1. April 27, 2018 Kansas City, Kansas
The Continuing Evolution of the Post-Johnson World: Where Do We Stand Now on the ACCA, the Career Offender Provision,18 U.S.C. § 16, 18 U.S.C. § 924(c) and Beyond
April 27, 2018
Kansas City, Kansas
Hey everyone, Thank you for inviting us here. Johnson, which knocked out the residual clause in the ACCA, is really is so much fun. It has been quite a ride the last couple of years - Johnson has consumed us. And we have had our ups and downs with Johnson, but overall we have been living the dream. It has knocked off thousands of years in our clients’ sentences and will continue to do so. And be patient. Some of the post-Johnson arguments have been and will continue to be knocked down, but you have to keep making these arguments. Preserve arguments. Because sometimes it takes years for our arguments to digest with the judges. And there are several post-Johnson issues that will go to the Supreme Court.

2. Overview I. Pre-Johnson world II. Summary of Johnson
III. Implications:
A. Armed Career Criminal Act
B. Career Offender /U.S.S.G. §§ 2K2.1/ 7B1.1
C. 18 U.S.C. § 16
D. 18 U.S.C. § 924(c)
So today we are going to start with the pre-Johnson world and talk about how the residual clause operated before Johnson.
Then I will talk about the holding and reasoning behind Johnson.
An then I will go through Johnson’s impact on the various sentencing enhancements and 924(c). And here we will talk most about what remains after the demise of the residual clause. And how to make challenges to the remaining portions of the crime of violence/violent felony definition.

3. Pre-Johnson Residual Clause Analysis
(“Otherwise involves conduct that
presents serious potential risk of physical injury”)
Inquiry under James, Begay, Chambers, Sykes: categorical approach + ordinary case
Do elements of offense in ordinary case:
a. present risk of injury at similar level to enumerated offenses (generic burglary, arson, extortion, use of explosives)+
b. require purposeful, violent, and aggressive conduct?
Ok, so let’s start with how the residual clause operated in the pre-Johnson world. So there was much confusion about what the test actually was for determining whether an offense fell in the residual clause.
But after the Supreme Court’s case in James, Begay, Chambers, and Sykes, the test was more or less what I call the categorical approach + ordinary case inquiry.
Meaning do the elements of the offense in the ordinary case present a risk of injury at similar level to enumerated offenses that precede it +
Does the offense have an element requiring purposeful, violent and aggressive conduct.

4. Johnson: Residual Clause Void for Vagueness
Reasons turn on uncertainty of ordinary case inquiry: 1. Grave uncertainty about how to estimate risk because no one knows how to determine what the ordinary case of a crime is: Gut instinct, common sense, statistics, google search – not sufficient guides. 2. Grave uncertainty about how to determine quantum of risk (i.e., how much risk) because quantum of risk is tied to ordinary case. Again, back to ordinary case problem. Denies fair notice and invites arbitrary enforcement
Ok, so in Johnson, Justice Scalia struck down the residual clause as unconstitutionally void in all applications.
And he said there were two features that doomed the residual clause. But really, there was one reason – It call came down to the ordinary case problem.
First, Justice Scalia said that no one knows even how to begin to estimate the risk of injury because no one knows how to figure out the ordinary case - How the crime is ordinarily committed.
Second, there is grave uncertainty about how to determine the quantum of risk (i.e. how much risk) because quantum of risk is also tied to ordinary case. To be clear, the court said the problem was not the words serious potential risk. Many statutes have the words serious potential risk. But these statutes are not problematic because under those statutes the jury or the judge is required to look at the individual facts – real world facts -- in the case to determine whether there is serious risk of injury. But that is not true with the ACCA residual clause because the court has to use the categorical approach and then on top of that determine how the crime is ordinarily committed before determining whether that ordinary case then presents a serious risk of injury. And it is impossible to determine how a crime is ordinarily committed.
So Justice Scalia said the residual clause denies fair notice to defendants because they don’t know what is going to fall within the residual clause. And judges are utterly confused too so it leads to arbitrary enforcement.

5. ACCA “violent felony” =
What’s left of the ACCA?
ACCA “violent felony” =
1. Force Clause: Has an element the use, attempted use, or threatened use of physical force against a person, or
2. Enumerated offenses: burglary, arson, extortion, use of explosives (determined by generic definition).
Ok so what’s left of the ACCA now that the residual clause is going. This is where we are going to spend most of our time today. There are two remaining clauses left. The force clause and the enumerated offenses clause.

6. “Most Innocent Conduct”
Categorical approach applies: If “most innocent conduct” or “full range of conduct” or “minimum conduct” covered by the elements of the statute does not match these definitions, prior cannot qualify as “violent felony.”
See United States v. Titties, 852 F.3d 1257 (10th Cir. 2017) (good discussion on divisibility and realistic probability test); United States v. Degeare, 884 F.3d 1241 (10th Cir. 2018) (same); United States v. McKibbon, 878 F.3d 967 (10th Cir. 2017) (same).
Now, one thing to keep in mind as we go through each of these clauses is that the categorical approach applies. That means we have to look at the most innocent conduct or minimum conduct or full range of conduct covered by the elements of the offense. If the full range of conduct does not match the requirements of the force clause or enumerated offenses clause, then the prior offense cannot qualify as a violent felony, no matter what actually happened in the prior case. The facts of the individual case do not matter.
Now the categorical approach can get very complicated. That is a whole other session. But make sure when you are applying the categorical approach, you always applying the law as recently articulated under Mathis v. United States, which says the focus must always remain on the elements. And that you only turn to the infamous modified categorical approach and look to a limited list of judicial documents in the case when an offense is divisible, meaning that the offense has alternative elements – some which match the ACCA violent felony definition and some which don’t.
If an offense does not have alternative elements – but just alternative means that a jury does not have to select, then the modified categorical approach does not apply. So sometimes a statute will have multiple disjunctive terms, but they are just alternative means of a single offense because the jury never has to select one term to the exclusion of the other. Rather, they go to the jury in one clump. But they are not elements because six jury could have found guilt on one term and six jurors could have guilt on another term.
Titties, Deagre, McKibbon are two really good cases that explain post-Mathis divisibility really well.

