Crimes of Violence, Career Offender, ACCA Johnson Update Crimes of Violence, Career Offender, ACCA

What remains of the residual clause? The ACCA’s now-void residual clause appears in the definition of a “crime of violence” under: §4B1.2(a)(2) of the pre-August 1, 2016 Sentencing Guidelines, 18 U.S.C. § 16(b), and 18 U.S.C. § 924(c)(3)(b). The Third Circuit extended Johnson to nullify the residual clause contained at § 16(b) (see Baptiste v. Attorney Gen., 841 F.3d 601 (3d Cir. 2016)) and, in August 2016, the U.S. Sentencing Commission rewrote §4B1.2(a)(2) without the residual clause.

§ 924(c) and contemporaneous violent felonies In the Third Circuit, the categorical approach does not apply to § 924(c) cases, at least in brandishing and discharge cases. See United States v. Robinson, 844 F.3d 137 (3d Cir. 2016) (Hobbs Act robbery committed while brandishing a firearm is a violent felony); United States v. Galati, 844 F.3d 152 (2016) (murder for hire committed while discharging a firearm is a violent felony). The Supreme Court denied certiorari in both cases. Numerous unpublished decisions have extended Robinson beyond use and brandishing cases and applied the holding where a defendant merely carries a gun. See United States v. Thomas, 2017 WL 3028606 (July 18, 2017); United States v Fredericks, 684 Fed. Appx. 149 (3d Cir. 2017); United States v. White, 678 Fed. Appx. 80 (3d Cir. 2017).

Defining a Crime of Violence under the Guidelines Today (a)       The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that— (1)       has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2)       is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c). Note that burglary of a dwelling is no longer listed as an enumerated offense. Instead, the Guidelines provide for an upward departure for a burglary involving actual violence. See U.S.S.G. §4B1.2, cmt. (n. 4).

Approaching a Guidelines Case Post-Johnson, the list of offenses that could qualify as “crimes of violence” has shrunk in some ways, and expanded in others. Forget what you thought you knew about whether a particular prior constituted a crime of violence and re-evaluate every prior anew. In any pending case involving the pre-August 1, 2016 Guidelines, the residual clause will still apply because Beckles v. United States, 137 S.Ct. 886 (2017) held that the advisory Guidelines are not subject to vagueness challenges.

Defining “use of force” under the elements clause “Use of force” = intentional employment of something capable of causing physical pain or injury to another person, regardless of whether the perpetrator struck the victim’s body. United States v. Chapman, 866 F.3d 129 (3d Cir. 2017) (mailing a letter containing any threat to injure the recipient or another person in violation of 18 U.S.C. § 876(c) qualifies as a crime of violence) beyond “the slightest offensive touching” which does not qualify as “physical force,” there is no minimum quantum of force necessary to satisfy Johnson’s definition of physical force. Poison and cutting break lines both “use force.”

Robbery is a crime of violence Despite the fact that most robbery statutes require only de minimis force, the courts, including the Third Circuit, are not buying the argument that robbery is not a crime of violence: United States v. Graves, 877 F.3d 494 (3d Cir. 2017) – North Carolina robbery is a crime of violence despite the fact that it can be committed by merely swiping a person’s hand away from her belonging. United States v. Wilson, 2018 WL 444190 (3d Cir. Jan. 17, 2018) – bank robbery by intimidation, in violation of 18 U.S.C. § 2113(a) is categorically a crime of violence

What about offenses with a reckless mens rea? Be prepared for the Government to argue, citing Voisine v. United States, 136 S. Ct. 2272 (2016), that offenses criminalizing reckless conduct may qualify as “crimes of violence” under the elements clause. Defense counsel have been successful in attacking this argument in the District Court and it is now before the Third Circuit on the Government’s appeal in United States v. Icxandro Santiago, Docket No. 16-4194 (argued 12/11/2017). The question presented in Santiago is whether N.J.S.A. 2C:12-1(b)(5), simple assault against a law enforcement officer, is a crime of violence.