Archive | crime of violence

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

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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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Categories: 924(c), crime of violence, murder

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

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

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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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Categories: ACCA, burglary, crime of violence

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The Second Circuit has withdrawn its opinion in Thompson v. Barr

On May 30, 2019, the Second Circuit withdrew the per curiam opinion in Thompson v. Barr, #17-3494, that was issued on May 13. The opinion found that NY assault in the second degree (NYPL § 120.05(1)) is an aggravated felony crime of violence for immigration purposes under the force clause of 18 USC § 16(a).

The panel opinion in Thompson did not discuss whether the fact that a crime can be committed by omission as well as by commission affects whether that offense “has as an element the use, attempted use, or threatened use of physical force.” 18 USC § 16(a). The pro se petitioner did not raise that issue, and it is pending before the Second Circuit in US v. Scott, #18-163 (argued Jan. 10, 2019). This probably accounts for the decision to withdraw the Thompson opinion.…


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Categories: crime of violence, immigration

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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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Categories: ACCA, crime of violence, Johnson

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

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

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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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