Archive | categorical approach

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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(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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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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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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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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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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Wednesday, June 21st, 2017

Circuit Holds that NYPL 220.31 – Criminal Sale 5th – Is Not A Controlled Substance Offense (for Immigration Purposes)

Today, the Circuit held in Harbin v. Sessions, No. 14-1433-ag, that the New York offense of criminal sale of a controlled substance in the 5th degree, NYPL 220.31, is not a controlled substance offense for immigration purposes.

You can access the opinion here.

The analysis is straightforward: (1) The NY statute prohibits the sale of a “controlled substance.” That element is indivisible under Mathis v. United States, 136 S. Ct. 2243 (2016). (2) The NY controlled substance schedule is categorically broader than the federal schedule because the former includes at least one substance (human chorionic gonadotropin, HCG) that the latter does not.

If your client has a prior conviction under 220.31, you should be arguing that 220.31 is not a controlled substance offense under the Guidelines (for example, under the felon-in-possession or career-offender guidelines), or any other enhancement provision. Although not controlling, Harbin is extremely helpful on …


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Categories: categorical approach

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