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Welcome to the New and Improved Rocky Mountain Defense Blog!

Welcome to the new and improved Rocky Mountain Defense Blog!  Started about a decade ago by Federal Public Defender Virginia Grady, the Blog is written and maintained by lawyers and interns at the Federal Public Defender’s Office for the Districts of Colorado and Wyoming.  We will keep you posted about federal criminal law developments in the Tenth Circuit and the United States Supreme Court.

Here’s what you’ll find:

(1) News You Can Use – case law summarizes with suggested takeaways for practical application.

(2) Practice Tips – strategies and suggestions for motions and appellate practice.

(3) Resources– links to helpful websites, blogs, and articles about federal criminal defense in the Tenth Circuit and nationally.

Please follow the Blog to receive notifications of new posts.

 

 

 

News You Can Use: SCOTUS holds Counsel has Duty to File a Notice of Appeal Despite an Appeal Waiver

In Garza v. Idaho, the Supreme Court recently ruled 6-3 that, if a defendant wants to appeal, defense counsel must always file a notice of appeal — even if the defendant has signed an appeal waiver and even if counsel judges an appeal to be frivolous or self-defeating. The opinion clarifies trial counsel’s obligations during the post-trial period. And the lineup of the Justices is potentially revealing.

Background

Mr. Garza entered into a plea agreement that included a clause stating he “waive[d] his right to appeal.” After sentencing, however, Mr. Garza clearly and repeatedly told his lawyer that he wished to appeal. Trial counsel did not file a notice of appeal, telling Mr. Garza “that an appeal was problematic because he waived his right to appeal.”

Later, Mr. Garza sought post-conviction relief, claiming that trial counsel rendered ineffective assistance by failing to file a notice of appeal despite Mr. Garza’s requests. The Supreme Court’s prior decision in Roe v. Flores-Ortega lent support to Mr. Garza’s claim. The Court had held in Flores-Ortega that trial counsel’s failure to file a notice of appeal when the client requests an appeal amounts to ineffective assistance of counsel. But the Idaho courts denied Mr. Garza’s claim, purporting to distinguish Flores-Ortega on the basis of the appeal waiver in Mr. Garza’s case.

Majority Opinion

The Supreme Court reversed in an opinion authored by Justice Sotomayor and joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Kagan, and Kavanaugh. Assessing the two elements of an ineffective assistance of counsel claim — deficient performance and prejudice — the Court held that, even in the face of appeal waiver, both elements are met when counsel disregards a defendant’s request to file an appeal.

Addressing the deficient performance element, the Court rejected the State’s argument that counsel could strategically decide not to file an appeal for fear of risking a breach of the plea agreement. The Court explained that, first, “simply filing a notice of appeal does not necessarily breach a plea agreement, given the possibility that the defendant will end up raising claims beyond the waiver’s scope.” Second, “the bare decision whether to appeal is ultimately the defendant’s, not counsel’s, to make.” The Court noted that defense counsel’s obligation to perform the “purely ministerial task” of filing a notice of appeal did not imply an obligation to file a merits brief in the court of appeals, as defense counsel may move to withdraw from representing the defendant on appeal if the appeal would be frivolous.

Addressing the prejudice element, the Court held that a presumption of prejudice applied because counsel’s deficient performance “forfeit[ed] an appellate proceeding all together,” and there was no principled way to assess the reliability of a proceeding that never took place. An appeal waiver does not show that a defendant has no right to an appellate proceeding, the Court explained, because there are some issues that can always be appealed notwithstanding an appeal waiver — including but not limited to the issue of whether the appeal waiver itself was knowing and voluntary. The Court rejected the federal government’s argument for a case-by-case assessment of whether the defendant planned to raise an issue outside the scope of the appeal waiver as unworkable.

The Dissent

Justices Thomas, Gorsuch, and Alito dissented. Justice Thomas authored the dissent, which Justice Gorsuch joined in full and Justice Alito joined only in part. In the section joined by each of the dissenters, Justice Thomas maintained that a case-by-case inquiry into deficient performance and prejudice should be required. In a more radical section of the dissent, joined only by Justice Gorsuch, Justice Thomas argued that the Sixth Amendment, as originally understood and ratified, “meant only that a defendant had a right to employ counsel, or to use volunteered services of counsel.” Thus, Justice Thomas (and Justice Gorsuch) suggested that landmark decisions reading the Sixth Amendment to require “counsel at taxpayers’ expense” (i.e., Gideon) and to guarantee “effective counsel” (i.e., Strickland) were wrongly decided. At a minimum, Justice Thomas maintained “the Court should tread carefully before extending our precedents in this area.”

