What remains of the residual clause The ACCAs nowvoid residual clause appears in the definition of a crime of violence under 4B12a 2 of the preAugust 1 2016 Sentencing ID: 721778
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Slide1
Johnson Update
Crimes of Violence, Career Offender, ACCASlide2
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.Slide3
§ 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Numerous unpublished decisions have extended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
).Slide4
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). Slide5
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. Slide6
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.”Slide7
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 violenceSlide8
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.