Archive | ACCA

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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Friday, April 6th, 2018

Recent Cert. Grant on the ACCA’s Definition of “Violent Felony”

It’s been a relatively slow week for the Second Circuit, but the Supreme Court recently granted cert. in Stokeling v. United States, 17-5554, a case concerning the definition of “violent felony” under the ACCA. Sentencing Resource Counsel Sissy Phleger has these details:

The issue: Whether a state robbery offense that includes “as an element” the common law requirement of overcoming “victim resistance” is categorically a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), when the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.

Florida’s robbery statute reads, in relevant part,

(1) “Robbery” means the taking of money or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the …

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Tuesday, March 27th, 2018

Three Robberies in an Hour: Separate Offenses Under the ACCA

Today the Second Circuit held that three robberies committed on the same evening–within the same hour–were “committed on occasions different from one another” within the meaning of the ACCA. See United States v. Bordeaux, 17-486 (2d Cir. 2018) (Cabranes, Raggi, Vilardo (WDNY)). The opinion, available here, also holds that a subsection of Connecticut’s first-degree robbery statute, punishing robberies committed with a firearm, defines a violent felony for ACCA purposes.

The relevant facts of Bordeaux are buried toward the bottom of the opinion, in the analysis section. The defendant and accomplices robbed three different victims on the same night in Bridgeport, CT. The robberies occurred at approximately 10pm, 10:15pm, and 10:55pm on November 24, 2009. The district court “took notice that the distances between the first and second and the second and third robberies were, respectively, “a little less and a little more than one‐half mile.” Slip …

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Categories: ACCA, Shepard

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Thursday, December 21st, 2017

Second Circuit Holds that First-Degree Robbery is a Violent Felony Under the ACCA

In a disappointing but relatively narrow opinion, the Second Circuit held yesterday that first-degree New York robbery is a violent felony for purposes of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The opinion in United States v. Stuckey, No. 16-4133 (Chin, Droney, Restani (Ct. Intl. Trade) (appeal from Oetken, J., SDNY), is available here. Significantly, the panel expressly declined to address whether second- or third-degree New York robbery is a violent felony under the ACCA — and its holding does not speak to those questions.

The issue in Stuckey is whether, in order to constitute a violent felony under ACCA, an offense must require that a defendant intend to use violent force. Specifically, the issue is whether an offense can constitute a violent felony under the ACCA if it involves the degree of force required under Johnson v. United States (“Johnson I”), …


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Categories: ACCA, categorical approach, crime of violence, robbery

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Tuesday, December 19th, 2017

New District Court Opinions Hold That Neither New York Robbery Nor First-Degree Sexual Abuse are Violent Felonies Under the ACCA

In recent weeks both the Eastern and Southern Districts have issued useful opinions on the scope of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). In summary, these opinions conclude that none of the following New York offenses is a “violent felony” within the meaning of the ACCA: (1) second-degree robbery and attempted robbery, N.Y. Penal Law §160.10; (2) attempted third-degree robbery N.Y. Penal Law §160.10; and (3) first-degree sexual abuse, N.Y. Penal Law § 130.65. For those grappling with Johnson issues, the relatively short opinions may be worth reading in their entirety.

In the Southern District, Judge Rakoff issued an opinion holding that neither second- nor third-degree NY robbery offenses are violent felonies under the ACCA. See Austin v. United States, 16-cv-4446, available here. As Judge Rakoff notes, the Second Circuit reached the same result with respect to the Career Offender Guideline, U.S.S.G. § …


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Categories: ACCA, categorical approach, robbery, sex offenses

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Wednesday, October 19th, 2016

Manslaughter is Not a “Crime of Violence”

keep-calm

In a recent ruling, Judge Woods of the Southern District held first-degree manslaughter in violation of N.Y. Penal Law § 125.20(1) is not a “crime of violence” under the pre-August 1, 2016, Career Offender Guideline, U.S.S.G. § 4B1.2.  A person commits such manslaughter when, “[w]ith intent to cause serious physical injury to another person, he causes the death of such person or of a third person.”