7. ACCA Force Clause: Five Challenges

8. Fighting Against the Force Clause
Five Key Issues to look for:
1. Requires “violent force,” not “de minimis force” (i.e., unwanted touching).
2. Force must be directed against a person, not property.
3. Requires the use of physical force, not merely the causation of physical injury.
4. Act of omission does not equal physical force.
5. Force must be used intentionally, not recklessly or negligently.
Ok, so there are five key issues to look for when assessing whether an offense qualifies under the ACCA force clause.
First, the force clause requires an element of violent physical force – which we are going to talk a lot about it in a minute and what that means
2. The force clause requires that the prior offense have an element of force against person – not property.
The force clause requires the use of strong physical force – it is not enough that a statute requires physical injury, serious physical injury or even death – because such results do not require the use of strong physical force – counterintuitive. - Bad cases in 8th and 10th, but preserve issue.
If offense can be violated by act of omission, it does not require physical force – Bad case in 8th, but preserve issue
Intentional mens rea – Bad cases in 8th and 10th, but preserve issue
Note: Keep in mind many of the best force clause cases have been litigated under 2L1.2. And there are good cases on career offender force clause (which is identical to the ACCA force clause). And the 924(c) force clause which is almost the same as the ACCA force clause.

9. Issue 1: “Violent Force” Requirement
ACCA Force Clause: Force ≠ Johnson Force

10. Issue 1: “Violent Force” Requirement Johnson Force defined
Johnson v. United States, 559 U.S. 133 (2010)
“Violent Force” means “strong physical force”/”substantial degree of force” that is “capable of causing physical injury or pain” to another person.
De minimis force (i.e, “unwanted touching,” or “offensive touching,” or even “squeeze of the arm that causes bruising”) is not enough.
Don’t forget to emphasize “strong physical force.” Government likes to skip past “strong physical force” part and just cite to the “capable of causing physical injury or pain” part of Johnson I. But even de minimis conduct is capable of causing physical injury or pain. So Johnson I could not have meant that capable of causing physical injury or pain is enough. Castleman v. United States – which is bad for other reasons we will explain later, is good on this point. There is some language in Castleman summarizing Johnson I which reinforces that Johnson I cited to a Seventh Circuit case called Flores v. Ashcroft which held that even “squeeze of the arm that causing bruising” is not violent physical force.
Don’t be deceived by labels: Sometimes offense will have element labeled “force or violence,” but that does not mean it has element of ACCA “violent force.”:
Beware Jones v. United States
Also, note that Stokeling may bring further clarity to what violent physical force means.

11. Issue 1: “Violent Force” Requirement
Assault /Resisting Arrest offenses that do not have element of violent physical force because they can be violated by de minimis force.
Assault or Battery
United States v. Ama,__ Fed. Appx. __, 2017 WL (10th Cir. 2017) (federal assault not a violent felony because the offense can be committed by spitting and throwing liquid substances on a federal employee, chasing after and bumping into a federal employee, or jolting a federal employee’s arm.)
Resisting arrest.
United States v. Shockley, 816 F.3d 1058 (8th Cir. 2016)(Missouri resisting arrest not categorically a violent felony because it can be committed by mere flight from a law enforcement officer).
But note that Tenth Circuit has found that federal assault with a dangerous weapon and federal assault causing physical injury do qualify as “violent felonies” under the force clause.
United States v. Shockley - Says Missouri resisting arrest by fleeing does not have element of force – only one subsection

12. Issue 1: “Violent Force” Requirement
Robberies that do not have element of violent force because they can be violated by de minimis force.
United States v. Nicholas, 686 Fed. Appx. 570, 2017 WL (10th Cir. 2017) (Kansas robbery not a violent felony because the “violence” element of robbery includes purse snatching).
United States v. Walker, WL (D. Kan. 2017) (Kansas armed robbery not a violent felony because it can be accomplished by de minimis force and no active use required of weapon - it can be concealed).
We have really been having success with robberies around the country.
I know for the folks in Missouri, you just got a really bad decision in United States v. Swopes, which reversed the good Bell case which previously held that Missouri second degree robbery was not a violent felony, but let’s hope that gets reversed on cert. There is a Supreme Court case pending on Florida robbery. That may help. We’ll talk about that case and Swopes in a minute..
One thing to keep doing here is monitoring state law on robbery If there is ever a state case that comes along which upholds a robbery conviction based on de minimis force, (which by the way includes things such as physical jerking, pushing, grabbing, pinching or even bruising) then you can renew your argument that the offense fails to qualify as an ACCA “violent felony” under the force clause).

13. Issue 1: “Violent Force” Requirement
Robberies: Caution
United States v. Swopes, __ F.3d__, 2018 WL (8th Cir. 2018) (en banc) (reversing United States v. Bell, 840 F.3d 963 (2016) to hold that Missouri second degree robbery is a “violent felony’ under the force clause because it requires “force capable of preventing or overcoming resistance.”).
However, be on look out for United States v. Stokeling, Case No ,pending Supreme Court case on similar Florida robbery statute:
Question presented: “Whether a state robbery offense that includes ‘as an element’ the common law requirement of overcoming ‘victim resistance’ is categorically a ‘violent felony’ under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), when the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.”

14. Issue 1: “Violent Force” Requirement
Kidnapping/False Imprisonment/Hostage Taking: “physical restraint,” detention,” “holding” does not automatically equal “physical force.”
Federal kidnapping:
United States v. Jenkins, 849 F.3d 390 (7th Cir. 2017) (federal kidnapping does not have a force requirement because it can be accomplished by deception).
Federal hostage taking:
United States v. Si Lu Tian, 339 F.3d 143 (2d Cir. 2003) (hostage taking can be accomplished by deception).

15. Issue 1: “Violent Force” Requirement
Sex offenses based on absence of legally valid consent do not qualify under the force clause.
Statutory Rape
United States v. Degeare, 884 F.3d 1241 (10th Cir. 2018) (Oklahoma sodomy with minor)
Involuntary or Incompetent Consent
United States v. Degeare, 884 F.3d 1241 (10th Cir. 2018) (Oklahoma sodomy with mentally ill person)
TIP: If “force” is an element, look for state case law extending the provision to “constructive force” (i.e., mental compulsion – not physical force) situations.
Also, keep in mind that are some sex offenses that sound really bad, but they don’t require the use of violent physical force. For example, statutory rape, which is consensual sex, but is prohibited due to age of victim in relation to the defendant. - Deagre (also great discussion on divisibility).
Even statutes which criminalize sex with a disabled person or mentally ill person do not require violent physical force, but rather just mental compulsion. Sometimes states will use word constructive force, but that is just mental compulsion – not violent physical force.

16. Issue 1: “Violent Force” Requirement
Offenses with a weapon element do not qualify if no active use required of weapon:
United States v. Titties, 852 F.3d 1257 (10th Cir. 2017) (Oklahoma pointing a firearm at another statute did not qualify under fore clause because it can be done for “whimsy, humor, prank).
United States v. Walker, WL (D. Kan. 2017) (Kansas armed robbery can be accomplished by de minimis force and no active use required of weapon - it can be concealed).
Caution: But see United States v. Pulliam, 566 F.3d 784 (8th Cir. 2009) (Missouri crime of unlawful use of weapon qualified under force clause because it requires exhibiting weapon readily capable of lethal use in angry or threatening manner).
Titties- Good indivisible analysis.