 

Takeaways

  • Whether to appeal is up to the client. The defendant’s right to decide whether to appeal his case is a vital procedural protection.While defense counsel may advise the client that an appeal would be pointless, the client’s decision to proceed on appeal controls — just like the client controls other final decisions including whether to plead guilty or go to trial. An  amicus brief filed in the Garza litigation explains why fundamental principles of constitutional law and legal ethics vest the final decision to appeal in the client.
  • If the client wants to appeal, counsel must file a notice of appeal, even if the plea agreement contains an appellate waiver. Defense counsel must always file a notice of appeal when the client expresses the desire to appeal. In Roe v. Flores-Ortega, the Supreme Court held that when an attorney “disregards specific instructions from the defendant to file a notice of appeal,” the attorney has rendered deficient representation, and the defendant should be “presum[ed]” to have suffered prejudice. 528 U.S. 470 (2000). Garza teaches that the existence of an appeal waiver in a plea agreement does not change counsel’s fundamental obligations in this area.
  • Garza resolves a circuit split but doesn’t really change Tenth Circuit law. Since 2005, the Tenth Circuit has applied the rule in Flores-Ortega with equal force where a defendant enters a guilty plea containing an appeal waiver. In U.S. v. Garrett, the Tenth Circuit held that an “[a]ppellate waiver does not foreclose all appellate review” a sentence, and if the defendant “actually asked counsel to perfect an appeal, and counsel ignored the request, he will be entitled to a delayed appeal.”See US v Garrett, 402 F.3d 1262, 1266 (10th Cir. 2005).
  • Of course, you may end up filing an Anders brief. If you think the appeal is frivolous, keep in mind the procedure under Anders v California, 386 U.S. 738, 744 (1967). That is, when a client asks his lawyer to file an arguably frivolous appeal, the lawyer should file a notice of appeal, submit “a brief referring to anything in the record that might arguably support the appeal,” and request permission to withdraw. This procedure, requiring lawyers to file “Anders briefs,” allows defense counsel to act “with honor and without conflict,” and it preserves defendants’ right to appeal. For additional requirements on Anders briefs in the Tenth Circuit, see the Tenth Circuit Rules on the subject, particularly 10th Cir. R. 46.4(B)(1) through (3), and US v Cervantes, 795 F.3d 1189, 1190 (10th Cir. 2015).
  • Don’t just assume an appellate waiver is enforceable. Like it or not, appeal waivers are a part of plea agreements in the Tenth Circuit. But appellate waivers are not absolute and even the broadest waivers can sometimes be challenged. Review the appellate waiver enforcement analysis in US v Hahn, the key case on the issue in the Tenth Circuit, to determine if the appeal falls within the scope of the appellate waiver, if the defendant knowingly and voluntarily waived his appellate rights, or whether waiver will result in a miscarriage of justice.

News You Can Use: Tenth Circuit Limits Officers’ Authority to Search Incident to Arrest

In United States v. Knapp, the Tenth Circuit reversed the denial of a motion to suppress and held a warrantless search of an arrestee’s purse could not be sustained as a search incident to arrest.

Defendant Stacy Knapp was arrested on an outstanding warrant. Police officers seized the purse she was carrying and handcuffed her behind her back. The police walked Ms. Knapp to the police car while they carried her purse.  An officer then put Ms. Knapp’s purse on the hood of the car, about three to four feet away from Ms. Knapp (who was still handcuffed). One officer stood next to Ms. Knapp and two other officers were nearby. After Ms. Knapp admitted there was a gun inside her purse, an officer searched the purse and recovered a pistol.

The Government argued the warrantless search was permissible as a search incident to Ms. Knapp’s arrest. The Tenth Circuit disagreed and held that the search violated the Fourth Amendment.

First, the Court rejected the Government’s argument that the search of Ms. Knapp’s purse amounted to a “search of the person,” which is allowed automatically under United States v. Robinson. The Court held that Robinson should be limited to searches of an arrestee’s clothing — explicitly rejecting authority from other courts that had extended Robinson to apply to searches of handheld containers. The Court explained that searches incident to arrest are justified by the possibility that an arrestee might have a weapon and by the officers’ need to disarm her. In this light, automatic searches of an arrestee’s clothing make sense because separating an arrestee from her clothing to deny her access to any weapon “would be impractical (not to mention demeaning).” But that rationale doesn’t apply to handheld containers like purses, the Court held, because such items are “easily capable of separation from [the] person.”

