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Archive | crime of violence

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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Tuesday, May 25th, 2021

The Supreme Court throws a wrench into § 1326(d) motions in the Second Circuit

In United States v. Palomar-Santiago, No. 20-437 (May 24, 2021), Justice Sotomayor ruled for a unanimous Court that as a matter of statutory interpretation (1) each of 8 U.S.C. § 1326(d)’s three requirements must be satisfied; and that (2) a showing by the defendant that the deportation proceeding was “fundamentally unfair” under § 1326(d)(3) — because the immigration judge (IJ) mistakenly told him that he was removable as an aggravated felon due to his DUI conviction (this became error six years later in Leocal v. Ashcroft, 543 U.S. 1 (2004), holding that a DUI is not a § 16(b) “crime of violence” and thus not an “aggravated felony”) – does not suffice to dismiss a reentry indictment. The decision overrules Ninth Circuit law holding that “defendants are ‘excused from proving the first two requirements’ of § 1326(d) [– noncitizen defendants must show that they exhausted administrative remedies and …

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Categories: aggravated felony, crime of violence, deportation

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Thursday, April 22nd, 2021

Second Circuit Holds that Attempted Hobbs Act Robbery Is a § 924(c) “Crime of Violence.”

The Circuit ruled today in United States v. McCoy, No. 17‑1315(L) (Kearse, Parker, and Sullivan, JJ.), that the crime of attempting to commit a Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), remains a “crime of violence” under 18 U.S.C. § 924(c), even after United States v. Davis, 139 S. Ct. 2319 (2019). The Circuit had previously held that a completed Hobbs Act robbery is a “crime of violence,” United States v. Hill, 890 F.3d 51 (2d Cir. 2018), but that a conspiracy to commit Hobbs Act robbery is not, United States v. Barrett, 927 F.3d 126 (2d Cir. 2019).

In McCoy, the Circuit rejected the defendants’ argument that attempted Hobbs Act robbery, like conspiracy to commit Hobbs Act robbery, does not qualify as a “crime of violence” because it does not necessarily have “as an element the use, attempted use, or threatened …

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Categories: crime of violence, Davis, Hobbs Act

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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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Tuesday, July 21st, 2020

Circuit Will Decide En Banc Whether New York First-Degree Manslaughter Is a “Violent Felony” and “Crime of Violence.”

In United States v. Scott, 954 F.3d 74 (2d Cir. Mar. 31, 2020), a divided panel held that New York first-degree manslaughter is neither a predicate “violent felony” under the Armed Career Criminal Act nor a “crime of violence” under the Career Offender Guideline because it can be committed by complete inaction and therefore without the use of force, as defined in Curtis Johnson v. United States, 559 U.S. 133 (2010). The panel also held that New York first-degree manslaughter does not match any of the generic offenses enumerated in the Career Offender Guideline.

On July 10, 2020, the Circuit granted the government’s petition for rehearing en banc. No briefing schedule has yet been issued. Stay tuned.…

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Categories: career offender, crime of violence, violent felony

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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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Wednesday, February 19th, 2020

Committing or threatening violence is a “crime of violence.”

For one brief, beautiful moment, it seemed like nothing could ever be a crime of violence. But the pendulum is swinging back and now everything is becoming a crime of violence once again.

In United States v. Nikolla, 17-2206-cr (2d Cir. Feb. 19, 2020), the Second Circuit held that threatening violence in furtherance of an extortion plan, in violation of 18 U.S.C. § 1951(a), is categorically a “crime of violence” under the force (or elements) clause of 18 U.S.C. § 924(c).

In Nikolla, the defendant pled guilty to several charges, including a § 924(c) offense, pursuant to a written plea agreement. On appeal, he nonetheless challenged his § 924(c) conviction. In upholding this conviction, the Circuit found § 1951(a) divisible and noted that the defendant pled guilty to the provision which applies to a defendant who “commits or threatens physical violence to any person or property in furtherance” …

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Tuesday, February 11th, 2020

Second Circuit Holds N.Y. Attempted Second Degree Assault With a Deadly Weapon (N.Y.P.L. §120.05. (2) ) a “Crime of Violence” Under Force Clause and §846 Narcotics Conspiracy a “Controlled Substance Offense.”

