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.

 

News You Can Use: SCOTUS considers eliminating the “separate sovereigns” double jeopardy exception

This week, the Supreme Court hears argument in Gamble v. United States, a case asking whether the Court should overrule the “separate sovereigns” exception to the double jeopardy clause. Gamble has significant practical implications, but also raises interesting issues of constitutional interpretation, historical practice, and adherence to precedent.

Following a 2015 traffic stop in which police found a gun, the state of Alabama prosecuted Mr. Gamble for being a felon in possession of a firearm. He pleaded guilty and was sentenced to a year in prison. But the federal government then pursued its own case against him for the same crime (being a felon in possession of a firearm), and based on the same conduct (possessing the firearm found during the traffic stop).

While the Fifth Amendment’s Double Jeopardy Clause prohibits any person from being tried twice for the same offense, the Supreme Court has long recognized an exception to that principle. Prosecution in federal and state court for the same conduct does not violate the Double Jeopardy Clause because the state and federal governments are considered separate sovereigns. See Abbate v. United States, 359 U.S. 187, 195 (1959).

This “separate sovereigns” exception (also called the “dual sovereignty” exception) would seem to countenance both prosecutions of Mr. Gamble. That’s what the Southern District of Alabama and the Eleventh Circuit both held below. As the circuit court put it, “unless and until the Supreme Court overturns Abbate, [this type of] double jeopardy claim must fail based on the dual sovereignty doctrine.” 694 F. App’x at 750-51.

But Mr. Gamble had an opening to argue for that very overruling. Two terms ago, in Puerto Rico v Sanchez Valle, the Supreme Court held that Puerto Rico was not a separate sovereign from the United States because it derived its authority from Congress. So, Puerto Rico and the United States could not both prosecute a person for the same conduct under equivalent criminal laws.

Notable here, however, was Justice Ginsburg’s concurrence, joined by Justice Thomas, in which she wrote to “flag a larger question that bears fresh examination in an appropriate case”—that is, whether the Court’s separate sovereigns doctrine served the Double Jeopardy Clause’s goal “to shield individuals from the harassment of multiple prosecutions for the same misconduct.” 136 S. Ct. 1877. The concurrence suggested it did not, and that the issue warranted the Court’s attention. 

The Court decided Sanchez-Valle on June 9, 2016.  About a week later, Mr. Gamble moved to dismiss the indictment, the motion predicated on Justice Ginsburg’s concurrence and call to revisit the separate sovereigns doctrine. Two years later, the Supreme Court granted granted certiorari.

SCOTUSblog has an excellent argument preview here: http://www.scotusblog.com/2018/11/argument-preview-justices-to-reconsider-potentially-far-reaching-double-jeopardy-exception/

For a fascinating historical perspective on the question, check out the amicus brief filed by law professors contending that dual sovereignty is a historical accident, and not part of the constitutional design.

 

Takeaways:

  • Be on the lookout for any dual-sovereignty issues in current cases, and preserve that challenge by filing a motion to dismiss the indictment.
  • Remember to pay attention to concurrences and dissents (including dissents from the denial of certiorari). Gamble finds its roots in Justice Ginsburg’s Sanchez-Valle concurrence. Shortly after that concurrence, Mr. Gamble moved to preserve the issue, and two years later the Court granted certiorari on the question.
  • Stare decisis is not always decisive. Even long-standing legal doctrines may be reconsidered, and Mr. Gamble argued persuasively in his petition for certiorari that both the doctrinal and factual premises supporting the separate sovereigns exception have eroded significantly since its adoption. (See Petition at 7-17.)

 

 

News You Can Use: Tenth Circuit reaffirms constructive possession requires intent to exercise control over an object, in a published decision involving 18 U.S.C. § 924(c)

The Tenth Circuit just decided United States v. Giannukos, reaffirming that constructive possession requires intent to exercise control over an object, and not just knowledge and ability to exercise control over the object.

