Archive | crime of violence

Friday, October 5th, 2018

§ 924(c)’s Residual Clause: The Circuit Split Deepens

Making Supreme Court review a virtual certainty, today the Eleventh Circuit joined the Second in holding that § 924(c)’s residual clause, 18 U.S.C. § 924(c)(3)(B), is not unconstitutionally vague. See United States v. Ovalles (11th Cir. Oct. 4, 2018) (en banc), opinion available here.

There is now a 3-2 circuit split. Three Circuits have held that § 924(c)(3)(B) is unconstitutional in light of Dimaya. See United States v. Davis, __ F.3d __, 2018 WL 4268432 (5th Cir. Sept. 7, 2018); United States v. Eshetu, 898 F.3d 36 (D.C. Cir. 2018); United States v. Salas, 889 F.3d 681 (10th Cir. 2018). Two Circuits have now upheld the residual clause. See Ovales, ___ F.3d ___, 2018 WL 4830079; United States v. Barrett, ___ F.3d ___, 2018 WL 4288566 (2d Cir. Sept. 10, 2018).…


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Categories: 924(c), crime of violence, Johnson

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Inaccurate Barrett Dicta

The Second Circuit issued an opinion this week containing some facially incorrect, and substantively troubling, dicta concerning tits recent decision in Barrett. See United States v. Fiskeu, No. 17-1222 (2d Cir. 2018) (Cabranes, Lynch, Carney) (appeal from Engelmayer, J., S.D.N.Y.), opinion available here.

The narrow, fact-specific holding of Fiseku is that under the “unusual circumstances” presented in the case, police officers did not act unreasonably when they briefly restrained the defendant in handcuffs while conducting a investigatory stop. Slip op. at 18. However, the defendant also raised an ineffective assistance claim because his defense attorney failed to argue that his crime of conviction, conspiracy to commit Hobbs Act robbery, was not a crime of violence within the meaning of U.S.S.G. 4B1.2. The Second Circuit declined to address this claim on direct review.

In so declining, the panel offered this footnote:

In a recent decision, we determined that


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Categories: 924(c), conspiracy, crime of violence, Johnson

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Monday, September 10th, 2018

Second Circuit decides Barrett

On the heels of its Pereira-Gomez decision on Friday, the Second Circuit issued a new opinion in United States v. Barrett, which is available here.

In Barrett, the Circuit held that 18 U.S.C. 924(c)(3)(B) is not unconstitutionally vague because “factfinding as to the violent nature of the predicate offense and the risk of physical force in its commission can be made by the trial jury in deciding the defendant’s guilt, thus avoiding both the Sixth Amendment and due process vagueness concerns at issue in Dimaya and Johnson.”  The Court held that the fact that Barrett’s jury did not make a finding regarding force was harmless error in light of the specific facts of his case.  The Circuit further held that a Hobbs Act Robbery conspiracy is a crime of violence because the object of the conspiracy, the Hobbs Act Robbery, is a crime of violence.  “[T]his …


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Categories: 924(c), conspiracy, crime of violence, 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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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, 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, November 15th, 2016

Despite the Jones Delay, EDNY Rules New York Robbery is Not a “Crime of Violence”

still-not-a-cov

As blogged about here, the Second Circuit held in United States v. Jones that New York robbery is not a “crime of violence” for federal sentencing purposes.  And as blogged about here, the Circuit then vacated that ruling pending the Supreme Court’s decision in Beckles v. United States.

Notwithstanding Jones being put on hold, Judge Cogan of the Eastern District of New York has ruled — like the Jones court and Judges Ross and Weinstein in pre-Jones rulings — that New York robbery is not a “crime of violence.”  The decision, available here, explains that New York robbery can be committed with less than the “violent” force required by the force clause of the Career Offender Guideline (which controls in felon-in-possession cases), and that the Guideline’s residual clause was effectively invalidated by Johnson v. United States, 135 S. Ct. 2551 (2015).  Because the Guideline’s …

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Categories: crime of violence, robbery

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Categories: crime of violence, robbery

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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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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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Categories: 924(c), crime of violence, Hobbs Act, Johnson

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