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Archive | 924(c)

Friday, August 30th, 2019

FINAL DECISION by the Second Circuit in BARRETT

Because the residual clause of 18 U.S.C.§  924(c)(3)(B)  is unconstitutionally vague, “conspiracy” to commit Hobbs Act robbery isn’t a qualifying 924(c) predicate, since Hobbs Act conspiracy doesn’t meet the elements clause of § 924(c)(c)(3)(A). United States v. Barrett, No. 14-2641-cr, __F.3d__, 2019 WL 4121728  (Aug. 30, 2019). 

The Supreme Court vacated the Second Circuit’s original judgment that affirmed Barrett’s conviction (see 903 F.3d 166). And it remanded the case to the Circuit for further consideration in light of United States v. Davis, 139 S. Ct. 2319 (June 24, 2019). See  Barrett v. United States, 139 S.Ct. 2774 (June 28, 2019) (“petition for writ of certiorari granted. Judgment vacated, and case remanded to the United States Court of Appeals for the Second Circuit for further consideration in light of United States v. Davis[.]”).

In United States v. Davis, 139 S. Ct. 2319 (2019), the Supreme …

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Thursday, August 22nd, 2019

Federal Second-Degree Murder is Not a Crime of Violence …

In the Ninth Circuit, at least. This week in United States v. Begay, No. 14-10080, 2019 WL 3884261 (9th Cir. Aug. 19, 2019), the Ninth Circuit held that second-degree murder, in violation of 18 U.S.C. § 1111, is not a crime of violence for purposes of 18 U.S.C. § 924(c).

In Begay, the defendant, “[a]fter a few hours of drinking and smoking methamphetamine,” “shot [the victim] in the head with a handgun,” killing him. The defendant was convicted of second-degree murder and discharging a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii).

The Ninth Circuit vacated the § 924(c) conviction. The Circuit applied the categorical approach to determine whether second-degree murder qualifies as a crime of violence, looking to the elements of that offense rather than the specific facts of the case. (And after United States v. Davis, an offense must qualify …

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Friday, August 16th, 2019

Second Circuit Remands For Resentencing Because of Uncertainty About Whether the Judge Understood That he Could Consider the Severity of Mandatory Consecutive Minimum Sentences In Sentencing for the Predicate Offenses.

In United States v. Brown, No. 18-834 (2d Cir. Aug. 16, 2019), the Court of Appeals reversed a 39-year sentence and remanded for resentencing because it was uncertain whether the judge understood his discretion, after the Supreme Court’s decision Dean v. United States, 137 S.Ct. 1170 (2017), to consider the severity of the mandatory consecutive minimum sentences required by §924© in determining the sentence for the predicate offenses. The case involved two robberies and two §924(c)brandishing counts, which, before the First Step Act, required 7 years for the first and 25 years for the second §924(c)count. Defense counsel had asked for one day on the predicate robberies because the mandatory consecutive sentences were so severe. Before Dean, the Second Circuit’s decision in United States v. Chavez, 549 F.3d 119 (2d Cir. 2017)had precluded such consideration. Neither case was mentioned below but the court imposed 84 months …

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Wednesday, July 24th, 2019

Is attempted Hobbs Act robbery a “crime of violence” for purposes of § 924(c) after Davis?

In the Second Circuit, a substantive Hobbs Act robbery qualifies as a “crime of violence” for purposes of § 924(c) under its elements (or force) clause, § 924(c)(3)(A). See United States v. Hill, 890 F.3d 51 (2d Cir. 2018). But a conspiracy to commit Hobbs Act robbery does not qualify as a crime of violence for purposes of § 924(c), because United States v. Davis, 139 S. Ct. 2319 (June 24, 2019), invalidated the residual clause of § 924(c)(3)(B) as unconstitutionally vague (and a conspiracy does not qualify under the elements clause).

That leaves the question of whether attempted Hobbs Act robbery qualifies as a § 924(c) crime of violence after Davis. The Second Circuit has not answered this question — i.e., whether attempted Hobbs Act robbery “has as an element the use, attempted use, or threatened use of physical force against the person or property …

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Monday, July 8th, 2019

The Supreme Court Vacates Barrett

The Second Circuit’s decision in United States v. Barrett, 903 F.3d 166 ( 2d Cir. 2018), was vacated by the Supreme Court in a GVR order on June 28, 2019, in light of United States v. Davis, 588 U.S. __, 2019 WL 2649797. Davis held, contrary to Barrett, that the residual clause of 924(c)(3)(B) is void for vagueness. See Blog Post dated June 26, 2019.