Recall, the Supreme Court recently held that “[c]onstructive possession is established when a person, though lacking such physical custody, still has the power and intent to exercise control over the object.” Henderson v. United States, 135 S. Ct. 1780, 1784 (2015). In United States v Little, the Tenth Circuit adopted this holding, and explained that both the power and intent to exercise dominion or control over the object are essential to establish constructive possession. In Giannukos, the Tenth Circuit held that the post-Little definition of constructive possession must apply to a 924(c) charge for possession in furtherance of a drug trafficking crime.

The defendant in Giannukos went to trial on drug and gun charges. The government alleged he was distributing drugs out of his residence, and that he possessed two firearms in furtherance of that crime. The two firearms were found in a house he shared with a friend and his girlfriend.  One gun was found in a hutch in a common area of the house, and the other was found next to a pink bag in the bedroom that the defendant and his girlfriend shared.  DNA testing of the first gun turned up DNA from three unspecified people, at least one of them male. The major DNA contributor to the second gun was female.  A holster fitting the second gun was found inside the pink bag.

The government’s theory of the case was the defendant possessed the guns in furtherance of a drug trafficking crime and charged him with a 924(c) offense. The judge instructed the jury that it could find constructive possession of the guns if it determined the defendant “knowingly had the power” to “exercise dominion and control over” them.  Op. at 6.  As the Tenth Circuit would later hold in Little, this instruction misstates the law.  The jury convicted on all counts, including the 924(c) count, which meant the jury found Mr. Giannukos possessed the firearms “in furtherance of” his drug trafficking crimes. Op. at 14.  The jury had been instructed that “in furtherance of” means “for the purpose of assisting in” the drug crimes.  The government argued that if the jury found (as it did) that Mr. Giannukos intended the guns to further his drug dealing, it necessarily – or at least quite likely – thought he also intended to exercise control over the guns, so the Little error was harmless.

The Tenth Circuit disagreed. It first held that the constructive possession instruction was erroneous and that the error was plain, satisfying the first and second prong of the plain error analysis. The Tenth Circuit also held that the error was prejudicial, even as to the 924(c) count. It reasoned the defendant could have known the guns were in the house and believed they would help fend off robberies to protect his stash (possession in furtherance) without intending to exercise control over the guns himself. In other words, the Tenth Circuit held that, under the third prong, there was a “reasonable probability” that a properly instructed jury (one that had been given the post-Little instruction) would not have convicted Mr. Giannukos of constructively possessing firearms. There is also some good fourth-prong plain error law in the opinion.  The Circuit holds that any prejudicial error in a jury instruction on the elements will meet the fourth prong in light of the “revered status of the beyond-a-reasonable-doubt standard in our criminal jurisprudence.”  Op. at 17.


TAKEAWAYS:

  1. There is a relatively new Tenth Circuit Pattern Jury Instruction that adopts the post-Little definition of constructive possession.
  2. The post-Little constructive possession instruction applies to any crime where possession is an element: constructive possession requires both the power and the intent to exercise dominion and control over an object
  3. Where there is prejudicial error in a jury instruction that affects one of the elements of the crime charged, the fourth prong of the plain error test will almost always be satisfied.

 

 

News You Can Use: SCOTUS grants cert in Haymond — why that might matter to your clients facing revocation of supervised release in the Tenth Circuit

The Supreme Court has granted certiorari in United States v. Haymond, in which the Tenth Circuit struck down as unconstitutional 18 U.S.C. § 3583(k)’s provision requiring a mandatory minimum of five years of imprisonment following revocation of supervised release based on certain sex crimes.

Generally, a defendant faces a supervised release term of no more than 5 years, and upon revocation for a violation, a term of imprisonment of no more than 5 years. That’s where the underlying offense of conviction is a class A felony. The potential penalties are progressively less severe for less serious offenses.

