Archive | 924(c)

Thursday, October 25th, 2018

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 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

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 declining, the panel offered this footnote:

In a recent decision, we determined that


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

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Monday, September 10th, 2018

Second Circuit decides Barrett

On the heels of its Pereira-Gomez decision on Friday, the Second Circuit issued a new opinion in United States v. Barrett, which is available here.

In Barrett, the Circuit held that 18 U.S.C. 924(c)(3)(B) is not unconstitutionally vague because “factfinding as to the violent nature of the predicate offense and the risk of physical force in its commission can be made by the trial jury in deciding the defendant’s guilt, thus avoiding both the Sixth Amendment and due process vagueness concerns at issue in Dimaya and Johnson.”  The Court held that the fact that Barrett’s jury did not make a finding regarding force was harmless error in light of the specific facts of his case.  The Circuit further held that a Hobbs Act Robbery conspiracy is a crime of violence because the object of the conspiracy, the Hobbs Act Robbery, is a crime of violence.  “[T]his …


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

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Wednesday, July 11th, 2018

Judge Kavanaugh on Criminal Law: Bad News Except…

Bloomberg News has an article (behind a paywall) that surveys Judge (and presumptive Justice) Kavanaugh’s criminal law jurisprudence.  The short story is that Judge Kavanaugh has been very bad for criminal defendants; one former SDNY prosecutor predicts that “he will be a reliable vote for the government in criminal cases, along the lines of Justice Alito.”

There are, however, a few glimmers of hope:

  • Concurring in an opinion reversing a murder conviction for faulty jury instructions, Judge Kavanaugh explained that, notwithstanding the defendant’s “heinous crime,” he was “unwilling to sweep under the rug” that the instructions left the jury with an incorrect understanding of the mens rea requirements governing second-degree murder and manslaughter. United States v. Williams, 836 F.3d 1, 20 (D.C. Cir. 2016).
  • In a concurring opinion affirming false statements conviction under 18 U.S.C. § 1001, Judge Kavanaugh cautioned that “§ 1001 prosecutions can pose a risk of

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Categories: 924(c), acquitted conduct, false statements, jury instructions

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Friday, June 15th, 2018

Sua Sponte, Post-Dimaya Order Granting Leave to File a Successive 2255 Motion

On the post-Dimaya front, the Second Circuit gave us some good—but easily overlooked—news last week. See Acosta v. United States, No. 16-1492 (2d Cir. 2018) (Jacobs, Livingston, Droney) (clerk’s order). In a sua sponte order, available here, the Circuit granted leave to file a successive 2255 petition arguing that a conviction under 18 U.S.C. § 924(c)(3)(B) is unconstitutional.

Here’s the analysis:

Petitioner has “made a prima facie showing that his claim satisfies § 2255(h) and warrants fuller exploration by the district court.” Blow v. United States, 829 F.3d 170, 172 (2d Cir. 2016).

Section § 924(c)(3)(B) is essentially identical to 18 U.S.C. § 16(b), which was found unconstitutional by the Supreme Court in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), largely based on the Supreme Court’s analysis in Johnson. The Supreme Court has held Johnson to be retroactively applicable to cases on collateral review.


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Categories: 924(c), categorical approach, due process

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Friday, May 18th, 2018

Supreme Court Roundup (including post-Dimaya GVRs)

This week the Supreme Court issued a number of significant criminal opinions, as well as a number of GVRs signalling that the holding of Sessions v. Dimaya likely extends to § 924’s residual clause (18 U.S.C. § 924(c)(3)(B)).

In McCoy v. Louisiana, 16-8255, the Court held that it was structural Sixth Amendment error for an attorney to concede a defendant’s guilt, against his wishes, in the hope of sparing him the death penalty. McCoy’s attorney argued that his client lacked the mental capacity to form the specific intent necessary for first-degree murder, see slip op. at 3 n.1, but conceded in his opening statement that the jury could not reach “any other conclusion than Robert McCoy was the cause of” the victims’ deaths. Id. at 4. This strategy, the Court held, violated the client’s Sixth Amendment rights regardless whether it was “counsel’s experienced-based view . . . that confessing …


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Categories: 924(c), Fourth Amendment, ineffective assistance of counsel, right to counsel, traffic stop, wiretaps

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Wednesday, May 9th, 2018

Second Circuit Issues Amended Ruling in Hill

Today the Second Circuit issued an amended opinion in United States v. Hill, holding that Hobbs Act Robbery is a crime of violence under 18 U.S.C. 924(c)(3)(A) (924(c)’s so-called “force clause”).

