3d Circuit says Pennsylvania delivery of cocaine is a “controlled substance offense.” (520) Defendant was convicted of drug offenses. At sentencing, the court found that his two convictions under Pennsylvania Stat. § 780-113(a)(30) for delivery of cocaine, constituted “controlled substance offenses,” making him a career offender under § 4B1.2. On appeal, the Third Circuit affirmed, using the modified categorical approach to find that delivery was the same as distribution, that delivery did not encompass administration, and the Pennsylvania statute was a proper predicate for a career offender finding. U.S. v. Womack, __ F.4th __ (3d Cir. Nov. 29, 2022) No. 16-1682.
4th Circuit holds South Carolina drug statute was “controlled substance offense” despite documents. (520) Defendant was convicted of drug and firearm offenses. At sentencing, the district court found that he was a career offender under § 4B1.1 because his prior conviction under South Carolina Code Ann. § 44-53-370(a) was a “controlled substance offense.” Defendant argued that the district court improperly relied on an inconclusive state court “sentencing sheet” in finding the prior conviction. The Fourth Circuit found no error, even though § 44-53-370 is a divisible statute so some of the offenses it included did not fall within the definition of a “controlled substance offense.” Judge Harris dissented, arguing that the sentencing sheet provided insufficient information to conclude that defendant’s offense was a “controlled substance offense.” U.S. v. Boyd, __ F.4th __ (4th Cir. Nov. 30, 2022) No. 18-4883.
4th Circuit finds defendant waived Borden challenge to career offender status. (520)(855) At sentencing for drug and firearm offenses, the district court found that defendant was a career offender under § 4B1.1 based in part on his prior conviction for assault with a deadly weapon under South Carolina law. On appeal, after briefing was complete, defendant filed a supplemental brief arguing for the first time that his prior conviction was no longer a “crime of violence” after Borden v. U.S., 141 S.Ct. 1817 (2021) held that offenses that can be committed recklessly are not crimes of violence. The Fourth Circuit found that defendant waived his argument because the Fourth Circuit had adopted the Borden rule before the Supreme Court did so, and indeed, defendant had relied on the Fourth Circuit’s precedents in challenging the presentence report. Defendant was aware of the argument before briefing, and waived it. U.S. v. Boyd, __ F.4th __ (4th Cir. Nov. 30, 2022) No. 18-4883.
7th Circuit reaffirms that “controlled substance offense” need not correspond to federal definition. (520) Defendant pleaded guilty to drug trafficking. At sentencing, the district court found he was a career offender under § 4B1.1 because he had a prior conviction under Wisconsin law for manufacturing or delivering cocaine. Defendant asked the Seventh Circuit to overrule its precedent holding that a “controlled substance offense” under the career offender guideline need not correspond with the federal definition. The court declined to overrule its prior decision, but noted that there is a circuit split on this issue. U.S. v. Ramirez, __ F.4th __ (7th Cir. Nov. 8, 2022) No. 21-2587.
6th Circuit denies compassionate release, ruling that career offender decision is not retroactive. (150)(520) A prisoner serving a sentence as a career offender moved for compassionate release under the First Step Act. He argued that he was no longer a career offender, based on U.S. v. Havis, 927 F.3d 382 (6th Cir. 2019) (en banc), which held that career offender status could not be based the commentary to § 4B1.2. He also argued that his medical conditions exacerbated the threat of covid-19. The district court denied defendant’s motion, finding no “extraordinary and compelling circumstances.” The Sixth Circuit affirmed, ruling that Havis was not retroactive. Moreover, defendant had been vaccinated against COVID-19. U.S. v. McKinnie, __ F.4th __ (6th Cir. Jan. 26, 2022) No. 21-3608.
4th Circuit panel creates intra-circuit split over use of guidelines commentary for career offenders. (520) Over a dissent arguing that its decision was directly contrary to U.S. v. Campbell, __ F.4th __ (4th Cir. Jan. 7, 2022), a 2-1 panel of the Fourth Circuit held that the district court can rely on guidelines commentary in determining whether a defendant qualifies as a career offender under § 4B1.1. The majority rejected defendant’s argument that his prior conviction was relevant conduct to his current federal conviction and therefore did not count as a prior conviction. U.S. v. Moses, __ F.4th __ (4th Cir. Jan. 19, 2022) No. 21-4067.
8th Circuit says below-guidelines sentence was not too high for career offender. (520)(741) Defendant pleaded guilty to drug and firearm offenses, and the court sentenced him to 210 months, a downward variance from the guidelines range of 262 to 327 months. Defendant argued that his sentence was still too high, because he was a career offender, and the career offender guideline results in unreasonably high sentences. The Eighth Circuit affirmed, ruling that the district court properly considered the career offender guideline. U.S. v. Rogers, __ F.4th __ (8th Cir. Dec. 14, 2021) No. 20-3408.
8th Circuit says Iowa domestic abuse assault is a “crime of violence.” (520) The district court found defendant’s prior conviction under Iowa Code §§ 708.1(1) & 708.2A.(2)(c) for domestic abuse assault was a “crime of violence,” and sentenced him as a career offender under § 4B1.1(a), A “crime of violence” is an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. The Eighth Circuit found that domestic abuse assault is a “crime of violence” under § 4B1.1(a). U.S. v. Tinlin, __ F.4th __ (8th Cir. Dec. 15, 2021) No. 20-2862.
9th Circuit reiterates that Hobbs Act robbery is a “crime of violence.” (330)(520) Defendant pleaded guilty to Hobbs Act robbery and to carrying a firearm during and in relation to a “crime of violence,” in violation of 18 U.S.C. § 924(c). Defendant argued that Hobbs Act robbery was not a “crime of violence” under § 924(c). The Ninth Circuit reiterated its holding in U.S. v. Dominguez, 954 F.3d 1251 (9th Cir. 2020), that Hobbs Act robbery is a “crime of violence” under § 924(c). U.S. v. Grady, __ F.4th __ (11th Cir. Nov. 22, 2021) No. 20-14341.
3d Circuit, en banc, holds inchoate offenses are not “controlled substance offenses.” (520) At defendant’s sentencing for drug trafficking, the district court found defendant was a career offender based in part on its finding that his prior conviction under Virginia law for attempting to possess with intent to distribute cocaine was a “controlled substance offense” under § 4B1.2. The Third Circuit, en banc, held that even though the guidelines commentary includes inchoate offenses such as attempt, the court would not defer to the commentary. The prior decision in U.S. v. Hightower, 25 F.3d 182 (3d Cir. 1994) was overruled and defendant’s prior attempt offense was held not to be a “controlled substance offense.” U.S. v. Nasir, __ F.4th __ (3d Cir. Nov. 8, 2021) (en banc) No. 18-2888.
5th Circuit rules Texas robbery is a “crime of violence.” (330)(520) The guideline for possession of a firearm by a felon. § 2K2.1(a)(4)(A), sets a higher offense level if defendant has a prior conviction for a “crime of violence,” as that term is defined in § 4B1.2(a). That term is defined in part to mean “robbery.” Defendant, convicted of possession of a firearm by a felon, had a prior conviction under Texas law for robbery. The Fifth Circuit held that Texas robbery is a “crime of violence.” U.S. v. Adair, __ F.4th __ (5th Cir. Oct. 26, 2021) No. 21-50218.
3d Circuit says Pennsylvania causing another to contact bodily fluids is not a “crime of violence.” (520) Defendant was sentenced as a career offender under § 4B1.1 based in part on her convictions under Pa. Cons. Stat. § 2703 for causing another to come into contact with a bodily fluid that bore a communicable disease while a prisoner. The district court ruled that defendant’s offense was a “crime of violence,” as § 4B1.2 defines that term, i.e., an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. On appeal, the Third Circuit reversed, holding that this offense was not a “crime of violence” under § 4B1.2. U.S. v. Quinnones, __ F.4th __ (3d Cir. Oct. 26, 2021) No. 20-2709.
10th Circuit holds that § 4B1.2 includes state “controlled substance offenses.” (330)(520) Defendant pled guilty to possession of a firearm by a felon. The guideline for that offense, § 2K2.1(a)(4)(A), sets an enhanced offense level if the defendant had a prior conviction for a “controlled substance offense,” as that term is used in § 4B1.2. Defendant argued that a “controlled substance offense” had to involve a substance that was illegal under federal law, as required for the Armed Career Criminal Act in U.S. v. Cantu, 964 F.3d 924 (10th Cir. 2020).” The Tenth Circuit rejected the argument, noting that § 4B1.2 specifically includes state offenses in its definition of “controlled substance offense.” Accordingly, defendant’s prior Oklahoma conviction was a “controlled substance offense.” U.S. v. Jones, __ F.4th __ (10th Cir. Oct. 19, 2021) No. 20-6112.
8th Circuit, on rehearing, says Illinois armed robbery is a “crime of violence” despite Borden. (520) Defendant was sentenced as a career offender under § 4B1.1(a) in part because he had a prior conviction for armed robbery under 720 Illinois Comp. Stat. § 5/15-1(a). The Eighth Circuit previously held that Illinois armed robbery was a “crime of violence” under the career offender guideline. In Borden v. U.S., 141 S.Ct. 1817 (2021), however, the Supreme Court held that an offense that can be committed recklessly is not a “violent felony” under the Armed Career Criminal Act. On rehearing, the Eighth Circuit found that Illinois Armed robbery still qualified as a “crime of violence” under the career offender guideline. U.S. v. Martin, __ F.4th __ (8th Cir. Oct. 18, 2021) No. 20-1511 (superseding 999 F.3d 636).
1st Circuit finds no plain error in ruling Virginia marijuana prior was “controlled substance offense.” (520) Defendant had a prior conviction under Virginia Code Ann. § 18.2-248.1 for possession of marijuana with intent to distribute. The district court found that this was a “controlled substance offense,” and therefore defendant was a career offender under guideline §4B1.2. On appeal, for the first time, the defendant argued that his marijuana conviction was not a “controlled substance offense” because it did not fit the definition in the Controlled Substances Act and because many states have decriminalized marijuana. The First Circuit noted a conflict in the circuits on these issues, and declined to consider them because they had not been raised below, and some issues were not raised in defendant’s opening brief. The district court’s finding was not “plain error.” U.S. v. Crocco, __ F.4th __ (1st Cir. Sept. 27, 2021) No. 19-2140.
3d Circuit says Hobbs Act robbery is not a “crime of violence.” (330)(520) Defendant was convicted of being a felon in possession of a firearm. The district court found that his prior Hobbs Act robbery conviction under 18 U.S.C. §1951 was a “crime of violence,” requiring an increased offense level under § 2K2.1(a)(2). A “crime of violence” is defined in § 4B1.2(a)(1) as “robbery,” or an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another.” The Third Circuit held that Hobbs Act robbery is overbroad because it includes threats against property, and therefore it is categorically not a “crime of violence” under either of § 4B1.2(a)(1)’s definitions. U.S. v. Scott, __ F.3d __ (3d Cir. Sept. 22, 2021) No. 20-1514.
