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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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Tuesday, December 10th, 2019

Second Circuit restates its holding that Connecticut’s simple robbery statute, Conn. Gen. Stat. § 53a-133, qualifies as a violent felony under ACCA’s force clause. Estremera v. United States, No. 17-831-pr, __ F. 3d__, 2019 WL 6690775 (Dec. 9, 2019).

In Shabazz v. United States, 912 F.3d 73 (2d Cir. 2019), the Circuit held that Connecticut’s simple robbery statute, Connecticut General Statute § 53a-133, qualifies as a violent felony under the force clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1) (“ACCA”). Id. at 78.

Here, the Circuit holds that Shabazz “resolves” Petitioner Nelson Estremera’s claims that his Connecticut convictions for first-degree robbery and attempted robbery, in violation of Conn. Gen. Stat. §§ 53a-134(a)(3) and 53a-49, and for second-degree robbery and conspiracy to commit robbery, in violation of Conn. Gen. Stat. §§ 53a-135(a)(1) and 53a-48 do not qualify as ACCA predicates. Estremera, 2019 WL 6690775 at * 2.  [17-831_Documents.]

All Connecticut first-degree robbery offenses — the Circuit holds — are qualifying ACCA predicates. It states that although Connecticut’s first-degree robbery statute, Conn. Gen. Stat. § 53a-134(a), enumerates different ways of committing first-degree robbery, “every …

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Categories: ACCA, Johnson, violent felony

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Friday, June 14th, 2019

Supreme Court issues a new ruling on the definition of generic burglary

In Quarles v. United States, decided on June 10, 2019, a unanimous Supreme Court held that “remaining-in” burglary qualifies as a crime of violence for ACCA purposes even if the defendant does not form the intent to commit a crime in the building or structure until sometime after the unlawful remaining commences.

The petitioner contended that his Michigan conviction for “home invasion” did not constitute a predicate crime of violence under ACCA (18 USC § 924(e)). ACCA defines a crime of violence to include “burglary.” Under the Supreme Court’s 1990 decision in Taylor v. United States, 495 US 575, the generic statutory term “burglary” means any offense that involves the unlawful or unprivileged entry into, or remaining in, a building or structure with intent to commit a crime therein. The issue in Quarles was whether remaining-in burglary occurs only if a person has the intent to commit a …

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Wednesday, May 8th, 2019

Second Circuit Upholds ACCA Sentence

In United States v. Evans, the Second Circuit upheld a sentence imposed pursuant to 18 U.S.C. 924(e)(2)(B), the Armed Career Criminal Act (“ACCA”). As the Court described it, the case presented “the latest entry in a series of cases defining offenses that qualify as ‘violent felonies'” for the purposes of ACCA’s sentencing enhancement. The Court held that North Carolina second-degree burglary qualifies as a violent felony under ACCA’s “enumerated clause” and that federal bank robbery in violation of 18 U.S.C. 2113(a) qualifies as a violent felony under ACCA’s “elements clause.” You can read the Evans opinion here. …

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Wednesday, January 16th, 2019

Loss in Stokeling

Yesterday, in Stokeling v. United States, the Supreme Court held that Florida robbery is a violent felony under the Armed Career Criminal Act (ACCA). In doing so, the Court modified Johnson‘s understanding of the degree of “force” necessary for to satisfy the ACCA’s force clause. The excellent summary below is courtesy of Aamra Ahmad, of the Sentencing Resource Counsel Project, and Paresh Patel, Appellate Chief for the District of Maryland Federal Defenders:

Today, in Stokeling v. United States (17-5554), the Court revisited the meaning of the term “physical force” as it is used in the elements clause of the ACCA statute. In Johnson v. United States, 559 U.S. 133, 140 (2010), the Court defined “physical force” as a quantity of “force capable of causing physical pain or injury.” But in Johnson, the Court also used words such as “severe,” “extreme,” “furious,” or “vehement” to define “physical …

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Categories: ACCA, categorical approach, robbery

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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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Categories: 924(c), ACCA, categorical approach, certiorari, conspiracy, crime of violence, Hobbs Act, Johnson

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Tuesday, December 18th, 2018

Supreme Court Decides Stitt

Last week, the Supreme Court held in United States v.  Stitt, Nos. 17-765 & 17-766, that the Armed Career Criminal Act’s (ACCA’s) definition of “violent felony” covers burglary statutes that criminalize unlawful entry into vehicles adapted or customarily used for overnight accommodation. As explained below, the decision does not appear to have any bearing on whether the ACCA covers New York’s third-degree burglary statute, N.Y. Penal Code § 140.20.

