Archive | categorical approach

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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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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Monday, October 8th, 2012

PC World

United States v. Reyes, No. 10-1400-cr (2d Cir. August 29, 2012) (Katzmann, Wesley, CJJ, Underhill, DJ) (per curiam)

Closing the question left open by United States v. Rosa, 507 F.3d 142, 156 (2d Cir. 2007), this per curiam opinion concludes that it was plain error for the district court to rely solely on the presentence report’s uncontested description of a prior offense in determining whether the defendant was a career offender, where the statute of conviction described some offenses that met the definition of crime of violence and some that did not. Even where the defendant does not contest the PSR’s factual description of the prior offense, the “modified categorical approach” still requires more. The PSR, after all, described only what the defendant did, not what he was convicted of. The circuit accordingly vacated the sentence and remanded for resentencing to give the government the “opportunity to introduce evidence demonstrating …


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Categories: categorical approach, Uncategorized

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One Statute, Indivisible

United States v. Beardsley, No. 11-2206-cr (2d Cir. August 27, 2012) (Newman, Straub, Lynch, CJJ)

For purposes of recidivism enhancements, the statutes underlying prior convictions can be categorized into two distinct groups. “Divisible” statutes are those that identify distinct offenses, some of which would trigger the enhancement and some would not.  “Indivisible” statutes, by contrast, identify a single offense but are worded so broadly as to encompass conduct that might or might not fall within the relevant definition.  This important decision holds that for “indivisible” statutes, the traditional “categorical approach” is the only available means of determining whether the enhancement applies. The more expansive “modified categorical approach” can only be used with divisible statutes, in an effort to ascertain which of the possible predicate offenses the defendant was convicted of.

Here, the particular enhancement was that in a child pornography statute, 18 U.S.C. § 2252A. For offenses involving the …


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Categories: categorical approach, Uncategorized

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Saturday, September 27th, 2008

Savage Love

United States v. Savage, No. 06-4097-cr (2d Cir. September 18, 2008) (Pooler, Livingston, CJJ, Kaplan, DJ)

Lavon Savage pled guilty to possessing a gun. At issue was whether his offense level should be enhanced for a prior “controlled substance offense,” based on his conviction under Connecticut General Statute § 21a-277(b), which makes it a crime to, inter alia, sell a controlled substance. Connecticut defines the “sale” of a controlled substance as “any form of delivery, which includes barer, exchange or gift, or offer therefore.” This definition is broader than the guideline definition of “controlled substance offense,” which does not include offenses involving the mere offer of a controlled substance.

The circuit concluded that Savage should not have received the enhancement. It agreed that the Connecticut statute criminalizes conduct – an offer to furnish drugs – that falls outside the guideline definition of “controlled substance offense.” Moreover, under the limitations of …


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Categories: alford plea, categorical approach, Uncategorized

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Friday, November 2nd, 2007

The Good Shepard

United States v. Rosa, No. 05-3621-cr (2d Cir. October 30, 2007) (Kearse, Sack, CJJ, Mills, DJ)

The Armed Career Criminal Act (ACCA) requires increased penalties for defendants in federal gun possession cases who have three prior convictions for serious drug offenses or “violent felonies.” This case concerns the “categorical approach” to determining whether a prior conviction resulting from a guilty plea was to an offense that qualified as a “violent felony.”

In 1991, Rosa pled guilty to robbery in the first degree, an offense he committed when he was 15, in violation of N.Y. Penal Law § 160.15(4), which makes it an offense to commit a robbery and display “what appeared to be” a firearm. The government contended that this conviction was an ACCA predicate as an “act of juvenile delinquency … involving the use or carrying of a firearm.” Two other ACCA predicates were not in dispute.

The district …


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Categories: ACCA, categorical approach, Shepard, Uncategorized, Y.O., youthful offender adjudication

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