17. Issue 2: Property vs. Person
Force, even violent, against property does not qualify under ACCA force clause.
Examples: Hobbs Act robbery/ federal bank robbery includes threatening to injure one’s property. That should disqualify Hobbs Act robbery/bank robbery from qualifying under the force clause:
See United States v. O’Connor, 874 F.3d 1147 (10th Cir. 2017) (Hobbs Act robbery includes force against property; therefore, not qualifying offense under force clause );
But see: United States v. Harper, 869 F.3d 624 (8th Cir. 2017) (finding federal bank robbery crime of violence without addressing property argument).
So we have an argument that Hobbs Act robbery and bank robbery, which can be accomplished by threatening property do not qualify under force clause.
Just had great case in 10th Circuit on Hobbs Act robbery; And great case in 8th Circuit finding that 924(c) conviction is not crime of violence.
Beware: United States v. Harper, 869 F.3d 624 (8th Cir. 2017) – Says bank robbery is career offender crime of violence, but does not address property argument.

18. Issue 2: Property vs. Person
18 U.S.C. § 924(c) conviction for use of firearm in connection with crime of violence can be done by force against property. United States v. Bowman, 873 F.3d 1035 (8th Cir. 2017).
Missouri armed criminal action can be done by using weapon against property. United States v. Miranda-Zarco, 836 F.3d 899 (8th Cir. 2016).
Minnesota third degree riot includes force against property. United States v. McMillan, 863 F.3d 1053 (8th Cir. 2017)

19. Issue 2: Property vs. Person
Force, even violent, against property does not qualify under ACCA force clause. See United States v. Parral-Dominguez, 794 F.3d 440 (4th Cir. 2015) (North Carolina conviction for discharging firearm into occupied building does not qualify because it is force against property – not a person).
Love Parral-Dominguez – Discharging firearm into occupied building – not a violent felony.

20. Issue 3: Using Force vs. Causing Injury
Offenses with elements requiring physical injury, serious physical injury, or even death do not equal “violent force.” This is true because physical injury can be committed without use of strong physical force: - poisoning, - laying a trap, - exposing someone to hazardous chemicals, - withholding medicine, - locking someone in car on a hot day, - starving someone to death, neglecting a child, etc., - placing a barrier in front of a car, which causes an accident, - leaving an unconscious person in middle of road
This is where it gets counterintuitive

21. Issue 3: Using Force vs. Causing Injury
Examples: Offenses with physical injury, serious physical injury, or even death elements that do not qualify as violent felonies under the force clause:
Assault Offenses
United States v. Jordan, 812 F.3d 1183 (8th Cir. 2016) (Arkansas aggravated assault requiring engaging in conduct that creates substantial danger of death or serious physical injury to another. (post-Johnson); United States v. Perez-Vargas, 414 F.3d 1282 (10th Cir. 2005) (Colorado assault requiring defendant to cause bodily injury using a deadly weapon). United States v. Rodriguez-Enriquez, 518 F.3d 1191 (10th Cir. 2008) (Colorado assault by drugging).
Threat Offenses
United States v. Rico-Mejia, 859 F.3d 318 (5th Cir. 2017) (Arkansas terroristic threats: threatening an act that results in serious physical injury or death) (post-Johnson).
Manslaughter Offenses
United States v. Reyes-Contreras, 882 F.3d 113 (5th Cir. 2018) (Missouri manslaughter) (post-Johnson).
Courts have held that assaults and aggravated assault statutes do not require violent physical force because they can be accomplished without the use of strong physical force by refusing to give someone his medicine, using poison, hazard gas, guiding a blind person into traffic, etc.
In Perez-Vargas, the Tenth Circuit held that even assault with a dangerous weapon does not require the use of violent physical force – weapon could be hazardous gas or barrier that is put in front of one’s car.
Jordan – Eighth Circuit cited to Fifth Circuit law on child injury to hold that Aggravated assault statute that had risk of injury element did not qualify.
But really bad case now in both Eighth and Tenth that have gone the other way wrongly applying Castleman – Rice, Ontiveros,

22. Issue 3: Using Force vs. Causing Injury
Examples Continued: Common offenses with physical injury, serious physical injury, or even death elements that do not qualify as violent felonies under the force clause:
Federal crimes: Hobbs Act robbery, bank robbery, armed bank robbery, VICAR, carjacking, murder, assault, use of weapon of mass destruction
All can be accomplished by putting someone in fear of physical injury or actually causing physical injury or death, but violent force not required.
But see United States v. Harper, 869 F.3d 634 (8th Cir. 2017) 2016) (finding that federal bank robbery requires the use of violent force); United States v. House, 825 F.3d 387 (8th Cir. 2016) (finding same for Hobbs Act robbery)
+ many more bad cases from other Circuits on these offenses as well as carjacking.
There are lots of federal offenses which also should not fall under the force clause even though they require physical injury or threat of physical injury. Now, mostly you will see these offenses in 924© charges. But you can use the same reasoning here to argue that these offenses don’t qualify as crimes of violence under 924© force clause.
But lots of bad cases finding Hobbs Act robbery, bank robbery, carjacking crimes rejecting theory that physical injury does not necessarily require violent physical force.

23. Issue 3: Using Force vs. Causing Injury
Beware: United States v. Castleman, 134 S. Ct (2014):
Held: For purposes of 18 U.S.C. § 922(g)(9) “misdemeanor crime of domestic violence” definition “force” includes common law offensive touching, unlike “violent physical force” in ACCA/Johnson 2010.
Also, held that element of causing physical injury necessarily includes use of this “force” but affirmatively stated that it was not deciding whether physical injury necessarily requires violent physical force as required under ACCA force clause.
Beware of Castleman – It is a Supreme Court which held in a different context that an offense with a physical injury element equals violent physical force; however, in Castleman at issue was whether a prior assault offense qualified as misdemeanor crime of domestic violence for purposes of the federal statute which prohibits possession of a gun by someone who has such prior. The force clause under the domestic crime of violence definition looks the same as the ACCA force clause, but the Supreme Court went to great length to point out that it is very different from the ACCA force clause. The domestic crime of violence definition is much broader and includes de minimis force. And the Supreme Court specifically said it is not deciding whether physical injury requires violent physical force for purposes of the ACCA force clause. Therefore, Castleman has not overruled the line of cases holding that physical injury does not require the use of violent physical force. And in fact, there is a growing chorus of cases holding that Castleman is inapposite to the ACCA force clause analysis.