In United States v. Tabb, __ F.3d __, 2020 WL 573379 (2d Cir. Feb. 6, 2020), the Court of Appeals held that New York’s attempted assault in the second degree with a deadly weapon or dangerous instrument qualifies as a crime of violence under the force clause. The Court had previously held, in Singh v. Barr, 939 F.3d 457 (2d Cir. 2019), that the completed crime qualifies under the force. It relied here on Singh and on its pre-Johnson decision in United States v. Walker, 442 F.3d 787 (2d Cir. 2006), which held that attempted assault with a deadly weapon was a violent felony under the ACCA’s force clause. The Court followed Singh in rejecting the argument, based on Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir. 2003), that the substantive offense could be committed by indirect force or omission. Chrzanoski held that Connecticut third …

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Categories: assault, attempt, conspiracy, crime of violence

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Thursday, January 23rd, 2020

Another Court Rules Attempted Hobbs Act Robbery is NOT a “Crime of Violence”

As blogged about here, Judge Johnson of the E.D.N.Y. has ruled that attempted Hobbs Act robbery is not a “crime of violence” under 18 U.S.C. § 924(c).

He’s just been joined by Judge Telesca of the W.D.N.Y.  “[A]ttempted Hobbs Act robbery does not categorically entail the use, threatened use, or attempted use of force.”  Lofton v. United States, 2020 WL 362348, at *9 (W.D.N.Y. Jan. 22, 2020).  That is because the “requisite categorical approach,” by “which a court must examine ‘the minimum criminal conduct necessary for conviction,’” shows that the crime can be committed “‘without any use, attempted use, or threatened use of violence.’”  Id. at *7 (citations omitted).

As briefed in a pending case, United States v. Pica, E.D.N.Y. 08-559, the minimum conduct for attempted Hobbs Act robbery is surveilling a target with the intent to rob him but not actually use force: in short, to bluff.  …

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

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Friday, January 10th, 2020

EDNY: Attempted Hobbs Act Robbery Is Not A § 924(c) Crime of Violence.

In United States v. Tucker, 2020 WL 93951 (E.D.N.Y. Jan. 8, 2020), the district court (Johnson, J.), held that attempted Hobbs Act robbery is not a crime of violence under 18 U.S.C. § 924(c), and granted defendant’s pretrial motion to dismiss a § 924(c) count predicated on that offense.

Tucker reasons as follows: An attempt requires only a substantial step toward completing the object crime, and for Hobbs Act robbery, “the Second Circuit has found ‘reconnoitering the place contemplated for the commission of the crime’ or possession of ‘paraphernalia to be employed in the commission of the crime’ to be sufficient to constitute a ‘substantial step.’” Tucker, 2020 WL 93951, at *5 (quoting United States v. Jackson, 560 F.2d 112, 120 (2d Cir. 1977)). Such conduct is not necessarily forceful or violent:

“[A] person may engage in an overt act—in the case of robbery, for example, … …

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Friday, November 1st, 2019

Connecticut First-Degree Robbery is a Crime of Violence Under Section 16(a)

Continuing to develop its “crime of violence” jurisprudence, the Second Circuit held that Connecticut first-degree robbery, Section 53a-134(a)(4), is a crime of violence under 18 U.S.C. § 16(a).

In Wood v. Barr, 17-514-ag (2d Cir. Nov. 1, 2019), a lawful permanent resident facing deportation argued that his Connecticut robbery conviction was not a “crime of violence,” and therefore not an aggravated felony.

Since the Supreme Court struck down Section 16(b)’s so-called residual clause in Sessions v. Dimaya, the Second Circuit focused on Section 16(a)’s elements clause. This provision defines a “crime of violence” as an offense that has an element requiring “the use, attempted use, or threatened use of physical force against the person or property of another.” The Circuit adopted its rationale in an earlier decision, United States v. Bordeaux, 886 F.3d 189 (2d Cir. 2018), which addressed New York first-degree robbery. The Circuit noted that …

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