Second, the Court rejected the district court’s holding that the search of Ms. Knapp’s purse was justified on the ground that she could have accessed it at the time of the search. The Court recognized that, under Chimel v. California, police can search not only an arrestee’s person but also anything else they reasonably believe the arrestee might access to get a weapon or destroy evidence. However, the Court held that, unlike Robinson searches, Chimel searches are not automatic and “must be justified on a case-by-case basis by the need to disarm or to preserve evidence.” Further, the Court held that Arizona v. Gant, which arose in the context of an automobile search, was not limited to that context and required the Court to evaluate “the arrestee’s ability to access weapons or destroy evidence at the time of the search, rather than the time of the arrest, regardless of whether the search involved a vehicle.” Applying Gant and Chimel, the Court held that “it was unreasonable to believe Ms. Knapp could have gained possession of a weapon or destructible evidence within her purse at the time of the search.” Ms. Knapp could not have accessed the contents of her purse, the Court explained, because “not only were Ms. Knapp’s hands cuffed behind her back, [an officer] was next to her, and two other officers were nearby. Moreover, the purse was closed and three to four feet behind her, and officers had maintained exclusive possession of it since placing her in handcuffs.”

Takeaways

  • Preservation matters. This awesome appellate win was born in the district court.  The trial lawyers made a great record, filing a motion to suppress on Fourth Amendment grounds (and later, a reply in support of the motion) and emphasizing the government’s burden to prove that the search and seizure was reasonable.  Because the issue was raised and ruled upon below, the Tenth Circuit applied de novo review on appeal. This favorable standard of review is the result of preservation; and it was the first step on the path to victory.
  • A purse is not a pocket! Searches “of the person” incident to an arrest are allowed automatically, but such searches are limited to searches of the arrestee’s clothing and cannot extend to a search of a handheld container, like a purse.
  • A search of the “grab area” must be justified.  A search of the area within the arrestee’s immediate control (the “grab area”) is not a search “of the person” and must be “justified on a case-by-case basis by the need to disarm or to preserve evidence.”
  • Justification depends on what’s happening at the time of the search, not the time of the arrest.  If, at the time of the search, it isn’t reasonable to believe that an arrestee could access a place or item to destroy evidence or get a weapon, the search of that place or item cannot be justified as a search incident to arrest.

 

 

News You Can Use: SCOTUS says 8th Amendment’s ban on excessive fines applies to the states

Last week, the Supreme Court decided Timbs v. Indiana, agreeing 9-0 that the Eighth Amendment’s Excessive Fines Clause is incorporated against the states. The Court held that – like almost every other part of the Bill of Rights – the excessive fines clause restricts state and local governments to the same extent as the federal government.

In 1993, the Supreme Court applied the Excessive Fines Clause to in rem forfeiture proceedings in Austin v. United States. In rem forfeitures are essentially civil law suits instituted against property rather than people, which allow the government to take possession of the “rem” (thing) because of some connection to a crime, without actually convicting their owners or even proving their owners guilt. But the Court had never applied the Clause to state or local proceedings.

In Timbs, the Court held the Excessive Fines Clause limited Indiana’s ability to complete an in rem forfeiture of a Land Rover SUV that its owner had used to transport heroin. Mr. Timbs had recently purchased the seized SUV for $42,000 with insurance money received upon his father’s death–over four times the amount of money that he could have been fined in his criminal case. A lower Indiana court had already found this was an excessive fine under the U.S. Constitution. The Indiana Supreme Court reversed that decision based only on its erroneous determination that the Excessive Fines Clause was not incorporated against the states. Therefore, incorporation was the only issue in front of the U.S. Supreme Court. This case was not about whether, in fact, the forfeiture of the SUV was an excessive fine.

The Supreme Court set out a lengthy history of the prohibition on excessive fines. Because of this history, the Court held that the Excessive Fines Clause is both “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition” – only one of which had to be true for incorporation to be appropriate. Timbs v. Indiana, 586 U.S. ___, slip op. at 3 (2019).

The country has taken notice of civil asset forfeiture, or “legalized theft” as it has been called.  And, now, so has the Supreme Court. This is essentially a unanimous decision. Justice Thomas wrote for himself, as he often does, to explain that rights should be incorporated against states under the Privileges and Immunities Clause and not the Due Process Clause. Justice Gorsuch indicated in a concurrence that he is likely to agree if that specific issue is ever squarely before the court. But all of the Justices were concerned about the frequency and creativity with which the government has violated the right to be free of excessive fines.