24. Issue 3: Using Force vs. Causing Injury
Courts are now divided: Decisions holding Castleman applies to ACCA/career offender/16(a) force clause: United States v. Ontiveros, 875 F.3d 533 (10th Cir. 2017) United States v. Rice, 813 F.3d 704 (8th Cir. 2016); United States v. Schaffer, 818 F.3d 796 (8th Cir. 2016) Decisions holding Castleman is inapposite to ACCA/career offender/16(a) force clause: United States v. Reyes-Contreras, 882 F.3d 113 (5th Cir. 2018); United States v. Rico-Mejia, 859 F.3d 318 (5th Cir. 2017); Whyte v. Lynch, 807 F.3d 463 (1st Cir. 2015); United States v. Rice, 813 F.3d 704 (8th Cir. 2016) (see dissent)
Bad – Ontiveros and Rice – But in 10th, argue that Rodriguez-Enriquez and Perez-Vargas should control. In 8th, argue that Jordan should control. Nice dissent in Rice.
Note: inconsistencies within Circuits – particularly 4th and 1st

25. Issue 4: Acts of Omission
Offenses that can be committed by acts of omission do not equal force. Castleman did not address acts of omission.
See United States v. Harris, 205 F. Supp. 3d 651 (M. D. Penn. 2016) (resisting arrest can be committed with passive resistance such as interlocking hands to avoid being handcuffed); United States v. Fisher, 2017 WL (E. D. Penn. 2017) (Penn. aggravated assault can be committed by act of omission, such as withholding food).
Caution: But see United States v. Peeples, 879 F.3d 282 (8th Cir. 2016) (holding that even acts of omission that cause physical injury, for example a care-giver refusing to feed a dependent, is still violent physical force; thus, Iowa attempted murder crime of violence under force clause).
Acts of omission – Castleman has not decided issue. But see bad Peeples case.

26. Issue 5: Intentional vs. Reckless Conduct
All offenses must require intentional use of violent force or intentional threat of violent force; reckless mens rea will not suffice.
See United States v. Armijo, 651 F.3d 1226 (10th Cir. 2011) (Colorado manslaughter has reckless mens rea);
United States v. Zuniga-Soto, 527 F.3d 1110 (10th Cir. 2008) (Texas offense of assaulting public servant has reckless mens rea);
United States v. Boose, 739 F.3d 1185 (8th Cir. 2014) (Arkansas first degree battery can be violated by reckless driving);
United States v. Fields, 863 F.3d 1012 (8th Cir. 2017) (Missouri second degree assault can be violated by reckless driving resulting injury)
Ok, so moving on to the fifth requirement – the force clause also requires the intentional application of force. So offenses with a reckless mens rea or less cannot qualify under the force clause. But 8th Circuit schizo post- Voisine
Fields – reckless driving subsection – weird case – says some reckless offenses won’t qualify while others will. Also, mention Watts – District of Kansas case.

27. Issue 5: Intentional vs. Reckless Conduct
Threats: Argue intimidation/putting someone in fear of bodily injury does not equal intentional threat if statute does not require defendant to have intent to put another in fear of bodily injury. See United States v. King, 979 F.2d 801, 803 (10th Cir. 1992) (threat under force clause “means both an intent to use force and a communication of that threat”). Examples of statutes that do not have intentional mens rea: See cases demonstrating that federal bank robbery can be violated without intentional threat of force: United States v. Yockel, 320 F.3d 818 (8th Cir. 2003); Dissent in Holder v. United States, 836 F.3d 891 (8th Cir. 2016) (suggesting that bank robbery does not have intentional use of force mens rea). But see United States v. Harper, 869 F.3d 624 (8th 2017) (finding that federal bank robbery satisfies intentional mens rea).
Ok, also be careful with threats statutes – There are statutes with an intimidation or putting someone in fear of bodily injury element that sound like a threat, but shouldn’t qualify because they don’t require an intentional threat. In fact, a threat under the force clause means intent to use force and a communication of that threat.
Some statutes, like federal bank robbery, do not satisfy these terms. Bank robbery can be committed without any intent to intimidate another. The Western District of Washington has already found as such because bank robbery only requires that a reasonable person in the victim’s shows fear bodily injury from the defendant’s actions – regardless of whether the defendant himself has any intent to create the fear. So for example, a defendant who comes up to someone and says give me your money or you are going to hell has committed bank robbery, even if he has no intent to intimidate the person.
Good dissent in Holder - Also saying Bowman – Eighth Circuit case holding bank robbery was crime of violence – did not decide intentional mens rea issue. And Bowman was vacated after Mathis – so no longer good law, and any case that relies on it is not good law – for example, Allen v. United States.

28. Issue 5: Intentional vs. Reckless Conduct
Beware: Voisine v. United States, 136 S. Ct (2016) Held: Force clause for purposes of § 922(g)(9) misdemeanor crime of domestic violence only requires mens rea of recklessness. But: Recognized (by citation to footnote in Castleman) that all courts of appeals have held that use of force for purposes of ACCA/career offender/16(a)/924(c) force clause must be intentional; Voisine does nothing to disturb these rulings.
Ok, beware of Voisine v. United States – In that case, the Supreme Court held that the misdemeanor domestic crime of violence force clause for purposes of 922(g)(9) can be satisfied with reckless mens rea. But the Supreme Court, citing to its previous Castleman decision, recognized that the domestic crime of violence definition is different from the force clause of other statutes like 18 U.S.C. 16(b), which has a force clause analogous to the ACCA. And then the Court said it was not overruling all those cases which have said that the force clause in these other contexts requires an intentional mens rea. Therefore, all the cases which have held that the force clause requires intentional use of force are still good law. And there are a growing number of cases that have held Voisine does not undo these cases.
Voisine
Has different purpose – tailored to prevent domestic abusers from possessing gun
2) Most domestic abuse statutes have reckless mens rea, so 922(g)(9) would be rendered largely inoperative if it did not encompass reckless crimes. Same not true for ACCA.
922(g)(9) encompasses misdemeanor offenses which have lower level of culpability than ACCA which requires felonies with higher culpability.
ACCA – much harsher penalty – 15 year mandatory minimum whereas max of 922(g)(9) is 10 years with much lower guideline.
Text of the statute different. 922(g)(9) only requires “use of force” whereas ACCA requires use of force “against a person.”

