Author Archive | Matt Larsen

Thursday, June 3rd, 2021

Reminder: Hobbs Act Robbery is *NOT* a Career Offender or ACCA Predicate

Hobbs Act robbery is not a qualifying predicate under either the Career Offender Guideline or the Armed Career Criminal Act (“ACCA”).  But it does count under § 924(c).  This is because it can be committed “by means of actual or threatened force, or violence, or fear of injury, immediate or future, to [someone’s] person or property.”  18 U.S.C. § 1951(b)(1).

The Guideline and ACCA

“Because Hobbs Act robbery can be committed by using force against persons or property, it reaches more broadly than the Career Offender Guideline’s elements clause, [U.S.S.G. § 4B1.2(a)(1),] which is limited to offenses using force against persons.”  Nunez v. United States, 954 F.3d 465, 477 n.5 (2d Cir. 2020) (Raggi, J., concurring).  For the same reason, the offense is beyond the reach of ACCA’s elements clause, which is also limited to “force against the person of another.”  18 U.S.C. § 924(e)(2)(B)(i).

Also because Hobbs …

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Categories: career offender, Hobbs Act

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Thursday, April 15th, 2021

A Reminder to Request Complaints Against Police Officers

As Judge McMahon recently reminded in Fraser v. City of New York, 2021 WL 1338795 (S.D.N.Y. Apr. 9, 2021), defendants in criminal cases should always ask the government to comply with its multiple obligations under Brady v. Maryland, 373 U.S. 83 (1963), by turning over all complaints against police officers involved in the case.

Jawaun Fraser wrongfully served two years in New York state prison after being convicted of robbery on the testimony of police officers sued numerous times for testifying falsely.  Both the prosecutor and officers had withheld information about several of those suits, and upon learning this Fraser succeeded in getting his conviction thrown out.  The state did not appeal that ruling or re-prosecute Fraser for robbery (he instead pleaded guilty to disorderly conduct, which is not even a misdemeanor).  Fraser then sued for damages in federal court, where the officers moved to dismiss the complaint …

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Monday, March 1st, 2021

Attempted Bank Robbery: Good News and Bad News

Do you have a client challenging a charge or conviction for attempted bank robbery in violation of 18 U.S.C. § 2113(a) and/or gun possession in relation to that crime in violation of § 924(c)?  Well, there’s good news and bad news.

First, the bad news: a two-judge panel of the Second Circuit has ruled attempted bank robbery — specifically, attempted robbery “by force and violence, or by intimidation,” § 2113(a) — is a “crime of violence” under § 924(c).  See Collier v. United States, No. 17-2402, ___ F.3d ___ (2d Cir. Mar. 1, 2021) (available here).

But now the good news: the panel based its ruling on “the text of the attempt crime that is set forth in § 2113(a), which expressly requires that the attempted taking — like the completed crime — be perpetrated ‘by force and violence, or by intimidation.'”  Slip Op. at 4.  Again: § …

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Categories: crime of violence

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Monday, January 11th, 2021

Rehaif Heads Back to the Supreme Court

In a prosecution under 18 U.S.C. § 922(g), “the Government must prove [] that the defendant . . . knew he belonged to the relevant category of persons barred from possessing a firearm.”  Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019).  Usually, this means proving the defendant knew he’d previously been convicted of “a crime punishable by imprisonment for a term exceeding one year.”  § 922(g)(1).  Prior to Rehaif, no such knowledge was believed necessary– and scores of convictions were thus obtained without any allegation, evidence or finding of the Rehaif element.

What happens now in such cases (at least, the ones still on direct appeal)?  The Supreme Court will tell us in two cases granted review this past Friday, United States v. Gary, Sup. Ct. 20-444 (guilty pleas) and Greer v. United States, Sup. Ct. 19-8709 (trial convictions).

As for pre-Rehaif guilty …

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Categories: 922(g), Rehaif

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Thursday, October 8th, 2020

Did the Second Circuit Just Read Rule 33 Out of Existence?

Federal Rule of Criminal Procedure 33(a) authorizes a judge to “grant a new trial if the interest of justice so requires.”  This rule has traditionally been understood to “confer[] broad discretion upon a trial court to set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice.”  United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992).

But in a ruling yesterday, a panel of the Second Circuit held “a district court may not grant a Rule 33 motion based on the weight of the evidence alone unless the evidence preponderates heavily against the verdict.”  United States v. Archer, ___ F.3d ___, 2020 WL 5924196, at *4 (2d Cir. Oct. 7, 2020).  And in reviewing the evidence, the “district court must ‘defer to the jury’s resolution of conflicting evidence'” and consider the “trial evidence as a whole.”  Id. at *5.…

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Tuesday, October 6th, 2020

Keep Fighting Those Mandatory Guideline Sentences

Do you have a client who was deemed a career offender pursuant to the residual clause of the mandatory (pre-Booker) Career Offender Guideline?  If so, keep fighting that sentence!  There are at least a couple ways:

