Archive | 924(c)

Thursday, March 9th, 2017

The Dismantling of the Holder Memo Begins

It looks like the work of dismantling the progress made under the Holder memo has begun.

Attorney General Jeff Sessions has issued a memo directing US Attorneys to work with local law enforcement to identify the ‘criminals’ in their districts who are driving violent crime and prosecute them federally using all available tools. You can read the memo here. An additional memo on charging decisions in all criminal cases will follow.…


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Categories: 922(g), 924(c), Hobbs Act, RICO

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Thursday, September 29th, 2016

Second Circuit Updates – September 29, 2016

Supreme Court to Decide Whether Johnson Applies to 18 U.S.C. 924(c)

The Supreme Court granted certiorari today in Lynch v. Dimaya, 15-1498, 2016 WL 3232911 (U.S., Sep. 29, 2016). The issue is whether the residual clause in 18 U.S.C. § 16(b), which has the same wording as the residual clause in 18 U.S.C. § 924(c), is void for vagueness under Johnson v. United States, 135 S. Ct. 2551 (2015). The Ninth Circuit held in Dimaya that Johnson applies to the residual clause in section 924(c) and there is a split in the Circuits. In light of certiorari grant, district judges should be urged not to deny Johnson claims involving section 924(c) convictions based on the Second Circuit’s decision in United States v. Hill, __ F.3d __, 2016 WL 4120667 (2d Cir. Aug.3, 2016). Courts should instead await the decision in Dimaya and resolution of the Hill rehearing …


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Categories: 924(c), ineffective assistance of counsel, Johnson

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Tuesday, August 30th, 2016

Existence of “Second or Subsequent” § 924(c) Conviction Remains a Mere “Sentencing Factor” after Allyne

In United States v. Boykin, Docket Nos. 14-851-cr & 14-1033-cr, the Court (Walker, Calabresi, Hall) in a per curiam opinion rejected defendant Simmons’s argument that under Allyne v. United States, 133 S. Ct. 2151 (2013), the fact of whether he had a “second or subsequent” conviction under 18 U.S.C. § 924(c) (for using or carrying a firearm during either a crime of violence or a drug trafficking offense), which triggers an enhanced mandatory consecutive sentence of 25 years, must be submitted to and found by a jury. The Court thus re-affirmed United States v. Anglin, 284 F.3d 407 (2d Cir. 2002), which held that the existence of a “second or subsequent” § 924(c) conviction is a mere sentencing factor, falling under the Almendarez-Torres exception (523 U.S. 224 (1998)) to the rule of Apprendi (530 U.S. 466 (2000)), and thus need not be submitted to or found by …

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Wednesday, August 3rd, 2016

An Uphill Battle

United States v. Elvin Hill, No. 14-3872-cr (Circuit Judges: Jacobs, Livingston, and Droney).(Disclosure: This is an appeal that this Office litigated).

In this direct appeal,  Mr.  Hill argued: (1)  that Hobbs Act robbery (18 U.S.C. § 1951) did not “categorically” constitute a “crime of violence” under the “force” clause of 18 U.S.C. § 924(c)(3);  and (2) that Johnson v. United States, 135 S.Ct. 2551 (2015)  applied to the residual clause of  § 924(c)(3), which is worded similarly to that of the ACCA statute — 18 U.S.C.. § 924(e)(2)(B) — and that Johnson rendered 924(c)(3)’s residual void for vagueness. Both claims were rejected by the Circuit.

The Cateqorical approach: The Circuit stated that it was applying the “categorical approach” in determining whether the predicate crime (the Hobbs Act robbery) was a “crime of violence” under §924(c).  The categorical approach looks only to the statutory definition of the predicate …


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More to Follow

Johnson (Bad) News:

Today, the Circuit  decided  Hill adverse to the defendant. It holds that Hobbs Act Robbery is “categorically” a “Crime of Violence” under 18 U.S.C.§ 924(c)(3).  It also holds that Johnson does not apply to § 924(c): i.e., it does not  “effectively render[]  the ‘risk-of-force clause’” of § 924(c) “void for vagueness.” United States v. Elvin Hill, No. 14-3872-cr (Jacobs, Livingston, and Droney).

We are still digesting the Opinion. More will follow.  But defense counsel will still have to raise and litigate these claims until the Supreme Court decides the issue. The Government already has a cert petition pending with the Supreme Court  based on defendant wins in the Ninth Circuit and two other circuits. This Second Circuit case clearly creates a split that the Supreme Court will most likely take on.…


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Wednesday, June 15th, 2016

Circuit Affirms Life Sentence for Leader of Violent Drug Trafficking Organization

There were no published opinions today.

In an unpublished opinion, United States v. Fernandini, No. 14-2203, the Second Circuit affirmed a within-Guidelines life sentence for the leader of a violent drug trafficking organization over procedural and substantive reasonableness challenges.

