not require intentional use of force);
United States v. Parnell
United States v. Parnell
, 818 F.3d 974
, 818 F.3d 974
(9
(9
th
th
Cir. 2016)
Cir. 2016)
(Mass. assault and battery with dangerous weapon has reckless mens rea);
(Mass. assault and battery with dangerous weapon has reckless mens rea);
United
United
States v. Barcenas-Yanez,
States v. Barcenas-Yanez,
826 F.3d 752 (4
826 F.3d 752 (4
th
th
Cir. 2016)
Cir. 2016)
(Texas aggravated assault offense can be
(Texas aggravated assault offense can be
violated with reckless mens rea);
violated with reckless mens rea);
United States v. Benally,
United States v. Benally,
843 F.3d 350 (9
843 F.3d 350 (9
th
th
Cir. 2016)
Cir. 2016)
(federal
(federal
involuntary manslaughter has gross negligence mens rea);
involuntary manslaughter has gross negligence mens rea);
United States v. Hernandez
United States v. Hernandez
, 831 F.3d 284
, 831 F.3d 284
(5
(5
th
th
Cir. 2016)
Cir. 2016)
(Government agrees Florida second degree murder does not have intentional mens
(Government agrees Florida second degree murder does not have intentional mens
rea
rea
);
);
United States v. Johnson,
United States v. Johnson,
__ F. Supp.3d __, 2016 WL 7666523 (N.D. Cal. 2016)
__ F. Supp.3d __, 2016 WL 7666523 (N.D. Cal. 2016)
(federal arson
(federal arson
has reckless mens rea);
has reckless mens rea);
United States v. Hill
United States v. Hill
,
__ F. Supp.3d __, 2016 WL 7076929 (W.D. Pa. 2016)
__ F. Supp.3d __, 2016 WL 7076929 (W.D. Pa. 2016)
(Pennsylvania simple assault has reckless mens rea);
(Pennsylvania simple assault has reckless mens rea);
United States v. Watts
United States v. Watts
, 2017 WL 411341
, 2017 WL 411341
(D.
(D.
Kan. 2017)
Kan. 2017)
(Missouri second degree murder has reckless mens rea);
(Missouri second degree murder has reckless mens rea);
United States v. Sabetta
United States v. Sabetta
, __ F.
, __ F.
Supp.3d__ , 2016 WL 6157454 (D.R.I. 2016)
Supp.3d__ , 2016 WL 6157454 (D.R.I. 2016)
(Rhode Island assault with a dangerous weapon has
(Rhode Island assault with a dangerous weapon has
reckless mens rea);
reckless mens rea);
United States v. Wehunt
United States v. Wehunt
, __ F. Supp.3d__, 2017 WL 347544 (E.D. Tenn. 2017)
, __ F. Supp.3d__, 2017 WL 347544 (E.D. Tenn. 2017)
(Tenn. aggravated assault has a reckless mens rea);
(Tenn. aggravated assault has a reckless mens rea);
United States v. Moore
United States v. Moore
, 203 F. Supp.3d 854
, 203 F. Supp.3d 854
(N.D. Ohio 2016)
(N.D. Ohio 2016)
(Ohio aggravated robbery has reckless mens rea).
(Ohio aggravated robbery has reckless mens rea).
Argue that even
Argue that even
if some general intent exists
if some general intent exists
,
,
a crime satisfies the force clause
a crime satisfies the force clause
only
only
if it specifically requires
if it specifically requires
an
an
intent to use or threaten violent force
intent to use or threaten violent force
.
.
See Flores-Lopez v. Holder
See Flores-Lopez v. Holder
, 685 F.3d 857, 863 (9
, 685 F.3d 857, 863 (9
th
th
Cir. 2012);
Cir. 2012);
Covarrubias Teposte v. Holder
Covarrubias Teposte v. Holder
, 632
, 632
F.3d 1049 (9
F.3d 1049 (9
th
th
Cir. 2011);
Cir. 2011);
United States v. Coronado
United States v. Coronado
, 603 F.3d 706 (9
, 603 F.3d 706 (9
th
th
Cir. 2010) (
Cir. 2010) (
intentionally
intentionally
discharging a firearm in a negligent manner that creates a risk of injury or death
discharging a firearm in a negligent manner that creates a risk of injury or death
);
);
Brown v. Caraway
Brown v. Caraway
,
,
719 F.3d 583 (7
719 F.3d 583 (7
th
th
Cir. 2013);
Cir. 2013);
United States v. Calderon-Pena,
United States v. Calderon-Pena,
383 F.3d 254 (5
383 F.3d 254 (5
th
th
Cir. 2004)
Cir. 2004)
(
(
intentionally endangering child without intending to cause victim injury
intentionally endangering child without intending to cause victim injury
).
).
Issue 4: Intentional vs. Reckless Conduct
Issue 4: Intentional vs. Reckless Conduct
Threats:
Threats:
Argue i
Argue i
ntimidation/putting someone in fear of bodily injury
ntimidation/putting someone in fear of bodily injury
does not equal
does not equal
intentional
intentional
threat
threat
if statute does not require defendant to have
if statute does not require defendant to have
intent
intent
to put another
to put another
in fear of bodily injury.
in fear of bodily injury.
See United States v. King,
See United States v. King,
979 F.2d 801, 803 (10
979 F.2d 801, 803 (10
th
th
Cir. 1992)
Cir. 1992)
(threat under force clause “means both an
(threat under force clause “means both an
intent
intent
to use force and a communication
to use force and a communication
of that threat”).
of that threat”).
Examples of statutes that do not have intentional mens rea:
Examples of statutes that do not have intentional mens rea:
Utah witness tampering
Utah witness tampering
can be committed without any intent to threaten force
can be committed without any intent to threaten force
–
–
Culp v. United States
Culp v. United States
, 2016 WL 5400395 (D. Utah Sept. 27, 2016).
, 2016 WL 5400395 (D. Utah Sept. 27, 2016).
Federal bank robbery
Federal bank robbery
can be committed without proof of intent to intimidate:
can be committed without proof of intent to intimidate:
United
United
States v. Doriety
States v. Doriety
, Case No. C16-0924-JCC (W. D. Wash. Nov. 10, 2016)
, Case No. C16-0924-JCC (W. D. Wash. Nov. 10, 2016)
(federal
(federal
unarmed bank robbery is not “crime of violence” under “force” clause because no
unarmed bank robbery is not “crime of violence” under “force” clause because no
intent to use force or communication of that threat required – note: case dismissed
intent to use force or communication of that threat required – note: case dismissed
after
after
Beckles
Beckles
, but you can still use reasoning);
, but you can still use reasoning);
United States v. Knox,
United States v. Knox,
2017 WL
2017 WL
347469 (W. D. Wash. Jan. 24, 2017) (same );
347469 (W. D. Wash. Jan. 24, 2017) (same );
see also
see also
cases demonstrating that
cases demonstrating that
federal bank robbery can be violated without intentional threat of force:
federal bank robbery can be violated without intentional threat of force:
United
United
States v. Yockel,
States v. Yockel,
320 F.3d 818 (8
320 F.3d 818 (8
th
th
Cir. 2003);
Cir. 2003);
United States v. Kelley
United States v. Kelley
, 412 F.3d
, 412 F.3d
1240 (11
1240 (11
th
th
Cir. 2005);
Cir. 2005);
United States v. Woodrup
United States v. Woodrup
, 86 F.3d 359 (4
, 86 F.3d 359 (4
th
th
Cir. 1996).
Cir. 1996).
But see
But see
United States v. McNeal
United States v. McNeal
, 818 F.3d 141 (4
, 818 F.3d 141 (4
th
th
Cir. 2016) (finding that federal
Cir. 2016) (finding that federal
bank robbery satisfies intentional mens rea);
bank robbery satisfies intentional mens rea);
United States v. Armour
, 840 F.3d
904 (7
th
Cir. 2016
) (same)
;
In re Sams
, 830 F.3d 1234 (11
th
Cir. 2016)
(same).
Issue 4: Intentional vs. Reckless Conduct
Issue 4: Intentional vs. Reckless Conduct
Continued examples:
Continued examples:
Federal first degree murder
Federal first degree murder
–
–
includes felony murder, which does
includes felony murder, which does
not require intentional use of violent force.
not require intentional use of violent force.
Federal second degree murder
Federal second degree murder
– can be committed with
– can be committed with
reckless
reckless
disregard for human life.
disregard for human life.
Issue 4: Intentional vs. Reckless Conduct
Issue 4: Intentional vs. Reckless Conduct
Beware:
Beware:
Voisine v. United States
Voisine v. United States
, 136 S. Ct. 2272 (2016)
, 136 S. Ct. 2272 (2016)
(holding that force clause for purposes
(holding that force clause for purposes
of § 922(g)(9) misdemeanor crime of domestic violence only requires mens rea of
of § 922(g)(9) misdemeanor crime of domestic violence only requires mens rea of
recklessness;
recklessness;
but recognizing that force clause under 18 U.S.C. § 16 may require
but recognizing that force clause under 18 U.S.C. § 16 may require
intentional
intentional
mens rea because it has different purpose; so
mens rea because it has different purpose; so
Voisine
Voisine
does nothing to disturb
does nothing to disturb
rulings of lower courts requiring intentional mens rea for § 16 and other analogous force
rulings of lower courts requiring intentional mens rea for § 16 and other analogous force
clauses like ACCA/career offender/924(c));
clauses like ACCA/career offender/924(c));
United States v. Fogg,
United States v. Fogg,
836 F.3d 951 (8
836 F.3d 951 (8
th
th
Cir.
Cir.
2016)
2016)
(applying Voisine to ACCA);
(applying Voisine to ACCA);
United States v. Howell,
United States v. Howell,
838 F.3d 489 (5
838 F.3d 489 (5
th
th
Cir. 2016)
Cir. 2016)
(applying
(applying
Voisine
Voisine
to U.S.S.G. § 4B1.2).
to U.S.S.G. § 4B1.2).
See
See
United States v. Lattanzio
United States v. Lattanzio
, __ F. Supp. 3d __, 2017 WL 519241 (D. Mass. 2017)
, __ F. Supp. 3d __, 2017 WL 519241 (D. Mass. 2017)
(
Voisine
inapposite to ACCA force clause);
;
;
Bennett v. United States
, 2016 WL 3676145
(D. Me. 2016)
(same);
United States v. Johnson,
__ F. Supp.3d __, 2016 WL 7666523
(N. D. Cal. 2016)
(same);
United States v. Sabetta
, __F. Supp.3d __ , 2016 WL 6157454
(D. R. I. 2016)
(same);
United States v. Fennell
, 2016 WL 4702557 (N.D. Tex. Sept. 8,
2016)
(same);
Jefferson v. United States
,
2016 WL 6023331(S. D. Ala. Oct. 13, 2016)
2016 WL 6023331(S. D. Ala. Oct. 13, 2016)
(same);
(same);
Jaramillo v. United States
,
2016 WL 5947265 (D. Utah Oct. 13, 2016)
(same);
(same);
United States v. Fisher
United States v. Fisher
, 2017 WL 1426049 (E. D. Pa. 2017)
, 2017 WL 1426049 (E. D. Pa. 2017)
(same
(same
);
);
United States v.
United States v.
Brown
Brown
, __ F. Supp.3d__, 2017 WL 1383640 (D.D.C. 2017) (
, __ F. Supp.3d__, 2017 WL 1383640 (D.D.C. 2017) (
same
same
);
);
Broadbent v. United
Broadbent v. United
States
States
,
,
2016 WL 5922302 (D. Utah Oct. 11, 2016)
2016 WL 5922302 (D. Utah Oct. 11, 2016)
(
(
Voisine
Voisine
inapposite to career offender
inapposite to career offender
force clause);
force clause);
United States v. Wehunt
United States v. Wehunt
, __ F. Supp.3d__, 2017 WL 347544 (E. D. Tenn.
, __ F. Supp.3d__, 2017 WL 347544 (E. D. Tenn.
2017)
2017)
(same);
(same);
United States v. Hill,
United States v. Hill,
__ F. Supp.3d__, 2016 WL 7076929 (W. D. Penn.
__ F. Supp.3d__, 2016 WL 7076929 (W. D. Penn.
2016)
2016)
(same)
(same)
.
.
