Archive | crime of violence

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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More to Follow

Johnson (Bad) News:

Today, the Circuit  decided  Hill adverse to the defendant. It holds that Hobbs Act Robbery is “categorically” a “Crime of Violence” under 18 U.S.C.§ 924(c)(3).  It also holds that Johnson does not apply to § 924(c): i.e., it does not  “effectively render[]  the ‘risk-of-force clause’” of § 924(c) “void for vagueness.” United States v. Elvin Hill, No. 14-3872-cr (Jacobs, Livingston, and Droney).

We are still digesting the Opinion. More will follow.  But defense counsel will still have to raise and litigate these claims until the Supreme Court decides the issue. The Government already has a cert petition pending with the Supreme Court  based on defendant wins in the Ninth Circuit and two other circuits. This Second Circuit case clearly creates a split that the Supreme Court will most likely take on.…


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

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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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Friday, May 6th, 2016

Summary Order Reaffirms Second Circuit Rule that Youthful Offender Adjudications Can Count as Crimes of Violence under the Guidelines even after Sellars

There is only one summary order today, United States v. Oscar Cardoza, 15-1602-cr. The Second Circuit reaffirmed its rule that a New York youthful offender adjudication counts as a crime of violence under USSG 2L1.2(b)(1)(A)(ii), if the nature of the proceedings, the sentence received, and the actual time served shows that the state treated the conviction as an adult conviction. See United States v. Pereira, 465 F.3d 515, 520-22 (2d Cir. 2006); United States v. Reinoso, 350 F.3d 51, 54 (2d Cir. 2003). The Court distinguished its holding in United States v. Sellars, 784 876 (2d Cir. 2015) that a youthful offender conviction does not qualify as a violent felony under ACCA on the ground that ACCA explicitly excludes convictions that are deemed “set aside” under state law, while there is no such provision in the guideline.…


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Categories: crime of violence, youthful offender adjudication

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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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Saturday, January 21st, 2012

PC World

United States v. Baker, No. 10-1925-cr (2d Cir. January 12, 2012) (Pooler, Parker, Carney, CJJ) (per curiam)

This latest per curiam affirms an Armed Career Criminal Act (“ACCA”) sentence, rejecting the defendant’s claims that his Vermont prison escape convictions were not ACCA predicates. The statute at issue contains two distinct offenses – failure to report to custody, which is not a predicate, and escape from custody. Baker agreed that his convictions were for escape from custody, but argued that the district court should have looked beyond the charging instruments to determine whether his actual conduct posed a sufficient degree of risk to qualify.

The circuit disagreed. While a sentencing court can, and sometimes must, look beyond the charging instrument, it cannot go beyond the judicial record evidence. Where the defendant pled guilty, the offense is a predicate if the record establishes that his plea necessarily admitted elements of a predicate …


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Categories: ACCA, crime of violence, escape, Uncategorized

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Wednesday, January 5th, 2011

PC World

United States v. Brown, No. 09-4991 (2d Cir. January 5, 2011) (Calabresi, Sack, Katzmann, CJJ) (per curiam)

The court’s latest per curiam holds that assaulting a correction officer, in violation of Conn. Gen. Stat. § 53a-167c(a), satisfies the “catch-all” definition of “violent felony” in the Armed Career Criminal Act. Under Circuit law, an offense qualifies under the catch-all if it is both similar “in kind” and in “degree of risk posed” to the listed offenses of burglary, arson, extortion and the use of explosives.

The Connecticut offense is similar “in kind” because it requires the offender to intentionally prevent an officer from performing his duties, primarily in a prison setting, where “the act of injuring an employee for the purpose of preventing her from performing her official duties tends to entail especially violent consequences.”

As for the degree of risk posed, the court noted that the statute only applies where …


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Categories: ACCA, crime of violence, Uncategorized

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Sunday, October 3rd, 2010

PC World

United States v. Folkes, No. 09-3389-cr (2d Cir. September 29, 2010) (Newman, Hall, CJJ, Restani, JCIT) (per curiam)

A conceded plain error in applying the definition of “crime of violence” in the illegal reentry Guideline is the subject of the court’s most recent per curiam.

Before he was deported, Walford Folkes had been convicted in New York State of criminal possession of a weapon in the third degree and burglary in the third degree. When sentenced for his illegal reentry, received a sixteen-level enhancement for having reentered after sustaining a conviction for a crime of violence.

On appeal, the circuit vacated the sentence, holding that the enhancement did not apply. The illegal reentry guideline’s definition of “crime of violence” is unique. While it covers more or less the same enumerated categories of offenses as other such definitions – such as that in the career offender Guideline and the Armed Career …


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Categories: crime of violence, Uncategorized

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Friday, August 13th, 2010

Court Reads the Riot Act

United States v. Johnson, No. 08-5245-cr (2d Cir. August 2, 2010) (Cabranes, Parker, CJJ, Amon, DJ)

In this split decision, the majority held that a conviction for the Connecticut offense of “Rioting at a Correctional Institution” is a “violent felony” under the “otherwise involves” clause of the Armed Career Criminal Act (“ACCA”).

In getting there, the majority looked beyond the statute’s title – which “suggests an obvious answer ” – to examine the conduct that the statute actually proscribes. The Connecticut statute provides that a person is “guilty of rioting at a correctional institution when he incites, instigates, organizes, connives at, causes, aides, abets, assists or takes part in any disorder, disturbance, strike, riot or other organized disobedience to the rules and regulations of such institution.” Connecticut courts have “clarified” the meaning of the statute, holding that it is “specifically directed” at those who lead or plan prison disturbances and …


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Categories: ACCA, crime of violence, Uncategorized

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Saturday, March 13th, 2010

Strong Arm Of The Law

United States v. Walker, No. 08-3874-cr (2d Cir. February 18, 2010) (Feinberg, Katzamann, CJJ, Ellis, DJ)

Here, the circuit upheld the use of Walker’s prior conviction for “strong arm robbery” – a South Carolina common law offense – as a “crime of violence” to enhance his offense level under the firearms guideline. The court rejected the argument that only statutory offenses can be used as guideline enhancements, agreeing with the Ninth Circuit that “when a state crime is defined by specific and identifiable common law elements, rather than by a specific statute, the common law definition of a crime serves as a functional equivalent of a statutory definition.” Common law offenses are just as amenable as statutory offenses to the “categorical approach for enhancement determinations.”

The guideline at issue expressly includes “robbery” as a “crime of violence.” Thus, since “strong arm robbery” in South Carolina corresponds in substance to the …


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Categories: crime of violence, Uncategorized

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Saturday, August 29th, 2009

PC WORLD

The court’s latest per curiam (“PC”) opinion deals with the narrow definition of “crime of violence” in the illegal reentry guideline, U.S.S.G. § 2L1.2. United States v. Gamez, No. 07-3660-cr (2d Cir. August 20, 2009) (per curiam), holds that the New York State offense of criminal possession of a weapon in the second degree, which makes it a crime to possess various types of firearms “with the intent to use the same unlawfully against another” is not a crime of violence under that section. The 2L1.2 definition of “crime of violence” includes certain enumerated offenses, not implicated here, as well as any other offense that “has an an element the use, attempted use, or threatened use of physical force gainst the person of another.” Since the New York statute prohibits the intended use of force, but not the attempted use of force, it is not covered by this definition. And, …


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Categories: crime of violence, Uncategorized

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