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Author Archive | Matt Larsen

Tuesday, October 3rd, 2023

Attempted Murder is a Crime of Violence (For Now)

In yesterday’s United States v. Pastore, the Circuit (Walker, Sullivan, Nathan, C.JJ.) held attempted murder in aid of racketeering – specifically, attempted New York murder – is a “crime of violence” under 18 U.S.C. § 924(c).

The Circuit reasoned that, because murder requires someone to intentionally “’cause the death of another person,'” Slip Op. at 14 (quoting N.Y. Penal Law § 125.25(1)), and because “intentionally causing the death of another person involves the use of force,” id., attempting to murder requires the “attempted use . . . of physical force against the person . . . of another.”  § 924(c)(3)(A).

The Supreme Court’s ruling in United States v. Taylor, 142 S. Ct. 2015 (2022), the Circuit said, does not compel otherwise.  The Court there held attempted Hobbs Act robbery is not a “crime of violence” given that it can be committed by means of an “…

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Categories: crime of violence

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Wednesday, September 6th, 2023

Selling cocaine in NY is not a “serious drug offense” under ACCA

Affirming Judge Koeltl, the Second Circuit has ruled in U.S. v. Minter that selling cocaine, in violation of N.Y. Penal Law § 220.39(1), is not a “serious drug offense” under the Armed Career Criminal Act, 18 U.S.C. § 924(e).

Why not?  Because “New York’s definition of cocaine is categorically broader than its federal counterpart.”  Slip Op. at 3.  Specifically, federal law “prohibits possession of only optical and geometric isomers of cocaine, while New York’s statute prohibits possession of all cocaine isomers.”  Slip Op. at 5 (emphasis in original).

The government argued Minter should have to pass the “realisitic probability” test by poining to a New York case in which the defendant was convicted for selling something other than an optical or geometric isomer of cocaine.  But the Court said no: “the New York statute applies on its face to all cocaine isomers; [federal law] does not.  ‘When the state law …

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Categories: ACCA

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Friday, June 30th, 2023

Section 922(g)(1) Held Unconstitutional As Applied to a Murderer

Section 922(g)(1) of Title 18 bars anyone ever convicted of any felony from ever possessing a gun.

Judge Carlton Reeves of the Southern District of Mississippi just dismissed an indictment charging a violation of § 922(g)(1).  He ruled that, in light of New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), section 922(g)(1) is unconstitutional as applied to Jessie Bullock, a man with felony convictions for “aggravated assault and manslaughter.”  United States v. Bullock, ___ F. Supp. 3d ___, 2023 WL 4232309, at *2 (S.D. Miss. June 28, 2023).

As the judge noted, “Bruen articulated a new legal standard applicable to all Second Amendment challenges.”  Id. at *29.  Namely: “[W]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.  To justify its regulation, . . . the government must demonstrate that the regulation is consistent …

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Categories: 922(g), Bruen

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Categories: 922(g), Bruen

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Wednesday, April 5th, 2023

Kidnapping is Not a Crime of Violence

Most courts (and the government) have for a while acknowledged that kidnapping is not a crime of violence given that it can be accomplished through deception and thus without physical force.  The Second Circuit has now acknowledged this too, holding in US v. Eldridge that NY kidnapping in aid of federal racketeering isn’t a 924(c) predicate: it can be committed using “deception to hold a victim in a place” and thus without “the use, attempted use, or threatened use of physical force.”

PS – The career offender guideline lists “kidnapping” as a COV but doesn’t define it, meaning the generic definition (how most jurisdictions define it) applies.  The DC Circuit surveyed the law and decided generic kidnapping requires “a criminal purpose beyond the mere intent to restrain the victim.”  US v. De Jesus Ventura, 565 F.3d 870, 876 (D.C. Cir. 2009).  Neither federal kidnapping nor NY kidnapping requires such heightened …

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Categories: 924(c), crime of violence

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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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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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