Friday, July 29, 2016

J. Sutton: Wait for Beckles

In today's opinion in In Re: Alford D. Embry, Judge Sutton notes the differing opinions on whether Johnson v. United States, 135 S. Ct. 2551 (2015), applies to the Guidelines and whether it applies retroactively to the Guidelines. There is also some interesting discussion of when the statute of limitations for a 2255 on the issue would start to run: Johnson? Pawlak? Beckles?

Happy note: Making the argument that Johnson applies retroactively to the Guidelines meets the gatekeeping requirements for a second or successive 2255 petition. So people petitioning the Sixth for Johnson relief for Career Offender or 2K2.1 or suchlike will get remanded to the district court to litigate the issue.
CORRECTION: Upon closer reading - the gatekeeping question isn't even answered. The panel recognizes that the district court is also able to determine whether the gatekeeping requirements are met, and because of the restricted appeal rights, perhaps the district court is the best court to make gatekeeping decisions.

Frustrating note: Judge Sutton endorses waiting for the Supreme Court to rule in Beckles so that courts can have a definitive ruling on how Johnson applies in Guidelines cases. Furthermore, the best place to do that waiting is in district court.

Friday, July 22, 2016

The Gang's All Here - I see em in Court!

In cases where multiple defendants are allegedly members of gangs, the Government loves to bring in "expert" witnesses on how gangs operate, hierarchy, etc.  It makes for compelling testimony for the jury.  But sometimes the Government takes its witnesses a little too far.  In United States v. Rios, the Court held that a witness will not be a proper FRE Rule 702 witness where they mix fact with their expert testimony on the particular gang under indictment.  In Rios, one of the witnesses testified as the lead investigator, as well as an expert witness on gangs.  The witness not only informed the jury about how the particular gang worked, but peppered in his personal observations to support the expert testimony.  The Court found that " it is difficult to parse what came from Haglund the expert and what came from Haglund the investigator because there was no clear demarcation between his fact and expert testimony during the trial. This confusion regarding the capacity in which Haglund was testifying is independently problematic. The district court did not delineate Detective Haglund’s testimony—and Haglund himself never distinguished between his fact and expert testimony."  Therefore,  "even if Haglund’s testimony did not exceed the scope of Rule 702, his overall presentation as a dual fact-expert witness without further demarcation or explanation to the jury was in error."  Unfortunately for the defendants, however, the Court went on to find such error harmless under the circumstances of the case.   

Monday, July 18, 2016

Pointing a Gun Is A Crime of Violence; Johnson v. United States Shrinks Further

The Sixth Circuit in United States v. Rafidi again grappled with what constitutes a “crime of violence” under 18 U.S.C. § 924(c), a question that has divided sharply the courts of appeals in the wake of the Supreme Court’s decision in Johnson v.United States, 559 U.S. 133 (2010). Rafidi presented directly the question of whether a violation of 18 U.S.C. § 111(b)(assault on a federal officer) constituted a “crime of violence” under § 924(c).

The case arose from execution of a search warrant at defendant’s residence by a number of law enforcement officers including federal agents. The officers knocked and announced and, according to the trial testimony, observed defendant through a glass window pick-up a silver gun. Defendant approached and swung open the front door and pointed the gun at a federal agent, which provoked another officer to open fire on defendant, although he was not hit. He retreated inside his residence, then emerged unarmed and surrendered.

Rafidi was charged and found guilty of two offenses: (1) forcibly assaulting a federal officer in violation of 18 U.S.C. § 111(a)(1) and (b); and, (2) using a firearm in furtherance of a crime of violence in violation of 18 U.S.C. §924(c)(1)(A)(ii). He was sentenced to 10 months on the § 111 charge and a consecutive 84 months on the § 924 charge. Defendant’s main appeal issue was whether a violation of § 111 is a “crime of violence” for purposes of § 924(c).

The Court began its analysis by dissembling § 111, a “rather convoluted statute,” that sets forth three separate crimes: (1) misdemeanor simple assault; (2) felony assault; and, (3) aggravated felony assaults involving a deadly or dangerous weapon or causing bodily injury. The third of these applied to defendant, so the question, as the Court framed it based on Johnson, was “whether § 111(b) has as an element the use or attempted use of ‘violent force – that is, force capable of causing physical pain or injury to another person.’”