D.C. Circuit allows career offender sentenced before 2005 to collaterally attack “residual clause” sentence. (520) In 2000, defendant was sentenced under guideline § 4B1.2 as a career offender, before U.S. v. Booker, 543 U.S. 220 (2005) made the guidelines advisory. Thereafter, Johnson v. U.S., 576 U.S. 591 (2015) held that the “residual clause” of the Armed Career Criminal Act was unconstitutionally vague. However, Beckles v. U.S., 137 S.Ct. 886 (2017) held that the “vagueness” doctrine did not apply to the identical “residual clause” in the career offender guideline because, after Booker, the guidelines were only advisory. In the present case, the D.C. Circuit held that because the guidelines were mandatory at the time defendant was sentenced in 2000, he could collaterally attack his sentence on Johnson grounds. U.S. v. Arrington, __ F.3d __ (D.C. Cir. July 13, 2021) No. 19-3086.
4th Circuit reverses, finding Hobbs Act robbery is not a “crime of violence.” (520) Defendant pleaded guilty to Hobbs Act robbery. At sentencing, the district court found he was a career offender under § 4B1.1 based in part on its finding that Hobbs Act robbery was a “crime of violence.” The career offender guideline defines a “crime of violence” as an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another or is “robbery.” The Fourth Circuit joined other circuits in holding that Hobbs Act robbery is categorically not a “crime of violence.” The panel vacated defendant’s sentence, adding that it would do so even if plain error review applied. U.S. v. Green, __ F.3d __ (4th Cir. Apr. 29, 2021) No. 19-4703.
7th Circuit affirms despite plain error in using Hobbs Act robbery in career offender finding. (520) At defendant’s sentencing, the district court found that defendant was a career offender under § 4B1.1 based in part on its finding that Hobbs Act robbery was a “crime of violence.” The Seventh Circuit has held that Hobbs Act robbery is not a “crime of violence” under the career offender guideline. Nevertheless, the panel held that this plain error was not reversible because the district court did not rely on the guidelines and would have imposed the same sentence even without the career offender designation. U.S. v. Hammond, __ F.3d __ (7th Cir. Apr. 26, 2021) No. 18-2537.
7th Circuit reverses for using Hobbs Act robbery as a predicate for career offender. (520) Defendant robbed a store and was convicted of Hobbs Act robbery. At sentencing, the district court found that Hobbs Act robbery was a “crime of violence” under the career offender guideline, § 4B1.1. On appeal, the Seventh Circuit reversed, noting that Bridges v. U.S. 991 F.3d 793, 797 (7th Cir. 2021) held that Hobbs Act robbery is not a “crime of violence” under the career offender guideline. The district court’s contrary finding was plain error and required reversal. U.S. v. Jerry, __ F.3d __ (7th Cir. May 5, 2021) No. 20-1298.
6th Circuit says federal crime of distributing controlled substances is a “controlled substance offense.” (520) At defendant’s sentencing for distribution of a controlled substance in violation of 21 U.S.C. § 841(a), the district court found that he was a career offender based in part on that instant conviction. Defendant argued that the federal statute includes attempts and therefore is not a “controlled substance offense” under § 4B1.1(a) as interpreted in U.S. v. Havis, 927 F.3d 382 (6th Cir. 2019). The Sixth Circuit found that Congress intended § 841(a) to be a “controlled substance offense.” U.S. v. Booker, __ F.3d __ (6th Cir. Apr. 14, 2021) No. 20-1047.
6th Circuit says Kentucky trafficking in controlled substance is a “controlled substance offense.” (520) At defendant’s sentencing for drug trafficking, the district court found that defendant was a career offender under § 4B1.1 based in part on his prior conviction under Kentucky Rev. Stat. § 218A.1413 for trafficking in a controlled substance in the second degree. The Sixth Circuit held that the Kentucky offense was categorically a “controlled substance offense” under § 4B1.2. U.S. v. Jackson, __ F.3d __ (6th Cir. Apr. 22, 2021) No. 18-5676.
6th Circuit says conspiracy to distribute drugs is not a “controlled substance offense.” (520) Defendant pleaded guilty to drug trafficking. At sentencing, the district court found that he was a career offender under § 4B1.1 based in part on his prior conviction under federal law for conspiracy to distribute a controlled substance. The Sixth Circuit held that conspiracy does not qualify as a “controlled substance offense” under § 4B1.2 and remanded. U.S. v. Jackson, __ F.3d __ (6th Cir. Apr. 22, 2021) No. 18-5676.
1st Circuit says Massachusetts joint venture liability is a “crime of violence.” (520) At defendant’s sentencing, the district court declined to find that defendant’s prior Massachusetts conviction for armed assault with intent to commit murder was a “crime of violence” under § 4B1.2(a), because he could have been a “joint venturer” who did not share the principal’s intent. The government appealed, and the First Circuit reversed, ruling that Massachusetts “joint venture” liability has the same mens rea as aiding and abetting, which is within the “crime of violence” definition. U.S. v. Maldonaldo, __ F.3d __ (1st Cir. Feb. 18, 2021) No. 19-1525.
1st Circuit holds residual clause of pre-Booker career offender guideline unconstitutionally vague (520)(880) In Johnson v. U.S., 576 U.S. 591 (2015), the Supreme Court struck down as unconstitutionally vague the “residual clause” of the Armed Career Criminal Act. There is an identical “residual clause” in the career offender guideline, § 4B1.2, but Beckles v. U.S., 137 S.Ct. 886 (2017) held that the vagueness doctrine does not apply to advisory sentencing guidelines. In the present case, defendant was sentenced before 2005 when the guidelines were still mandatory, before U.S. v. Booker, 543 U.S. 220 (2005) made them advisory. He filed a 28 U.S.C. § 2255 motion, arguing that his pre-2005 career offender sentence was unconstitutional because it was based on the “residual clause” of § 4B1.2. The First Circuit agreed that pre-2005 sentences that are based on the residual clause of § 4B1.2 cannot stand, but remanded to allow the district court to determine whether defendant’s prior convictions satisfied the “force” clause of § 4B1.2. Shea v. U.S., __ F.3d __ (1st Cir. Sept. 28, 2020) No. 17-1899.
6th Circuit says attempt is no longer a “controlled substance offense” for career offender purposes. (520) Defendant pleaded guilty to drug trafficking and was found to be a career offender based on his prior convictions under Ohio Rev. Code § 2925.03(A)(1) for offering to sell drugs. On appeal, the Sixth Circuit reversed, holding that after U.S. v. Havis, 927 F.3d 382 (6th Cir. 2019), an attempted offense no longer qualifies for a career offender enhancement. U.S. v. Alston, __ F.3d __ (6th Cir. Sept. 28, 2020) No. 19-3884.
8th Circuit says Wisconsin possession with intent to deliver is a “controlled substance offense.” (520) Under § 4B1.1(a), a defendant is a career offender if, among other requirements, he has two prior convictions for a “controlled substance offense.” At defendant’s sentencing for drug trafficking, the district court found defendant was a career offender based in part on his conviction under Wisconsin Stat. § 961.41(1m)(cm)(1) for possession with intent to deliver a controlled substance. Defendant argued that “deliver” was not co-extensive with distribution in the federal statute. The Eighth Circuit rejected the argument, finding that the Wisconsin offense was categorically a “controlled substance offense.” U.S. v. Jefferson, __ F.3d __ (8th Cir. Sept. 17, 2020) No. 19-3159.
8th Circuit says prior Arkansas terroristic act conviction was not a “crime of violence.” (520) At defendant’s sentencing for drug trafficking, the district court found defendant was a career offender under § 4B1.1(a) in part because his prior conviction under Arkansas Code § 5-13-310 (2002) for committing a terroristic act was a “crime of violence.” A “crime of violence” is defined in part as an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. The Eighth Circuit held that the Arkansas offense of committing terroristic acts was not in 2002 a “crime of violence” because it could be violated by an injury to property. U.S. v. Harris, __ F.3d __ (8th Cir. Feb. 21, 2020) No. 18-1174.
D.C. Circuit says federal bank robbery is “crime of violence.” (520) Defendant was convicted of bank robbery and had two prior bank robbery convictions. The district court found that he was a career offender under § 4B1.1 because his offense of conviction and his prior convictions were “crimes of violence.” A “crime of violence” in § 4B1.2(a) includes an offense that has an element the use, attempted use, or threatened use of physical force against the person of another. The D.C. Circuit found that federal bank robbery is categorically a “crime of violence” under this definition. U.S. v. Carr, __ F.3d __ (D.C. Cir. Jan 7, 2020) No. 18-3053.
8th Circuit rules that guidelines commentary can be used to expand guidelines. (180)(520) Defendant pleaded guilty to drug trafficking. At sentencing, the district court found that he was a career offender under § 4B1.1 because his prior conviction for aiding and abetting the distribution of methamphetamine was a “controlled substance offense.” On appeal, the Eighth Circuit affirmed, noting that aiding and abetting is included in the guidelines commentary as a “controlled substance offense” and holding that the court can use the commentary to expand the reach of the guidelines. U.S. v. Garcia, __ F.3d __ (8th Cir. Dec. 26, 2019) No. 18-3040.
8th Circuit says Arkansas burglary may be a “crime of violence.” (520) At sentencing for defendant’s drug-trafficking offenses, the district court found that defendant was a career offender under § 4B1.1 based in part on his prior conviction under Arkansas Code Ann. § 5-13-202(a) for second-degree burglary. The district court found that defendant’s prior conviction was a “crime of violence,” which is defined as an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. Relying on prior precedent, the Eighth Circuit found that second-degree burglary under Arkansas law is not categorically a “crime of violence.” However, using the modified categorical approach, the court found that defendant was convicted of Ark. Code Ann. § 5-13-201(a)(1), which includes as an element the use of physical force. U.S. v. Garcia, __ F.3d __ (8th Cir. Dec. 26, 2019) No. 18-3040.
6th Circuit says First Step Act eligibility is not precluded by career offender status. (520) In 2002, defendant was convicted of a crack cocaine offense. He was sentenced as a career offender under § 4B1.1 to 360 months. Defendant later sought resentencing under the First Step Act, which modified the statutory penalties for crack offenses. The district court denied this request, ruling that defendant’s career offender status made him ineligible for a reduction. The Sixth Circuit reversed, holding that career offenders are eligible for a sentence reduction under the First Step Act. The defendant’s career offender status is simply a factor for the court to consider in exercising its discretion under the First Step Act. U.S. v. Beamus, __ F.3d __ (6th Cir. Nov. 21, 2019) No. 19-5533.