Fernandini pleaded guilty to (i) conspiracy to traffic narcotics; (ii) using a firearm to commit murder in furtherance of the conspiracy, 18 U.S.C. § 924(j)(1); and (iii) discharging the firearm in furtherance of the conspiracy, § 924(c)(1)(A)(iii). In affirming, the Circuit noted that “Fernandini was the leader of a notorious and ruthless gang for nearly a decade.  As gang leader, he significantly increased the quantity of narcotics the organization imported and enforced the organization’s territory with violence, including killing or ordering the killing of rival gang members.”

On the government’s consent, however, the Circuit vacated the § 924(c)(1)(A)(iii) discharging count, as it was a lesser included offense of the § …

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Saturday, August 27th, 2011

PC World

United States v. Echeverry, No. 10-2828-cr (2d Cir. August 19, 2011) (Winter, Parker, Chin, CJJ) (per curiam)

The facts of this latest per curiam could have been pulled straight from a law school exam. During an ongoing narcotics conspiracy, Echeverry and his accomplice attempted to recover stolen narcotics from a third person; they possessed and brandished a gun but, during the incident, the intended victim grabbed it and discharged it, wounding the accomplice.

The issue was whether Echeverry should get the seven-year brandishing § 924(c) sentence or the ten-year discharge § 924(c) sentence. The district court gave him the longer sentence, holding that if a defendant possesses a firearm during a drug-trafficking offense he is responsible for a subsequent discharge of that firearm, no matter who fires it.

The circuit affirmed. The statute provides that the enhanced sentence applies “if the firearm is discharged,” and “does not require that the …

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Saturday, February 19th, 2011

Abbott Hole

United States v. Tejada, No. 07-5289-cr (2d Cir. February 9, 2011) (Leval, Raggi, CJJ, Gleeson, CJ)

The defendant here received a 120-month drug sentence and a consecutive 60-month § 924(c) sentence. On appeal, he argued that this was illegal under the court’s decisions in Williams and Whitley. And indeed it was. However, as this decision recognizes, those cases were abrogated by the Supreme Court in Abbot v. United States, 131 S.Ct. 18 (2010).

At issue is an inscrutable phrase in § 924(c): “Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law,” a person convicted of violating § 924(c) must receive a specified mandatory minimum sentence and that sentence must be consecutive to any other term of imprisonment. Whitley held that this language meant that the § 924(c) sentence did not apply if the defendant received a higher …

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Saturday, March 13th, 2010

Glock-In-Trade

United States v. Gardner, No. 08-4793-cr (2d Cir. March 10, 2010)(Feinberg, Katzmann, CJJ, Castel, DJ)

18 U.S.C. § 924(c)(1)(A) makes it a crime to possess a firearm in furtherance of a drug trafficking crime. Here, the defendants challenged the applicability of this section in their case, where they purchased firearms using drugs as payment.

The trial evidence showed that the defendants acquired two firearms and paid for them with drugs, specifically an “onion” – one ounce of crack cocaine. They instructed the gun seller to sell the crack and give them $200 – the difference between the value of the drugs and that of the guns.

In affirming, the circuit began with a bit of history. The pre-1998 § 924(c) did not have an “in furtherance” requirement. It made it a crime only to use or carry a firearm “during and in relation to” a drug trafficking offense. Under that …

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Monday, August 17th, 2009

Same S***, Different Day

United States v. Parker, No. 08-4199-cr (2d Cir. August 14, 2009) (McLaughlin, Calabresi, Raggi, CJJ)

Travious Parker received a 180-month sentence after a jury trial. This sentence comprised a 120-month drug mandatory minimum and mandatory sixty-month consecutive sentence on a § 924(c) count. On appeal, he argued that under United States v. Williams, 558 F.3d 166 (2d Cir. 2009) and United States v. Whitley, 529 F.3d 150 (2d Cir. 2008), he was ineligible for the § 924(c) sentence. The circuit affirmed, because conduct underlying the drug count that carried the ten-year mandatory minimum and that underlying the § 924(c) count occurred on different dates.

Parker was charged in a multi-count indictment that covered several different dates. As pertinent here, the § 924(c) count (Count One), charged that Parker used or possessed a gun in connection with a crack sale (Count Two), a violation of 21 U.S.C. § 841(b)(1)(C), that carried …

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Saturday, March 14th, 2009

Off-Whitley

United States v. Williams, No. 07-2436-cr (2d Cir. March 5, 2009) (Pooler, Hall, CJJ, Trager, DJ)

Title 18 U.S.C. § 924(c) provides for consecutive mandatory minimum sentences for the use or possession of a firearm in connection with a drug offense or crime of violence except “to the extent that a greater minimum sentence is otherwise provided by … any other provision of law.” In United States v. Whitley, 529 F.3d 150 (2d Cir.), reh’g denied, 540 F.3d 87 (2d Cir. 2008), the defendant received a fifteen-year mandatory minimum under the Armed Career Criminal Act, and a five-year consecutive 924(c) sentence. The court held that the “except” clause exempted the defendant from the 924(c) sentence, since he was subject to a greater minimum on the ACCA count. Whitley left open whether the “except” clause applied to non-firearms offenses. Here, a different panel, following Whitley, answered that question with a resounding …

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