Takeaways

  • If your client is losing her stuff, no matter what agency or court is taking it, and no matter what mechanism is being used, think about an Excessive Fines Clause challenge.
  • Be creative. Justice Thomas, for one, has suggested applying a higher standard in these cases (clear and convincing evidence), and he wants you to preserve that issue. See Leonard v. Texas (Thomas, J., Statement respecting denial of cert.)
  • Be aggressive. Mine the recent U.S. Supreme Court cases for their strong language. See, e.g., id. at 848 (“This system—where police can seize property with limited judicial oversight and retain it for their own use—has led to egregious and well-chronicled abuses.); Timbs (“Exorbitant tolls undermine other constitutional liberties.”)
  • State court, federal court, it really does not matter. It will almost always be true that incorporated federal constitutional rights are to be interpreted identically no matter where you are. Once again, the Court noted and then distinguished the only exception: the Sixth Amendment’s Jury Clause. It requires jury trials in all felony cases, but it only requires unanimous verdicts in federal criminal cases. Why? “The result of an unusual division among the Justices.” Op. at 3 n. 1. Will something like that happen again? Probably not.

Resource: USSC releases new report on Revocations Among Federal Offenders

Check out the latest in the United States Sentencing Commission’s ongoing study of the criminal history of federal offenders.  A new report — Revocations Among Federal Offenders — explores a subset of the Commission’s criminal history rules—those regarding the revocation of terms of probation, parole, supervised release, special parole, and mandatory release.  The report analyzes the prevalence of revocations among federal offenders and the nature of the revocations. The Commission’s other research reports on criminal history are also worth a read.

Key findings include:

  • Only a minority of offenders (35.0%) with criminal history points under the federal sentencing guidelines had at least one scored conviction with a revocation. Most often such offenders had only one such conviction.
  • For the minority of offenders who did have at least one scored conviction with a revocation, it often increased their criminal history score and resulting Criminal History Category.
  • Among offenders with at least one scored conviction in their criminal history, three-fifths (60.2%) received additional criminal history points, and just under a third (30.9%) received an increase in Criminal History Category. For those offenders who received an increase into a higher Criminal History Category, the impact was generally limited to one Criminal History Category.
  • The rate at which offenders had at least one scored conviction with a revocation varied significantly depending on the type of federal offender. Firearms offenders were the most likely (54.3%) and immigration offenders the least likely (20.9%) to have at least one scored conviction with a revocation. However, the impact of such convictions on their criminal history scores and Criminal History Categories varied much less. Among offenders with at least one such conviction, firearms offenders were the most often (66.2%) and immigration offenders least often (55.9%) to receive additional criminal history points. Among offenders who received additional criminal history points, those points resulted in a higher Criminal History Category most often for drug trafficking offenders (53.1%) and least often for firearms offenders (42.9%).

 

Preserve This! Gorsuch and Sotomayor Express Interest in Applying Apprendi to Restitution Orders

Hester v. United States, an opinion by Justice Gorsuch (joined by Justice Sotomayor), flags an issue that defense counsel should be preserving in appropriate cases. Certiorari was denied in Hester, but the issue may attract enough votes for a grant of certiorari in the future.

The question presented in Hester was whether Apprendi v. New Jersey applies to restitution orders. Apprendi requires that a jury find beyond a reasonable doubt any fact that increases the maximum sentence for an offense. Mr. Hester maintained that Apprendi required a jury to find the facts supporting the amount of restitution that was ordered for his offense. The circuits, including the Tenth Circuit, have uniformly rejected this argument. The Supreme Court declined to review the issue in Hester, but Justices Gorsuch and Sotomayor dissented from the denial of certiorari.

Justices Gorsuch and Sotomayor not only opined that the issue was worthy of the Court’s consideration; they strongly suggested a view on the merits: that Apprendi should, indeed, apply to restitution orders. They reasoned that “the statutory maximum for restitution is usually zero, because a court can’t award any restitution without finding additional facts about the victim’s loss. And just as a jury must find any facts necessary to authorize a steeper prison sentence or fine, it would seem to follow that a jury must find any facts necessary to support a (nonzero) restitution order.”