8th Circuit says Iowa assault with intent to commit injury is a “crime of violence.” (520) A defendant is a career offender if, among other requirements, he has two prior convictions for a “crime of violence.” A “crime of violence” is defined in part to mean an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. Defendant was convicted of drug trafficking and had a prior conviction under Iowa Code § 708.2(1) for assault with intent to inflict serious injury. The Eighth Circuit held that the Iowa offense is categorically a “crime of violence.” U.S. v. Quigley, __ F.3d __ (8th Cir. Nov. 15, 2019) No. 18-3317.
11th Circuit says conspiracy to commit Hobbs Act robbery is not a “crime of violence.” (290)(330)(520) Defendant pleaded guilty to conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), and using or carrying a firearm during and in relation to a “crime of violence,” in violation of 18 U.S.C. § 924(c). The “crime of violence” was the conspiracy to commit Hobbs Act robbery. The Eleventh Circuit held that conspiracy to commit Hobbs Act robbery is not a “crime of violence” after the Supreme Court’s decision in U.S. v. Davis, 139 U.S. 2319 (2019), which held that the “residual clause” definition of “crime of violence” in § 924(c)(3)(B) is unconstitutionally vague. Brown v. U.S., __ F.3d __ (11th Cir. Nov. 12, 2019) No. 17-13993.
1st Circuit says New York robbery is not a “crime of violence.” (520) At defendant’s sentencing for drug trafficking, the district court found that he was a career offender under § 4B1.1(a) based in part on his prior conviction for robbery under New York Penal Law § 160.10(1). A defendant is a career offender § 4B1.2 if he has at least two prior convictions for a “crime of violence,” which includes “robbery.” Nevertheless, the First Circuit held that robbery under New York law is categorically not a “crime of violence” because robbery in New York can include purse snatching. U.S. v. Rabb, __ F.3d __ (1st Cir. Oct. 30, 2019) No. 18-1678.
11th Circuit says Florida armed robbery and second degree murder were “crimes of violence.” (520) At defendant’s sentencing for Hobbs Act robbery and other offenses, the district court found that defendant was a career offender under § 4B1.1(a). The district court relied on defendant’s prior convictions for armed robbery and second-degree murder in Florida. The Eleventh Circuit found that prior precedent established that both of defendant’s convictions were for a “crime of violence” under § 4B1.2 and therefore that defendant was a career offender. U.S. v. Ochoa, __ F.3d __ (11th Cir. Oct. 25, 2019) No. 16-17609.
7th Circuit says “crime of violence” finding under advisory guidelines is not subject to collateral attack. (520)(880) Defendant was convicted in 2009. At sentencing, the district court found that he was a career offender under guideline § 4B1.2. Defendant filed a motion under 28 U.S.C. § 2255 arguing that his prior conviction was a “crime of violence,” so he was not a career offender, and this was a “miscarriage of justice” requiring relief under § 2255. The Seventh Circuit held that a change in the advisory guidelines regarding what constitutes a “crime of violence” is not cognizable on collateral review. Hanson v. U.S., __ F.3d __ (7th Cir. Oct. 22, 2019) No. 18-1149.
7th Circuit says career offender designation did not apply but error was harmless. (520) In 1991, defendant was sentenced under the then-mandatory guidelines as a career offender to 35 years. In 2015, defendant filed a motion under 28 U.S.C. § 2255 arguing that he no longer qualified as a career offender under the Supreme Court’s decision in Johnson v. U.S., 135 S.Ct. 2551 (2015), which held the “residual clause” of the Armed Career Criminal Act unconstitutionally vague. In Cross v. U.S., 892 F.3d 288 (7th Cir. 2018), the Seventh Circuit held that any defendant who was sentenced before the guidelines were made advisory by U.S. v. Booker, 543 U.S. 220 (2005), could challenge his sentence under Johnson. Accordingly, the Seventh Circuit found that defendant was wrongly designated as a career offender. Nevertheless, the panel found the error was harmless because the career-offender designation did not affect his guidelines range. Daniels v. U.S., __ F.3d __ (7th Cir. Oct. 4, 2019) No. 17-2618.
7th Circuit says categorical approach does apply to upward variance based on prior conviction. (330) (520)(740) Defendant pleaded guilty to possession of a firearm by a felon. The guideline for that offense, § 2K2.1(a), increases the offense level if the defendant had a prior conviction for a “crime of violence.” Here, defendant’s prior conviction for burglary did not qualify as a “crime of violence” under the current guidelines, but the commentary to the guidelines stated that the violence of a prior burglary may justify an upward departure. Relying on testimony at sentencing about defendant’s prior burglary conviction, the district court varied upward from the guidelines range of 51 to 63 months, and sentenced defendant to 100 months. The Seventh Circuit upheld the sentence, finding that a district court should not apply the categorical approach in deciding whether to vary upward based on a prior conviction. U.S. v. Gardner, __ F.3d __ (7th Cir. Sept. 30, 2019) No. 18-1731.
8th Circuit affirms despite split over whether federal drug conspiracy is “controlled substance offense.” (330)(520) Defendant pleaded guilty to possession of a firearm by a felon. Guideline section 2K2.1(a)(4)(A) requires an enhanced offense level if defendant has a prior conviction for a “controlled substance offense,” which includes conspiracy. The district court found that defendant’s prior conviction under federal law for conspiracy to possess with intent to distribute 50 grams or more of cocaine was a “controlled substance offense.” For the first time on appeal, defendant argued that the federal offense was not a controlled substance offense because it does not require an overt act. Reviewing for plain error, the Eighth Circuit ruled that because there is a split in the circuits on this question, any error was not “plain.” U.S. v. Merritt, __ F.3d __ (8th Cir. Aug. 16, 2019) No. 18-2500.
4th Circuit finds federal crack conspiracy is not a “controlled substance offense.” (330)(520) A defendant convicted of possession of a firearm by a felon is subject to an enhanced offense level under § 2K2.1(a)(4) if he has a prior conviction for a “controlled substance offense,” which includes conspiracy. Defendant had a prior federal conviction for conspiracy to possess crack with intent to distribute. The Fourth Circuit held that because federal conspiracy does not require proof of an overt act, it is not a “controlled substance offense” as the guidelines use that term. However, the court declined to vacate defendant’s sentence because he had not shown “plain error.” U.S. v. Norman, __ F.3d __ (4th Cir. Aug. 15, 2019) No. 18-4214.
7th Circuit says federal kidnapping is not a “crime of violence.” (330)(520) Under 18 U.S.C. § 924(c), a defendant convicted of a “crime of violence” is subject to a mandatory minimum sentence. A “crime of violence” is defined as an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another. The Seventh Circuit held that kidnapping, in violation of 18 U.S.C. § 1201(a), is categorically not a “crime of violence.” U.S. v. Brazier, __ F.3d __ (7th Cir. Aug. 12, 2019) No, 16-4258.
5th Circuit says RICO conspiracy is not a “crime of violence” under § 924(c). (330)(520) Defendants were convicted of using or carrying a firearm in relation to a “crime of violence” or a drug-trafficking crime, in violation of 18 U.S.C. § 924(c). The “crime of violence” was RICO conspiracy, which, the government conceded, is not a “crime of violence” under the “elements” clause of § 924(c)(3)(A). Moreover, Davis v. U.S., 139 S.Ct. 2319 (2019) held that the “residual” clause of § 924(c)(3)(B) was unconstitutionally vague. Accordingly, the Fifth Circuit found that the jury may have relied on an invalid predicate and remanded the case to the district court. U.S. v. Jones, __ F.3d __ (5th Cir. Aug. 12, 2019) No. 18-30256.
5th Circuit says First Step Act did not affect career offender status. (250)(520) In 2008, defendant pleaded guilty to possession with intent to deliver crack cocaine. At sentencing, the district court found defendant was a career offender and sentenced him to 200 months. In 2019, defendant filed a motion for resentencing under the First Step Act of 2018, which made the Fair Sentencing Act of 2010 retroactive. The district court reduced defendant’s sentence to 153 months, but ruled that the First Step Act did not affect defendant’s career offender status. On appeal, the Fifth Circuit affirmed, holding that the First Step Act does not require plenary resentencing. The district court should place itself in the time frame of the original sentence, altering the relevant legal landscape only by the changes mandated by the 2010 Fair Sentencing Act, which did not affect the career offender guideline. U.S. v. Hegwood¸__ F.3d __ (5th Cir. Aug. 8, 2019) No. 19-40117.
7th Circuit affirms downward variance from career offender guideline. (520) At defendant’s sentencing for drug trafficking, the district court found that he was a career offender with a guideline range of 151 to 188 months. The district court expressed concern about the severity of the career offender guideline, and varied downward to 120 months, commenting that if defendant were not a career offender, it would not sentence him to 10 years. On appeal, the Seventh Circuit found no merit in defendant’s argument that the district court failed to understand its authority to depart from the guidelines, noting that in fact, the court rejected the career offender guideline and sentenced defendant below the guidelines. U.S. v. Brown, __ F.3d __ (7th Cir. Aug. 7, 2019) No. 18-2644.
9th Circuit rules California battery resulting in serious bodily injury is a “crime of violence.” (520) Under the career offender guideline, § 4B1.2, a “crime of violence” includes an offense that has as an element the use, attempted use, or threatened use of force. Defendant was found to be a career offender based in part on his prior conviction under California Penal Code § 243(d) for battery resulting in serious bodily injury. The Ninth Circuit held that battery resulting in serious bodily injury is categorically a “crime of violence.” U.S. v. Perez, __ F.3d __ (9th Cir July 11, 2019) No. 17-10216.
8th Circuit affirms that drug sentence was based on career offender guideline. (251)(520) Defendant pleaded guilty to possession with intent to distribute methamphetamine. The district court found that defendant was a career offender under § 4B1.1, calculated his sentencing range as 262 to 327 months, and sentenced him to 188 months. On appeal, defendant argued that the district court used the methamphetamine quantity to calculate his sentence, but the Eighth Circuit found that the district court properly used the career offender guidelines. U.S. v. Nation, __ F.3d __ (8th Cir. July 9, 2019) No. 18-2296.
8th Circuit says despite aiding and abetting, Iowa law is “serious drug offense” and “controlled substance offense.” (520)(540) Defendants had prior convictions under Iowa Code § 124.401, which prohibits the manufacture, delivery, and possession with intent to manufacture or deliver a controlled substance. The district court ruled that these convictions constituted a “serious drug offense” under the Armed Career Criminal Act, 18 U.S.C. § 924(e), and a “controlled substance offense”” under the career offender guideline, § 4B1.1. The Eighth Circuit rejected defendants’ argument that Iowa’s doctrine of aiding and abetting liability—which is included in Iowa Code § 124.401—is broader than the generic definition of aiding and abetting. Accordingly, the Iowa statute is not too broad to be a “serious drug offense” or a “controlled substance offense.” U.S. v. Boleyn, __ F.3d __ (8th Cir. July 8, 2019) No. 17-3817.