ACCA
ACCA
Enumerated Offenses:
Enumerated Offenses:
Be Careful
Be Careful
ACCA Enumerated Offenses:
ACCA Enumerated Offenses:
Must Be Generic
Must Be Generic
Generic Burglary: 3 elements
Generic Burglary: 3 elements
1. unlawful entry or remaining
1. unlawful entry or remaining
California first degree burglary,
California first degree burglary,
Descamps v. United States
Descamps v. United States
, 133 S. Ct. 2276 (2013).
, 133 S. Ct. 2276 (2013).
Washington residential burglary,
Washington residential burglary,
United States v. Wilkinson
United States v. Wilkinson
, 589 Fed. Appx. 348 (9
, 589 Fed. Appx. 348 (9
th
th
Cir.
Cir.
Dec. 11, 2014) (no trespass required).
Dec. 11, 2014) (no trespass required).
2. in a building or structure (not in a vehicle, boat, motor home, or telephone booth)
2. in a building or structure (not in a vehicle, boat, motor home, or telephone booth)
Maryland first degree burglary,
Maryland first degree burglary,
United States v. Henriquez
United States v. Henriquez
, 757 F.3d 144 (4
, 757 F.3d 144 (4
th
th
Cir. 2014);
Cir. 2014);
Oregon first & second degree burglary,
Oregon first & second degree burglary,
United States v. Mayer
United States v. Mayer
,
,
560 F.3d 948 (9
560 F.3d 948 (9
th
th
Cir.
Cir.
2009);
2009);
United States v. Grisel
United States v. Grisel
, 488 F.3d 844 (9
, 488 F.3d 844 (9
th
th
Cir. 2007) (en banc);
Cir. 2007) (en banc);
United States v.
United States v.
Cisneros,
Cisneros,
826 F.3d 1190 (9
826 F.3d 1190 (9
th
th
Cir. 2016); West Virginia burglary,
Cir. 2016); West Virginia burglary,
United States v. White
United States v. White
, 836
, 836
F.3d 437 (4
F.3d 437 (4
th
th
Cir. 2016) (4
Cir. 2016) (4
th
th
Cir. 2016).
Cir. 2016).
3. with intent to commit a crime
3. with intent to commit a crime
Maryland fourth degree burglary,
Maryland fourth degree burglary,
United States v. Martin
United States v. Martin
, 753 F.3d 485 (4
, 753 F.3d 485 (4
th
th
Cir. 2014);
Cir. 2014);
Minnesota burglary,
Minnesota burglary,
United States v. McCarthur
United States v. McCarthur
,
,
__F.3d__, 2017 WL 744032 (8
__F.3d__, 2017 WL 744032 (8
th
th
Cir. 2017
Cir. 2017
).
).
Generic Arson
Generic Arson
Delaware third degree arson not generic arson,
Delaware third degree arson not generic arson,
Brown v. Caraway
Brown v. Caraway
, 719 F.3d 583 (7
, 719 F.3d 583 (7
th
th
Cir. 2013) (lacks
Cir. 2013) (lacks
the generic requirement of malicious or willful
the generic requirement of malicious or willful
mens rea
mens rea
). ****Generic arson definition not clear –
). ****Generic arson definition not clear –
Torres v. Lynch
Torres v. Lynch
,
,
136 S. Ct. 1619
(2016).
(2016).
Generic Extortion
Generic Extortion
North Carolina robbery not generic extortion; robbery has an element requiring lack of consent, but
North Carolina robbery not generic extortion; robbery has an element requiring lack of consent, but
extortion requires consent.
extortion requires consent.
United States v. Gardner
United States v. Gardner
, 823 F.3d 793 (4
, 823 F.3d 793 (4
th
th
Cir. 2016);
Cir. 2016);
United States v.
United States v.
Dixon
Dixon
, 805 F.3d 1193 (9
, 805 F.3d 1193 (9
th
th
Cir. 2015) (California robbery not extortion for same reason).
Cir. 2015) (California robbery not extortion for same reason).
See also
See also
Ocasio v. United States
Ocasio v. United States
,
,
136 S. Ct. 1423 (2016) (Hobbs Act extortion is not same as Hobbs
136 S. Ct. 1423 (2016) (Hobbs Act extortion is not same as Hobbs
Act robbery because robbery requires lack of consent, but extortion requires consent).
Act robbery because robbery requires lack of consent, but extortion requires consent).
Final ACCA Issue – Conspiracies,
Final ACCA Issue – Conspiracies,
Attempts, and Aiding and Abetting
Attempts, and Aiding and Abetting
Be Careful
Be Careful
Conspiracies
Conspiracies
Conspiracies
Conspiracies
never
never
qualify as “violent felonies” under the force clause or the
qualify as “violent felonies” under the force clause or the
enumerated offenses clause,
enumerated offenses clause,
no matter what the object is of the conspiracy
no matter what the object is of the conspiracy
.
.
1.
1.
Enumerated Offenses Clause:
Enumerated Offenses Clause:
Does not include inchoate offenses
Does not include inchoate offenses
.
.
See United States v. James,
See United States v. James,
550 U.S. 192 (2007)
550 U.S. 192 (2007)
2.
2.
Force Clause:
Force Clause:
Unlawful agreement + sometimes overt act does not = force or
Unlawful agreement + sometimes overt act does not = force or
attempted force.
attempted force.
Pre-
Pre-
Johnson
Johnson
cases:
cases:
United States v. White
United States v. White
, 571 F.3d 365 (4
, 571 F.3d 365 (4
th
th
Cir. 2009);
Cir. 2009);
United States v. Gore,
United States v. Gore,
636 F.3d 728
636 F.3d 728
(5
(5
th
th
Cir. 2011);
Cir. 2011);
United States v. Fell
United States v. Fell
, 511 F.3d 1035 (10
, 511 F.3d 1035 (10
th
th
Cir. 2007);
Cir. 2007);
United States v. King
United States v. King
,
,
979 F.2d 801 (10
979 F.2d 801 (10
th
th
Cir. 1992).
Cir. 1992).
Post
Post
-Johnson cases:
-Johnson cases:
United States v. Gonzalez-Ruiz
United States v. Gonzalez-Ruiz
, 794 F.3d 832 (7
, 794 F.3d 832 (7
th
th
Cir. 2015) (finding conspiracy to commit
Cir. 2015) (finding conspiracy to commit
armed robbery not violent felony);
armed robbery not violent felony);
United States v. Melvin,
United States v. Melvin,
No. 13-4857 (4
No. 13-4857 (4
th
th
Cir. Oct. 20,
Cir. Oct. 20,
2015) (finding conspiracy to commit robbery with a dangerous weapon not a violent felony).
2015) (finding conspiracy to commit robbery with a dangerous weapon not a violent felony).
United States v. Smith and Merritte,
United States v. Smith and Merritte,
2016 WL 2901661 (D. Nev. 2016)
2016 WL 2901661 (D. Nev. 2016)
(conspiracy to
(conspiracy to
commit Hobbs Act robbery not crime of violence under force clause)
commit Hobbs Act robbery not crime of violence under force clause)
;
;
United States v.
United States v.
Luong,
Luong,
2016 WL 1588495 (E.D. Cal. 2016) (same);
2016 WL 1588495 (E.D. Cal. 2016) (same);
United States v. Edmundson
United States v. Edmundson
, 153 F.
, 153 F.
Supp.3d 857 (D. Md. 2015) (same);
Supp.3d 857 (D. Md. 2015) (same);
United States v. Baires-Reyes
United States v. Baires-Reyes
, 191 F. Supp.3d 1046
, 191 F. Supp.3d 1046
(N. D. Cal. 2016) (same);
(N. D. Cal. 2016) (same);
Duhart v. United States
Duhart v. United States
, 2016 WL 4720424 (S. D. Fla. Sept. 9,
, 2016 WL 4720424 (S. D. Fla. Sept. 9,
2016) (same);
2016) (same);
United States v. Benitez
United States v. Benitez
, Case No. 13-cr-20606-UU (S.D. Fla. April 6,
, Case No. 13-cr-20606-UU (S.D. Fla. April 6,
2017);
2017);
Alvarado v. United States
Alvarado v. United States
, 2016 WL 6302517 (Cent. D. Cal. Oct. 14, 2016)
, 2016 WL 6302517 (Cent. D. Cal. Oct. 14, 2016)
(RICO
(RICO
conspiracy not crime of violence under force clause);
conspiracy not crime of violence under force clause);
United States v. Shumilo
United States v. Shumilo
, 2016
, 2016
WL 6302524 (Cent. Dist. Cal. Oct. 24, 2016)
WL 6302524 (Cent. Dist. Cal. Oct. 24, 2016)
(same).
(same).
Attempts
Attempts
Do not qualify as enumerated offenses.
Do not qualify as enumerated offenses.
United States v. James,
United States v. James,
550
550
U.S. 192 (2007) (attempted burglary is not burglary).
U.S. 192 (2007) (attempted burglary is not burglary).
Qualify under force clause if (1) the object of the attempt satisfies the
Qualify under force clause if (1) the object of the attempt satisfies the
force clause and (2) the attempt statute must be
force clause and (2) the attempt statute must be
generic attempt
generic attempt
,
,
which requires a) a
which requires a) a
“substantial step”
“substantial step”
and b)
and b)
“probable desistance.”
“probable desistance.”
United States v. James,
United States v. James,
550 U.S. 192 (2007);
550 U.S. 192 (2007);
United States v.
United States v.
Gonzalez-Monterroso
Gonzalez-Monterroso
, 745 F.3d 1237 (9
, 745 F.3d 1237 (9
th
th
Cir. 2014) (real “substantial
Cir. 2014) (real “substantial
step” required);
step” required);
United States v. Garcia-Jimenez
United States v. Garcia-Jimenez
, 807 F.3d 1079 (9
, 807 F.3d 1079 (9
th
th
Cir. 2015) (generic attempt requires “probable desistance” –
Cir. 2015) (generic attempt requires “probable desistance” –
defendant’s actions indicate that crime will take place unless
defendant’s actions indicate that crime will take place unless
interrupted by independent circumstances).
interrupted by independent circumstances).
See Montoya v. United States
See Montoya v. United States
, 2016 WL 6810727 (D. Utah Nov. 17,
, 2016 WL 6810727 (D. Utah Nov. 17,
2016)
2016)
(Utah attempted murder only requires “prepatory steps;”
(Utah attempted murder only requires “prepatory steps;”
thus, not generic attempt qualifying under “force” clause).
thus, not generic attempt qualifying under “force” clause).
Aiding and Abetting
Aiding and Abetting
May qualify if it is 1) generic aiding and abetting and 2) underlying offense
May qualify if it is 1) generic aiding and abetting and 2) underlying offense
satisfies the force clause or is a generic enumerated offense.
satisfies the force clause or is a generic enumerated offense.
Requires proof that the defendant 1) took an affirmative act in
Requires proof that the defendant 1) took an affirmative act in
furtherance of the underlying offense 2) with the intent of facilitating the
furtherance of the underlying offense 2) with the intent of facilitating the
commission of the offense.
commission of the offense.
See Rosemond v. United States
See Rosemond v. United States
, 134 S. Ct.
, 134 S. Ct.
1240, 1245 (2014).
1240, 1245 (2014).
The intent requirement is satisfied only when the government proves the
The intent requirement is satisfied only when the government proves the
person “actively participate[d] in a criminal venture
person “actively participate[d] in a criminal venture
with full knowledge
with full knowledge
of the circumstances constituting the charged offense
of the circumstances constituting the charged offense
.”
.”
Id.
Id.
at 1248‐49.
at 1248‐49.
The required knowledge must be
The required knowledge must be
“advance knowledge,”
“advance knowledge,”
which means
which means
“knowledge at a time the accomplice can do something with it—most
“knowledge at a time the accomplice can do something with it—most
notably, opt to walk away.”
notably, opt to walk away.”
Id.
Id.
at 1249‐50.
at 1249‐50.
CAREER OFFENDER
CAREER OFFENDER
(OLD AND NEW)
(OLD AND NEW)
Old Career Offender Provision before August 1, 2016:
Old Career Offender Provision before August 1, 2016:
(U.S.S.G. § 4B1.2)
(U.S.S.G. § 4B1.2)
“Crime of violence” => Three-Part Definition
“Crime of violence” => Three-Part Definition
Force Clause: offense “has as an element the use, attempted use, or
Force Clause: offense “has as an element the use, attempted use, or
threatened use of physical force against the person of another.”
threatened use of physical force against the person of another.”