Justices Gorsuch and Sotomayor rejected the government’s assertion that restitution “isn’t a criminal penalty, only a civil remedy” as follows: “[T]he Sixth Amendment’s jury trial right expressly applies ‘[i]n all criminal prosecutions,’ and the government concedes that ‘restitution is imposed as part of a defendant’s criminal conviction. Federal statutes, too, describe restitution as a ‘penalty’ imposed on the defendant as a part of his criminal sentence, as do our cases.” As a coup de grâce, Justices Gorsuch and Sotomayor then invoked the Seventh Amendment: “Besides, if restitution really fell beyond the reach of the Sixth Amendment’s protections in criminal prosecutions, we would then have to consider the Seventh Amendment and its independent protection of the right to jury trial in civil cases.”

Equally telling about the merits of the government’s argument against applying Apprendi to restitution is Justice Alito’s opinion concurring in the denial of certiorari. He does not defend the lower courts’ interpretation of Apprendi but, instead, suggests Apprendi should be overruled.

Takeaways 

  • In cases where the applicability or amount of restitution is disputed, preserve an argument that Apprendi requires that the applicability and amount of restitution be determined by a jury beyond a reasonable doubt. You can preserve the argument by filing a written objection to the PSR’s recommendation that restitution be ordered and by raising the argument again at the sentencing hearing.
  • Don’t be deterred from preserving a sound argument just because the circuits have uniformly rejected it. The circuits can be (and have been) uniformly wrong!

 

 

News You Can Use: SCOTUS decides more ACCA predicate cases (Part 1)

The Supreme Court recently decided the consolidated cases of United States v. Stitt (and United States v. Sims), No. 17-765, 2018 WL 6439818  (U.S. Dec. 10, 2018). The opinion holds that burglary of a vehicle adapted for overnight accommodation of persons is a generic burglary for purposes of the Armed Career Criminal Act.

The Stitt opinion is another in a line of cases that have asked whether certain burglary convictions qualify as predicate offenses under the Armed Career Criminal Act (ACCA). The defendants in these cases, Victor J. Stitt and Jason Daniel Sims, were each convicted in federal court of unlawfully possessing a firearm, in violation of 18 U. S. C. §922(g)(1). The sentencing judge in each case imposed the mandatory minimum 15-year prison term that the ACCA requires for §922(g)(1) offenders who have at least three previous convictions for certain “violent” or drug-related felonies, §924(e)(1), based in part on burglary convictions.

The Supreme Court has previously stated that burglary of a vehicle is not a valid ACCA predicate. But the narrower question in this case was whether statutes that cover burglaries of vehicles that have been adapted or customarily used for overnight accommodation should qualify as ACCA predicates because they fall within the “generic” definition of burglary.

The categorical approach

Recall that the categorical approach first adopted Taylor v. United States, 495 U.S. 575 (1990), requires courts to evaluate a prior state conviction by reference to the elements of the state offense, rather than to the defendant’s conduct. In other words, you can’t look at the underlying facts of the prior conviction to figure out whether the predicate counts. A prior state burglary conviction does not qualify under the ACCA where “the elements of [the relevant state statute] are broader than those of generic burglary.” Mathis v. United States, 136 S.Ct. 2243 (2016). Burglary statutes that cover vehicles as one possible means of committing the crime are therefore excluded from being predicate ACCA offenses because the statutes are overbroad. See, e.g., Mathis, 136 S. Ct. at 2250. (holding that Iowa statute covering burglary of “any building, structure, [or] land, water, or air vehicle” was overbroad and indivisible and thus did not qualify as an ACCA predicate).

The nitty gritty

Stitt’s prior convictions were for violations of a Tennessee statute that defines “[a]ggravated burglary” as “burglary of a habitation.” Tenn. Code Ann. § 39–14–403(a) (1997). It further defines “[h]abitation” to include: (1) “any structure, including … mobile homes, trailers, and tents, which is designed or adapted for the overnight accommodation of persons,” and (2) any “self-propelled vehicle that is designed or adapted for the overnight accommodation of persons and is actually occupied at the time of initial entry by the defendant.” §§ 39–14–401(1)(A), (B) (emphasis added).

Similarly, Sims’ prior convictions were for violations of an Arkansas statute that prohibits burglary of a “residential occupiable structure.” Ark. Code Ann. § 5–39–201(a)(1) (Michie 1997). The statute defines “[r]esidential occupiable structure” to include:  “a vehicle, building, or other structure: (A) [w]here any person lives; or (B) [w]hich is customarily used for overnight accommodation of persons whether or not a person is actually present.” § 5–39–101(1) (emphasis added).