In light of the Supreme Court’s order in Barrett, the government has acknowledged that Hobbs Act conspiracy no longer qualifies as a crime of violence under §924(c) because it does not qualify under the “force” or “elements” clause. So §924(c) convictions based on a Hobbs Act conspiracy as the predicate “crime of violence” are invalid. Unfortunately, the Second Circuit held that substantive Hobbs Act robbery  qualifies under the force clause, in United States v. Hill, 890 F.3d 51(2018).  …

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Wednesday, June 26th, 2019

The Supreme Court held in United States v. Davis that the so-called “residual clause” of 18 U.S.C. 924(c)(3)(B) is void for vagueness

The Supreme Court held in United States v. Davis that the so-called “residual clause” of 18 U.S.C. 924(c)(3)(B) is void for vagueness. This means that the only way a crime can qualify as a “crime of violence” for purposes of Section 924(c) is under the “elements” (or “force”) clause of 18 U.S.C. 924(c)(A). That clause defines a “crime of violence” to mean “an offense that is a felony” and “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”

So what happens now? Here’s a quick overview:

  1. Davis means that the Second Circuit’s decision in United States v. Barrett, 903 F.3d 166 (2d Cir. 2018), which upheld the constitutionality of the residual clause, is no longer good law. And more specifically, the Supreme Court is likely to grant the pending petition for certiorari in Barrett, vacate that
…
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Thursday, April 11th, 2019

Credit Union Robbery is a Crime of Violence for the Purposes of 18 U.S.C. 924(c)

Today, in United States v. Hendricks, the Second Circuit held that robbery of a credit union, in violation of 18 U.S.C. 2113(a), is a “crime of violence” for the purposes of 18 U.S.C. 924(c). The Circuit said it had “little difficulty in holding that bank robbery committed ‘by intimidation’ categorically constitutes a crime of violence for the purposes of [Section] 924(c)(1)(A).” Opinion at 15.

Stay tuned for a more detailed discussion of Henricks.…

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Friday, January 25th, 2019

The 924(c)(3)(B) Circuit Split Grows (in a Good Way)

This week, the Fourth Circuit held in United States v. Simms, No. 15-4640 (4th Cir. 2019) (en banc) that § 924(c)(3)’s residual clause is unconstitutionally vague and therefore that conspiracy to commit Hobbs Act robbery is not a crime of violence. The decision deepens the Circuit split on this issue, which the Supreme Court will soon address in Davis.

Notably, the en banc majority in Simms declined to apply the constitutional avoidance canon to adopt a conduct-specific reading of § 924(c)(3)(B). The avoidance canon has “no application,” the Court stated, where “there is an absence of more than one plausible construction” of the statute. Slip op. at 41 (quotation marks omitted). As the Court explained elsewhere, the government’s favored reading of § 924(c)(3)(B) is implausible because its text and structure “unambiguously require courts to analyze the attributes of an ‘offense that is a felony . . . by …

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Friday, January 11th, 2019

Cert. Grant in Davis

The Supreme Court recently granted a certiorari petition in Davis v. United States that presents the following questions:

(1) Whether 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague;

(2) whether Hobbs Act robbery is a “crime of violence” as defined by 18 U.S.C. § 924(c)(3); and

(3) whether a prior Texas conviction for burglary is a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e).

Practitioners should take care to preserve challenges to § 924(c)(3)’s residual clause notwithstanding the Second Circuit’s holding in Barrett, and to preserve arguments that offenses such as Hobbs Act robbery (and conspiracy to commit that offense) are not crimes of violence under  § 924(c)(3). (Note that, as of the date of this post, the mandate has not issued in Barrett.)…

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Thursday, October 25th, 2018

Barrett Petition for Rehearing and the Growing 924(c)(3)(B) Circuit Split

A petition for rehearing, available here, has been filed in United States v. Barrett, No. 14-2641 (2d Cir. 2018), which held that § 924(c)(3)’s residual clause is not unconstitutionally vague and that conspiracy to commit Hobbs Act robbery is not a crime of violence.  Practitioners with Johnson petitions pending in district courts should, in appropriate cases, consider requesting stays pending the resolution of this petition.

In addition, the First Circuit has recently held that 924(c)’s residual clause is not void for vagueness.  See United States v. Douglas, No. 18-1129 (1st Cir. Oct. 12, 2018), opinion available here. There is now a 3-3 circuit split on this question:

Three Circuits have held that § 924(c)(3)(B) is unconstitutional in light of Dimaya. See United States v. Davis, 903 F.3d 483 (5th Cir. 2018); United States v. Eshetu, 898 F.3d 36 (D.C. Cir. 2018); United States …

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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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