5th Circuit says that despite Dimaya, Texas robbery remains a “crime of violence.” (340)(520) Defendant was convicted of illegal reentry after deportation. His sentence was enhanced for a prior “aggravated felony,” i.e., a robbery conviction under Texas Penal Code § 29.02(a)(1). “Aggravated felony” is defined in part as a “crime of violence” under 18 U.S.C. § 16. In Sessions v. Dimaya, 138 S.Ct 1204 (2018), the Supreme Court struck down § 16(b)’s “residual clause” definition of “crime of violence” as unconstitutionally vague. This overruled an earlier Fifth Circuit case that had relied on the “residual clause” to hold that Texas Penal Code § 29.02(a)(1) was a crime of violence. Nevertheless, in the present case, the Fifth Circuit held that Texas robbery qualified as a “crime of violence” under the “elements” clause of § 16(a), because the offense has “as an element the use, attempted use, or threatened use of force.” U.S. v. Tzacir-Garcia, __ F.3d __ (5th Cir. July 1, 2019) No. 14-41437.
8th Circuit reverses itself after Stokeling, and finds Arkansas robbery is a “crime of violence.” (330)(520) The guideline for possession of a firearm by a felon, § 2K2.1(a)(1), requires an enhanced offense level if the defendant has a prior conviction for a “crime of violence,” i.e., an offense that has “as an element the use, attempted use, or threatened use of physical force against the person of another.” Defendant had a prior conviction under Arkansas Code Ann. § 5-12-102 for aggravated robbery. Although the Eighth Circuit had previously held that Arkansas aggravated robbery does not require a use of force that would satisfy the statutory standard, the court held that Stokeling v. U.S., 139 S.Ct. 544 (2019), had “abrogated” the Eighth Circuit’s force analysis and that Arkansas aggravated robbery is categorically a “crime of violence.” U.S. v. Smith, __ F.3d __ (8th Cir. June 27, 2019) No. 17-3760.
10th Circuit finds 1994 bank robberies count as “crimes of violence.” (504)(520) Section 4B1.1 makes a defendant a “career offender” if the defendant has at least two prior convictions for a “crime of violence.” A conviction more than 15 years old cannot be counted, but under § 4A1.2, the clock starts when the defendant is last released from incarceration for the offense. Here, defendant was convicted of a 2018 bank robbery and had two prior convictions for bank robbery in 1994, which was 24 years earlier. He completed his sentence and was released in 2002, but violated supervised release by committing another bank robbery, and was incarcerated for an additional 24 months until July 2004. Thus, the fifteen-year clock did not start until July 2004, and the Tenth Circuit held that defendant had been incarcerated for the 1994 bank robberies within 15 years of the instant offense. U.S. v. Paris, __ F.3d __ (10th Cir. June 25, 2019) No. 18-6216.
4th Circuit finds error in one prior conviction did not preclude career offender status. (520) At his sentencing in 2007, defendant was found to be a “career offender” under § 4B1.1 based on four prior convictions. More than a year later, defendant discovered that a state court had misidentified one of his prior offenses. Defendant claimed that he was no longer a “career offender” and should be resentenced. The Fourth Circuit held that because only two convictions are sufficient to support a “career offender,” the error as to one of his prior convictions did not support resentencing. U.S. v. Vanderhorst, __ F.3d __ (4th Cir. June 25, 2019) No. 18-6225.
6th Circuit, en banc, rejects using commentary to add Career Offender predicate offenses. (120)(180)(520) The Career Offender guideline’s definition of “controlled substance offense” in § 4B1.2 does not include attempts. However, the commentary states that a “controlled substance offense” includes “the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.” Without dissent, the en banc Sixth Circuit held that the Sentencing Commission cannot use the commentary to add crimes to the guideline’s definition of “controlled substance offense.” U.S. v. Havis, __ F.3d __ (6th Cir. June 6, 2019) No. 17-1552.
7th Circuit allows challenge to “residual clause” of Career Offender guideline for defendant sentenced when guidelines were mandatory. (520)(880) In 2003, when the guidelines were mandatory, defendant was sentenced as a career offender because the court found that his prior residential burglary convictions under Arkansas Code Ann. § 5-39-101 (1987) constituted “crimes of violence.” After the Supreme Court held that the “residual clause” of the Armed Career Criminal Act was unconstitutionally vague, defendant filed a motion under 28 U.S.C. § 2255 arguing that he had been sentenced under the Career Offender guideline’s identical “residual clause.” Relying on prior precedent, the Seventh Circuit agreed that the “residual clause” of the Career Offender guideline was unconstitutional as applied to the mandatory guidelines. However, because the court could not determine if the district court had relied on the “residual clause” in determining that defendant’s prior convictions were crimes of violence, the case was remanded for resentencing. Shipman v. U.S., __ F.3d __ (7th Cir. June 5, 2019) No. 17-3476.
7th Circuit bars Johnson motion because “crime of violence” finding was based on “elements” clause. (520)(880) In 1995, defendant was sentenced as a career offender under guideline §4B1.2 based on his prior convictions for mailing threatening communications, in violation of 18 U.S.C. § 876. In 2016, he filed a 28 U.S.C. §2255 motion challenging his career offender status based on Johnson v. U.S., 135 S.Ct. 2551 (2015), which struck down the “residual clause” of 18 U.S.C. §924(e) as unconstitutionally vague. Although Beckles v. U.S., 137 S.Ct. 886 (2017) later held that Johnson does not apply to advisory guidelines, the Seventh Circuit held in Cross v. U.S., 892 F.3d 288 (7th Cir. 2018) that Johnson does apply to defendants who were sentenced before the Supreme Court made the sentencing guidelines advisory in U.S. v. Booker, 543 U.S. 220 (2005). Nevertheless, in this case, the Seventh Circuit held that Johnson did not apply because, in finding that defendant was a career offender, the district court relied on the “elements” clause of the career offender guideline, not the “residual” clause. Because defendant was unable to base his claim on Johnson, his petition was barred by the one-year statute of limitations in 28 U.S.C. §2255. Sotelo v. U.S., __ F.3d __ (7th Cir. May 2, 2019) No. 16-4144.
4th Circuit says all convictions that show career offender must be identified at sentencing. (520)(880) At defendant’s original sentencing, the district court found him to be a career offender under § 4B1.1 based in part on a finding that a conviction for illegal conveyance of drugs into a detention facility was a “crime of violence.” Defendant filed a motion under 28 U.S.C. § 2255 alleging that his counsel had been ineffective in failing to argue that he was not a career offender based on this conviction. The government conceded that the illegal conveyance conviction did not qualify as a “crime of violence,” but argued that another conviction that the district court had not previously considered rendered defendant a career offender. The district court agreed, but the Fourth Circuit reversed. The court held that the government must identify at the time of sentencing all convictions it wishes to use to support a career offender designation. U.S. v. Winbush, __ F.3d __ (4th Cir. Apr. 23, 2019) No. 17-7148.
7th Circuit finds dealing in cocaine in Indiana a “controlled substance offense.” (520) Under § 4B1.1, a defendant convicted of a drug-trafficking offense who has two prior convictions for a “controlled substance offense” is a career offender. The guidelines define a “controlled substance offense” to include any state felony offense that prohibits the distribution of a controlled substance. Defendant, convicted of a drug-trafficking felony, had a prior conviction under Indiana Code § 35-48-4-1 for dealing in cocaine or a narcotic drug. The Seventh Circuit held that the Indiana offense is categorically a “controlled substance offense.” In the alternative, the court found that defendant had committed a “controlled substance offense” under the modified categorical approach. U.S. v. Smith, __ F.3d __ (7th Cir. Apr. 22, 2019) No. 18-2905.
8th Circuit says Arkansas robbery is a “crime of violence. (520) A defendant convicted of specific crimes who has two prior convictions for a “crime of violence” is a career offender under § 4B1.1 of the guidelines. A “crime of violence” is defined in part to mean felony “robbery.” Defendant, convicted of drug distribution, had a prior conviction under Arkansas § 5-12-02 for robbery. The Eighth Circuit held that Arkansas robbery categorically qualifies as “robbery” within the meaning of the “crime of violence” definition. U.S. v. Stovall, __ F.3d __ (8th Cir. Apr. 18, 2019) No. 18-2298.
2d Circuit reaffirms that New York second-degree burglary is a “crime of violence.” (520) Defendant robbed a credit union and was convicted of bank robbery, in violation of 18 U.S.C. § 2113(a). At sentencing, the district court found that defendant was a career offender under § 4B1.1 in part based on his prior conviction under New York Penal Law § 140.25 for burglary in the second degree. The district court found defendant’s New York offense was a “crime of violence” under the 2014 version of the Guidelines. That version defines “crime of violence” to include conduct that presents a serious potential risk of physical injury to another. Applying prior precedent, the Second Circuit agreed that second-degree burglary in New York is a “crime of violence.” U.S. v. Hendricks, __ F.3d __ (2d Cir. Apr. 11, 2019) No. 15-2525.
8th Circuit finds pointing a gun at a person is a “crime of violence.” (520)(540) Based on defendant’s three prior serious drug offenses, the district court found that defendant was an Armed Career Criminal under 18 U.S.C. §924(e). It also increased the sentence to level 34 under guideline § 4B1.4(b)(3)(A) based on its finding that defendant possessed the firearm “in connection with a crime of violence” as defined in the career offender guideline, 4B1.2(a). Under U.S. v. Eason, 907 F.3d 554, 560 (8th Cir. 2018), “[t]his is not a categorical inquiry; it turns on the facts of defendant’s offense of conviction.” The district court found that defendant’s prior state conviction resulted from an incident in which he pointed a gun at a person attempting to repossess his car. The Eighth Circuit agreed that this was a “crime of violence” under § 4B1.4. U.S. v. Meux, __ F.3d __ (8th Cir. Mar. 18, 2019) No. 18-1416.
8th Circuit says Louisiana drug distribution is a “controlled substance offense.” (520) Defendant was found to be a career offender under guideline §4B1.2 based in part on a conviction for possession with intent to distribute over 28 grams of cocaine under Louisiana R.S. § 40:967. Applying plain-error review, the Eighth Circuit found that the Louisiana offense was a “controlled substance offense” under the guidelines. U.S. v. Benton, __ F.3d __ (8th Cir. Mar. 25, 2019) No. 18-1016.