In both cases, the District Courts found the state statutory crimes fell within the scope of the word “burglary” in the Armed Career Criminal Act and consequently imposed that statute’s mandatory sentence enhancement. In both cases, the relevant Court of Appeals held that the statutory crimes did not fall within the scope of the word “burglary,” vacated the sentence, and remanded for resentencing. The Government sought certiorari in both cases in part because of a circuit split that included an old Tenth Circuit case, United States v. Spring, 80 F.3d 1450, 1462 (10th Cir. 1996), which held that such burglary convictions would qualify as ACCA predicates.

The upshot

The Supreme Court surveyed state statutes from 1986 and earlier and determined that “a majority of state burglary statutes covered vehicles adapted or customarily used for lodging.” Stitt, 2018 WL 6439818, at *4. As a result, such burglary convictions were included within the definition of “generic burglary.” In so doing, the Supreme Court reversed the decisions below of the Sixth and Eighth Circuits, and also abrogated contrary precedent in the Fourth and Ninth Circuits. See United States v. White, 836 F.3d 437, 446 (4th Cir. 2016); United States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc). Justice Breyer wrote the opinion for a unanimous Court.

Takeaways

  • Burglary convictions/statutes that cover vehicles plain and simple are still out, but statutes that cover vehicles “adapted for overnight accommodation of persons” will now qualify as ACCA predicates—as long as they are not overbroad and indivisible in some other way.
  • For a refresher on the categorical approach, see Mathis v. United States, 136 S.Ct. 2243 (2016), available here.
  • Remember: burglary convictions are NEVER crimes of violence under the career offender provisions of the Guidelines (this case affects only potential ACCA clients).

 

 

News You Can Use: Tenth Circuit Holds Kansas Aggravated Robbery Isn’t a Violent Felony

In United States v. Bong, the Tenth Circuit held that Kansas aggravated robbery isn’t a violent felony for purposes of the Armed Career Criminal Act. Mr. Bong was convicted of being a felon in possession of a firearm and sentenced to more than 24 years in prison. He was sentenced under the ACCA based on at least seven prior convictions that the district court believed qualified as violent felonies: three Kansas simple robberies, three Kansas aggravated robberies, and one Kansas attempted robbery. On appeal, Mr. Bong argued that none of those prior convictions qualified as violent felonies that could trigger the ACCA, and the Tenth Circuit agreed.

By statute, Kansas defines robbery as “the taking of property from the person or presence of another by threat of bodily harm to his person or the person of another or by force.” The statute defining aggravated robbery defines that offense as “a robbery committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person during the course of such robbery.” At first blush, these statutes would seem to qualify as violent felonies. But a closer look revealed that they don’t qualify.

 Although the Kansas statutes seem to require force, the Kansas Supreme Court has interpreted them to require no such thing. In one case, the Kansas Supreme Court held that mere purse snatching constitutes robbery and, in a different case, held that mere possession of a weapon (absent use or brandishing) can elevate a robbery conviction to aggravated robbery.

Based on the Kansas Supreme Court’s interpretation of its robbery statutes, the Tenth Circuit held that Mr. Bong’s prior convictions did not count as violent felonies. First, as to simple robbery, the “mere snatching of a purse” — “without any application of force directly to the victim” and “without any resistance by or injury to the victim” — “falls short of the ‘violent force’ required” to qualify as a violent felony under the ACCA. Bong, Slip op. at 19-20. Second, as to aggravated robbery, “nothing about [a] defendant’s mere possession of a firearm (or another deadly weapon) would . . . necessarily cause[] the crime to involve” the use, attempted use, or threatened use of violent force required to trigger the ACCA. Id. at 23-24.

 

TAKEAWAYS

 1. Robbery offenses that can be committed by mere purse snatching don’t qualify as violent felonies under the ACCA (and likely don’t qualify as crimes of violence under the sentencing guidelines).

 2. Offenses that require simply possessing a weapon, as opposed to using or brandishing a weapon, don’t qualify as violent felonies under the ACCA (and likely don’t qualify as crimes of violence under the sentencing guidelines).

3. Even when an offense sounds like it would be a violent felony or crime of violence (Aggravated Robbery With a Deadly Weapon!), it may not qualify. Even when the statute defining an offense sounds like it defines a violent felony or crime of violence, it may not qualify. You must always look to see how the state courts have construed the statute.