Enumerated offenses:
Enumerated offenses:
burglary
burglary
of a dwelling
of a dwelling
, arson, extortion, use of
, arson, extortion, use of
explosives.
explosives.
Residual Clause: offense that
Residual Clause: offense that
“otherwise involves conduct that
“otherwise involves conduct that
presents a serious potential risk of physical injury to another.”
presents a serious potential risk of physical injury to another.”
Commentary:
Commentary:
murder, manslaughter, kidnapping, aggravated assault,
murder, manslaughter, kidnapping, aggravated assault,
forcible sex offenses, robbery, arson, extortion, extortionate extension of
forcible sex offenses, robbery, arson, extortion, extortionate extension of
credit, and burglary of a dwelling, unlawful possession of saw-off shotgun.
credit, and burglary of a dwelling, unlawful possession of saw-off shotgun.
Also includes conspiracy, attempt, and aiding and abetting.
Also includes conspiracy, attempt, and aiding and abetting.
Remember: Categorical approach applies
Remember: Categorical approach applies
Beckles v. United States,
137 S. Ct. 886 (Mar. 6, 2017)
Holding:
Holding:
Johnson
Johnson
does not render the residual clause under
does not render the residual clause under
the advisory guideline unconstitutionally void
the advisory guideline unconstitutionally void
because the void for vagueness doctrine does not
because the void for vagueness doctrine does not
apply to advisory guidelines:
apply to advisory guidelines:
“advisory guidelines do not fix the permissible range
“advisory guidelines do not fix the permissible range
of sentence,” but
of sentence,” but
“merely guide the exercise of a
“merely guide the exercise of a
court’s discretion in choosing an appropriate
court’s discretion in choosing an appropriate
sentence.”
sentence.”
Note:
Note:
Beckles
Beckles
did nothing at all to undo
did nothing at all to undo
Johnson
Johnson
’s holding
’s holding
that the residual clause is a
that the residual clause is a
“black hole” and
“black hole” and
“hopelessly indeterminate.”
“hopelessly indeterminate.”
Post-
Post-
Beckles
Beckles
direct review career offender cases
direct review career offender cases
based on old guideline
based on old guideline
1.
1.
Argue that under
Argue that under
Begay
Begay
, the crime does not qualify as a “crime of violence” under the
, the crime does not qualify as a “crime of violence” under the
residual clause due.
residual clause due.
2.
2.
Alternatively, argue that a “crime of violence” finding based on residual clause would be
Alternatively, argue that a “crime of violence” finding based on residual clause would be
procedurally unreasonable
procedurally unreasonable
because:
because:
-
-
it is impossible to interpret the “hopelessly indeterminate”
it is impossible to interpret the “hopelessly indeterminate”
residual clause as
residual clause as
Johnson
Johnson
says.
says.
-
-
in turn, it is impossible for the court to
in turn, it is impossible for the court to
correctly calculate the guideline range
correctly calculate the guideline range
based on the residual clause.
based on the residual clause.
-
-
thus, sentence is procedurally unreasonable under
thus, sentence is procedurally unreasonable under
Gall v.
Gall v.
United States,
United States,
552 U.S. 38, 49 (2007).
552 U.S. 38, 49 (2007).
See
See
United States v. Lee
United States v. Lee
, 821 F.3d 1124, 1136 (9
, 821 F.3d 1124, 1136 (9
th
th
Cir. 2016)
Cir. 2016)
(Ikuta, C.J., dissenting);
(Ikuta, C.J., dissenting);
In re Hunt
In re Hunt
, 835 F.3d 1277, 1283 (11
, 835 F.3d 1277, 1283 (11
th
th
Cir.
Cir.
2016) (Rosenbaum, D.J., concurring, joined by Wilson and J. Pryor,
2016) (Rosenbaum, D.J., concurring, joined by Wilson and J. Pryor,
C.J.J.)
C.J.J.)
Post-
Post-
Beckles
Beckles
direct review career offender cases
direct review career offender cases
based on old guideline: continued
based on old guideline: continued
3.
3.
If commentary offense is in issue, argue that sentence is still
If commentary offense is in issue, argue that sentence is still
procedurally
procedurally
unreasonable
unreasonable
because:
because:
a) your client’s relevant prior does not satisfy generic definition of
a) your client’s relevant prior does not satisfy generic definition of
commentary enumerated offense and
commentary enumerated offense and
b) Commission was no more capable of deciphering the inscrutable residual
b) Commission was no more capable of deciphering the inscrutable residual
clause than the Supreme Court and the lower courts. Thus, reliance on the
clause than the Supreme Court and the lower courts. Thus, reliance on the
commentary to calculate the guideline range is just as procedurally
commentary to calculate the guideline range is just as procedurally
unreasonable as reliance on the residual clause itself.
unreasonable as reliance on the residual clause itself.
4.
4.
Alternatively, argue that a sentence based on the residual clause is
Alternatively, argue that a sentence based on the residual clause is
substantively unreasonable
substantively unreasonable
because it results in an
because it results in an
arbitrary increase
arbitrary increase
in
in
sentence and
sentence and
unwarranted sentencing disparity.
unwarranted sentencing disparity.
Note that scores of prisoners
Note that scores of prisoners
already got relief pre-
already got relief pre-
Beckles
Beckles
and your client should too. In fact, assistant
and your client should too. In fact, assistant
solicitor general at oral argument said that those who already got relief will
solicitor general at oral argument said that those who already got relief will
“keep their sentences.”
“keep their sentences.”
New Career Offender Provision
New Career Offender Provision
(Effective August 1, 2016)
(Effective August 1, 2016)
1.
1.
Force Clause:
Force Clause:
Has an element the use, attempted use, or threatened use of
Has an element the use, attempted use, or threatened use of
physical force against a person, or
physical force against a person, or
2.
2.
Enumerated offenses
Enumerated offenses
:
:
murder, voluntary (not involuntary) manslaughter, kidnapping,
murder, voluntary (not involuntary) manslaughter, kidnapping,
aggravated assault
aggravated assault
,
,
burglary of a dwelling
burglary of a dwelling
, forcible sex offense,
, forcible sex offense,
robbery, arson, extortion, or use or unlawful possession of a firearm
robbery, arson, extortion, or use or unlawful possession of a firearm
described in 26 U.S.C. § 5845(a) (sawed off shotgun, silencer
described in 26 U.S.C. § 5845(a) (sawed off shotgun, silencer
bomb, machine gun), or explosive material as
bomb, machine gun), or explosive material as
defined in 18 U.S.C. § 841(c).
defined in 18 U.S.C. § 841(c).
Forcible sex offense for minors
Forcible sex offense for minors
and
and
extortion
extortion
defined in commentary, but all other enumerated
defined in commentary, but all other enumerated
offenses determined by
offenses determined by
generic definition
generic definition
.
.
Note: This definition is incorporated into 2K2.1 and
Note: This definition is incorporated into 2K2.1 and
7B1.1, so the same arguments apply there.
7B1.1, so the same arguments apply there.
New Career Offender Provision
New Career Offender Provision
2.
2.
Enumerated offenses continued
Enumerated offenses continued
:
:
Extortion
Extortion
– narrowed definition of generic extortion to obtaining
– narrowed definition of generic extortion to obtaining
something of value from another by wrongful use of (A) force, (B) fear of
something of value from another by wrongful use of (A) force, (B) fear of
physical injury, or (C) threat of physical injury.
physical injury, or (C) threat of physical injury.
Threat against property
Threat against property
or reputation no longer enough.
or reputation no longer enough.
Forcible sex offense
Forcible sex offense
– includes sex offenses where consent is
– includes sex offenses where consent is
involuntary, incompetent, or coerced.
involuntary, incompetent, or coerced.
But sexual abuse of a minor and statutory rape count only if they satisfy
But sexual abuse of a minor and statutory rape count only if they satisfy
elements of 18 U.S.C. § 2441(c). In other words, these offenses must have
elements of 18 U.S.C. § 2441(c). In other words, these offenses must have
following elements:
following elements:
Either minor victim must be between ages 12-15 and 4 years younger than
Either minor victim must be between ages 12-15 and 4 years younger than
defendant
defendant
+
+
defendant engaged in sexual act using force, threats of force,
defendant engaged in sexual act using force, threats of force,
rendered minor unconscious, or drugged minor, etc.,
rendered minor unconscious, or drugged minor, etc.,
or
or
Sexual act with minor under the age of 12.
Sexual act with minor under the age of 12.
Remember:
Remember:
categorical approach applies under old
categorical approach applies under old
law and new law.
law and new law.
New Career Offender Commentary
New Career Offender Commentary
The new commentary only includes inchoate offenses:
The new commentary only includes inchoate offenses:
conspiracy, attempts,
conspiracy, attempts,
and aiding and abetting
and aiding and abetting
Two challenges:
Two challenges:
1.
1.
The commentary cannot
The commentary cannot
expand the text
expand the text
of the guideline (force clause or enumerated
of the guideline (force clause or enumerated
offenses clause) because it is
offenses clause) because it is
does not have freestanding power
does not have freestanding power
.
.
United States v. Stinson,
United States v. Stinson,
508 U.S. 36 (1993);
508 U.S. 36 (1993);
United States v. Shell
United States v. Shell
, 789 F.3d 335, 340 (4
, 789 F.3d 335, 340 (4
th
th
Cir. 2015);
Cir. 2015);
United
United
States v. Bell
States v. Bell
, 840 F.3d 963 (8
, 840 F.3d 963 (8
th
th
Cir. 2016);
Cir. 2016);
United States v. Rollins,
United States v. Rollins,
836 F.3d 737 (7
836 F.3d 737 (7
th
th
Cir.
Cir.
2016);
2016);
United States v. Soto-Rivera
United States v. Soto-Rivera
, 811 F.3d 53 (1
, 811 F.3d 53 (1
st
st
Cir. 2016);
Cir. 2016);
United States v. Armijo
United States v. Armijo
,
,
651 F.3d 1226 (10
651 F.3d 1226 (10
th
th
Cir. 2011).
Cir. 2011).
Enumerated offenses:
Enumerated offenses:
Under
Under
Stinson
Stinson
, no inchoate offenses
, no inchoate offenses
can qualify as
can qualify as
enumerated
enumerated
offenses
offenses
because text of career offender guideline only includes completed enumerated
because text of career offender guideline only includes completed enumerated
offenses.
offenses.
Force clause:
Force clause:
Also,
Also,
conspiracies
conspiracies
noted in commentary can’t qualify under
noted in commentary can’t qualify under
force clause
force clause
because not included in text of force clause
because not included in text of force clause
.
.
2.
2.
The prior conspiracy, attempt, or aiding and abetting offense is
The prior conspiracy, attempt, or aiding and abetting offense is
not generic
not generic
.
.
See
See
previous
previous
slide on generic definition of attempt and aiding and abetting.
slide on generic definition of attempt and aiding and abetting.
See also
See also
United States v.
United States v.
Martinez-Cruz
Martinez-Cruz
, 836 F.3d 1305, 1314 (10
, 836 F.3d 1305, 1314 (10
th
th
Cir. 2016) (
Cir. 2016) (
generic conspiracy
generic conspiracy
requires an
requires an
agreement to commit a crime plus an
agreement to commit a crime plus an
overt act
overt act
in furtherance of the agreement);
in furtherance of the agreement);
United
United
States v. Garcia-Santana
States v. Garcia-Santana
, 774 F.3d 528, 535-40 (9
, 774 F.3d 528, 535-40 (9
th
th
Cir. 2014) (same).
Cir. 2014) (same).
Also, argue that generic conspiracy requires bilateral agreement to commit crime – not
Also, argue that generic conspiracy requires bilateral agreement to commit crime – not
enough that one of the conspirators was undercover cop.
enough that one of the conspirators was undercover cop.
Career Offender:
Career Offender:
Challenges to Instant Offense
Challenges to Instant Offense
Be Careful:
Be Careful:
Make challenge to
Make challenge to
instant federal offense
instant federal offense
as
as
well as priors. If instant offense does not qualify as
well as priors. If instant offense does not qualify as
“crime of violence,” then can’t be career offender no
“crime of violence,” then can’t be career offender no
matter what the priors are.
matter what the priors are.
