Archive | career offender

Friday, June 15th, 2018

(Non-)Waiver and the Generic Definition of Manslaughter

Last week the Second Circuit issued an opinion holding that, under the residual clause of the pre-2016 Career Offender Guideline (COG), U.S.S.G. § 4B1.2(a)(2), offenses under a subsection of New York’s first-degree manslaughter statute are crimes of violence. In so holding, the Circuit defined the generic definition of manslaughter to include “the unlawful killing of another human being recklessly.” United States v. Castillo, No. 16-4129 (2d Cir. 2018) (Cabranes, Raggi, Vilardo (WDNY)) (appeal from Woods, J., SDNY), slip op. at 24. The Court further held, in conclusory fashion, that the government did not waive this argument when it conceded, pre-Beckles, that the residual clause of the pre-2016 COG was unconstitutionally vague. The opinion in Castillo, available here, may be of interest to practitioners dealing with the pre-2016 Guidelines, and is more generally worth noting for its loose language  concerning appellate waiver — language that …


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Categories: career offender, categorical approach, manslaughter, waiver

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Friday, June 8th, 2018

Seventh Circuit Holds that Beckles Does Not Apply to Pre-Booker Sentences

More news out of the Midwest:  In United States v. Cross, the Seventh Circuit held that Beckles v. United States applies only to post-Booker cases in which the Sentencing Guidelines were advisory.  In pre-Booker cases in which the Guidelines were mandatory, the residual clause of the career-offender guideline is unconstitutionally vague under Johnson v. United States.…


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Categories: career offender, Johnson

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Thursday, March 8th, 2018

Second-Degree NY Robbery Is A Crime of Violence Under the Pre-2016 Career Offender Residual Clause

Today, in a short opinion, the Second Circuit confirmed that second-degree robbery in New York is categorically a crime of violence under the residual clause of the pre-2016 Career Offender Guideline (COG). See U.S.S.G. § 4B1.2 (2015). The opinion in United States v. Smith, No. 15-3313 (2d Cir. 2018) (Winter, Cabranes, Restani) (appeal from Failla, J., SDNY), is available here.* (A separate panel reached the same conclusion, with less analysis, earlier this week in United States v. Dove.)

Its decision, the Smith panel held, was compelled by Jones II, where the Second Circuit held that under Beckles first-degree robbery is a crime of violence under the pre-2016 COG’s residual clause. See Smith, slip op. at 9-10 (“The rationale of Jones is directly applicable to this case. In New York law, the first element of second-degree robbery is the same as the first element of …


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Categories: career offender, categorical approach, crime of violence, Johnson, robbery, sentencing

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Friday, January 26th, 2018

Categorical Approach Updates from First and Ninth Circuits (Including on 2nd-Degree NY Robbery’s Status under the Career Offender Guideline)

Two valuable opinions have been published outside the Second Circuit in recent weeks:

(1) The First Circuit has  held that attempted second-degree robbery in New York is not a “crime of violence” for purposes of the Career Offender Guideline’s force clause, U.S.S.G. § 4B1.(2)(a)(1). The opinion in United States v. Steed, No. 17-1011 (1st Cir. 2018) (Barron, J.) is available here. The court’s reasoning in Steed should be familiar to those following the district court and (vacated) Second Circuit opinions reaching the same conclusion.

As its starting point, the court looked to First Circuit case law holding that purse snatching does not necessarily require the degree of force required under Johnson I. The court then considered whether, as of 2000 (the year of the defendant’s relevant conviction), such purse snatching was a violation of New York’s second degree robbery statute, NY Penal Law  § 160.10. After …


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Categories: career offender, categorical approach, conspiracy, crime of violence, drug distribution, Johnson

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Tuesday, October 31st, 2017

Circuits Rule that Hobbs Act and 924(c) Convictions Are Not Predicates Under the ACCA and COG.

This month two circuits held, respectively, that offenses cannot serve as predicates under the Career Offender Guideline or the Armed Career Criminal Act (ACCA) because they can involve force against property as well as against persons.