29. Issue 5: Intentional vs. Reckless Conduct
Courts are divided on Voisine application: Decisions applying Voisine to ACCA/Guidelines/16(a) force clause. United States v. Fogg, 836 F.3d 951 (8th Cir. 2016); United States v. Pam, 867 F.3d 1191 (10th Cir. 2017); United States v. Hammons, 862 F.3d 1052 (10th Cir. 2017); United States v. Howell, 838 F.3d 489 (5th Cir. 2016). Decisions holding that Voisine is inapposite to ACCA/career offender/16(a) force clause. United States v. Fields, 863 F.3d 1012 (8th Cir. 2017) (Voisine doesn’t apply to all reckless offenses); United States v. Bennett, 868 F.3d 1 (1st Cir. 2017) (rule of lenity means Voisine does not apply to ACCA force clause – but opinion withdrawn due to death of defendant); United States v. Windley, 864 F.3d 36 (1st Cir. 2017) (same); United States v. Middleton, 883 F.3d 485 (4th Cir. 2018) (concurrence holding that Voisine doesn’t apply to ACCA force clause).
Bad cases in the 10th, 8th, and 5th - But see Fields in the 8th and also argue that pre-Voisine precedent in 8th and 10th controls because Supreme Court affirmatively said it was not overruling lower court precedent on anything other than 922(g)(9) force clause.

30. ACCA Enumerated Offenses: Be Careful

31. ACCA Enumerated Offenses: Must Be Generic
Generic Burglary: 3 elements
1. unlawful entry or remaining
2. in a building or structure (not in a vehicle, boat, motor home, or telephone booth)
3. with contemporaneous intent to commit a crime
Examples of burglary statutes that do meet generic definition
Missouri second degree burglary. United States v. Naylor, __ F.3d__, 2018 WL (8th Cir. 2018) (en banc) (not generic because includes inhabitable structure – which in turn includes automobiles, etc. where people live or carry on business).
Minnesota burglary. United States v. McCarthur, 850 F.3d 925 (8th Cir. 2017) (not generic because no contemporaneous intent requirement).
Arkansas burglary. United States v. Sims, 854 F.3d 1037 (8th Cir. 2017) (not generic because includes vehicles adapted for overnight accommodation).
Now, the enumerated offense clause has four offenses – burglary, arson, extortion, and use of explosives. A prior offense only qualifies as one of these offenses if it satisfies the generic definition of these offenses. The generic definition is the equivalent of most states do. And courts sometimes look to the Model Penal Code, sometimes they do a 50-state survey, sometimes they look to the dictionary definition to determine the generic definition. You should use whatever works best for you if the generic definition of an offense is left open in your Circuit.
Now, the Supreme Court had told us what generic burglary means – the most common offense that is going to be an issue. Generic burglary requires three separate elements 1) unlawful entry or remaining, 2) into a building 3) with intent to commit a crime. Unlawful entry = trespass. Building does not equal car. And there must be a contemporaneous intent to commit a crime at time of unlawful entry at the moment the unlawful remaining begins.
Missouri second degree burglary gone for now- Naylor overrules Sykes.
But Circuit split on whether boat adjusted for overnight accommodation = generic burglary: also, split on contemporaneous intent element – See Fourth Circuit decision on United States v. Bonilla.

32. ACCA Enumerated Offenses: Must Be Generic
Two notable cases on burglary to be heard in the Supreme Court next term:
United States v. Simms, 845 F.3d 1037 (8th Cir. 2018), cert granted, -- S.Ct WL and United States v. Stitt, 860 F.3d 854 (6th Cir. 2017), cert granted, -- S.Ct WL
QUESTION PRESENTED:
Whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the Armed Career Criminal Act.
But now Supreme Cout cert grant in two cases that may re-define burglary.

33. ACCA Enumerated Offenses: Must Be Generic
Generic Arson: United States v. Whaley, 552 F.3d 904 (8th Cir. 2009) (generic arson requires burning of “another” person’s property); Brown v. Caraway, 719 F.3d 583 (7th Cir. 2013) (generic arson requires malicious or willful mens rea). Generic Extortion: “Obtaining something of value from another with his consent induced by the wrongful use of force, fear, or threats.” Caution: Robbery does not equal generic extortion: See United States v. Gardner, 823 F.3d 793 (4th Cir. 2016) (robbery has non-consensual element whereas extortion has consent element).
Generic arson requires at least 1) intentional mens rea and 2) burning of another’s property.
Robbery does not equal generic extortion.

34. Final ACCA Issue – Conspiracies, Attempts, and Aiding and Abetting Be Careful

35. Conspiracies
Conspiracies never qualify as “violent felonies” under the force clause or the enumerated offenses clause, no matter what the object is of the conspiracy.
1. Enumerated Offenses Clause: Does not include inchoate offenses. See United States v. James, U.S. 192 (2007).
2. Force Clause: Unlawful agreement + sometimes overt act does not = force or attempted force.
Conspiracies should never qualify under force clause or enumerated offenses clause.
Enumerated offense clause doesn’t include any inchoate offenses – only completed offense. James.
2. And conspiracies can’t qualify under the force clause because they only require an unlawful agreement + sometimes an overt act. That is the not the use of force or attempted use of force.

36. Conspiracies
Lots of cases holding conspiracy is not a “violent felony” under force clause: Pre-Johnson cases: United States v. White, 571 F.3d 365 (4th Cir. 2009); United States v. Gore, 636 F.3d 728 (5th Cir. 2011); United States v. Fell, 511 F.3d 1035 (10th Cir. 2007); United States v. King, 979 F.2d 801 (10th Cir. 1992). Post-Johnson cases: United States v. Gonzalez-Ruiz, 794 F.3d 832 (7th Cir. 2015) (finding conspiracy to commit armed robbery not violent felony); United States v. Melvin, No (4th Cir. Oct. 20, 2015) (finding conspiracy to commit robbery with a dangerous weapon not a violent felony).
And we have a lot of law to support that point. Indeed, courts have found that even conspiracy to commit armed robbery does not qualify.
See also district court cases.

37. Attempts
Do not qualify as enumerated offenses. United States v. James, 550 U.S. 192 (2007) (attempted burglary is not burglary).
Qualify under force clause only if (1) the object of the attempt satisfies the force clause and (2) the attempt statute must be generic attempt, which requires:
(a) intent to commit the underlying offense,
(b) an overt act constituting a “substantial step,”
(c) “probable desistance,” meaning actions unequivocally demonstrate the crime will take place unless interrupted by independent circumstances
Attempts
Don’t’ qualify under enumerated offenses – does not include inchoate offenses
Attempts can qualify under force clause but only if 1) object of attempt satisfies the force clause, and 2) generic attempt – substantial step + probable desistance.