The enumerated clause of the ACCA identifies “burglary” as a violent felony. 18 U.S.C. § 924(e)(1)(ii). In Taylor v. United States, 495 U.S. 575 (1990), the Supreme Court adopted the categorical approach to analyzing the ACCA and, in doing so, held that Congress “intended a uniform definition of burglary [to] be applied” to cases involving that predicate offense. Id. at  580. This uniform definition of burglary, the Court held in Taylor, covers unlawful entry into “a building or other …

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Categories: ACCA, burglary, career offender, crime of violence

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Friday, October 12th, 2018

ACCA Oral Arguments in Stokeling & Stitt (and FDNY nondelegation argument in Gundy!)

This week the Supreme Court heard oral arguments in two cases addressing whether specific state offenses are violent felonies within the meaning of the Armed Career Criminal Act (ACCA): Stokeling v. United States (Florida robbery statute that punishes takings by slight force), and United States v. Stitt (state burglary statutes that punish vehicle break-ins). The statutes at issue are similar to the New York robbery and burglary statutes in their scope.

For a detailed analysis of the arguments in these cases, see Rory Little’s analysis at SCOTUSBlog.

The transcript in Stokeling is available here.

The transcript in Stitt, which featured a masterful oral argument by Jeffrey Fisher, is available here.

Speaking of masterful, the FDNY’s Sarah Baumgartel recently argued before the Supreme Court in United States v. Gundy on the question of whether SORNA’s delegation of authority to the Attorney General under 42 U.S.C. § 16913 …

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Categories: ACCA, burglary, categorical approach, robbery, Sex offender registration

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Friday, September 7th, 2018

Second Circuit Holds that all Degrees of New York Robbery Are Crimes of Violence

A Second Circuit panel held today that, under the force clause of the subsequently revised U.S.S.G. § 2L1.2 (2014), all degrees of New York robbery are crimes of violence. United States v. Pereira-Gomez, No. 17-952 (2d Cir. 2018) (Cabranes, Carney, Caproni (SDNY)) (appeal from Azrack, J., EDNY), opinion available here. Despite this holding, practitioners are urged to preserve the argument that New York robbery is not a crime of violence under the force clause, as the Supreme Court will soon be deciding this issue in Stokeling v. United States, No. 17-5554.

Mr. Pereira-Gomez was convicted of illegal reentry, in violation of 8 U.S.C.§§ 1326(a) and 1326(b)(2). The version of U.S.S.G. § 2L1.2 then in effect provided for a sentencing enhancement if the defendant had a prior conviction for an offense that “has as an element the use,attempted use, or threatened use of physical force against …

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Categories: ACCA, categorical approach, robbery

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Monday, August 27th, 2018

Judge Gold Holds that New York Third Degree Robbery Is Not a Violent Felony Under the ACCA

Magistrate Judge Gold (SDNY) recently issued a Report & Recommendation (R&R), available here, concluding that third degree New York robbery, N.Y. Penal Law §160.05, is not a violent felony under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). See Baldwin v. United States, No. 16-CV-3350. Judge Korman has adopted the R&R.

Judge Gold’s reasoning will be familiar to those who have read opinions by the First Circuit, Judge Rakoff, and others reaching the same conclusion. Significantly, Judge Gold rejects the reasoning of a Sixth Circuit opinion, Perez v. United States, 885 F.3d 984, 990 (6th Cir. 2018), holding that third degree NY robbery is a crime of violence under the ACCA. The Sixth Circuit’s holding, Judge Gold explains, relies on a recent New York Court of Appeals case for the proposition that New York robbery cannot be “a taking” “by sudden or stealthy …

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Wednesday, April 18th, 2018

More on Dimaya

Courtesy of Sentencing Resource Counsel Sissy Phleger.  (See yesterday’s post for a quick take on Dimaya‘s implications for the Second Circuit’s holding, in United States v. Elvin Hill, that § 924(c)(3)’s residual clause is not constitutionally vague).

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Today, in Sessions v. Dimaya, the Supreme Court struck down the residual clause in 18 U.S.C. § 16(b) as unconstitutionally vague. Kagan authored the opinion, joined by Ginsburg, Breyer, Sotomayor, and in operative part, Gorsuch. Though it turned on the constitutionality of § 16(b)—a broadly applicable criminal statute—the case itself was an immigration proceeding in which the petitioner was challenging his pending deportation for an aggravated felony. The definition of aggravated felony in the Immigration and Nationality Act includes crimes of violence defined by § 16(b). 8 U.S.C. § 1101(a)(43)(F).

Section 16(b) defines “crime of violence” as any felony “that, by its nature, involves a substantial risk that physical …

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Categories: 924(c), ACCA, categorical approach, due process, INA

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