18 U.S.C. § 16
18 U.S.C. § 16
“Crime of violence” definition
“Crime of violence” definition
(Used for determining old 8-level “aggravated felony” bump
(Used for determining old 8-level “aggravated felony” bump
in U.S.S.G. § 2L1.2(b)(1)(C) and many other federal
in U.S.S.G. § 2L1.2(b)(1)(C) and many other federal
provisions like VICAR, Three-Strikes, Bail Reform Act).
provisions like VICAR, Three-Strikes, Bail Reform Act).
1.
1.
18 U.S.C. § 16(a) – Force Clause
18 U.S.C. § 16(a) – Force Clause
2.
2.
18 U.S.C. § 16(b) – Residual Clause
18 U.S.C. § 16(b) – Residual Clause
Note:
Note:
No Enumerated Offenses Clause
No Enumerated Offenses Clause
18 U.S.C. § 16(b)
Crime of violence definition under residual clause
Residual Clause:
Residual Clause:
Offense qualifies as crime of violence if “by its nature, [it]
Offense qualifies as crime of violence if “by its nature, [it]
involves a
involves a
substantial
substantial
risk that physical
risk that physical
force
force
against the person
against the person
or property
or property
of another may be used in the course of committing the offense.”
of another may be used in the course of committing the offense.”
Shuti v. Lynch
Shuti v. Lynch
, 828 F.3d
, 828 F.3d
440 (6
th
Cir. 2016);
Dimaya v. Lynch,
Dimaya v. Lynch,
803 F.3d 1110
803 F.3d 1110
(9
(9
th
th
Cir. 2015),
Cir. 2015),
United States v. Vivas-Ceja
United States v. Vivas-Ceja
, 808 F.3d 719 (7th Cir. 2015),
, 808 F.3d 719 (7th Cir. 2015),
Golicov v. Lynch,
Golicov v. Lynch,
837 F.3d 1065(10
837 F.3d 1065(10
th
th
Cir. 2016),
Cir. 2016),
Baptise v. Attorney General
Baptise v. Attorney General
,
,
841 F.3d 601 (3d Cir. 2016)
841 F.3d 601 (3d Cir. 2016)
hold 16(b) void for vagueness because:
hold 16(b) void for vagueness because:
1) same categorical ordinary case inquiry
1) same categorical ordinary case inquiry
applies here that was struck down
applies here that was struck down
in
in
Johnson
Johnson
. See
. See
United States v. Avila,
United States v. Avila,
770 F.3d 2014 (4
770 F.3d 2014 (4
th
th
Cir. 2014);
Cir. 2014);
United
United
States v. Keelan
States v. Keelan
, 786 F.3d 865 (11
, 786 F.3d 865 (11
th
th
Cir. 2015);
Cir. 2015);
Rodriguez-Castellon v.
Rodriguez-Castellon v.
Holder
Holder
, 733 F.3d 847 (9
, 733 F.3d 847 (9
th
th
Cir. 2013).
Cir. 2013).
2) same uncertainty about how to determine quantum of risk – substantial
2) same uncertainty about how to determine quantum of risk – substantial
risk of force – tied to ordinary case.
risk of force – tied to ordinary case.
Note:
Note:
The type of risk – “substantial risk” in 16(b) vs. “serious
The type of risk – “substantial risk” in 16(b) vs. “serious
potential risk” in ACCA completely irrelevant because
potential risk” in ACCA completely irrelevant because
Johnson
Johnson
turned on ordinary case approach – not type of risk
turned on ordinary case approach – not type of risk
.
.
See United States v. Welch,
See United States v. Welch,
136 S. Ct. 1257, 1262 (2016).
136 S. Ct. 1257, 1262 (2016).
18 U.S.C. § 16(b)
Crime of violence definition under residual clause
Beware:
Beware:
United States v. Gonzalez-Longoria,
United States v. Gonzalez-Longoria,
831 F.3d 670
831 F.3d 670
(5
th
Cir. 2016) (en banc)
(16(b) not void for
vagueness).
But
t
he Supreme Court granted cert in
Lynch v.
Dimaya
to resolve split.
What’s left of 18 U.S.C. § 16 ?
What’s left of 18 U.S.C. § 16 ?
16(a) “crime of violence” force clause same as career offender/ACCA
16(a) “crime of violence” force clause same as career offender/ACCA
but has
but has
element of physical force against property of another
element of physical force against property of another
:
:
Force Clause
Force Clause
: Has an element the use, attempted use, or threatened use
: Has an element the use, attempted use, or threatened use
of physical force against a person,
of physical force against a person,
or property
or property
of another
of another
.
.
But still must be
But still must be
violent force
violent force
against property, not just injury to property
against property, not just injury to property
– so, for example, Hobbs Act robbery and bank robbery, which can be
– so, for example, Hobbs Act robbery and bank robbery, which can be
violated by injury to property – even intangible property – do not qualify
violated by injury to property – even intangible property – do not qualify
.
.
And must be force against property
And must be force against property
of another
of another
– Lookout for arson
– Lookout for arson
statutes that do not require as such (for example, federal arson).
statutes that do not require as such (for example, federal arson).
Categorical approach: If “
Categorical approach: If “
most innocent conduct
most innocent conduct
” or “
” or “
full range of conduct
full range of conduct
”
”
covered by the statute does not match this definition, prior cannot qualify as
covered by the statute does not match this definition, prior cannot qualify as
“crime of violence.”
“crime of violence.”
United States v. Torres-Miguel
United States v. Torres-Miguel
, 701 F.3d 165 (4
, 701 F.3d 165 (4
th
th
Cir.
Cir.
2012).
2012).
Elements of 18 U.S.C. § 924(c)
Section
924(c
)
provides in pertinent part:
[A]ny person who, during and in relation to any
crime of
violence
or drug trafficking crime . . . for which the person
may be prosecuted in a court of the United States, uses or
carries a firearm, or who, in furtherance of any such crime
,
possesses a firearm
,
shall, in addition to the punishment
provided for such crime of violence or drug trafficking crime -
[be sentenced to a certain number of years depending on the
facts of the crime] . . . .
18 U.S.C. § 924(c)(3)
Crime of violence definition: two clauses
Identical to 18 U.S.C. § 16, but looking at
Identical to 18 U.S.C. § 16, but looking at
instant offense
instant offense
rather than prior conviction:
rather than prior conviction:
1.
1.
18 U.S.C. § 924(c)(3)(A)– Force Clause
18 U.S.C. § 924(c)(3)(A)– Force Clause
2.
2.
18 U.S.C. § 924(c)(3)(B) – Residual Clause
18 U.S.C. § 924(c)(3)(B) – Residual Clause
Note:
Note:
No Enumerated Offenses
No Enumerated Offenses
18 U.S.C. § 924(c)(3)(B):
Crime of violence definition under residual clause
Same language as 18 U.S.C. § 16(b)
Same language as 18 U.S.C. § 16(b)
Residual Clause:
Residual Clause:
Offense qualifies as crime of violence if “by its nature, [it]
Offense qualifies as crime of violence if “by its nature, [it]
involves a substantial risk that physical force against the person or property
involves a substantial risk that physical force against the person or property
of another may be used in the course of committing the offense.”
of another may be used in the course of committing the offense.”
Void for vagueness for same reasons noted under §16(b). Same
Void for vagueness for same reasons noted under §16(b). Same
categorical
categorical
ordinary case
ordinary case
inquiry applies to § 924(c)(3)(B)
inquiry applies to § 924(c)(3)(B)
.
.
Supreme Court’s decision in
Supreme Court’s decision in
Dimaya
Dimaya
should control here, but government may fight even if we win
should control here, but government may fight even if we win
Dimaya.
Dimaya.
See
See
United States v. Acosta
United States v. Acosta
, 470 F.3d 132, 135 (2d Cir. 2006);
, 470 F.3d 132, 135 (2d Cir. 2006);
United States
United States
v. Fuertes
v. Fuertes
, 805 F.3d 485, 497-99 (4th Cir. 2015);
, 805 F.3d 485, 497-99 (4th Cir. 2015);
United States v. Jennings
United States v. Jennings
,
,
195 F.3d 795, 797-98 (5th Cir. 1999);
195 F.3d 795, 797-98 (5th Cir. 1999);
United States v. Moore
United States v. Moore
, 38 F.3d 977,
, 38 F.3d 977,
979 (8th Cir. 1994), abrogated on other grounds by
979 (8th Cir. 1994), abrogated on other grounds by
Leocal v. Ashcroft
Leocal v. Ashcroft
, 543
, 543
U.S. 1 (2004);
U.S. 1 (2004);
United States v. Amparo
United States v. Amparo
, 68 F.3d 1222, 1225 (9th Cir. 1995);
, 68 F.3d 1222, 1225 (9th Cir. 1995);
United States v. Serafin
United States v. Serafin
, 562 F.3d 1105, 1107-08 (10th Cir. 2009);
, 562 F.3d 1105, 1107-08 (10th Cir. 2009);
United
United
States v. McGuire
States v. McGuire
, 706 F.3d 1333, 1336-37 (11th Cir. 2013);
, 706 F.3d 1333, 1336-37 (11th Cir. 2013);
United States v.
United States v.
Kennedy
Kennedy
, 133 F.3d 53, 56-57 (D.C. Cir. 1998)
, 133 F.3d 53, 56-57 (D.C. Cir. 1998)
18 U.S.C. § 924(c)(3)(B)
Crime of violence definition under residual clause
Courts finding 924(c) residual clause void for vagueness for same reasons 16(b) is void for vagueness:
Courts finding 924(c) residual clause void for vagueness for same reasons 16(b) is void for vagueness:
United States v. Cardena,
United States v. Cardena,
842 F.3d 959 (7
842 F.3d 959 (7
th
th
Cir. 2016);
Cir. 2016);
United States v. Baires-Reyes,
United States v. Baires-Reyes,
191 F. Supp.3d
191 F. Supp.3d
1046 (9
1046 (9
th
th
Cir. 2016);
Cir. 2016);
United States v. Smith
United States v. Smith
and
and
Merritte,
Merritte,
2016 WL 2901661 (D. Nev. 2016);
2016 WL 2901661 (D. Nev. 2016);
United
United
States v. Luong,
States v. Luong,
2016 WL 1588495 (E.D. Cal. 2016)
2016 WL 1588495 (E.D. Cal. 2016)
;United States v. Lattanaphom,
;United States v. Lattanaphom,
159 F. Supp.3d
159 F. Supp.3d
1157
1157
(E.D. Cal. 2016);
(E.D. Cal. 2016);
United States v. Bell
United States v. Bell
, 158 F. Supp.3d 906 (N.D. Cal. 2016);
, 158 F. Supp.3d 906 (N.D. Cal. 2016);
United States v.
United States v.
Edmundson
Edmundson
, 153 F. Supp.3d 857 (D. Md. 2015);
, 153 F. Supp.3d 857 (D. Md. 2015);
Duhart v. United States
Duhart v. United States
, 2016 WL 4720424 (S. D. Fla.
, 2016 WL 4720424 (S. D. Fla.
Sept. 9, 2016);
Sept. 9, 2016);
United States v. Shumilo,
United States v. Shumilo,
2016 WL 6302524 (Cent. Dist. Cal. Oct. 24, 2016).
2016 WL 6302524 (Cent. Dist. Cal. Oct. 24, 2016).
Beware:
Beware:
United States v. Taylor
United States v. Taylor
, 814 F.3d 340 (6
th
Cir. 2016) (holding that § 924(c) residual clause
is not void for vagueness –
but holding in conflict with
Shuti
;
nonetheless,
Shuti
says no
conflict because categorical approach does not apply to
§ 924(c)) – Cert pending.
United States v. Hill
, 832 F.3d 135 (2d Cir. 2016)(§ 924(c) not void for vagueness).
United States v. Prickett,
839 F.3d 697 (8
th
Cir. 2016) (§ 924(c) not void for vagueness) –
Cert pending.
What’s left of 18 U.S.C § 924(c)(3)?
What’s left of 18 U.S.C § 924(c)(3)?