38. Attempts
United States v. Gonzalez-Monterroso, 745 F.3d 1237 (9th Cir. 2014) (Delaware attempt is not generic because no real “substantial step” required); United States v. Garcia-Jimenez, 807 F.3d 1079 (9th Cir. 2015) (generic attempt requires “probable desistance” – defendant’s actions indicate that crime will take place unless interrupted by independent circumstances).
United States v. Reid, 769 F.3d 990 (8th Cir. 2014) (Missouri attempt can be committed merely with preparatory steps, for example by merely possessing materials to be employed in commission of offense – not generic)
But see United States v. Alexander, 809 F.3d 1029 (8th Cir. 2016) and United States v. Scott, 818 F.3d 424 (8th Cir. 2016) (finding Missouri attempted second degree assault qualifies under force clause).
Talk about Gonzalez-Monterosso – Delaware attempt did not qualify under force clause because it can be accomplished with prepatory steps.
In Missouri – attempts should not be generic – see Reid. Alexander is bs – it says Reid found attempt did not qualify under residual clause. But that distinction should not matter. Prepatory steps – do not equal substantial step toward commission of crime. Scott did not even address generic attempt issue.

39. Aiding and Abetting
Considered same as underlying offense. Gonzales v. Duenas-Alvarez, 549 U.S. 183, (2007)
Qualifies only if it is (1) generic aiding and abetting, and (2) underlying offense satisfies the force clause or is a generic enumerated offense.
Generic aiding and abetting requires proof that the defendant (1) took an affirmative act in furtherance of the underlying offense (2) with the intent of facilitating the commission of the offense. See Rosemond v. United States, 134 S. Ct. 1240, 1245 (2014).
Intent requirement satisfied only when the government proves the person “actively participate[d] in a criminal venture with full knowledge of the circumstances constituting the charged offense.” Id. at 1248‐49.
That is, defendant must have knowledge of every element comprising offense.
The required knowledge must be “advance knowledge,” which means “knowledge at a time the accomplice can do something with it—most notably, opt to walk away.” Id. at 1249‐50.

40. Aiding and Abetting
See United States v. Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017)– HUGE WIN holding:
1. Washington state “aiding and abetting” decision broader than federal “aggravated felony” “aiding and abetting definition (which is same as generic “aiding and abetting”) because Washington state does not require aider and abettor to have intent to commit crime.
2. Because in Washington state, just like every other state, aiding and abetting is always a means of committing the crime, but the jury never has to select whether defendant was convicted as an accomplice or aider and abettor, one can always be convicted under aiding and abetting theory for every offense.
3. That means for every Washington offense one could have been convicted for aiding and abetting that does not match generic definition, which in turn, means no Washington offense can ever qualify as crime of violence/violent felony/controlled substance offense, serious drug offense, etc.
Valdivia-Flores – Huge win – Aiding and Abetting:
The following states have aiding and abetting law that does not match generic definition: Indiana, Iowa, Mass., Nebraska, and Oklahoma.

41. CAREER OFFENDER (NEW DEFINITION)
Ok, so now let’s talk about Johnson’s impact on the career offender provision. Now, the career offender provision changed on August 1, 2016 so we are going to talk about the new one only here.
Residual clause gone

42. New Definition of “Crime of Violence” in 4B1.2
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: Definition incorporated in 2K2.1 and 7B1.1, so same arguments apply there.

43. GONE
Residual clause
Burglary of a dwelling -- and any other burglary which previously counted only under the residual clause
based on a study by academic researchers in response to James showing:
at most 7.6% of burglaries nationwide from 1998 to 2007 resulted in actual violence or threats of violence
physical injury to a person occurred in at most 2.7% of burglaries
attempted burglaries significantly less likely to be violent than completed burglaries
But upward departure OK for “unusual” burglary involving violence
Involuntary manslaughter (previously in commentary)
Extortionate extension of credit (previously in commentary)

44. Challenges to Application of the GL
Offense does not satisfy the force clause
For enumerated offenses, the elements of the offense of conviction sweep more broadly (i.e., criminalize less serious conduct) than the Commission’s definition or the generic definition
Categorical approach applies under old and new guideline.
See Amy Baron Evans memo for challenges. Included in the materials.

45. Guideline Now Defines Four Enumerated Offenses
1. Extortion (narrower than generic extortion):
“obtaining something of value from another by the wrongful use of (A) force, (B) fear of physical injury, or (C) threat of physical injury.”
Limited to offenses “having an element of fear or threats ‘of physical injury,’ as opposed to non-violent threats such as injury to reputation.”
Also argue that new extortion definition excludes any threat of force/injury to property. See United States v. O’Connor, 874 F.3d (10th Cir. 2017).
This is narrower than generic extortion.

46. Forcible Sex Offense 2. Forcible Sex Offense:
The term “includes” offenses that have as an element “where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced”
But “sexual abuse of a minor and statutory rape are included only if the sexual abuse of a minor or statutory rape was
(A) an offense described in 18 U.S.C. § 2241(c) or
(B) an offense under state law that would have been an offense under section 2241(c) if the offense had occurred within the special maritime and territorial jurisdiction of the United States.” .

47. Sexual Abuse of a Minor or Statutory Rape
Only if the elements of the offense of conviction are the same as or more narrow than the elements of federal aggravated sexual abuse:
Defendant “knowingly engage[d] in a sexual act” with
(a) a person under the age of 12, or
(b) a person 12 or over and less than 16 and at least 4 years younger under the circumstances in 2241(a) or (b):
“knowingly cause[d]” another person to engage in a sexual act by using force against that person, or by threatening or placing that person in fear that any person will be subjected to death, serious bodily injury, or kidnapping; or
“knowingly” rendered another person unconscious and thereby engaged in a sexual act with that person, or administered to another person by force or threat of force, or without the knowledge or permission of that person, a drug, intoxicant, or other similar substance and “thereby substantially impair[ed] the ability of that other person to appraise or control conduct” and “engage[d] in a sexual act with that other person.”
This significantly narrows the range of qualifying stat rape and sexual abuse of a minor offenses.