However, 18 U.S.C. § 3583(k) carves out a special, and especially extreme, exception for certain sex offenses and revocations based on the commission of new sex offenses—a supervised release term of 5 years to life, and upon revocation, a term of imprisonment of 5 years to life. So, what is usually the ceiling (a 5-year max for class A felonies) becomes the floor (a mandatory minimum of 5 years for certain sex offenses).

In Haymond, the Tenth Circuit held that the mandatory minimum of five years of imprisonment is unconstitutional because it changes the mandatory sentencing range based on a court’s finding by a preponderance of the evidence, instead of a jury’s finding beyond a reasonable doubt.

In so holding, the Court primarily relied on a trio of Supreme Court cases: (1) Apprendi, which held that any fact that increases the stat max must be submitted to a jury and proven beyond a reasonable doubt; (2) Alleyne, which applied Apprendi to mandatory minimums; and (3) Booker, which extended the substance of these 6th Amendment principals to the sentencing context.

The government petitioned for certiorari, and the Supreme Court granted it, even though the Tenth Circuit is the only court to have even considered the issue (so, no circuit split; the government’s pitch was error correction on a “significant and recurring question of federal law”), and § 3583(k) does not appear to be a frequently invoked statute. That might not bode well for Haymond’s survival.

Takeaway: If you have a client facing revocation based on § 3583(k), or want to make an argument based on an extension of Haymond, move quickly. Do not let the government stay the proceedings pending resolution of Haymond in the Supreme Court. See Yong v. I.N.S., 208 F.3d 1116, 1119 n.2 (9th Cir. 2000) (“[O]nce a federal circuit court issues a decision, the district courts within that circuit are bound to follow it and have no authority to await a ruling by the Supreme Court before applying the circuit court’s decision as binding authority . . . .”).

 

News You Can Use: 2018 Amendments to the Sentencing Guidelines, Effective 11/1/2018

The 2018 Amendment to the Sentencing Guidelines go into effect on November 1, 2018.  The National Sentencing Resource Counsel Project has prepared a helpful summary of the changes and also included relevant practice tips (noted as “Defender comments”). The SRC memo is available here: SRC Summary of 2018 Amendments to the Sentencing Guidelines.

Notable changes include amendments to:

(1) the drug guidelines for synthetic drugs, namely cathinones, cannabinoids, and fentanyl analogues;

(2) the illegal reentry guideline;

(3) the acceptance of responsibility guideline (now adding language to clarify that unsuccessful challenges to relevant conduct should not bar application of the acceptance reduction);

(4) the Commentary to §5C1.1 (now directing that courts “should consider imposing a sentence other than” imprisonment for nonviolent first offenders falling in Zones A and B);

(5) the Commentary to §4A1.3 (now providing a non-exhaustive list of factors a court may consider in determining whether and to what extent to depart upward based on tribal court convictions);

(6) the fraud guideline (now adding the 20th specific offense characteristic to §2B1.1 for defendants convicted of certain forms of social security fraud).

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Please make sure to look at the actual language of the Amendments  on the Commission’s website. And, recall that, for amendments that hurt defendants, ex post facto limitations apply, and the Guidelines Manual in effect on the date of the offense of conviction should apply if beneficial.

 

 

Resource: OIG Report On BOP’s Treatment Of Female Inmates

The Bureau of Prisons initiated a review of its management of female inmates in response to concerns raised by Congress and public interest groups over possible deficiencies in how BOP treated female inmates. The review was conducted by the Department of Justice’s Office of Inspector General (OIG).

The sixty-page report released last month made these findings:

  • BOP institutions are not complying with policies for female inmates, specifically the Female Offender Manual, which was issued in November 2016 but has not yet been fully implemented.
  • BOP has inadequate staffing at the office that oversees management of female inmates.
  • BOP is failing to adequately implement programming for female inmates specifically in areas of trauma and pregnancy.
    • The report stated that 90% of the female prison population has experienced physical or emotional trauma. While BOP has trauma programs, the wait is too long.
    • Only 37% of pregnant inmates received the pregnancy programming even though spots were available. OIG attributed the problem largely to the lack of social workers at BOP institutions as social workers must refer inmates to the programs.
  • BOP is not providing adequate feminine hygiene products to female inmates.