8th Circuit affirms that Illinois battery was a “crime of violence.” (520) Under the career offender guideline, § 4B1.2(a), a “crime of violence” is defined in part to be an offense that has an element the use, attempted use, or threatened use of physical force against the person of another. The district court found defendant was a career offender based in part on his prior conviction for aggravated battery on a public way, in violation of Illinois Comp. Stat. § 5/12-3.05. Using the modified categorical approach, the Eighth Circuit upheld the district court’s conclusion that defendant had committed a “crime of violence.” U.S. v. Roman, __ F.3d __ (8th Cir. Mar. 7, 2019) No. 17-3582.
9th Circuit says Washington felony harassment is a “crime of violence.” (520) Under § 4B1.2(a), a defendant’s prior offense constitutes a “crime of violence” if the offense “has as an element the use, attempted use, or threatened use of force against the person of another.” Defendant had a prior conviction under Washington Rev. Code §§ 9A.46.020(1)(a)(i) & (2)(b) for threatening to kill a person. The Ninth Circuit held that this offense was a “crime of violence” under the career offender guideline. U.S. v. Door, __ F.3d __ (9th Cir. Mar. 12, 2019) No. 17-30165.
9th Circuit rejects Washington second-degree assault as a “crime of violence.” (520) A defendant is a career offender if defendant has two prior convictions for a “crime of violence.” In 2013, the definition in § 4B1.2 included offenses involving conduct that presents a serious potential risk of physical injury to another. Defendant had a prior conviction for second-degree assault under Washington Rev. Code § 9A.36.021(1). The Ninth Circuit held that this offense was not categorically a “crime of violence” under the 2013 guidelines. U.S. v. Door, __ F.3d __ (9th Cir. Mar. 12, 2019) No. 17-30165.
11th Circuit finds Florida battery of a jail detainee may be a “crime of violence.” (520) The career offender guideline, § 4B1.1, requires an enhanced sentence for a defendant who has two prior convictions for a “crime of violence,” which is defined in part to mean an offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” Using the modified categorical approach, the Eleventh Circuit held defendant sustained a conviction for a prior “crime of violence” under Florida Stat. § 784.082(3) for battery of a jail detainee. The court examined defendant’s prior charging document, plea agreement, and state court judgment. U.S. v. Gandy, __ F.3d __ (11th Cir. Mar. 6, 2019) No. 17-15035.
5th Circuit says Texas aggravated assault is violent felony despite “indirect” use of force. (340)(520) Defendant pled guilty to illegally reentering the U.S. after deportation. The district court found that his prior conviction for Texas aggravated assault was a crime of viokence, requiring an increased sentence. On appeal, he argued that Texas aggravated assault does not qualify as a crime of violence under 18 U.S.C. § 16 because it can be accomplished through indirect use of force. The Fifth Circuit rejected the argument, noting that U.S. v. Reyes-Contreras, 910 F.3d 169 (5th Cir. 2018) (en banc), abrogated the distinction between direct and indirect use of force. Instead, it applied U.S. v. Castleman, 572 U.S. 157 (2014), which held that “use of force” encompasses the common-law definition—including offensive touching and indirect applications of force. U.S. v. Gomez Gomez, __ F.3d __ (5th Cir. Feb. 26, 2019) No. 17-20526.
2nd Circuit holds that federal bank robbery is a crime of violence. (520) Defendant pled guilty to three counts of federal bank robbery, and was sentenced as a career offender. He argued that federal bank robbery, in violation of 18 U.S.C. § 2113(a), did not qualify as a crime of violence under the force clause because the offense could be committed by mere intimidation. The Second Circuit disagreed, holding that federal bank robbery was a crime of violence because it was enumerated in the guidelines commentary and conformed to the definition of generic robbery. All states essentially define robbery as taking property from the immediate presence of another person by force or by intimidation. The definition of federal bank robbery is taking “by force and violence, or by intimidation, … from the person or presence of another … any property … in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association.” 18 U.S.C. § 2113(a). Thus, it criminalized conduct that contained all of the elements of generic robbery. U.S. v. Moore, __ F.3d __ (2d Cir. Feb. 25, 2019) No. 16-1604(L).
2nd Circuit says New York third-degree robbery is crime of violence. (520) Defendant was sentenced as a career offender based in part on his prior New York conviction for robbery in the third degree, in violation of New York Penal Law § 160.05. Defendant argued that the offense was not a crime of violence under either the force clause or the commentary clause. The Second Circuit disagreed, holding that New York robbery in the third degree was categorically a crime of violence under the force clause of § 4B1.2(a)(1). The offense required the use or threat of immediate physical force upon another in furtherance of a larceny. Thus, the elements of the offense constituted a crime of violence under the force clause because they included “as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S. v. Moore, __ F.3d __ (2d Cir. Feb. 25, 2019) No. 16-1604(L).
7th Circuit says pre-Booker sentence based on guidelines’ “residual clause” is subject to vagueness challenge. (520) Defendant was sentenced as a career offender under the 1990 guidelines. He brought a 28 U.S.C. § 2255 motion seeking resentencing based on Johnson v. U.S., 135 S.Ct. 2551 (2015), which held that the “residual clause” definition of violent felony in the ACCA was unconstitutionally vague. The Supreme Court has now held that the statutory vagueness doctrine does not apply to post-Booker advisory guidelines. However, the Seventh Circuit in Cross v. U.S., 892 F.3d 288 (7th Cir. 2018), held that a pre-Booker mandatory sentence based on § 4B1.2’s “residual clause” is subject to “vagueness” challenge. Here, the government argued that defendant’s prior conviction for conspiring to kill a government witness still qualified as a predicate offense because § 4B1.2’s application notes listed conspiracy, murder, and manslaughter as crimes of violence. The Seventh Circuit disagreed, noting that under U.S. v. Rollins, 836 F.3d 737 (7th Cir. 2016) (en banc), the application notes’ list of qualifying crimes is valid only as an interpretation of § 4B1.2’s “residual clause.” Because Cross invalidated that residual clause, the application notes have no legal force. D’Antoni v. U.S., __ F.3d __ (7th Cir. Feb. 21, 2019) No. 18-1358.
8th Circuit holds that Illinois attempted robbery was a crime of violence. (520) Defendant was sentenced as a career offender based in part on the district court’s finding that his Illinois attempted robbery conviction was a crime of violence. He argued on appeal that the offense did not qualify under the guideline’s force clause. The Eighth Circuit disagreed. The circuit recently held that Illinois robbery was a “violent felony” under the force clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(b). “The relevant definition of a violent felony under the ACCA and the definition of a crime of violence under the guidelines are so similar that we generally consider cases interpreting them interchangeably.” U.S. v. Sykes, 914 F.3d 615, 620 (8th Cir. 2019). Applying this logic, Illinois robbery was a crime of violence under the guidelines. And because Illinois robbery was a crime of violence, so too was Illinois attempted robbery. U.S. v. Brown, __ F.3d __ (8th Cir. Feb. 22, 2019) No. 18-1426.
4th Circuit finds that New York robbery is a “crime of violence.” (520) Defendant, convicted of bank robbery, had a prior conviction under New York Penal Law § 160.15 for first-degree robbery. At defendant’s sentencing, the district court found that this offense was a “crime of violence” under the career offender guideline, § 4B1.1, and that defendant qualified as a career offender. On appeal, the Fourth Circuit affirmed, finding that regardless of the degree, robbery under New York law had as an element the use, attempted use, or threatened use of force against the person of another. Therefore it qualifies as a “crime of violence” under the career offender provision. U.S. v. Hammond, __ F.3d __ (4th Cir. Jan. 4, 2019) No. 17-4702.
6th Circuit, en banc, says Ohio felonious assault is divisible, and can be a violent felony or crime of violence. (520)(540) Sitting en banc, the Sixth Circuit held that Ohio’s felonious assault statute, Ohio Revised Code § 2903.11(a)(2), is categorically neither a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e), nor the career offender guideline, § 4B1.1, because the Ohio statute defines “physical harm” to include mental harm. Nevertheless, the en banc court ruled that the statute is “divisible,” and, after examining defendant’s conviction documents, the court found that defendant had in fact committed a violent felony and a crime of violence. U.S. v. Burris, __ F.3d __ (6th Cir. Jan. 3, 2019) No. 16-3855.
10th Circuit finds Oklahoma conviction for using a vehicle to facilitate firearm use is “crime of violence.” (520) Defendant, convicted of drug-trafficking and a firearms offense, claimed that he was not a career offender under § 4B1.1 because his prior conviction for using a vehicle to facilitate the intentional discharge of a firearm, in violation of Oklahoma Statute tit. 21, § 652(B), was not a “crime of violence.” The Tenth Circuit noted that U.S. v. Hammons, 862 F.3d 1052 (10th Cir. 2017) had found that a violation of that statute is a “violent felony” under the Armed Career Criminal Act. Relying on Hammons, the panel held that the statute is also a “crime of violence” under the career offender guideline, § 4B1.1. U.S. v. Johnson, __ F.3d __ (10th Cir. Dec. 26, 2018) No. 17-6165.
8th Circuit finds Missouri drug-trafficking offense is a “controlled substance offense.” (520) Defendant pleaded guilty to drug-trafficking and firearms offenses. At sentencing, the district court found that defendant was a career offender based in part on his conviction for possession of a controlled substance with intent to distribute it, in violation of Missouri Revised Statute § 195.211. The Eighth Circuit found that the Missouri conviction was for a “controlled substance offense” within the meaning of the career offender guideline. The Missouri statute was not broader than the definition of “controlled substance offense” in the guideline. U.S. v. Jackson, __ F.3d __ (8th Cir. Nov. 27, 2018) No. 17-2598.
6th Circuit holds § 2255 motion cannot be used to challenge career offender calculation. (520)(880) In a motion under 28 U.S.C. § 2255, defendant argued that an intervening change in the law meant that he had been improperly sentenced as a career offender under § 4B1.1. The Sixth Circuit declined to reach this claim, ruling that it was not within the ambit of a § 2255 motion. The court held that § 2255 can be used only to challenge fundamental defects, and defendant’s challenge to a guidelines calculation was not a fundamental defect. Snider v. U.S., __ F.3d __ (6th Cir. Nov. 9, 2018) No. 16-6607.
3rd Circuit says New Jersey drug convictions are “controlled substance offenses.” (340)(520) Defendant was convicted under New Jersey Statutes Annotated § 2C:35(a)(1) of possessing cocaine with intent to distribute and distribution of cocaine. The Third Circuit held that the New Jersey offenses were controlled substance offenses because New Jersey’s attempt law in no broader than federal law. Martinez v. Attorney General, __ F.3d __ (3d Cir. Oct. 16, 2018) No. 17-3434.