The Tenth Circuit held that robbery under the Hobbs Act, 18 U.S.C. § 1951, is not a crime of violence under the Career Offender Guideline (COG), U.S.S.G. § 4B1.2. See United States v. O’Connor. The enumerated clause of the COG identifies “robbery” as a crime of violence. The Tenth Circuit held that the elements of this generic offense include the use or threatened use of force against a person, but not against property. Hobbs Act robbery, by contrast, can involve “actual or threatened force, or violence, or fear of injury, immediate or future, to . . . [a] person or property.” 18 U.S.C. § 1951(b)(1) (emphasis added). The COG’s definition of robbery …


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Categories: 924(c), career offender, categorical approach, crime of violence, Johnson, robbery, sentencing

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Tuesday, September 12th, 2017

New Circuit Opinion on Old Career Offender Residual Clause

Yesterday the Circuit re-decided United States v. Jones. The panel held that in light of the Supreme Court’s recent decision in United States v. Beckles, armed New York first-degree robbery is categorically a crime of violence under the residual clause of the pre-2016 Career Offender Guideline. See U.S.S.G. § 4B1.2 (2015). (The Guidelines have since been amended to remove the residual clause.) The opinion is available here.

In a concurring opinion, two of the panel’s three judges confirmed that New York robbery is not a violent felony under ACCA’s elements clause. Specifically, the concurrence observed that the Circuit’s decision in United States v. Spencer, 955 F.2d 814, 820 (2d Cir. 1992), which had held that New York attempted third-degree robbery was a crime of violence under the Career Offender Guideline’s elements clause, had been “abrogated” by Johnson v. United States, 559 U.S. 133 (2010) (“2010 Johnson


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Categories: career offender, categorical approach, crime of violence, Johnson, robbery, sentencing

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Tuesday, March 7th, 2017

The Supreme Court Holds that the Advisory Guideline Are not Subject to Vagueness Challenges

In Beckles v. United States, 580 U.S. ___, 2017 WL 855781 (March 6, 2017) the Supreme Court held that Johnson v. United States, 576 U.S. 2551, 135 S.Ct. ___ (2015), does not apply to the Guidelines’ residual clause because “the advisory Guidelines are not subject to vagueness challenges under the Due Process clause.” Slip op. at 1. In an opinion by Justice Thomas, the Court’s reasoning was based on the advisory nature of the Guidelines since United States v. Booker, 543 U.S. 220 (2005). Slip op. at 7. Because the now advisory guidelines “merely guide the district court’s discretion,” they do not implicate the vagueness doctrine’s concerns with notice and arbitrary enforcement. Slip op. at 7-9. Justice Thomas noted that the decision did “not render the advisory Guidelines immune from constitutional scrutiny,” only void-for-vagueness scrutiny; they are still subject to ex post facto rules and Eighth Amendment …


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Categories: career offender, guideline, Johnson, vagueness

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Wednesday, October 19th, 2016

Sooner or Later, the Career Offender Guideline Will Get You

In United States v. Anthony Lewis, Docket Nos. 15-3245-cr (L) & 15-3307-cr (CON), an unpublished summary order, the Court (Calabresi, Livingston & Rakoff (by designation)) rejected two appeals by Mr. Lewis from two denials of two § 3582(c)(2) motions for a reduced sentence based on two retroactively applicable Guideline amendments, one in 2010 and the other in 2014. The case is of interest principally for demonstrating the see-saw application of the Career Offender Guideline vis-a-via the Drug Guideline (§ 2D1.1) in the context of § 3582(c)(2) motions.

Mr. Lewis was originally sentenced in 2004. Under the drug table in § 2D1.1, his total offense level (based on distributing 1.5 KG or more of cocaine base) was 37, and at Criminal History Category VI, the range was 360 months to life. He also qualified as a Career Offender under § 4B1.1, but that determination resulted in a total offense …


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Categories: 3582(c)(2), career offender

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Manslaughter is Not a “Crime of Violence”

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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…

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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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Friday, July 29th, 2016

Petition to file a Second or Successive 2255 petition is granted by the Circuit –in a Career Offender case based on Johnson and the cert. grant in Beckles — and the district court has discretion to proceed without waiting for the Beckles decision.

Today the Circuit amended its decision in Blow v. United States, No. 16-1530 (Katzmann, chief judge; Wesley and Hall, circuit judges). It added a single line at the end of the opinion to say that the district judge has discretion to proceed on Blow’s  2255 petition and  is not required to hold the petition in abeyance until the Supreme Court decides  Beckles v. United States, No. 15-8544, 2016 WL 1029080 (U.S. June 27, 2016).

The Circuit’s initial opinion was filed about two weeks ago, on July 14, 2016. It granted Blow’s motion to file a Second or Successive 2255 petition. But it  “instructed” the district court to “hold Blow’s §2255 motion in abeyance pending the outcome of Beckles.

In Beckles,  the Supreme Court granted certiorari to decide whether Johnson v. United States, 135 S.Ct. 2551 (2015)  — which declared that the “residual clause” of the …


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Categories: 2255, career offender, Johnson, Uncategorized

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