Same as 18 U.S.C. § 16(a):
Same as 18 U.S.C. § 16(a):
Force Clause (18 U.S.C. § 924(c)(3)(A))
Force Clause (18 U.S.C. § 924(c)(3)(A))
: Has an element the use,
: Has an element the use,
attempted use, or threatened use of physical force against a person,
attempted use, or threatened use of physical force against a person,
or property
or property
of another (But still must be violent force against
of another (But still must be violent force against
property,
property,
not just injury to property
not just injury to property
).
).
Examples of underlying offenses that should not fall under force
Examples of underlying offenses that should not fall under force
clause for reasons previously noted:
clause for reasons previously noted:
All conspiracies, Hobbs Act
All conspiracies, Hobbs Act
robbery, robbery of government property, kidnapping, hostage
robbery, robbery of government property, kidnapping, hostage
taking, bank robbery, armed bank robbery, assault, murder, arson,
taking, bank robbery, armed bank robbery, assault, murder, arson,
racketeering, VICAR, escape.
racketeering, VICAR, escape.
Categorical approach: If “
Categorical approach: If “
most innocent conduct
most innocent conduct
” or “
” or “
full range of conduct
full range of conduct
”
”
covered by the statute does not match this definition, prior cannot qualify as
covered by the statute does not match this definition, prior cannot qualify as
“crime of violence.”
“crime of violence.”
United States v. Torres-Miguel
United States v. Torres-Miguel
, 701 F.3d 165 (4
, 701 F.3d 165 (4
th
th
Cir.
Cir.
2012).
2012).
Note:
Note:
no enumerated offenses.
no enumerated offenses.
Beware:
Beware:
Badly reasoned unpublished and published §
Badly reasoned unpublished and published §
924(c) cases:
924(c) cases:
Wrong use of
Wrong use of
United States v. Castleman,
United States v. Castleman,
134 S. Ct. 1405 (2014),
134 S. Ct. 1405 (2014),
modified categorical approach, and/or bad residual clause analysis, etc.
modified categorical approach, and/or bad residual clause analysis, etc.
Example:
Example:
United States v. Hill
, 832 F.3d 135 (2d Cir. 2016)(924(c)
(Using
Castleman
to find that Hobbs Act robbery is a § 924(c) “crime of
violence” under force clause and also finding that residual clause is
not unconstitutionally void);
see also
In re St. Fleur,
824 F.3d 1337
(11
th
Cir. 2016)
(Hobbs Act robbery qualifies as a § 924(c) “crime of
violence” under force clause);
United States v. House,
825 F.3d 381
(8
th
Cir. 2016)
(same);
United States v. Anglin,
846 F.3d 954 (7
th
Cir. 2017)
(same)
;
United States v. Robinson
, 844 F.3d 137 (3d Cir.
2016)
(same);
United States v. Gooch
, __ F.3d__, 2017 WL 816882
(6
th
Cir. 2017)
(same);
United States v. Howard
, 650 Fed. Appx. 466
(9
th
Cir. 2016)
(same):
United States v. McNeal
, 818 F.3d 141 (4
th
Cir. 2016)
(finding that federal bank robbery qualifies as a § 924(c)
“crime of violence” under force clause);
United States v. Armour
,
840 F.3d 904 (7
th
Cir. 2016
) (same)
;
In re Sams
, 830 F.3d 1234
(11
th
Cir. 2016)
(same);
In re Hines
, 824 F.3d 1334 (11
th
Cir. 2016)
(same);
United States v. Evans,
848 F.3d 242
(4
th
Cir. 2016)
(federal carjacking qualifies as a “crime of violence” under a §
924(c) force clause );
United States v. Taylor
United States v. Taylor
, 814 F.3d 340 (6
th
Cir.
2016)
(finding (924(c) residual clause not void);
United States v.
Prickett,
839 F.3d 697 (8
th
Cir. 2016)
(same).
Paresh slide
Hey everyone, Thank you for inviting us here. Johnson, which knocked out the residual clause in the ACCA, is really is so much fun. It has been quite a ride the last couple of years - Johnson has consumed us. And we have had our ups and downs with Johnson, but overall we have been living the dream. It has knocked off thousands of years in our clients’ sentences and will continue to do so. And be patient. Some of the post-Johnson arguments have been and will continue to be knocked down, but you have to keep making these arguments. Preserve arguments. Because sometimes it takes years for our arguments to digest with the judges. And there are several post-Johnson issues that will go to the Supreme Court.
Delve into the intricate legal landscape surrounding crime-of-violence issues, focusing on landmark cases like Johnson and Beckles. Explore the implications for Armed Career Criminal Act and U.S. Sentencing Guidelines, while dissecting the residual clause analysis pre- and post-Johnson. Understand how the void for vagueness reasoning reshapes legal precedent and discover what remains of the ACCA post-Johnson.
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Presentation Transcript
Litigating Crime-of-Violence Issues: Johnson, Beckles, and Where We Go From Here May 31, 2017 New Orleans, Louisiana
Overview I. Pre-Johnson world II. Summary of Johnson III. Implications: A. Armed Career Criminal Act B. Career Offender C. U.S.S.G. 2K2.1, 7B1.1 D. 18 U.S.C. 16 E. 18 U.S.C. 924(c)
Pre-Johnson Residual Clause Analysis Inquiry under James, Begay, Chambers, Sykes: categorical approach + ordinary case Do elements of offense in ordinary case: a. present risk of injury at similar level to enumerated offenses (generic burglary, arson, extortion, use of explosives)+ b. require purposeful, violent, and aggressive conduct?
Johnson: Residual Clause Void for Vagueness Reasons turn on uncertainty of ordinary case inquiry: 1. Grave uncertainty about how to estimate risk because no one knows how to determine what the ordinary case of a crime is: Gut instinct, common sense, statistics, google search not sufficient guides. 2. Grave uncertainty about how to determine quantum of risk (i.e., how much risk) because quantum of risk is tied to ordinary case. Again, back to ordinary case problem. Denies fair notice and invites arbitrary enforcement
Johnson: Expressly overrules precedent James (2007): Florida attempted burglary qualifies as a violent felony under the residual clause. Sykes (2011): Indiana offense of vehicular flight from an officer qualifies as a violent felony under the residual clause.
Whats left of the ACCA? ACCA violent felony = 1. Force Clause: Has an element the use, attempted use, or threatened use of physical force against a person, or 2. Enumerated offenses: burglary, arson, extortion, use of explosives (determined by generic definition). Categorical approach applies: If most innocent conduct or full range of conduct covered by the elements of the statute does not match these definitions, prior cannot qualify as violent felony. United States v. Torres-Miguel, 701 F.3d 165 (4thCir. 2012).
ACCA Force Clause: Be Careful Almost Nothing Counts As Violent Felony
Fighting Against the Force Clause Four Key Issues to look for: Requires violent force, not unwanted touching Force must be directed against a person, not property Requires the use of force, not merely the causation of physical injury. Force must be used intentionally, not recklessly or negligently Practice Point: Many of the best force-clause cases have been litigated under U.S.S.G. 2L1.2.
Issue 1: Violent Force Requirement Violent Force means strong physical force that is capable of causing physical injury or pain to another person. Johnson v. United States, 559 U.S. 133 (2010) Examples of unwanted touching or offensive touching : Federal assault under 18 U.S.C. 111(a). United States v. Bell, 158 F. Supp.3d 906 (N.D. Cal. 2016) (collecting federal appellate cases); United States v. Ama,__ Fed. Appx. __, 2017 WL 1325247 (10thCir. 2017) (same). Assault or Battery. United States v. Johnson, 559 U.S. 133 (2010) (Florida); United States v. Holloway, 630 F.3d 252 (1stCir. 2011)(Massachusetts simple assault and battery); United States v. Lattanzio, __F. Supp.3d__, 2017 WL 519241 (D. Mass. 2017) (Massachusetts assault and battery with a dangerous weapon); United States v. Fish, 758 F.3d 1 (1stCir. 2014) (same); United States v. Royal, 731 F.3d 333 (4thCir. 2013) (Maryland second degree assault). Resisting arrest. United States v. Aparico-Soria, 740 F.3d 152 (4thCir. 2014) (en banc) (Maryland); United States v. Flores-Cordero, 723 F.3d 1085 (9th Cir. 2013) (Arizona); United States v. Almenas, 553 F.3d 27 (1st Cir. 2009) (Massachusetts); United States v. Lee, 821 F.3d 1124 (9thCir. 2016) (California) Battery on a law enforcement officer; Battery on pregnant woman. United States v. Carthorne, 726 F.3d 503 )(4th Cir. 2013) (Virginia); United States v. Braun, 801 F.3d 1301 (11thCir. 2015) (Florida).
Issue 1: Violent Force Requirement Don t be deceived by labels: Sometimes offense will have element labeled force or violence, but that does not mean it has element of ACCA violent force. Examples: Federal robbery of government property. United States v. Bell, 158 F. Supp.3d 906 (N.D. Cal. 2016) ( violence can be accomplished by de minimis force). Virginia robbery. United States v. Winston, __ F.3d__, 2017 WL 977031 (4thCir. 2017) ( violence can be accomplished by de minimis force i.e, physical jerking ). Missouri second degree robbery. United States v. Bell, 840 F.3d 963 (8thCir. 2016)( force can be accomplished by any physical contact, even a nudge). North Carolina robbery. United States v. Gardner, 823 F.3d 793 (4thCir. 2016) ( force can be accomplished by de minimis force, i.e., pushing someone to the ground). Massachusetts armed robbery. United States v. Parnell, 818 F.3d 974 (9thCir. 2016) ( force and violence can be accomplished by de minimis force); United States v. Lattanzio, __ F.Supp.3d__, 2017 WL 519241 (D. Mass. 2017). Puerto Rico robbery. United States v. Castro-Vasquez, 802 F.3d 28 (1stCir. 2015) ( violence or intimidation can be accomplished by slightest use of force ).
Issue 1: Violent Force Requirement Don t be deceived by labels: Sometimes offense will have element labeled force or violence, but that does not mean it has element of ACCA violent force. Examples: Arkansas robbery. United States v. Eason, 829 F.3d 963 (8thCir. 2016) (court could not conclude that degree of physical force required under offense requires violent force). Maine robbery. United States v. Mulkern, __ F.3d__, 2017 WL 1363791 (1stCir. 2017) ( any physical force suffices to satisfy physical force element ). Kansas robbery. United States v. Nicholas, __ Fed. Appx.__, 2017 WL 1429788 (10thCir. 2017) ( violence element of robbery includes purse snatching). Wisconsin/Oregon//New York/Nevada/Penn. robberies. United States v. Robinson, Case No. 16-C-156 (D. Wisc. May 24, 2016); United States v. Dunlap, 162 F. Supp.3d 1106 (D. Ore. 2016); United States v. Batista, 2017 WL 2105692 (W. D. Va. May 11, 2017); United States v. Johnson, __ F. Supp.3d __, 2016 WL 6684211 (E.D.N.Y. Nov. 12, 2016); United States v. Avery, 2017 WL 29667 (D. Nev. Jan. 3, 2017); Thrower v. United States, __ F. Supp.3d__, 2017 WL 1102871 (E.D.N.Y. 2017); United States v. Singleton, 2017 WL 1508955 (E. D. Pa. April 26, 2017). Maryland robbery. United States v. Martin, Case No. 14-4779 (4thCir. Sept. 16, 2016) (upon gov t. s concession, court found it is not a violent felony but no reasoning given); United States v. Wilson, __ F. Supp.3d__, 2017 WL 1383644 (D.D.C. 2017). D.C. robbery. In re Sealed Case, 548 F.3d 1085 (D.C. 2008) ( force or violence defined by statute to include purse-snatching offenses: sudden or stealthy seizure or snatching ). Note: same argument excludes similar offenses, such as larceny from the person or pickpocketing
Issue 1: Violent Force Requirement Kidnapping / False Imprisonment/Hostage Taking: physical restraint, detention, holding, mental restraint does not automatically equal physical force. Delgado-Hernandez v. Holder, 697 F.3d 1125 (9th 2012) (California kidnapping does not satisfy force clause because restraint can be accomplished through any means of instilling fear even through deception). United States v. Moreno-Florean, 542 F.3d 445, 450-52 (5th Cir. 2008) (determining that California kidnapping statute did not include physical force as an element because the crime could be accomplished through non-physical means). United States v. Gonzalez-Perez, 472 F.3d 1158 (11th Cir. 2012) (Florida false imprisonment does not satisfy force clause because restraint can be accomplished secretly ). United States v. Sherbondy, 865 F.2d 996 (9th Cir. 1988) (Model Penal Code definition of kidnapping does not require force because it covers kidnapping by trickery or deceit). United States v. Marquez-Lobos, 697 F.3d 759 (9thCir. 2012) (Arizona kidnapping , which includes abduction of minor, requires lack of consent by lawful abduction but no use or threat of force). United States v. Phelps, 17 F.3d 1334 (10thCir. 1994) (Missouri kidnapping does not require force or threat of force). United States v. Cervantes-Blanco, 594 F.3d 576 (5thCir. 2007) (Colorado kidnapping does not require force or threat of force because can be accomplished by deceit). United States v. Williams, 110 F.3d 50 (9thCir. 1997) (Oregon kidnapping does not require force or threat of force because it can be committed by deception). United States v. Najera-Mendoza, 683 F.3d 627 (5thCir. 2012) (Oklahoma kidnapping can be committed by de minimis force; therefore, not crime of violence under force clause). United States v. Martinez-Romero, 817 F.3d 917 (5thCir. 2016) (Florida kidnapping does not require force or threat of force).