48. Sexual Abuse of a Minor or Statutory Rape
“Force” means “actual force,” i.e., “restraint sufficient that the other person could not escape the sexual contact.”
US v. Fire Thunder, 908 F.2d 272 (8th Cir. 1990)
US v. Serdahl, 316 F. Supp. 2d 859 (D.N.D. 2008)(Locking or barricading a door does not meet this test.)
2241(c) requires a “sexual act,” defined in 2246(2) not to include touching through the clothing

49. Use or unlawful possession of explosive material as defined in 18 USC 841(c)
841(c) authorizes AG to publish a list of “explosive material” each year

50. Possession of a Firearm Described in 26 U.S.C. 5845(a)
Narrow list – sawed-off shotgun, short-barreled rifle, machine-gun, silencer, or “destructive device”
But “firearm” under 18 USC 922(g) is any firearm. 922(g) sweeps more broadly than “possession of a firearm described in 26 USC 5845(a).”
So no conviction under 922(g) can ever qualify as a “crime of violence,” no matter what kind of firearm D actually possessed.
Categorical approach applies to both instant and prior offenses.
Cases that previously held 922(g) convictions to be crimes of violence either improperly applied the modified categorical approach or misread commentary that has been deleted by the amendment.

51. Enumerated offenses not defined in the guideline
Murder, voluntary manslaughter, kidnapping, aggravated assault, forcible sex offense (when not statutory rape or sexual abuse of a minor), robbery, arson, attempt, conspiracy, and aiding and abetting
Elements must satisfy the “generic” definition
Elements may not sweep more broadly (criminalize less serious conduct) than the generic definition.
See United States v. Yates, 886 F.3d 723 (6th Cir. 2017) (De minimis force in robbery does not satisfy generic definition);
United States v. O’Connor, 874 F.3d 1147 (10th Cir. 2017) (Hobbs Act robbery not generic because can be violated by threats to property).

52. Commentary Under New Career Offender Guideline
Only inchoate crimes of violence left in the commentary: conspiracy, attempt, aiding and abetting
Make two arguments:
1. Commentary conflicts with text:
The only valid function of commentary is to interpret or explain the text of a guideline (force clause or enumerated offenses). If it does not interpret or explain text, or is inconsistent with text, it is invalid. Has no freestanding definitional power. See Stinson v. United States, 508 U.S. 36 (1993); United States v. Bell, 840 F.3d 963 (8th Cir. 2016) United States v. Armijo, 651 F.3d 1226 (10th Cir. 2011).
Enumerated offenses: No inchoate offenses can qualify as an enumerated offense because text of career offender guideline only includes completed enumerated offenses.
Force clause: Conspiracies can’t qualify under force clause because not included in text of force clause.
Argue Stinson – expansion of text
-US v. Lisbon, D. Md. 7/18/17 – holding under rule of lenity that court cannot decide whether inclusion of conspiracy in commentary expands the definition so much that it makes the commentary inconsistent with the guideline in violation of Stinson; holds conviction for RICO consp does not constitute a CSO under the CO guideline.
-In the alternative, holds under R of L that RICO consp is not generic conspiracy because generic conspiracy requires overt act.

53. Commentary Under New Career Offender Guideline
Only inchoate crimes of violence left in the commentary: conspiracy, attempt, aiding and abetting
2. The prior conspiracy, attempt, or aiding and abetting offense is not generic:
Attempts/Aiding and abetting: See previous slides on generic definition of attempt and aiding and abetting.
Conspiracy:
Requires overt act element: See United States v. McCollum, __ F.3d__, 2018 WL (4th Cir. 2018) (generic conspiracy requires an agreement to commit a crime plus an overt act in furtherance of the agreement); United States v. Martinez-Cruz, 836 F.3d 1305, 1314 (10th Cir. 2016) (same); United States v. Garcia-Santana, 774 F.3d 528, (9th Cir. 2014) (same).
Requires bilateral conspiracy element: See United States v. Brown, 879 F.3d 1043 (9th Cir. 2018) (unilateral conspiracy that can be violated where only co-conspirator is government agent is not generic).
2. Alt. argue not generic.

54. Career Offender: Challenges to Instant Offense
Don’t Forget! Challenge instant federal offense as well as priors. If instant offense does not qualify as “crime of violence,” can’t be career offender no matter what the priors are.

55. Variances from the Career Offender Guidelines
Policy Disagreements with CO Guideline.
United States v. Gray, 577 F.3d 947, 950 (8th Cir. 2009)(“On the more general question of a district court's authority to vary from the guidelines, the Supreme Court in Kimbrough, quoted the government's concession that a district court may vary based on policy considerations, including disagreements with the guidelines”)
See also, U.S.S.C. “Career Offender Quick Facts” (noting that only 25% of career offender receive sentences within the guideline range).
Individual Characteristics – tie to the purposes of sentencing

56. 18 U.S.C. § 16 “Crime of violence” definition
1. 18 U.S.C. § 16(a) – Force Clause U.S.C. § 16(b) – Residual Clause Note: No Enumerated Offenses Clause
Now, let’s talk about Johnson’s impact on 18 U.S.C. 16.

57. 18 U.S.C. § 16 “Crime of violence” definition is incorporated in many federal statutes
1. Three Strikes statute (18 U.S.C. § 3559(c)(2)(F)(ii); 2. Bail Reform Act (18 U.S.C. §§ 3156(a)(4)(B); 3. Extradition (18 U.S.C. § 3181); 4. Failure to Register under SORNA (18 U.S.C. § 2250(c); 5. Money Laundering (18 U.S.C. § 1956(c)(7)(B)(ii)); 6. Violent Crime in Aid of Racketeering (18 U.S.C. § 1959); 7. Body Armor (18 U.S.C. § 931(a)(1)); 8. Use of Minors in Crimes of Violence (18 U.S.C. § 25); 9. Armor-piercing ammunition enhancement (18 U.S.C. § 929(a)(1)); 10. Protection of Individuals performing certain duties (18 U.S.C. § 119(b)(3)); 11. Explosive materials (18 U.S.C. § 844(o) and 18 U.S.C. § 842(p)); 12. Interstate Domestic Violence (18 U.S.C. § 2261); 13. Aggravated Felony Enhancements under Unlawful Re-entry (18 U.S.C. § 1326(b)(2); 14. Juvenile Delinquency Proceedings (18 U.S.C. § 5032); 15. Mandatory Victims Restitution Act (18 U.S.C. § 3663A(c)(1)(A)(i))
Now, let’s talk about Johnson’s impact on 18 U.S.C. 16.

58. Dimaya v. Sessions, -- U.S.--, 2018 WL 1800371 (April 17, 2018) §16 (b) Residual clause is GONE
Following the rationale in Johnson v. United States, 576 U.S.--- (2016), the Court in Dimaya held that residual clause in §16(b) is void for vagueness because it suffers from the same problems as the residual clause in the ACCA; specifically, the “ordinary case” requirement and the uncertainty on the amount of risk necessary.