8th Circuit finds that Missouri armed criminal action is a “crime of violence” under former “residual clause.” (330) (504)(520) At defendant’s sentencing for firearms and other offenses, the district court added one criminal history point under §4A1.1(e), finding that “armed criminal action” under Missouri Revised Statute § 571.015(1) was a “crime of violence” as defined by the former “residual clause” of the career offender guideline, §4B1.2. The statute makes it a crime to use a firearm or deadly weapon in the commission of a felony. The Eighth Circuit affirmed, holding that the Missouri law involved conduct that presented a “serious potential risk of physical injury to another” and thus was a “crime of violence” under the former residual clause of § 4B1.2(a). The Sentencing Commission deleted the residual clause of § 4B1.2(a) effective August 1, 2016, but that amendment is not retroactive, and thus did not apply to this defendant. Moreover, the Supreme Court in Beckles v. U.S., 137 S.Ct. 886, 890 (2017) upheld the guidelines’ residual clause. U.S. v. Long, __ F.3d __ (8th Cir. Oct. 12, 2018) No. 16-1419.
3d Circuit finds that New Jersey third-degree assault is a “crime of violence.” (520) Defendant pleaded guilty to drug trafficking and firearms offenses. At sentencing, the district court found that defendant was a career offender based in part on his prior conviction under New Jersey Statutes Annotated 2C:12-1(b)(2) for third-degree aggravated assault with a deadly weapon. The Third Circuit held that this offense was categorically a “crime of violence” under § 4B.2(a)(1), which applies to any offense that has as an element “the use, attempted use, or threatened use of physical force against the person of another.” U.S. v. Abdullah, __ F3d __ (3d Cir. Oct. 2, 2018) No. 18-1082.
8th Circuit says North Dakota aggravated assault was not a crime of violence. (330)(520) Defendant was convicted of being a felon in possession of a firearm. The district court applied an enhanced offense level under § 2K2.1(a)(4)(A), finding that defendant’s previous North Dakota conviction for aggravated assault was a “crime of violence.” The Eighth Circuit reversed, ruling that the aggravated assault was not a crime of violence under either the “force” clause or the “enumerated offenses” clause in § 4B1.2(a). Under the force clause, the offense must have “as an element the use, attempted use, or threatened use of physical force.” However, N.D. Cent. Code Ann. § 12.1-17-02(1)(a) required only a reckless act that causes bodily injury, and included reckless driving. A statute that criminalizes reckless driving cannot satisfy the force clause. Aggravated assault is an enumerated offense under § 4B1.2(a)(2), but subsection (a) of the North Dakota statute extended to reckless behavior, while the generic offense does not. Three other circuits agree that ordinary recklessness does not satisfy the mental-state requirement for generic aggravated assault. The panel found Fifth Circuit’s contrary ruling unpersuasive. U.S. v. Schneider, __ F.3d __ (8th Cir. Sept. 28, 2018) No. 17-3034.
2nd Circuit reverses reduction for career offender despite vacated predicate conviction. (520)(880) Defendant was classified as a career offender, with a guideline range of 151-188 months. If he were not a career offender, the range would have been 100-125 months. The district court accepted his Rule 11(c)(1)(C) plea agreement and sentenced him to 112 months. After one of his predicate convictions was vacated, the district court granted defendant’s § 2255 motion, and reduced his sentence. The government appealed, and the Second Circuit reversed, noting that the 112-month sentence was well below the career offender guideline range. Indeed, it was in the middle of the guidelines range applicable without a career offender enhancement. U.S. v. Hoskins, __ F.3d __ (2d Cir. Sept. 26, 2018) No. 17-70-cr.
3rd Circuit holds Pennsylvania drug statute was controlled substance offense.” (520) Defendant was sentenced as a career offender based in part on two drug convictions under 35 Pa. Cons. Stat. § 780-113(a)(30). He argued that a violation of § 780-113(a)(30) was broader than the guidelines’ definition of a “controlled substance offense” because it criminalized a mere offer to sell drugs. The Third Circuit assumed without deciding that a mere offer to sell falls outside of § 4B1.2, but found the statute did not cross that line. Section 780-113(a)(30) prohibits “the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance … or … a counterfeit controlled substance.” The statute does not does not mention offers to sell, even though it includes the word “delivery.” The federal counterpart, 21 U.S.C. § 802(8), defines “delivery” of a controlled substance in the same way. U.S. v. Glass, __ F.3d __ (3d Cir. Aug. 22, 2018) No. 16-2906.
3rd Circuit holds findings by a preponderance did not violate Apprendi. (120)(520) Defendants argued that the district court violated both the Fifth and Sixth Amendments in calculating their advisory guidelines ranges using a preponderance of the evidence standard to make additional findings of fact. They contended that the court should only have applied factual findings made beyond a reasonable doubt by the jury, and that the court’s actions violated the Supreme Court’s sentencing jurisprudence following Apprendi v. New Jersey, 530 U.S. 466 (2000). The Third Circuit disagreed. The district court did not violate Apprendi because its findings did not raise the defendants’ sentences above the statutory maximum. Under U.S. v. Grier, 475 F.3d 556 (3d Cir. 2007), Apprendi does not apply when a district court makes factual findings that affect the advisory guidelines but not the statutory maximum. U.S. v. Gonzalez, __ F.3d __ (3d Cir. Sept. 7, 2018) No. 16-1540.
4th Circuit reaffirms that fact of prior conviction can be decided by sentencing judge. (120)(245)(520) Defendant was convicted of drug charges. Based on his prior convictions, the district court sentenced defendant to a mandatory minimum sentence of 480 months. He argued that the statutory mandatory minimum sentences could not be applied to him because the fact of his prior convictions had neither been charged in the indictment nor found by the jury beyond a reasonable doubt. The Fourth Circuit found this argument was foreclosed by Almendarez-Torres v. U.S., 523 U.S. 224 (1998), which held that a judge may find the fact of a defendant’s prior convictions, even when this increases the statutory maximum or minimum penalty. Defendant argued that Almendarez-Torres was “flatly inconsistent” with Alleyne v. U.S., which held “that facts that increase mandatory minimum sentences must be submitted to the jury.” 570 U.S. 99 (2013). However, Alleyne expressly exempted “the fact of a prior conviction” from its holding, leaving intact the “narrow exception” recognized in Almendarez-Torres. U.S. v. Bell, __ F.3d __ (4th Cir. Aug. 28, 2018) No. 16-4343.
6th Circuit says remand required using guidelines in effect on date of prior sentencing. (192)(197)(520) In 2004, defendant was sentenced to 360 months under the Armed Career Criminal Act. In 2015, Johnson v. U.S., __ U.S. __, 135 S.Ct. 2551 (2015) held the “residual clause” of the ACCA was unconstitutionally vague. Based on Johnson, the district court vacated defendant’s ACCA sentence, and instead sentenced him as a career offender under the “residual clause” of §4B1.2, because the “vagueness doctrine” does not apply to advisory guidelines. See Beckles v. U.S., 137 S.Ct. 886 (2017). Thereafter, in 2016, the Sentencing Commission deleted the career offender guideline’s “residual clause.” When defendant’s cases was later remanded for a procedural error, the district court refused to apply the amended guideline, but relied on the pre-amendment guideline’s “residual clause” to sentence him again as a career offender. Defendant appealed, arguing that the court should have used the current §4B1.2. The Sixth Circuit disagreed. Courts should ordinarily use the version of the guidelines in effect on the date of sentencing. However, when a case is remanded because the sentence was imposed “in violation of law,” the district court must use the version of the guidelines in effect on the date of the prior sentence. 18 U.S.C. § 3742(f)(1), (g)(1). Here, the remand was because the district court failed to explain the basis for its sentence, i.e., it was imposed “in violation of law.” U.S. v. Jackson, __ F.3d __ (11th Cir. Aug. 24, 2018) No. 15-14354.
6th Circuit holds Hobbs Act robbery is not a crime of violence. (520) Defendant pled guilty to Hobbs Act robbery, and related firearms charges. He was sentenced as a career offender based in part on the district court’s finding that his Hobbs Act conviction was a crime of violence under guideline § 4B1.2. Although Hobbs Act robbery is a crime of violence under § 924(c)’s use-of-force clause, U.S. v. Gooch, 850 F.3d 285 (6th Cir. 2017), Gooch was not controlling because § 924(c)(3) and guideline § 4B1.2 define “crime of violence” differently. The guidelines’ force clause is limited to force against the person, while § 924(c) covers force against person or property. The Sixth Circuit joined the Tenth Circuit, U.S. v. O’Connor, 874 F.3d 1147 (10th Cir. 2017), in holding that Hobbs Act robbery was not a crime of violence under the guidelines because it reached conduct that fell outside of generic robbery. At a minimum, the lack of an immediacy requirement rendered the statute broader than generic robbery. Moreover, threats to property alone, whether immediate or future, did not necessarily create a danger to the person. U.S. v. Camp, __ F.3d __ (6th Cir. Sept. 7, 2018) No. 17-1879.
8th Circuit enforces one year limitations period for § 2255 motion challenging prior “crimes of violence.” (520)(880) Defendant was sentenced in 2004 under the then-mandatory guidelines as a career offender. In a 28 U.S.C. § 2255 motion, he argued that in light of Johnson v. U.S., 135 S.Ct. 2551 (2015), he was improperly sentenced as a career offender based on the “residual clause” of § 4B1.2(a)(2). Johnson held that a similar “residual clause” in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague The district court dismissed his § 2255 motion as untimely, and the Eighth Circuit agreed. Johnson did not address the sentencing guidelines, and Beckles v. U.S., 137 S.Ct. 886 (2017), held that the vagueness doctrine does not apply to the guidelines because they are advisory. Thus, the question remained open, and the answer was reasonably debatable. Defendant thus could not benefit from the limitations period in § 2255(f)(3), and the district court correctly dismissed his motion as untimely. Russo v. U.S., __ F.3d __ (8th Cir. Sept. 6, 2018) No. 17-2424.
1st Circuit affirms career offender status despite claim that defendant only “technically” qualified. (520)(742) The court found that defendant qualified as a career offender, with a guideline range of 151-188 months, but sentenced him to 78 months. Defendant argued that his sentence was unreasonable, contending that although he “technically qualified” as a career offender, he had “unique circumstances.” The First Circuit rejected this argument, noting the district court’s thoughtful consideration of his personal history and its downward variance from the career offender range. The judge gave defense counsel multiple opportunities to convince the court that defendant deserved leniency. Before announcing defendant’s sentence, the judge said he had considered the letters submitted by defendant’s family, the PSR (which described in depth defendant’s difficult childhood), defense counsel’s arguments (which highlighted defendant’s upbringing and the circumstances of his predicate offenses), and defendant’s “history, record and personal characteristics.” The below-guidelines sentence was not unreasonable. U.S. v. Reid, __ F.3d __ (1st Cir. Aug. 10, 2018) No. 17-2021.
