Author Archive | Anthony O'Rourke

Wednesday, January 16th, 2019

Loss in Stokeling

Yesterday, in Stokeling v. United States, the Supreme Court held that Florida robbery is a violent felony under the Armed Career Criminal Act (ACCA). In doing so, the Court modified Johnson‘s understanding of the degree of “force” necessary for to satisfy the ACCA’s force clause. The excellent summary below is courtesy of Aamra Ahmad, of the Sentencing Resource Counsel Project, and Paresh Patel, Appellate Chief for the District of Maryland Federal Defenders:

Today, in Stokeling v. United States (17-5554), the Court revisited the meaning of the term “physical force” as it is used in the elements clause of the ACCA statute. In Johnson v. United States, 559 U.S. 133, 140 (2010), the Court defined “physical force” as a quantity of “force capable of causing physical pain or injury.” But in Johnson, the Court also used words such as “severe,” “extreme,” “furious,” or “vehement” to define “physical …


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Categories: ACCA, categorical approach, robbery

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Friday, January 11th, 2019

Cert. Grant in Davis

The Supreme Court recently granted a certiorari petition in Davis v. United States that presents the following questions:

(1) Whether 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague;

(2) whether Hobbs Act robbery is a “crime of violence” as defined by 18 U.S.C. § 924(c)(3); and

(3) whether a prior Texas conviction for burglary is a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e).

Practitioners should take care to preserve challenges to § 924(c)(3)’s residual clause notwithstanding the Second Circuit’s holding in Barrett, and to preserve arguments that offenses such as Hobbs Act robbery (and conspiracy to commit that offense) are not crimes of violence under  § 924(c)(3). (Note that, as of the date of this post, the mandate has not issued in Barrett.)…


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Categories: 924(c), ACCA, categorical approach, certiorari, conspiracy, crime of violence, Hobbs Act, Johnson

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Tuesday, December 18th, 2018

Supreme Court Decides Stitt

Last week, the Supreme Court held in United States v.  Stitt, Nos. 17-765 & 17-766, that the Armed Career Criminal Act’s (ACCA’s) definition of “violent felony” covers burglary statutes that criminalize unlawful entry into vehicles adapted or customarily used for overnight accommodation. As explained below, the decision does not appear to have any bearing on whether the ACCA covers New York’s third-degree burglary statute, N.Y. Penal Code § 140.20.

The enumerated clause of the ACCA identifies “burglary” as a violent felony. 18 U.S.C. § 924(e)(1)(ii). In Taylor v. United States, 495 U.S. 575 (1990), the Supreme Court adopted the categorical approach to analyzing the ACCA and, in doing so, held that Congress “intended a uniform definition of burglary [to] be applied” to cases involving that predicate offense. Id. at  580. This uniform definition of burglary, the Court held in Taylor, covers unlawful entry into “a building or other …


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Categories: ACCA, burglary, career offender, crime of violence

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Friday, November 9th, 2018

Judge Weinstein on Alcohol-Related Supervised Release Violations

Judge Weinstein issued an opinion this week terminating the supervised release of a defendant who violated a standard condition of release by consuming alcohol while in a drug treatment program. See United States v. Thomas, No. 15-cr-382, DE 575 (Nov. 6, 2018), available here. The opinion builds on Judge Weinstein’s more extensive opinion in United States v. Trotter concerning violations of supervised release for marijuana use. As Judge Weinstein urged in Trotter, practitioners should move to modify or terminate supervised release where the defendant’s only violations consist of minor infractions. (Indeed, Judge Weinstein suggests in Trotter that practitioners should move for termination of supervised release in all cases where the defendant has completed one year of supervision.)

As is customary with Judge Weinstein, the opinion’s introduction provides an excellent synopsis of its analysis:

The instant memorandum considers [an] important issue in supervised release: what to do with


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Categories: sentencing, sentencing findings, supervised release

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Friday, November 2nd, 2018

Second Circuit Upholds “Barbaric,” but Somehow Substantively Reasonable, Sentence

In a remarkably fatalistic opinion, the Second Circuit rejected a substantive reasonableness challenge to a 25 year sentence for child pornography sentence charges. The sentence, the panel explained, was “barbaric without being all that unusual.” United States v. Sawyer, No. 15-2276 (2d Cir. Oct. 6, 2018) (Jacobs, Pooler, Crawford (D. Vt.)), available here.

The defendant in Sawyer was initially sentenced to 30 years’ imprisonment on charges of sexual exploitation and receiving child pornography. The defendant’s PSR documented that the defendant suffered a childhood of severe physical and sexual abuse. The district judge described this childhood as “horrific” and “nightmarish,” but admonished the defendant that “I can’t excuse that darkness in your heart and soul that made you prey upon two innocent children.” Slip op. at 3-4. (The defendant was prosecuted for having, but not distributing, graphic cellphone photos of two young girls with whom he had …


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Categories: child pornography, law-of-the-case doctrine, substantive reasonableness

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Thursday, October 25th, 2018

Interesting 9th Circuit Reverse Stash House Opinion

In a recent opinion, the Ninth Circuit held that selective enforcement claims in reverse stash-house sting operations are not subject to the nearly impossible-to-surmount discovery standard set forth in United States v. Armstrong, 517 U.S. 457 (1996).  See United States v. Sellers, 16-50061 (9th Cir. 2018), opinion available here.