Issue 1: Violent Force Requirement Kidnapping/False Imprisonment/Hostage Taking: physical restraint, detention, holding does not automatically equal physical force. Federal kidnapping: United States v. Jenkins, 849 F.3d 390 (7thCir. 2017) (federal kidnapping does not have a force requirement because it can be accomplished by deception). United States v. Bustos, 2016 WL 6821853 (E.D. Cal. Nov. 17, 2016) (federal kidnapping does not have element of violent force because it can be accomplished by trickery or deceit); United States v. Rubio, 2016 WL 6821854 (E. D. Cal. Nov. 17, 2016) (same). United States v. Hughes, 716 F.2d 234, 239 (4th Cir. 1983) (noting that a kidnapper may use[] deceit and trickery to accomplish his purpose rather than overt force ); see also United States v. Wills, 234 F.3d 174, 177 (4th Cir. 2000) ( By its terms, 1201(a) criminalizes kidnappings accomplished through physical, forcible means and also by nonphysical, nonforcible means. ); see Torres v. Lynch, 136 S. Ct. 1619 (2016) (suggesting that kidnapping is not cv). Federal hostage taking: United States v. Carrion-Caliz, 944 F.2d 220 (5thCir. 1991); United States v. Si Lu Tian, 339 F.3d 143 (2d Cir. 2003) (hostage taking can be accomplished by deception). Hernandez v. United States, 2016 WL 8078311 (S. D. Fla. 2016) (federal hostage taking requires no use or threatened use of force);Juan Becerra-Perez v. United States, CR 04-0235 (C.D. Cal. Feb. 15, 2017) (same).
Issue 1: Violent Force Requirement Sex offenses based on absence of legally valid consent do not qualify under the force clause. Statutory Rape United States v. Rangel-Castaneda, 709 F.3d 373 (4th Cir. 2013) (Tennessee aggravated statutory rape); United States v. Daye, 571 F.3d 225 (2d Cir. 2009) (Vermont statutory rape); United States v. Madrid, 805 F.3d 1204 (10thCir. 2015) (Texas aggravated sexual assault of a child). Involuntary or Incompetent Consent United States v. Shell, 789 F.3d 335 (4th Cir. 2015) (North Carolina second-degree rape of victim who is mentally disabled, mentally incapacitated, or physically helpless ). If force is an element, look for state case law extending the provision to constructive force (i.e., mental compulsion not physical force) situations.
Issue 1: Violent Force Requirement Offenses with a weapon element do not qualify if no active use required of weapon: United States v. Parnell, 818 F.3d 974 (9thCir. 2016) (armed robbery not a crime of violence because weapon need not be fired, employed to effectuate robbery, used in a threatening manner, or even generally or openly displayed ). United States v. Werle, 815 F.3d 614 (9thCir. 2016) (Washington riot statute not a crime of violence because weapon need not be used but just readily available ).
Issue 2: Property vs. Person Force, even violent, against property does not qualify under ACCA force clause. Examples: Hobbs Act robbery/ federal bank robbery includes threatening to injure one s property. That should disqualify Hobbs Act robbery/bank robbery from qualifying under the force clause: United States v. Giddins, Case No. 15-4039 (issue pending in the 4thCir. as to whether federal bank robbery qualifies as crime of violence under force clause because it can be violated by extortionate means including threat of economic harm); United States v. Hunt, Case No. 16-4521 (issue pending in 4thCir. as to whether federal Hobbs Act robbery qualifies as a crime of violence for same reasons). Washington state first and second degree robbery includes threatening injury to property; therefore, cannot qualify. United States v. Navarro, 2016 WL 1253830 (E.D. Wash. March 10, 2016); United States v. Bercier, 192 F. Supp.3d 1142 (E. D. Wash. 2016); Lilley v. United States, 2016 WL 6997037 (W. D. Wash. Nov. 30, 2016). Maryland robbery includes threatening injury to property; therefore, cannot qualify. Douglas v. State, 9 Md. App. 647 (Md. Ct. Spec. App. 1970); Giles v. State, 8 Md. App. 721 (Md. Ct. Spec. App. 1970); United States v. Martin, Case No. 14-4779 (4thCir. Sept. 16, 2016). Ohio robbery includes threat against things - not persons; therefore, cannot qualify. United States v. Litzy, 137 F. Supp.3d 920 (S.D.W.V. 2015). Ohio robbery with a dangerous weapon also includes threatening injury to things. United States v. Patterson, 2015 WL 5675110 (N.D. Ohio Sept. 25, 2015); United States v. Nagy, 144 F. Supp.3d 928 (N.D. Ohio 2015). North Carolina conviction for discharging firearm into occupied building does not qualify because it is force against property not a person. United States v. Parral-Dominguez, 794 F.3d 440 (4thCir. 2015).
Issue 3: Using Force vs. Causing Injury Offenses with elements requiring physical injury, serious physical injury, or even death do not equal violent force. This is true because physical injury can be committed without use of strong physical force: - - - - - - - poisoning, laying a trap, exposing someone to hazardous chemicals, withholding medicine, locking someone in car on a hot day, starving someone to death, neglecting a child, etc., placing a barrier in front of a car, which causes an accident, leaving an unconscious person in middle of road -
Issue 3: Using Force vs. Causing Injury Examples: Offenses with physical injury, serious physical injury, or even death elements that do not qualify as violent felonies under the force clause: Assault Offenses Connecticut assault requiring intentionally causing physical injury. Whyte v. Lynch, 807 F.3d 463 (1stCir. 2015) (post-Johnson); Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir. 2003). Puerto Rico aggravated battery requiring intentional infliction of physical injury. Matter of Guzman- Polanco, 26 I & N Dec. 713 (BIA 2016) (post-Johnson). Texas aggravated assault requiring intentionally causing physical injury. United States v. Zuniga-Soto, 527 F.3d 1110, 1125 n.3 (10th Cir. 2008); United States v. Villegas-Hernandez, 468 F.3d 874, 879 (5th Cir. 2006). Colorado assault requiring defendant to cause bodily injury using a deadly weapon. United States v. Perez-Vargas, 414 F.3d 1282 (10th Cir. 2005); Colorado assault by drugging. United States v. Rodriguez- Enriquez, 518 F.3d 1191 (10th Cir. 2008). New Jersey aggravated assault requiring a defendant to cause significant bodily injury. United States v. Martinez-Flores, 720 F.3d 293, 299 (5th Cir. 2013). Arizona aggravated assault requiring attempt to cause injury with use of dangerous weapon. United States v. Gomez-Hernandez, 680 F.3d 1171 (9thCir. 2012). Arizona endangerment requiring action that creates risk of imminent death or physical injury. United States v. Hernandez-Castellanos, 287 F.3d 876, 881 (9thCir. 2002). North Carolina assault with dangerous weapon with intent to kill. United States v. Brown, __ F. Supp.3d __, 2017 WL 1383640 )(D. D. C. 2017)( post-Johnson). Pennsylvania aggravated assault. United States v. Fisher, 2017 WL 1426049 (E. D. Pa. 2017) (post- Johnson).
Issue 3: Using Force vs. Causing Injury Examples: Offenses with physical injury, serious physical injury, or even death elements that do not qualify as violent felonies under the force clause: Threat Offenses United States v. Torres-Miguel,701 F.3d 165 (4thCir. 2012) (Cal. terroristic threats: threatening an act that results in serious bodily injury or death); United States v. Rico-Mejia, 2017 WL 568331 (5thCir. Feb. 10, 2017) (Arkansas terroristic threats: threatening an act that results in serious physical injury or death) (post-Johnson). Child Abuse Offenses United States v. Gomez, 690 F.3d 194 (4thCir. 2012) (child abuse resulting in physical injury); United States v. Andino-Ortega, 608 F.3d 305 (5thCir. 2010) (causing physical injury to a child); United States v. Lopez-Patino, 391 F.3d 1034, 1037 (9thCir. 2004) (causing child physical injury does not require use of force). Manslaughter Offenses United States v. Garcia-Perez, 779 F.3d 278 (5thCir. 2015) (Florida manslaughter).
Issue 3: Using Force vs. Causing Injury Examples continued: Common offenses with physical injury, serious physical injury, or even death elements that do not qualify as violent felonies under the force clause: Murder See United States v. Hernandez, 831 F.3d 284 (5thCir. 2016) (Florida second degree attempted murder); United States v. Watts, 2017 WL 411341 (D. Kan. Jan. 31, 2017) (Missouri second degree felony murder); United States v. Martinez, Case No. 07-cr-00236- REB-1 (D. Co. Feb. 1, 2017) (Nevada second degree murder);United States v. Nicks, Case No. WJM-15-0321 (D. Co. April 4, 2016) (Colorado second degree murder); United States v. McCutcheon, Case No. JFM-15-654 (D. Md. Aug. 24, 2016)(attempted Maryland second degree murder).
Issue 3: Using Force vs. Causing Injury Examples Continued: Common offenses with physical injury, serious physical injury, or even death elements that do not qualify as violent felonies under the force clause: Federal crimes: Hobbs Act robbery, bank robbery, armed bank robbery, VICAR, carjacking, murder, assault, use of weapon of mass destruction All can be accomplished by putting someone in fear of physical injury or actually causing physical injury or death, but violent force not required. But see United States v. McNeal, 818 F.3d 141 (4thCir. 2016) (finding that federal bank robbery satisfies force clause because it will be rare case that offense is accomplished by non-violent force such as poisoning); United States v. Evans, 848 F.3d 242 (4thCir. 2016) (finding same for federal carjacking).
Issue 3: Using Force vs. Causing Injury Beware: 1) United States v. Castleman, 134 S. Ct. 1405 (2014) (holding that physical injury requires physical force under 18 U.S.C. 922(g)(9) misdemeanor crime of domestic violence definition, but not deciding whether physical injury necessarily requires violent physical force). But see decisions holding Castleman is inapposite United States v. Rico-Mejia, 2017 WL 568331 (5thCir. Feb. 10, 2017) (rejecting government s Castleman theory); Whyte v. Lynch, 807 F.3d 463 (1stCir. 2015) (same); United States v. McNeal, 818 F.3d 141 n.10 (4thCir. 2016) (same); In re Guzman-Polanco, 26 I & N Dec. 713 (BIA 2016) (same); United States v. Fennell, 2016 WL 4702557 (N.D. Tex. Sept. 8, 2016) (same); United States v. Hill, __ F. Supp.3d__, 2016 WL 7076929 (W. D. Penn. 2016) (same); United States v. Villanueva, 191 F. Supp. 3d 178 (D. Conn. 2016) (same); United States v. Watts, 2017 WL 411341 (D. Kan. Jan. 31, 2017) (same); United States v. Fisher, 2017 WL 1426049 (E. D. Pa. 2017) (same); United States v. Brown, 2017 WL 1383640 (D.D.C. 2017) (same); United States v. Rice, 813 F.3d 704 (8thCir. 2016) (see dissent rejecting government s Castleman theory).