The good news about the decision is that it omits the portion of the earlier-issued opinion that upheld against a vagueness challenge 18 U.S.C. 924(c)(3)(B) (924(c)’s so-called “residual clause” or “risk of force clause”).  This was a hoped-for development in light of the Supreme Court’s decision last month in Sessions v. Dimaya.

This means there is no longer any holding from the Second Circuit that 924(c)’s residual clause survived Johnson. This should mean district courts will see a green light to find that 924(c)’s residual clause, and the identical clause in the Bail Reform Act, are void.

The bad news is the portion of the original holding that remains intact, that Hobbs Act robbery is a …


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Categories: 924(c), Hobbs Act, Johnson

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Wednesday, April 18th, 2018

More on Dimaya

Courtesy of Sentencing Resource Counsel Sissy Phleger.  (See yesterday’s post for a quick take on Dimaya‘s implications for the Second Circuit’s holding, in United States v. Elvin Hill, that § 924(c)(3)’s residual clause is not constitutionally vague).

Today, in Sessions v. Dimaya, the Supreme Court struck down the residual clause in 18 U.S.C. § 16(b) as unconstitutionally vague. Kagan authored the opinion, joined by Ginsburg, Breyer, Sotomayor, and in operative part, Gorsuch. Though it turned on the constitutionality of § 16(b)—a broadly applicable criminal statute—the case itself was an immigration proceeding in which the petitioner was challenging his pending deportation for an aggravated felony. The definition of aggravated felony in the Immigration and Nationality Act includes crimes of violence defined by § 16(b). 8 U.S.C. § 1101(a)(43)(F).

Section 16(b) defines “crime of violence” as any felony “that, by its nature, involves a substantial risk that physical …


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Categories: 924(c), ACCA, categorical approach, due process, INA

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Tuesday, April 17th, 2018

Big Dimaya Win!

Today, in Sessions v. Dimaya, the Supreme Court held in a long-awaited, 5-4 opinion that the  residual clause definition of a “crime of violence” incorporated by the Immigration and Nationality Act (INA), 18 U.S.C. § 16(b), is unconstitutionally vague. Justice Kagan wrote the majority opinion, which Justice Gorsuch joined in relevant parts while also writing an opinion concurring in part and concurring in the judgment. The opinions are available here. We will try to provide a deeper account of Dimaya in the near future. In the meantime, here is a quick summary of the majority opinion and a take on its implications.

The INA makes non-citizens removable, and ineligible for cancellation of removal, if they have been convicted of an “aggravated felony” after entering the United States. 8 U.S.C. §§  1227(a)(2)(3), 1229(b)(a)(3), (b)(1)(C). The Act defines “aggravated felony” to include a “crime of violence” as defined under 18 …


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Categories: 924(c), ACCA, categorical approach, due process, INA

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Wednesday, November 22nd, 2017

Second Circuit Enforces Rule 11

Yesterday the Second Circuit vacated a conviction because a Northern District court violated the requirements of Rule 11 concerning the acceptance of a guilty plea. The summary order in United States v. Coffin (Walker, Raggi, Hall) is available here.

Mr. Coffin agreed to plead guilty to one count of possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) . “Rule 11 requires that the district court, before accepting a plea of guilty, ‘determine that the defendant understands . . . the nature of each charge to which the defendant is pleading.'” Slip op. at 3-4 (quoting Fed. R. Crim. P. 11(b)(1)(G)). The district court, however, did not adduce any facts that would establish such an understanding. Instead, it simply said that the plea agreement contained facts that would support his guilty plea, and asked Mr. Coffin whether those facts were true.…

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Categories: 924(c), Rule 11

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Categories: 924(c), Rule 11

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