Judge Woods first held this offense does not qualify under the Guideline’s residual clause as that clause was “rendered void” by Johnson v. United States, 135 S. Ct. 2551 (2015).  The judge next held the offense does not qualify under the Guideline’s force clause because “one can be found guilty of manslaughter under the New York statute on the basis of an omission.” Specifically, “the failure to perform a legally imposed duty” permits conviction if the inaction leads to another’s death.  People


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Categories: ACCA, career offender, crime of violence, manslaughter, murder

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Tuesday, October 4th, 2016

U.S. v. Jones: Hold That Thought…

patience_2014_01_31-22

In United States v. Jones, previously blogged about here, the Second Circuit held New York robbery is not a categorical “crime of violence” under the Career Offender Guideline, U.S.S.G. § 4B1.2.  The Court’s opinion was based in part on the view, shared by the government and all but one of the circuits, that the Guideline’s residual clause is “likely void for vagueness in light of the Supreme Court’s analysis of the ACCA’s [Armed Career Criminal Act’s] identical phrase in Johnson v. United States, 135 S. Ct. 2551 (2015).”

In an order published yesterday, the Court vacated the Jones opinion pending the Supreme Court’s decision in Beckles v. United States.  Beckles will decide whether the Guideline’s residual clause survived Johnson.  After Beckles is decided, a final judgment will issue in Jones.

Takeaways for the Defense Bar

1.  In ACCA cases, the absence of Jones poses …


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Categories: ACCA, career offender, Johnson, robbery

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Thursday, July 21st, 2016

New York Robbery is Not a “Crime of Violence”

marble rye-blog

In today’s United States v. Jones, the Second Circuit (Walker, Calabresi, Hall, C.JJ.) overruled its prior precedents in light of Johnson v. United States, 559 U.S. 133 (2010), and Johnson v. United States, 135 S. Ct. 2551 (2015), to hold that “a first‐degree robbery conviction in New York is no longer necessarily a conviction for a ‘crime of violence’ as that term is used in the Career Offender Guideline.”

New York robbery, whatever its degree, is “forcible stealing” and requires actual or threatened “physical force upon another person.”  N.Y. Penal Law § 160.00.  This does not make the offense a “crime of violence,” the Circuit explained, because New York courts “have made clear that ‘forcible stealing’ alone does not necessarily involve the use of ‘violent force'” required to make something a “crime of violence” under the Guideline’s force clause.  “Violent force” is “strong” and “substantial,” Johnson, …


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

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Thursday, June 23rd, 2016

Supreme Court reaffirms the categorical approach in ACCA cases

In Mathis v. United States, No. 15-6092, the Supreme Court reaffirmed the categorical approach to determining whether a prior conviction can give rise to the enhanced sentencing provisions of the ACCA.  If the elements of a state crime are broader than the elements listed in the generic offense, a conviction for the state crime cannot qualify as a predicate under the ACCA.  This remains true even if the defendant’s actual conduct fit within the definition of the generic offense.  In Mathis, the defendant’s prior conviction for burglary did not qualify as a prior violent offense under the ACCA because the Iowa burglary statute under which he was convicted — which listed “structures” and “vehicles” as alternative means for fulfilling one of the crime’s elements — was broader than generic burglary.  Even though his conduct had involved burglarizing a structure, that fact was “off-limits” to the sentencing judge.

Justice Kagan …


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Categories: ACCA, categorical approach

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Friday, April 22nd, 2016

Second Circuit Updates – April 22, 2016

After this week’s Supreme Court decision in Welch v. United States, — S. Ct. –, slip op. (April 18, 2016) (No. 15-6418), which found that Johnson v. United States, 135 S. Ct. 2551 (2015) is retroactive to those serving Armed Career Criminal sentences, the next big question is whether the rule in Johnson will apply retroactively to career offender guidelines cases. (Quick reminder: Johnson struck down the “residual clause” in ACCA as void-for-vagueness. Identical or nearly-identical language to the residual clause pops up in many other sentencing statutes and guidelines). Welch gives some cause for hope. In an amicus brief filed yesterday in support of petitioner Alfrederick Jones for a writ of certiorari to the Supreme Court (Alfrederick Jones v. United States, No. 15-8629), the Federal Public and Community Defenders and the National Association of Federal Defenders laid out the case for why the Supreme Court …


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Categories: ACCA, career offender, crime of violence, guideline, retroactivity

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