9th Circuit finds California robbery is not a “crime of violence.” (520) In U.S. v. Becerril-Lopez, 541 F.3d 881 (9th Cir. 2008), the court held that robbery, in violation of California Penal Code § 211, is categorically a “crime of violence” under the guidelines because a violation of that section would either be generic robbery or generic extortion, and both were listed in § 4B1.2(a), the guidelines’ definition of “crime of violence.” However, effective August 1, 2016, the Sentencing Commission amended its definition of extortion to reach only the obtaining of something of value from another by use of force, fear of physical injury, or threat of physical injury. The Ninth Circuit held that this amendment reaches only persons, not property, and accordingly, California Penal Code § 211 is no longer a “crime of violence.” U.S. v. Bankston, __ F.3d __ (9th Cir. Aug. 23. 2018) No. 16-10124.
2nd Circuit says “controlled substance offense” refers only to substances controlled by federal law. (330) (520) The district court found that defendant’s prior conviction under New York Penal Law (NYPL) § 220.31 for fifth-degree criminal sale of a controlled substance qualified as a “controlled substance offense,” and applied an enhanced offense level under § 2K2.1(a)(2). Defendant argued that the New York law was substantively broader than its federal counterpart, since NYPL § 220.31 prohibited the sale of Human Chorionic Gonadotropin (HCG), a substance not controlled under federal law. The Second Circuit held that the term “controlled substance” in § 4B1.2(b) included only substances controlled by federal law under the Controlled Substances Act (CSA). Although a “controlled substance offense” includes an offense “under federal or state law,” that does not mean that the substance at issue may be controlled under federal or state law. Thus, the § 2K2.1(a)(2) increase was improper here. U.S. v. Townsend, __ F.3d __ (2d Cir. July 23, 2018) No. 17-757-cr.
3rd Circuit says Johnson did not start a new limitation period for § 2255 motion challenging residual clause in guidelines. (520)(880) At sentencing, the district court found that defendant was a career offender under the residual clause of the then-mandatory Sentencing Guidelines. Later, in a 28 U.S.C. 2255 motion, defendant argued that the residual clause in the career offender Sentencing Guideline was unconstitutionally vague pursuant to Johnson v. U.S., __ U.S. __, 135 S.Ct. 2551 (2015), which voided a similar residual clause in the Armed Career Criminal Act (ACCA). The Third Circuit agreed with the government that the § 2255 motion was untimely, ruling that Johnson did not constitute a newly recognized right that would start anew the one-year limitations period for a § 2255 motion based on a vagueness challenge to the guidelines’ residual clause. Moreover, in Beckles v. U,S., __ U.S. __, 137 S.Ct. 886 (2017), the Supreme Court held that the residual clause in the advisory Sentencing Guidelines was not subject to a void-for-vagueness challenge. U.S. v. Green, __ F.3d __ (3d Cir. Aug. 6, 2018) No. 17-2906.
3rd Circuit finds RICO conviction was controlled substance offense, using modified categorical approach. (520) Defendant appealed his career offender designation, arguing that his 1998 RICO conviction, predicated on his distribution of heroin and crack cocaine, was not a “controlled substance offense” under the Sentencing Guidelines. The Third Circuit disagreed, finding that RICO was a divisible statue, and thus it could apply the modified categorical approach. All five of defendant’s predicate acts of racketeering were violations of 21 U.S.C. § 841(a)(1)—or conspiracy to commit such a violation under 21 U.S.C. § 846. Specifically, he admitted manufacturing, distributing, or dispensing, or possessing with intent to manufacture, distribute, or dispense heroin or crack cocaine. This conduct was categorically a “controlled substance offense.” U.S. v. Williams, __ F.3d __ (3d Cir. Aug. 1, 2018) No. 16-3547.
8th Circuit finds Missouri first degree domestic assault was crime of violence, rejecting rule of lenity. (520) Defendant was sentenced as a career offender based in part on the district court’s finding that his prior Missouri conviction for first degree domestic assault was a crime of violence. Defendant argued the Missouri conviction did not count under the rule of lenity as applied in King v. U.S., 595 F.3d 844 (8th Cir. 2010). Specifically, he argued that two of his six prior sentences could not be counted in calculating his criminal history category under § 4A1.1(c) because an offense must be counted separately under § 4A1.1 to be counted under § 4B1.1, see § 4B1.2(c); and therefore the rule of lenity required that the two crimes of violence not be counted under § 4A1.1 and § 4B1.1. The district court rejected this argument because it would lead to an absurd result – a more lenient sentence because defendant had a greater criminal history. The Eighth Circuit agreed, relying on Donnell v. U.S., 765 F.3d 817, 820 (8th Cir. 2014) to find the district court’s reasoning consistent with King’s application of the rule of lenity. See. U.S. v. Garrett, __ F.3d __ (8th Cir. Aug. 2, 2018) No. 17-2302.
8th Circuit holds any error in classifying defendant as career offender was harmless. (520) The district court found that defendant was a career offender, resulting in an advisory guideline range of 360 months to life. However, the court then varied downward and sentenced him to 240 months. On appeal, defendant challenged his career offender status, arguing that he did not have two prior convictions for crimes of violence. The Eighth Circuit found that any error was harmless. The district court said that it “found [defendant] to be a career offender [but did] not utilize th[e] advisory guidelines in that respect.” It acknowledged that defendant’s “compelling and interesting arguments … brought out many aspects of [defendant’s] past that [the court found] relevant for fashioning this sentence.” The court also engaged counsel in extensive discussion regarding the circumstances of the present offense, the circumstances of defendant’s prior offenses, and the § 3553 factors. In these circumstances, any error was harmless. U.S. v. Garrett, __ F.3d __ (8th Cir. Aug. 2, 2018) No. 17-2302.
1st Circuit holds that federal armed bank robbery is crime of violence. (520) Defendant was convicted of federal armed bank robbery, and was sentenced as a career offender. The federal armed bank robbery statute, in relevant part, penalizes someone who robs a bank “by force and violence, or by intimidation” and, in committing such an offense, “assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device.” 18 U.S.C. § 2113(a) & (d). Defendant argued that this offense could be committed without the use, attempted use, or threatened use of physical force. He contended that “intimidation” did not require force, because a robber could use poison, or withhold medication, to accomplish the crime without employing force. The First Circuit upheld the district court’s finding that federal bank robbery was a crime of violence, noting that it had rejected an identical argument in U.S. v. Ellison, 866 F.3d 32 (1st Cir. 2017). Indeed, a conviction for federal unarmed bank robbery, at issue in Ellison, was a lesser included offense to federal armed bank robbery. U.S. v. Frates, __ F.3d __ (1st Cir. July 18, 2018) No. 16-1933.
1st Circuit holds that unarmed robbery was crime of violence under residual clause, but remands. (520) Defendant was convicted of federal armed bank robbery, and was sentenced as a career offender based in part on his prior Massachusetts convictions for unarmed robbery. The First Circuit found that precedent compelled it to conclude that Massachusetts unarmed robbery qualified as a crime of violence under the career offender guideline’s residual clause. See U.S. v. De Jesus, 984 F.2d 21 (1st Cir. 1993) (holding that Massachusetts offense of larceny from the person qualified as a crime of violence under the residual clause); Commonwealth v. Glowacki, 398 Mass. 507 (1986) (Massachusetts larceny from the person is a lesser included offense of unarmed robbery). However, under the circuit’s Godin/Ahrendt doctrine, remand was warranted to allow the district court to reconsider defendant’s career offender status in light of Amendment 798, an intervening amendment removing the guideline’s residual clause. If the amendment had been in effect at the time of defendant’s sentencing, his guideline range would have decreased from 188-235 months to 92-115 months. U.S. v. Frates, __ F.3d __ (1st Cir. July 18, 2018) No. 16-1933.
8th Circuit says Iowa domestic assault was crime of violence. (520) Defendant was sentenced as a career offender based in part on the district court’s finding that his prior Iowa conviction for domestic assault under Iowa Code § 708.2A(2)(c) (2012) qualified as a crime of violence under the guidelines. The Eighth Circuit affirmed. The parties agreed that the statute was divisible, and therefore the panel applied the modified categorical approach. Under this approach, the panel found that defendant pleaded guilty to committing an “act which [was] intended to cause pain or injury to, or which was intended to result in physical contact which w[ould] be insulting or offensive to another, coupled with the apparent ability to execute the act,” § 708.1(1), and he did so “with the intent to inflict a serious injury upon another,” § 708.2A(2)(c). This offense had an element of physical force. By pleading guilty, defendant affirmed that he committed an assault under § 708.1(1) and did so with the intent to inflict a serious injury. This showing qualified as the use, attempted use, or threatened use, of physical force. See U.S.S.G. § 4B1.2(a)(1). U.S. v. Gaines, __ F.3d __ (8th Cir. July 16, 2018) No. 17-1274.
8th Circuit affirms career offender status as beginning point for downward variance. (520)(742) Defendant argued that the sentencing court “erred by considering a twenty-level career offender enhancement under U.S.S.G. § 4B1.1(b)(3) as the beginning point for fashioning [his] sentence.” Thus, his argument was that the court committed procedural error by applying the enhancement, even though he did not dispute that he qualified for the enhancement. The Eighth Circuit found this argument “meritless.” A sentencing court must calculate the guideline range and apply applicable enhancements. Defendant’s 120-month sentence was not substantively unreasonable. The sentencing court agreed with defendant that a career-offender enhancement overstated the seriousness of his behavior. The court therefore varied downward from defendant’s guideline range of 151-188 months and imposed a sentence of 120 months. U.S. v. Gaines, __ F.3d __ (8th Cir. July 16, 2018) No. 17-1274.
6th Circuit holds Kentucky assault under extreme emotional disturbance is crime of violence. (330)(520) Defendant pled guilty to possessing an explosive as a felon. The district court found that his prior Kentucky conviction for second-degree assault under extreme emotional disturbance was a crime of violence. This resulted in an offense level of 20 under § 2K1.3(a)(2). The Sixth Circuit upheld the crime of violence finding, because the plain language of the Kentucky assault under extreme emotional disturbance statute, Ky. Rev. Stat. § 508.040, required the defendant to have “intentionally” caused a physical injury in committing the underlying assault. Under U.S. v. Colbert, 525 F. App’x 364, 368 (6th Cir. 2013) and U.S. v. Knox, 593 F. App’x 536 (6th Cir. 2015), “extreme emotional disturbance” did not negate the intent elements of first or second degree assault under Kentucky law. U.S. v. Maynard, __ F.3d __ (6th Cir. July 3, 2018) No. 17-6057.