Issue 4: Intentional vs. Reckless Conduct All offenses must require intentional use of violent force or intentional threat of violent force; reckless mens rea will not suffice. See Garcia v. Gonzales, 455 F.3d 465 (4thCir. 2006) (assault requiring defendant to recklessly cause serious physical injury using a deadly weapon); United States v. McMurray, 653 F.3d 367, 374-75 (6th Cir. 2011) (aggravated assault requiring defendant to recklessly cause serious bodily injury); Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132 (9thCir. 2006) (en banc) (assault statute requiring reckless physical injury to another); United States v. Vargas-Duran, 356 F.3d 598 (5thCir. 2004) (child endangerment can be satisfied with reckless mens rea); Purohit v. Holder, 441 Fed. Appx. 458 (9thCir. 2011) (voluntary manslaughter has reckless mens rea); United States v. Aitken, 2015 WL 1486925, 2015 WL 1486925 (C. D. Cal. 2015) (same); United States v. Dixon, 805 F.3d 1193 (9th Cir. 2015) (California robbery does not require intentional use of force); United States v. Parnell, 818 F.3d 974 (9thCir. 2016) (Mass. assault and battery with dangerous weapon has reckless mens rea); United States v. Barcenas-Yanez, 826 F.3d 752 (4thCir. 2016) (Texas aggravated assault offense can be violated with reckless mens rea); United States v. Benally, 843 F.3d 350 (9thCir. 2016) (federal involuntary manslaughter has gross negligence mens rea); United States v. Hernandez, 831 F.3d 284 (5thCir. 2016) (Government agrees Florida second degree murder does not have intentional mens rea); United States v. Johnson, __ F. Supp.3d __, 2016 WL 7666523 (N.D. Cal. 2016) (federal arson has reckless mens rea); United States v. Hill, __ F. Supp.3d __, 2016 WL 7076929 (W.D. Pa. 2016) (Pennsylvania simple assault has reckless mens rea); United States v. Watts, 2017 WL 411341 (D. Kan. 2017) (Missouri second degree murder has reckless mens rea); United States v. Sabetta, __ F. Supp.3d__ , 2016 WL 6157454 (D.R.I. 2016) (Rhode Island assault with a dangerous weapon has reckless mens rea); United States v. Wehunt, __ F. Supp.3d__, 2017 WL 347544 (E.D. Tenn. 2017) (Tenn. aggravated assault has a reckless mens rea); United States v. Moore, 203 F. Supp.3d 854 (N.D. Ohio 2016) (Ohio aggravated robbery has reckless mens rea). Argue that even if some general intent exists, a crime satisfies the force clause only if it specifically requires an intent to use or threaten violent force. See Flores-Lopez v. Holder, 685 F.3d 857, 863 (9thCir. 2012); Covarrubias Teposte v. Holder, 632 F.3d 1049 (9thCir. 2011); United States v. Coronado, 603 F.3d 706 (9thCir. 2010) (intentionally discharging a firearm in a negligent manner that creates a risk of injury or death); Brown v. Caraway, 719 F.3d 583 (7thCir. 2013); United States v. Calderon-Pena, 383 F.3d 254 (5thCir. 2004) (intentionally endangering child without intending to cause victim injury).
Issue 4: Intentional vs. Reckless Conduct Threats: Argue intimidation/putting someone in fear of bodily injury does not equal intentional threat if statute does not require defendant to have intent to put another in fear of bodily injury. See United States v. King, 979 F.2d 801, 803 (10thCir. 1992) (threat under force clause means both an intent to use force and a communication of that threat ). Examples of statutes that do not have intentional mens rea: Utah witness tampering can be committed without any intent to threaten force Culp v. United States, 2016 WL 5400395 (D. Utah Sept. 27, 2016). Federal bank robbery can be committed without proof of intent to intimidate: United States v. Doriety, Case No. C16-0924-JCC (W. D. Wash. Nov. 10, 2016)(federal unarmed bank robbery is not crime of violence under force clause because no intent to use force or communication of that threat required note: case dismissed after Beckles, but you can still use reasoning); United States v. Knox, 2017 WL 347469 (W. D. Wash. Jan. 24, 2017) (same ); see also cases demonstrating that federal bank robbery can be violated without intentional threat of force: United States v. Yockel, 320 F.3d 818 (8thCir. 2003); United States v. Kelley, 412 F.3d 1240 (11thCir. 2005); United States v. Woodrup, 86 F.3d 359 (4thCir. 1996). But see United States v. McNeal, 818 F.3d 141 (4thCir. 2016) (finding that federal bank robbery satisfies intentional mens rea); United States v. Armour, 840 F.3d 904 (7thCir. 2016) (same); In re Sams, 830 F.3d 1234 (11thCir. 2016) (same).
Issue 4: Intentional vs. Reckless Conduct Continued examples: Federal first degree murder includes felony murder, which does not require intentional use of violent force. Federal second degree murder can be committed with reckless disregard for human life.
Issue 4: Intentional vs. Reckless Conduct Beware: Voisine v. United States, 136 S. Ct. 2272 (2016) (holding that force clause for purposes of 922(g)(9) misdemeanor crime of domestic violence only requires mens rea of recklessness; but recognizing that force clause under 18 U.S.C. 16 may require intentional mens rea because it has different purpose; so Voisine does nothing to disturb rulings of lower courts requiring intentional mens rea for 16 and other analogous force clauses like ACCA/career offender/924(c)); United States v. Fogg, 836 F.3d 951 (8thCir. 2016) (applying Voisine to ACCA); United States v. Howell, 838 F.3d 489 (5thCir. 2016) (applying Voisine to U.S.S.G. 4B1.2). See United States v. Lattanzio, __ F. Supp. 3d __, 2017 WL 519241 (D. Mass. 2017) (Voisine inapposite to ACCA force clause);; Bennett v. United States, 2016 WL 3676145 (D. Me. 2016) (same); United States v. Johnson, __ F. Supp.3d __, 2016 WL 7666523 (N. D. Cal. 2016) (same); United States v. Sabetta, __F. Supp.3d __ , 2016 WL 6157454 (D. R. I. 2016) (same); United States v. Fennell, 2016 WL 4702557 (N.D. Tex. Sept. 8, 2016) (same); Jefferson v. United States, 2016 WL 6023331(S. D. Ala. Oct. 13, 2016) (same); Jaramillo v. United States, 2016 WL 5947265 (D. Utah Oct. 13, 2016) (same); United States v. Fisher, 2017 WL 1426049 (E. D. Pa. 2017) (same); United States v. Brown, __ F. Supp.3d__, 2017 WL 1383640 (D.D.C. 2017) (same); Broadbent v. United States, 2016 WL 5922302 (D. Utah Oct. 11, 2016) (Voisine inapposite to career offender force clause); United States v. Wehunt, __ F. Supp.3d__, 2017 WL 347544 (E. D. Tenn. 2017) (same); United States v. Hill, __ F. Supp.3d__, 2016 WL 7076929 (W. D. Penn. 2016) (same).
ACCA Enumerated Offenses: Be Careful
ACCA Enumerated Offenses: Must Be Generic Generic Burglary: 3 elements 1. unlawful entry or remaining California first degree burglary, Descamps v. United States, 133 S. Ct. 2276 (2013). Washington residential burglary, United States v. Wilkinson, 589 Fed. Appx. 348 (9thCir. Dec. 11, 2014) (no trespass required). 2. in a building or structure (not in a vehicle, boat, motor home, or telephone booth) Maryland first degree burglary, United States v. Henriquez, 757 F.3d 144 (4thCir. 2014); Oregon first & second degree burglary, United States v. Mayer, 560 F.3d 948 (9thCir. 2009); United States v. Grisel, 488 F.3d 844 (9thCir. 2007) (en banc); United States v. Cisneros, 826 F.3d 1190 (9thCir. 2016); West Virginia burglary, United States v. White, 836 F.3d 437 (4thCir. 2016) (4thCir. 2016). 3. with intent to commit a crime Maryland fourth degree burglary, United States v. Martin, 753 F.3d 485 (4thCir. 2014); Minnesota burglary, United States v. McCarthur, __F.3d__, 2017 WL 744032 (8thCir. 2017). Generic Arson Delaware third degree arson not generic arson, Brown v. Caraway, 719 F.3d 583 (7thCir. 2013) (lacks the generic requirement of malicious or willful mens rea). ****Generic arson definition not clear Torres v. Lynch, 136 S. Ct. 1619 (2016). Generic Extortion North Carolina robbery not generic extortion; robbery has an element requiring lack of consent, but extortion requires consent. United States v. Gardner, 823 F.3d 793 (4thCir. 2016); United States v. Dixon, 805 F.3d 1193 (9thCir. 2015) (California robbery not extortion for same reason). See also Ocasio v. United States, 136 S. Ct. 1423 (2016) (Hobbs Act extortion is not same as Hobbs Act robbery because robbery requires lack of consent, but extortion requires consent).
Final ACCA Issue Conspiracies, Attempts, and Aiding and Abetting Be Careful
Conspiracies Conspiracies never qualify as violent felonies under the force clause or the enumerated offenses clause, no matter what the object is of the conspiracy. 1. Enumerated Offenses Clause: Does not include inchoate offenses. See United States v. James, 550 U.S. 192 (2007) 2. Force Clause: Unlawful agreement + sometimes overt act does not = force or attempted force. Pre-Johnson cases: United States v. White, 571 F.3d 365 (4thCir. 2009); United States v. Gore, 636 F.3d 728 (5thCir. 2011); United States v. Fell, 511 F.3d 1035 (10thCir. 2007); United States v. King, 979 F.2d 801 (10thCir. 1992). Post-Johnson cases: United States v. Gonzalez-Ruiz, 794 F.3d 832 (7thCir. 2015) (finding conspiracy to commit armed robbery not violent felony); United States v. Melvin, No. 13-4857 (4thCir. Oct. 20, 2015) (finding conspiracy to commit robbery with a dangerous weapon not a violent felony). United States v. Smith and Merritte, 2016 WL 2901661 (D. Nev. 2016) (conspiracy to commit Hobbs Act robbery not crime of violence under force clause); United States v. Luong, 2016 WL 1588495 (E.D. Cal. 2016) (same); United States v. Edmundson, 153 F. Supp.3d 857 (D. Md. 2015) (same); United States v. Baires-Reyes, 191 F. Supp.3d 1046 (N. D. Cal. 2016) (same); Duhart v. United States, 2016 WL 4720424 (S. D. Fla. Sept. 9, 2016) (same); United States v. Benitez, Case No. 13-cr-20606-UU (S.D. Fla. April 6, 2017);Alvarado v. United States, 2016 WL 6302517 (Cent. D. Cal. Oct. 14, 2016) (RICO conspiracy not crime of violence under force clause); United States v. Shumilo, 2016 WL 6302524 (Cent. Dist. Cal. Oct. 24, 2016) (same).
Attempts Do not qualify as enumerated offenses. United States v. James, 550 U.S. 192 (2007) (attempted burglary is not burglary). Qualify under force clause if (1) the object of the attempt satisfies the force clause and (2) the attempt statute must be generic attempt, which requires a) a substantial step and b) probable desistance. United States v. James, 550 U.S. 192 (2007); United States v. Gonzalez-Monterroso, 745 F.3d 1237 (9thCir. 2014) (real substantial step required); United States v. Garcia-Jimenez, 807 F.3d 1079 (9th Cir. 2015) (generic attempt requires probable desistance defendant s actions indicate that crime will take place unless interrupted by independent circumstances). See Montoya v. United States, 2016 WL 6810727 (D. Utah Nov. 17, 2016) (Utah attempted murder only requires prepatory steps; thus, not generic attempt qualifying under force clause).
Aiding and Abetting May qualify if it is 1) generic aiding and abetting and 2) underlying offense satisfies the force clause or is a generic enumerated offense. Requires proof that the defendant 1) took an affirmative act in furtherance of the underlying offense 2) with the intent of facilitating the commission of the offense. See Rosemond v. United States, 134 S. Ct. 1240, 1245 (2014). The intent requirement is satisfied only when the government proves the person actively participate[d] in a criminal venture with full knowledge of the circumstances constituting the charged offense. Id. at 1248 49. The required knowledge must be advance knowledge, which means knowledge at a time the accomplice can do something with it most notably, opt to walk away. Id. at 1249 50.