59. What’s left of 18 U.S.C. § 16 ?
16(a) “crime of violence” force clause same as career offender/ACCA but has element of physical force against property of another:
Force Clause: Has an element the use, attempted use, or threatened use of physical force against a person, or property of another:
But still must be violent force against property, not just injury to property –
And must be force against property of another – Lookout for arson statutes that do not require as such (for example, federal arson).
Categorical approach: If “most innocent conduct” or “full range of conduct” covered by the statute does not match this definition, prior cannot qualify as “crime of violence.”
If residual clause is gone, then we are left with force clause. Now, almost the same as the ACCA/career offender. So all of the force clause arguments that we talked about under the ACCA apply here. However, there is one difference. The force clause includes force against property – but still has to be 1) physical force 2) and force against the property of another. Arson does not require force against property of another.
Beware of bad cases in 924© context holding Hobbs Act robbery and bank robbery qualify under force clause because no realistic probability that they can be committed by threatening economic harm.

60. Elements of 18 U.S.C. § 924(c)
Section 924(c) provides in pertinent part: [A]ny person who, during and in relation to any crime of violence or drug trafficking crime for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime - [be sentenced to a certain number of years depending on the facts of the crime]

61. 18 U.S.C. § 924(c)(3) Crime of violence definition: two clauses
Identical to 18 U.S.C. § 16, but looking at instant offense rather than prior conviction: U.S.C. § 924(c)(3)(A)– Force Clause U.S.C. § 924(c)(3)(B) – Residual Clause Note: No Enumerated Offenses

62. Same language as 18 U.S.C. § 16(b)
18 U.S.C. § 924(c)(3)(B): Crime of violence definition under residual clause
Same language as 18 U.S.C. § 16(b)
Residual Clause: Offense qualifies as crime of violence if “by its nature, [it] involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”
Void for vagueness for same reasons noted under §16(b). Same categorical ordinary case inquiry applies to § 924(c)(3)(B). Supreme Court’s decision in Dimaya should control here, but government may fight us anyway.
See U.S. v. Prickett, 839 F.3d 697 (8th Cir. 2016) (holding that §924(c) is not void for vagueness – but now undermined by Dimaya).

63. 18 U.S.C. § 924(c)(3)(B) Crime of violence definition under residual clause
Courts finding 924(c) residual clause void for vagueness for same reasons 16(b) is void for vagueness: See e.g., United States v. Cardena, 842 F.3d 959 (7th Cir. 2016); United States v. Jenkins, 849 F.3d 390 (7th Cir. 2017) (Cert pending); United States v. Jackson, 865 F.3d 946 (7th Cir. 2017) (Cert pending). Beware: Cases holding 924(c) residual clause not void for vagueness: United States v. Taylor, 814 F.3d 340 (6th Cir. 2016) (Cert pending); United States v. Prickett, 839 F.3d 697 (8th Cir. 2016) (Cert pending); United States v. Jones, 854 F.3d 737 (5th Cir. 2017); United States v. Hill, 832 F.3d 135 (2d Cir. 2016); Ovalles v. United States, 861 F.3d 1257 (11th Cir. 2017); United States v. St. Hubert, 883 F.3d 1319 (11th Cir. 2018); United States v. Eshetu, 863 F.3d 946 (D. C. 2017)
Most of the bad cases undermined by Dimaya. All reason for finding 924© not void for vagueness rejected by the Supreme Court.
Taylor, the 6th Circuit found that 924(c) is not unconstitutionally void. However, in Shuti, which came later, the Court rejected all the government’s arguments it accepted in Taylor in finding that 16(b) is unconstitutionally void, but then said 924© is different because it does not require the categorical approach – rather juries can look at individual facts of the case in determining whether an offense is a crime of violence. This distinction makes no sense because in Taylor, court said that whether or not an offense qualifies as a “crime of violence” is a legal determination that requires the categorical approach based on the elements of the underlying offense.
Anyway, preserve the issue. We will likely win this issue in the Supreme Court.

64. What’s left of 18 U.S.C § 924(c)(3)?
Same as 18 U.S.C. § 16(a):
Force Clause (18 U.S.C. § 924(c)(3)(A)): Has an element the use, attempted use, or threatened use of physical force against a person, or property of another (But still must be violent force against property, not just injury to property).
Examples of underlying offenses that should not fall under force clause for reasons previously noted:
All conspiracies, Hobbs Act robbery, robbery of government property, kidnapping, hostage taking, bank robbery, armed bank robbery, assault, murder, arson, racketeering, VICAR, escape.
Categorical approach: “Most innocent conduct” still applies.
Note: no enumerated offenses.

65. Notable wins under § 924(c) force clause
Conspiracies: United States v. Smith and Merritte, 2016 WL (D. Nev. 2016) (conspiracy to commit Hobbs Act robbery not crime of violence under force clause); United States v. Luong, 2016 WL (E.D. Cal. 2016) (same); United States v. Edmundson, 153 F. Supp.3d 857 (D. Md. 2015) (same); United States v. Baires-Reyes, 191 F. Supp.3d 1046 (N. D. Cal. 2016) (same); Duhart v. United States, 2016 WL (S. D. Fla. Sept. 9, 2016) (same); United States v. Benitez, 2017 WL (S.D. Fla. 2017); United States v. Hunter, 2017 WL (D. Nev. 2017) (same);l Alvarado v. United States, 2016 WL (Cent. D. Cal. Oct. 14, 2016) (RICO conspiracy not crime of violence under force clause); United States v. Shumilo, 2016 WL (Cent. Dist. Cal. Oct. 24, 2016) (same). Kidnapping: United States v. Jenkins, 849 F.3d 390 (7th Cir. 2017) (federal kidnapping does not have a force requirement because it can be accomplished by deception); United States v. Bustos, 2016 WL (E.D. Cal. Nov. 17, 2016) (federal kidnapping does not have element of violent force because it can be accomplished by trickery or deceit); United States v. Rubio, 2016 WL (E. D. Cal. Nov. 17, 2016) (same). Hostage Taking: Hernandez v. United States, 2016 WL and (S. D. Fla. 2016) (federal hostage taking requires no use or threatened use of force); Juan Becerra-Perez v. United States, CR (C.D. Cal. Feb. 15, 2017) (same). Federal Assault: United States v. Bell, 158 F. Supp.3d 906 (N.D. Cal. 2016) (federal assault can be accomplished by de minimis force). Arson: United States v. Johnson, 227 F. Supp. 3d 1078 (N. D. Cal. 2016) (can be accomplished recklessly). Robbery of government property: United States v. Bell, 158 F. Supp.3d 906 (N. D. Cal. 2016) (can be accomplished by de minimis force).

66. QUESTIONS?