1) If the client has a petition pending under 28 U.S.C. § 2255, make sure to argue the sentence is unconstitutional given Johnson v. United States, 576 U.S. 591 (2015).  That argument is currently foreclosed by Nunez v. United States, 954 F.3d 465 (2d Cir. 2020), but there’s a circuit split on the issue that just deepened: the First Circuit has joined the Seventh in holding Johnson effectively invalidated the residual clause of the mandatory Guideline.  See Shea v. United States, ___ F.3d ___, 2020 WL 5755462 (1st Cir. Sept. 28, 2020).  The Supreme Court refused to resolve this split when the Seventh Circuit was the sole outlier, but …


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Categories: 3582(c)(1)(A), Johnson, mandatory guidelines

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Thursday, July 9th, 2020

Glimmer of Hope for Challenging pre-Rehaif Guilty Pleas to § 922(g)(1)?

In “a prosecution under 18 U.S.C. § 922(g) [], the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.”  Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019).

The most common § 922(g) offense is gun possession by someone “who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year.”  § 922(g)(1).  Rehaif requires such a person to have known — when he possessed the gun — that he had previously been convicted of such a crime.

In United States v. Balde, 943 F.3d 73 (2d Cir. 2019), the Second Circuit held someone wishing to challenge his pre-Rehaif guilty plea must show a “reasonable probability that . . . [he] would not have entered the plea” if he …

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Wednesday, July 8th, 2020

Supreme Court REALLY Keeps the Faith

Monday’s post, titled Supreme Court Keeps the Faith, discussed the Court’s distaste for “faithless electors.”

In two 7-2 rulings today, the Court took its distaste for the faithless to a new level, ruling labor and health laws largely do not apply to religious organizations.

In Our Lady of Guadalupe School v. Morrissey-Berru, two teachers sued the Catholic schools that fired them.  One teacher said she was fired because she’d asked for a leave of absence to treat her breast cancer (she later died); the other said she was fired for being too old.  In neither case did the school cite a religious reason for the firings (the reasons were, respectively, an unspecified failure to follow the curriculum and keep classroom order, and difficulty administering a reading and writing program).  Though the teachers were not nuns or religious instructors (or, for one teacher, even Catholic), their duties included conveying …

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Monday, July 6th, 2020

Supreme Court Keeps the Faith

Writing for a unanimous Supreme Court in today’s Chiafalo v. Washington, Justice Kagan upheld a state’s power to not just replace — but also to punish — “faithless electors.”  Such electors refuse to cast their Electoral College ballots for the presidential candidate the voters of their state selected.

The Electoral College is, of course, an anti-majoritarian abomination designed over 200 years ago to, among other things, placate white men who owned other human beings.  Seee.g., Juan F. Perea, Echoes of Slavery II: How Slavery’s Legacy Distorts Democracy, 51 U.C. Davis L. Rev. 1081 (2018).  Justice Kagan’s opinion notes some framers’ argument that the Electoral College would “entrust[] the Presidency to ‘men most capable of analyzing the qualities’ needed for the office,” and “would ‘be composed of the most enlightened and respectable citizens,’ whose choices would reflect ‘discretion and discernment.'”  Chiafalo, Slip. Op. at 12.  …

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Thursday, April 2nd, 2020

A Crime that Can be Committed by Inaction is Not a “Crime of Violence”

The Second Circuit held this week that an offense is not a “crime of violence [if] it can be committed by complete inaction and therefore without the use of force.”  United States v. Scott, ___ F.3d ___, 2020 WL 1522825, at *1 (2d Cir. Mar. 31, 2020).

Mr. Scott had originally been subjected to the Armed Career Criminal Act’s 15-year mandatory minimum, along with the Career Offender Guideline, based on two prior convictions for New York manslaughter in the first degree.  Someone is guilty of that offense when, “[w]ith intent to cause serious physical injury to another person, he causes the death of such person or of a third person.”  N.Y. Penal Law § 125.20(1).  New York’s highest court has said this statute reaches a parent’s “failure to obtain medical care for a child.”  People v. Steinberg, 79 N.Y.2d 673, 680 (1992).  See also id(“The Penal …


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Categories: ACCA, career offender, crime of violence

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Saturday, March 28th, 2020

A Note on § 922(g) Clients

As the defense community continues to focus on clients at elevated risk during the COVID-19 pandemic, a recent ruling from the Fourth Circuit offers new support for vacating the convictions of clients who pleaded guilty to gun possession in violation of 18 U.S.C. § 922(g).  An element of that offense is that, at the time the defendant possessed a gun, he “knew he belonged to the relevant category of persons barred from possessing a firearm.”  Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019).  For most clients, that means knowing of a prior conviction for “a crime punishable by imprisonment for a term exceeding one year.”  § 922(g)(1).

In United States v. Gary, ___ F.3d ___, 2020 WL 1443528 (4th Cir. Mar. 25, 2020), the court held the failure to advise a defendant of the Rehaif element at his guilty plea is “a structural error that requires …

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