The report also contained some interesting facts:

  • Most female and male inmates are in BOP for drug crimes but female inmates are less likely to be convicted of weapons, sex or other violent offenses.
  • The median sentence for female inmates is 5 years while it is ten for men.
  • Nearly all female inmates are classified as low or minimum security.
  • There is no medium security classification for female inmates.

BOP also highlighted four programs available to female inmates:

(1) The Resolve program for female inmates with a history of trauma-related mental illness. It lasts 40 weeks.

(2) The Female Integrated Treatment program (FIT) for trauma, substance abuse and mental health. This is only available at the low security facility in Danbury. 

(3) Mothers and Infants Nurturing Together Program (MINT) in which female inmates may stay with their babies for up to 6 months after birth.

(4) The Residential Parenting Program in Gig Harbor, where female inmates may stay with their babies for up to 30 months after birth.

News You Can Use: Tenth Circuit Rules It’s Plain Error to Impose Upward Variance Based on State/Federal Sentencing Disparity

In United States v. Beaver, No. 17-2151, the Tenth Circuit issued an unpublished decision holding the district court plainly erred by imposing an upward variance based, in part, on its view that a Guidelines sentence would have created disparities between the defendant’s sentence and the sentences imposed in state court for the same conduct.

The defendant drove drunk and had an accident resulting in the death of two passengers. The defendant was prosecuted in federal court because the accident occurred in Indian country and because Mr. Beaver is an enrolled member of the Navajo Nation. He pleaded guilty to two counts of involuntary manslaughter, and his Guidelines range was 41 to 51 months’ imprisonment.

The Government argued for an upward variance to a 120-month sentence. The defense argued that Mr. Beaver’s sentence should be capped at 48 months because the maximum sentence for involuntary manslaughter in New Mexico (the state where the crime occurred) is 48 months, and Mr. Beaver should not receive a longer sentence simply because he is a Native American. The Government’s reply, however, turned this argument back against the defense–pointing out that New Mexico has a specific statute for Homicide by Vehicle, which has a minimum sentence of 48 months and a maximum sentence of 456 months. Further, at the sentencing hearing, the Government argued that a Guidelines sentence would amount to disparate treatment in favor of the defendant.

The district court accepted the Government’s reasoning and varied upward to 120 months’ based, in part, on its perception that a Guidelines sentence would be significantly lower than Mr. Beaver would have received in state court.

The Tenth Circuit held that this was plainly erroneous. First, even though it was the defense that first raised state/federal disparity, the Court rejected the Government’s argument that the defense invited the error; the defense hadn’t asked for a longer sentence on the ground of state/federal disparity and, therefore, hadn’t invited this particular error. Second, even though the defense had argued for a lower sentence, it hadn’t preserved the particular argument it was making on appeal (that sentencing courts can’t consider state/federal disparity), so that argument could be reviewed only for plain error. Third, the district court’s sentencing decision was plainly erroneous because, under prior precedent, United States v. Wiseman, 749 F.3d 1191 (10th Cir. 2014), courts may only consider the need to avoid disparities among similarly situated federal defendants and may not consider disparities between state defendants and federal defendants.

 Takeaways:

 1) The sentencing judge isn’t allowed to increase or decrease a sentence to make it conform with sentences for similar offenses in state court.

 2) Double-check your sentencing disparity arguments to ensure that they can’t backfire, as the defense’s argument did in this case.

 3) On appeal, you may be able to defeat the Government’s claim of invited error by arguing that, though the defense invited the district court to commit the same type of error in arguing for a lower sentence, the defense didn’t argue for a higher sentence on those grounds.