CAREER OFFENDER (OLD AND NEW)
Old Career Offender Provision before August 1, 2016: (U.S.S.G. 4B1.2) Crime of violence => Three-Part Definition Force Clause: offense has as an element the use, attempted use, or threatened use of physical force against the person of another. Enumerated offenses: burglary of a dwelling, arson, extortion, use of explosives. Residual Clause: offense that otherwise involves conduct that presents a serious potential risk of physical injury to another. Commentary: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling, unlawful possession of saw-off shotgun. Also includes conspiracy, attempt, and aiding and abetting. Remember: Categorical approach applies
Beckles v. United States, 137 S. Ct. 886 (Mar. 6, 2017) Holding: Johnson does not render the residual clause under the advisory guideline unconstitutionally void because the void for vagueness doctrine does not apply to advisory guidelines: advisory guidelines do not fix the permissible range of sentence, but merely guide the exercise of a court s discretion in choosing an appropriate sentence. Note: Beckles did nothing at all to undo Johnson s holding that the residual clause is a black hole and hopelessly indeterminate.
Post-Beckles direct review career offender cases based on old guideline 1. Argue that under Begay, the crime does not qualify as a crime of violence under the residual clause due. 2. Alternatively, argue that a crime of violence finding based on residual clause would be procedurally unreasonable because: - it is impossible to interpret the hopelessly indeterminate residual clause as Johnson says. - in turn, it is impossible for the court to correctly calculate the guideline range based on the residual clause. - thus, sentence is procedurally unreasonable under Gall v. United States, 552 U.S. 38, 49 (2007). See United States v. Lee, 821 F.3d 1124, 1136 (9thCir. 2016) (Ikuta, C.J., dissenting); In re Hunt, 835 F.3d 1277, 1283 (11thCir. 2016) (Rosenbaum, D.J., concurring, joined by Wilson and J. Pryor, C.J.J.)
Post-Beckles direct review career offender cases based on old guideline: continued 3. If commentary offense is in issue, argue that sentence is still procedurally unreasonable because: a) your client s relevant prior does not satisfy generic definition of commentary enumerated offense and b) Commission was no more capable of deciphering the inscrutable residual clause than the Supreme Court and the lower courts. Thus, reliance on the commentary to calculate the guideline range is just as procedurally unreasonable as reliance on the residual clause itself. 4. Alternatively, argue that a sentence based on the residual clause is substantively unreasonable because it results in an arbitrary increase in sentence and unwarranted sentencing disparity. Note that scores of prisoners already got relief pre-Beckles and your client should too. In fact, assistant solicitor general at oral argument said that those who already got relief will keep their sentences.
New Career Offender Provision (Effective August 1, 2016) 1. Force Clause: Has an element the use, attempted use, or threatened use of physical force against a person, or 2. Enumerated offenses: murder, voluntary (not involuntary) manslaughter, kidnapping, aggravated assault, burglary of a dwelling, forcible sex offense, robbery, arson, extortion, or use or unlawful possession of a firearm described in 26 U.S.C. 5845(a) (sawed off shotgun, silencer bomb, machine gun), or explosive material as defined in 18 U.S.C. 841(c). Forcible sex offense for minors and extortion defined in commentary, but all other enumerated offenses determined by generic definition. Note: This definition is incorporated into 2K2.1 and 7B1.1, so the same arguments apply there.
New Career Offender Provision 2. Enumerated offenses continued: Extortion narrowed definition of generic extortion to obtaining something of value from another by wrongful use of (A) force, (B) fear of physical injury, or (C) threat of physical injury. Threat against property or reputation no longer enough. Forcible sex offense includes sex offenses where consent is involuntary, incompetent, or coerced. But sexual abuse of a minor and statutory rape count only if they satisfy elements of 18 U.S.C. 2441(c). In other words, these offenses must have following elements: Either minor victim must be between ages 12-15 and 4 years younger than defendant + defendant engaged in sexual act using force, threats of force, rendered minor unconscious, or drugged minor, etc., or Sexual act with minor under the age of 12. Remember: categorical approach applies under old law and new law.
New Career Offender Commentary The new commentary only includes inchoate offenses: conspiracy, attempts, and aiding and abetting Two challenges: 1. The commentary cannot expand the text of the guideline (force clause or enumerated offenses clause) because it is does not have freestanding power. United States v. Stinson, 508 U.S. 36 (1993); United States v. Shell, 789 F.3d 335, 340 (4thCir. 2015); United States v. Bell, 840 F.3d 963 (8thCir. 2016); United States v. Rollins, 836 F.3d 737 (7thCir. 2016); United States v. Soto-Rivera, 811 F.3d 53 (1stCir. 2016); United States v. Armijo, 651 F.3d 1226 (10thCir. 2011). Enumerated offenses: Under Stinson, no inchoate offenses can qualify as enumerated offenses because text of career offender guideline only includes completed enumerated offenses. Force clause: Also, conspiracies noted in commentary can t qualify under force clause because not included in text of force clause. 2. The prior conspiracy, attempt, or aiding and abetting offense is not generic. See previous slide on generic definition of attempt and aiding and abetting. See also United States v. Martinez-Cruz, 836 F.3d 1305, 1314 (10thCir. 2016) (generic conspiracy requires an agreement to commit a crime plus an overt act in furtherance of the agreement); United States v. Garcia-Santana, 774 F.3d 528, 535-40 (9thCir. 2014) (same). Also, argue that generic conspiracy requires bilateral agreement to commit crime not enough that one of the conspirators was undercover cop.
Career Offender: Challenges to Instant Offense Be Careful: Make challenge to instant federal offense as well as priors. If instant offense does not qualify as crime of violence, then can t be career offender no matter what the priors are.
18 U.S.C. 16 Crime of violence definition (Used for determining old 8-level aggravated felony bump in U.S.S.G. 2L1.2(b)(1)(C) and many other federal provisions like VICAR, Three-Strikes, Bail Reform Act). 1. 18 U.S.C. 16(a) Force Clause 2. 18 U.S.C. 16(b) Residual Clause Note: No Enumerated Offenses Clause
18 U.S.C. 16(b) Crime of violence definition under residual clause Residual Clause: Offense qualifies as crime of violence if by its nature, [it] involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. Shuti v. Lynch, 828 F.3d 440 (6thCir. 2016); Dimaya v. Lynch, 803 F.3d 1110 (9thCir. 2015), United States v. Vivas-Ceja, 808 F.3d 719 (7th Cir. 2015), Golicov v. Lynch, 837 F.3d 1065(10thCir. 2016), Baptise v. Attorney General, 841 F.3d 601 (3d Cir. 2016) hold 16(b) void for vagueness because: 1) same categorical ordinary case inquiry applies here that was struck down in Johnson. See United States v. Avila, 770 F.3d 2014 (4thCir. 2014); United States v. Keelan, 786 F.3d 865 (11thCir. 2015); Rodriguez-Castellon v. Holder, 733 F.3d 847 (9thCir. 2013). 2) same uncertainty about how to determine quantum of risk substantial risk of force tied to ordinary case. Note: The type of risk substantial risk in 16(b) vs. serious potential risk in ACCA completely irrelevant because Johnson turned on ordinary case approach not type of risk. See United States v. Welch, 136 S. Ct. 1257, 1262 (2016).
18 U.S.C. 16(b) Crime of violence definition under residual clause Beware: United States v. Gonzalez-Longoria, 831 F.3d 670 (5thCir. 2016) (en banc) (16(b) not void for vagueness). But the Supreme Court granted cert in Lynch v. Dimaya to resolve split.
Whats left of 18 U.S.C. 16 ? 16(a) crime of violence force clause same as career offender/ACCA but has element of physical force against property of another: Force Clause: Has an element the use, attempted use, or threatened use of physical force against a person, or property of another. But still must be violent force against property, not just injury to property so, for example, Hobbs Act robbery and bank robbery, which can be violated by injury to property even intangible property do not qualify. And must be force against property of another Lookout for arson statutes that do not require as such (for example, federal arson). Categorical approach: If most innocent conduct or full range of conduct covered by the statute does not match this definition, prior cannot qualify as crime of violence. United States v. Torres-Miguel, 701 F.3d 165 (4thCir. 2012).
Elements of 18 U.S.C. 924(c) Section 924(c) provides in pertinent part: [A]ny person who, during and in relation to any crime of violence or drug trafficking crime . . . for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime - [be sentenced to a certain number of years depending on the facts of the crime] . . . .
18 U.S.C. 924(c)(3) Crime of violence definition: two clauses Identical to 18 U.S.C. 16, but looking at instant offense rather than prior conviction: 1. 18 U.S.C. 924(c)(3)(A) Force Clause 2. 18 U.S.C. 924(c)(3)(B) Residual Clause Note: No Enumerated Offenses
18 U.S.C. 924(c)(3)(B): Crime of violence definition under residual clause Same language as 18 U.S.C. 16(b) Residual Clause: Offense qualifies as crime of violence if by its nature, [it] involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. Void for vagueness for same reasons noted under 16(b). Same categorical ordinary case inquiry applies to 924(c)(3)(B). Supreme Court s decision in Dimaya should control here, but government may fight even if we win Dimaya. See United States v. Acosta, 470 F.3d 132, 135 (2d Cir. 2006); United States v. Fuertes, 805 F.3d 485, 497-99 (4th Cir. 2015); United States v. Jennings, 195 F.3d 795, 797-98 (5th Cir. 1999); United States v. Moore, 38 F.3d 977, 979 (8th Cir. 1994), abrogated on other grounds by Leocal v. Ashcroft, 543 U.S. 1 (2004); United States v. Amparo, 68 F.3d 1222, 1225 (9th Cir. 1995); United States v. Serafin, 562 F.3d 1105, 1107-08 (10th Cir. 2009); United States v. McGuire, 706 F.3d 1333, 1336-37 (11th Cir. 2013); United States v. Kennedy, 133 F.3d 53, 56-57 (D.C. Cir. 1998)
18 U.S.C. 924(c)(3)(B) Crime of violence definition under residual clause Courts finding 924(c) residual clause void for vagueness for same reasons 16(b) is void for vagueness: United States v. Cardena, 842 F.3d 959 (7thCir. 2016); United States v. Baires-Reyes, 191 F. Supp.3d 1046 (9thCir. 2016); United States v. Smith and Merritte, 2016 WL 2901661 (D. Nev. 2016); United States v. Luong, 2016 WL 1588495 (E.D. Cal. 2016);United States v. Lattanaphom, 159 F. Supp.3d 1157 (E.D. Cal. 2016); United States v. Bell, 158 F. Supp.3d 906 (N.D. Cal. 2016); United States v. Edmundson, 153 F. Supp.3d 857 (D. Md. 2015); Duhart v. United States, 2016 WL 4720424 (S. D. Fla. Sept. 9, 2016); United States v. Shumilo, 2016 WL 6302524 (Cent. Dist. Cal. Oct. 24, 2016). Beware: United States v. Taylor, 814 F.3d 340 (6thCir. 2016) (holding that 924(c) residual clause is not void for vagueness but holding in conflict with Shuti; nonetheless, Shuti says no conflict because categorical approach does not apply to 924(c)) Cert pending. United States v. Hill, 832 F.3d 135 (2d Cir. 2016)( 924(c) not void for vagueness). United States v. Prickett, 839 F.3d 697 (8thCir. 2016) ( 924(c) not void for vagueness) Cert pending.
Whats left of 18 U.S.C 924(c)(3)? Same as 18 U.S.C. 16(a): Force Clause (18 U.S.C. 924(c)(3)(A)): Has an element the use, attempted use, or threatened use of physical force against a person, or property of another (But still must be violent force against property, not just injury to property). Examples of underlying offenses that should not fall under force clause for reasons previously noted: All conspiracies, Hobbs Act robbery, robbery of government property, kidnapping, hostage taking, bank robbery, armed bank robbery, assault, murder, arson, racketeering, VICAR, escape. Categorical approach: If most innocent conduct or full range of conduct covered by the statute does not match this definition, prior cannot qualify as crime of violence. United States v. Torres-Miguel, 701 F.3d 165 (4thCir. 2012). Note: no enumerated offenses.