8th Circuit rules Missouri second degree domestic assault was crime of violence. (330)(520) Defendant pled guilty to being a felon in possession of a firearm. At sentencing, the district court found that defendant’s prior Missouri conviction for second degree domestic assault, Mo. Rev. Stat. § 565.073, was a crime of violence, and increased his offense level to 20 under § 2K2.1(a)(4)(A). The Eighth Circuit affirmed. This circuit recently held, in U.S. v. Phillips, 853 F.3d 432 (8th Cir. 2017) that § 565.073 was a divisible statute, and that the defendant’s convictions for violating § 565.073.1(1) were ACCA violent felonies. Because the statute was divisible, it was proper to use the modified categorical approach and examine underlying documents. The First Amended Information tracked the language of § 565.073.1(1), and charged that defendant “attempted to cause serious physical injury to [the victim] by striking her with an automobile and [the victim] … was the girlfriend of the defendant.” Only § 565.073.1(1) criminalized attempts. This state court document conclusively established that defendant was convicted of violating § 565.073.1(1), a crime of violence under § 4B1.2(a)(1)’s “force” clause. U.S. v. Doyal, __ F.3d __ (8th Cir. July 5, 2018) No. 17-1320.
5th Circuit finds any error in treating Florida elder abuse as crime of violence was harmless. (340)(520) Defendant pled guilty to being found in the U.S. after deportation. The district court found that his prior Florida conviction for elder abuse was a crime of volence under § 2L1.2, resulting in a 37-46 month guidelines range. The court varied upward and imposed a 72-month sentence. The Fifth Circuit found that any error in treating the Florida conviction as a crime of violence was harmless, becaue the district court considered different potential guideline sentences, and it was clear that it would have arrived at the same 72-month sentence under any of them. The court noted that a previous 60-month sentence had not dissuaded defendant. U.S. v. Vega-Garcia, __ F.3d __ (5th Cir. June 25, 2018) No. 17-50392.
D.C. Circuit denies sentence reduction for defendant sentenced under career offender guideline. (192)(520) Defendant pled guilty to drug charges. Because he was a career offender, his guideline range was 188-235 months. However, the district court sentenced him to only 156 months, pursuant to a Rule 11(c)(1)(C) plea agreement. Later, amendment 782 reduced the base offense level for most drug-trafficking offenses, so defendant filed an 18 U.S.C. § 3582(c)(2) motion to reduce his sentence. The district court found that defendant was ineligible for a sentence reduction because Amendment 782 did not lower the sentencing range for career offenders. On appeal, the D.C. Circuit affirmed. Amendment 782 only affects sentences that are based on the drug trafficking guideline, § 2D1.1. Because the drug trafficking guideline “played no role in determining” defendant’s sentencing range, he was ineligible for a § 3582(c)(2) sentence reduction. U.S. v. Akers, __ F.3d __ (D.C. Cir. June 15, 2018) No. 17-3095.
5th Circuit holds Texas indecency with a child by sexual contact was not a crime of violence. (340)(520) Defendant pled guilty to illegal reentry. He received a 16-level crime of violence enhancement under the 2015 version of § 2L1.2(b)(1)(A)(ii), based on his Texas conviction for indecency with a child by sexual contact, in violation of Texas Penal Code § 21.11(a)(1). The 2015 definition of a crime of violence included “sexual abuse of a minor.” While defendant’s appeal was pending, the Supreme Court decided Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), which held that “in the context of statutory rape offenses focused solely on the age of the participants, the generic federal definition of ‘sexual abuse of a minor’ … requires the age of the victim to be less than 16.” The Texas statute under which defendant was convicted made it a felony to engage in sexual contact with a child younger than 17. Thus, the Texas statute was categorically broader than the generic federal definition of “sexual abuse of a minor.” The error met plain error standards. U.S. v. Sanchez-Arvizu, __ F.3d __ (5th Cir. June 20, 2018) No. 67-41378.
5th Circuit holds that Texas sexual assault was not a crime of violence. (340)(520) Defendant pled guilty to illegal reentry after deportation, and received a 16-level crime of violence increase under § 2L1.2(b)(1)(A)(ii) based on his prior conviction for sexual assault under Texas Penal Code § 22.011(a)(2). The application notes to § 2L1.2 of the 2015 guidelines define crime of violence to include “statutory rape” and “sexual abuse of a minor.” In light of the Supreme Court’s decision in Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), the Fifth Circuit held that a conviction under Texas Penal Code § 22.011(a)(2) is not a crime of violence within the meaning of § 2L1.2(b)(1)(A)(ii) of the 2015 guidelines. Texas Penal Code § 22.011(a)(2) proscribes sexual conduct with a “child” – defined as “a person younger than 17 years of age” – “regardless of whether the person knows the age of the child at the time of the offense.” Because § 22.011(a)(2) criminalizes sexual intercourse with a victim under 17, rather than a victim under 16, and does so “based solely on the age of the participants,” it was categorically overbroad under Esquivel-Quintana. U.S. v. Hernandez-Avila, __ F.3d __ (5th Cir. June 13, 2018) No. 16-51009.
3rd Circuit holds Pennsylvania second-degree aggravated assault with a deadly weapon was crime of violence. (520) Defendant argued that his 1998 Pennsylvania aggravated assault conviction, under 18 Pa. C.S. § 2702, was not a crime of violence. The district court agreed, and thus ruled that defendant was not a career offender. The Third Circuit reversed. Applying the modified categorical approach for a divisible statute, the panel concluded that the second-degree aggravated assault conviction was categorically a crime of violence. under the “elements” clause of the guidelines. The “minimum conduct” sufficient to sustain a § 2702(a)(4) conviction was an attempt to cause another person to experience substantial pain with a device capable of causing serious bodily injury. An offender can do so only by attempting to use physical force against another person. U.S. v. Ramos, __ F.3d __ (3d Cir. June 15, 2018) No. 17-2720.
9th Circuit rules Nevada assault with a deadly weapon is a “crime of violence.” (330)(520) After defendant pleaded guilty to being a felon in possession of a firearm, the district court enhanced his sentence because he had previously been convicted of a “crime of violence,” i.e., assault with a deadly weapon under Nevada Rev. Stat. § 200.471. Guideline section 4B1.2(a) defines “crime of violence” in part to mean a felony offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” The Ninth Circuit held that assault with a deadly weapon in Nevada is a “crime of violence” under this definition. U.S. v. Edling, __ F.3d __ (9th Cir. June 8, 2018) No. 16-10457.
9th Circuit holds Nevada robbery is not a “crime of violence.” (330)(520) Defendant pleaded guilty to being a felon in possession of a firearm. The guideline for that offense, § 2K2.1(a), sets the offense level depending on whether defendant had a prior conviction for a “crime of violence.” Section 4B1.2(a) defines “crime of violence” to include both “robbery” and “extortion.” In U.S. v. Becerril-Lopez, 541 F.3d 881 (9th Cir. 2008), the court held that robbery under California law (which is largely identical to Nevada law) was either generic robbery or generic extortion and, accordingly, reached threats to property. However, on August 1, 2016, the Sentencing Commission added a definition of “extortion” to mean “obtaining something of value from another by the wrongful use of (A) force, (B) fear of physical injury, or (C) threat of physical injury.” The Ninth Circuit held that this definition of “extortion” did not reach threats to property. For that reason, the court held that robbery under Nevada law is no longer a “crime of violence” under the enumerated offenses in § 4B1.2(a). U.S. v. Edling. __ F.3d __ (9th Cir. June 8, 2018) No. 16-10457.
9th Circuit holds Nevada coercion is not a “crime of violence.” (330)(520) In imposing sentence on defendant for being a felon in possession of a firearm, the district court held that defendant’s prior conviction of coercion, in violation of Nevada Rev. Stats § 207.190, is a “crime of violence” under § 4B2.1(a). That section defines “crime of violence” in part to mean any felony offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” The Ninth Circuit held that felony coercion in Nevada is not a “crime of violence” under this definition. U.S. v. Edling, __ F.3d __ (9th Cir. June 8, 2018) No. 16-10457.
2nd Circuit holds New York first degree manslaughter was enumerated crime of violence. (520) Defendant pled guilty to being a felon in possession of a firearm, and was sentenced to 19 months. The government appealed, arguing that the district court should have found that that defendant’s prior conviction for first degree manslaughter, in violation of New York Penal Law § 125.20(1), was a crime of violence under the residual clause of the career offender guideline, § 4B1.2. The Second Circuit agreed, holding that New York first degree manslaughter was a crime of violence under the enumerated offenses clause of Application Note 1 to § 4B1.2 of the 2015 guidelines. The generic definition of “manslaughter” includes the unlawful killing of another human being recklessly. The New York law is narrower than the generic definition and is therefore a crime of violence. U.S. v. Castillo, __ F.3d __ (2d Cir. June 4, 2018) No. 16-4129.
4th Circuit says Georgia robbery was not a crime of violence. (520)(540) As a result of Johnson v. U.S., 135 S.Ct. 2551 (2015), the district court vacated defendant’s 400-month sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), because his prior Georgia robbery convictions no longer qualified as ACCA predicates. However, the court found that the convictions were crimes of violence under the 2016 career offender guideline, §4B1.2. This resulted in a higher guidelines range than the original sentencing. To avoid violating the ex post facto clause, the district court sentenced defendant under the 1991 guidelines. On appeal, the Fourth Circuit reversed, holding that Georgia robbery is broader than generic robbery because Georgia robbery can be committed “[b]y sudden snatching,” and case law has construed that term more broadly than generic robbery. Accordingly, defendant was not a career offender under either version of the guidelines. U.S. v. Fluker, __ F.3d __ (4th Cir. June 5, 2018) No. 17-4690.
8th Circuit counts prior drug offenses separately for career offender purposes. (520) Defendant pled guilty to drug charges and was sentenced as a career offender based on two prior drug convictions. He committed a federal drug offense on October 21, 1998 and a state drug offense on December 3, 1998. Defendant was arrested for the state offense on December 3, 1998, but was not arrested on the federal offense until May 25, 2000. As a result, his two prior offenses are not separated by an intervening arrest. Defendant argued that these two prior convictions were related under §4A1.2(a)(2), and thus he did not qualify as a career offender. The Eighth Circuit held that the two convictions were properly counted separately as two prior felony convictions. Defendant was charged in separate charging instruments, one in state court and one in federal court. Further, his sentences were imposed on different days. Defendant’s claim that the offenses were part of a single course of conduct, and should be counted together, was based on an erroneous reading of the guidelines and ignored the straightforward application of §4A1.2(a)(2). U.S. v. Fuehrer, 844 F.3d 767 (8th Cir. 2016).