Chief Federal Public Defender Jon Sands, who posts on the excellent Ninth Circuit Blog, has this summary:

In US v. Sellers, No. 16-50061 (10-15-18) (Nguyen w/Simon; Nguyen concurring; Graber dissenting), the panel majority held that in stash house reverse-sting cases, claims of selective enforcement are governed by a less rigorous standard than that applied to claims of selective prosecution under US v. Armstrong, 517 US 456 (1996). The 9th emphasizes the difference between selective prosecution and selective enforcement (9). The 9th stresses that the police do not enjoy the enforcement presumption of prosecutors and …


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Categories: equal protection, selective enforcement, stash house, sting

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Barrett Petition for Rehearing and the Growing 924(c)(3)(B) Circuit Split

A petition for rehearing, available here, has been filed in United States v. Barrett, No. 14-2641 (2d Cir. 2018), which held that § 924(c)(3)’s residual clause is not unconstitutionally vague and that conspiracy to commit Hobbs Act robbery is not a crime of violence.  Practitioners with Johnson petitions pending in district courts should, in appropriate cases, consider requesting stays pending the resolution of this petition.

In addition, the First Circuit has recently held that 924(c)’s residual clause is not void for vagueness.  See United States v. Douglas, No. 18-1129 (1st Cir. Oct. 12, 2018), opinion available here. There is now a 3-3 circuit split on this question:

Three Circuits have held that § 924(c)(3)(B) is unconstitutional in light of Dimaya. See United States v. Davis, 903 F.3d 483 (5th Cir. 2018); United States v. Eshetu, 898 F.3d 36 (D.C. Cir. 2018); United States


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Categories: 924(c), categorical approach, crime of violence, Johnson

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Friday, October 12th, 2018

The Second Circuit on Inadmissible Background Testimony

This week the Second Circuit issued an opinion, available here, in United States v. Demott, No. 13-3410 (2d Cir. 2018) (Leval, Pooler, Wesley) (appeal from N.D.N.Y). The opinion has three holdings. First, it rejects an as-applied vagueness challenge to the Controlled Substance Analogue Enforcement Act, 21 U.S.C. §§ 802(32)(A), 813. Second, with respect to mens rea, it holds the Analogue Act requires only that the defendant knew he was dealing with a controlled substance — not that the defendant knew he was dealing with a substance that is controlled under the Analogue Act itself.

Third, and of particular interest, the Circuit reversed the defendant’s conviction because the district court erroneously admitted impermissible hearsay evidence as “background testimony.” Slip op. at 35-50. Specifically, a detective testified for the government as to how he got involved in the criminal investigation that led to the defendant’s arrest. The detective …

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Categories: hearsay

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ACCA Oral Arguments in Stokeling & Stitt (and FDNY nondelegation argument in Gundy!)

This week the Supreme Court heard oral arguments in two cases addressing whether specific state offenses are violent felonies within the meaning of the Armed Career Criminal Act (ACCA): Stokeling v. United States (Florida robbery statute that punishes takings by slight force), and United States v. Stitt (state burglary statutes that punish vehicle break-ins). The statutes at issue are similar to the New York robbery and burglary statutes in their scope.

For a detailed analysis of the arguments in these cases, see Rory Little’s analysis at SCOTUSBlog.

The transcript in Stokeling is available here.

The transcript in Stitt, which featured a masterful oral argument by Jeffrey Fisher, is available here.

Speaking of masterful, the FDNY’s Sarah Baumgartel recently argued before the Supreme Court in United States v. Gundy on the question of whether SORNA’s delegation of authority to the Attorney General under 42 U.S.C. § 16913 …


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Categories: ACCA, burglary, categorical approach, robbery, Sex offender registration

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Friday, October 5th, 2018

§ 924(c)’s Residual Clause: The Circuit Split Deepens

Making Supreme Court review a virtual certainty, today the Eleventh Circuit joined the Second in holding that § 924(c)’s residual clause, 18 U.S.C. § 924(c)(3)(B), is not unconstitutionally vague. See United States v. Ovalles (11th Cir. Oct. 4, 2018) (en banc), opinion available here.

There is now a 3-2 circuit split. Three Circuits have held that § 924(c)(3)(B) is unconstitutional in light of Dimaya. See United States v. Davis, __ F.3d __, 2018 WL 4268432 (5th Cir. Sept. 7, 2018); United States v. Eshetu, 898 F.3d 36 (D.C. Cir. 2018); United States v. Salas, 889 F.3d 681 (10th Cir. 2018). Two Circuits have now upheld the residual clause. See Ovales, ___ F.3d ___, 2018 WL 4830079; United States v. Barrett, ___ F.3d ___, 2018 WL 4288566 (2d Cir. Sept. 10, 2018).…


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Categories: 924(c), crime of violence, Johnson

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Inaccurate Barrett Dicta

(This post has been updated to discuss the amended opinion in Fiseku.)

The Second Circuit issued an opinion this week containing some facially incorrect, and substantively troubling, dicta concerning tits recent decision in Barrett. See United States v. Fiskeu, No. 17-1222 (2d Cir. 2018) (Cabranes, Lynch, Carney) (appeal from Engelmayer, J., S.D.N.Y.), opinion available here.

The narrow, fact-specific holding of Fiseku is that under the “unusual circumstances” presented in the case, police officers did not act unreasonably when they briefly restrained the defendant in handcuffs while conducting a investigatory stop. Slip op. at 18. However, the defendant also raised an ineffective assistance claim because his defense attorney failed to argue that his crime of conviction, conspiracy to commit Hobbs Act robbery, was not a crime of violence within the meaning of U.S.S.G. 4B1.2. The Second Circuit declined to address this claim on direct review.

In so …


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Categories: 924(c), conspiracy, crime of violence, Johnson

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