Key, the court asserted, was that a violation of § 111 requires that a defendant act forcibly. This element is satisfied in two ways, both of which establish § 111(b) as a “crime of violence.” First, the force element could be satisfied by proof of actual physical contact, which combined with use of a deadly weapon is sufficient to establish § 111(b) as a “crime of violence.” Second, even in the absence of physical contact, the force element is established by proof of a threat or display of physical aggression sufficient “to inspire fear of pain, bodily harm, or death.” Pointing a gun at a federal officer did this so the court held that the defendant’s conviction for § 111(b) constitutes a “crime of violence” under § 924(c)(3).


Senior Circuit Judge Andre Davis, visiting from the Fourth Circuit, concurred in result and in dubitante. Judge Davis’ expressed concern that “the use of a dangerous weapon in ‘forcibly,’ but not ‘violently,’ resisting arrest by an FBI agent, for example, categorically elevates the kind of non-violent force sufficient to satisfy § 111(a) into ‘violent force’ within the meaning of” Johnson’s holding. Nevertheless, Judge Davis concurred based on the court’s prior decision in United States v. Taylor, 814 F.3d 340 (6th Cir. 2016), and on the grounds that a violation of § 111(b) is a predicate offense under the residual clause of § 924(c)(3)(B).

Thursday, July 07, 2016

Johnson applies to Immigration and Nationality Act’s residual clause

         The Supreme Court held in Johnson v. United States, 135 S. Ct. 2551 (2015), that the Armed Career Criminal Act’s (ACCA) residual clause’s definition of “violent felony” was void for vagueness. See 18 U.S.C. § 924(e)(2)(B)(ii). In Shuti v. Lynch, the Sixth Circuit extended Johnson’s reach to the Immigration and Nationality Act’s (“INA”), 8 U.S.C. § 1101 et seq., residual clause’s definition of a “crime of violence.”  

          Altin Shuti, a lawful permanent resident of the United States, was convicted of unarmed robbery which Michigan law defines as ‘“larceny of any money or other property’ accomplished by using ‘force or violence against any person who is present’ or ‘assault[ing] or put[ting] the person in fear.’” Mich. Comp. Laws § 750.530. After Mr. Shuti was sentenced to a prison term of more than a year, the Department of Homeland Security initiated proceedings to remove him to his home-country of Albania.  

          Under the INA, a non-citizen “convicted of an aggravated felony at any time after admission,” 8 U.S.C. § 1227(a)(2)(A)(iii), is ineligible for most forms of discretionary relief from removal. An “aggravated felony” means “a crime of violence (as defined in section 16 of title 18 …) for which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(F). A “crime of violence,” as defined by 18 U.S.C. § 16(b), includes “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”  

          In Mr. Shuti’s case, an immigration judge ordered his removal to Albania. Although the Supreme Court decided Johnson while Mr. Shuti’s case was on appeal, the Board of Immigration Appeals (BIA) stated that it did not address the constitutionality of the laws it administered. The BIA concluded that the void-for-vagueness doctrine did not apply to civil removal proceedings and affirmed the removal order.  

          In an opinion by Chief Judge Cole, the Sixth Circuit rejected the notion that the void-for-vagueness doctrine did not apply to removal proceedings because they were civil in nature. The court examined the residual clauses of the ACCA and the INA and found that they “undeniably bear a textual resemblance.” Chief Judge Cole noted that “both provisions combine indeterminacy about ‘how to measure the risk posed by a crime’ and ‘how much risk it takes for the crime to qualify’ as a crime of violence or a violent felony.” Thus, the court found that the INA’s residual clause fell “squarely within Johnson’s core holding” and that its definition of a “crime of violence” was void for vagueness.

Friday, July 01, 2016

The death by a thousand cuts of Johnson v. United States

This is the way the world will end. Not with a bang but with a series of dispiriting unpublished opinions. If you thought that Johnson would usher in a new era of sentencing jurisprudence based on close analysis of the remaining provisions of post-residual-clause sentencing statutes, you are now waking up to the dystopian reality suggested by today's opinion in United States v. Jackson. Jackson addresses whether a Georgia conviction for conspiracy to commit voluntary manslaughter is a violent felony under the Armed Career Criminal Act. You have already guessed the answer.

The Georgia voluntary manslaughter statute punishes murder when committed "as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person." The first way you know that this case will not turn out well is when the conviction is for conspiracy to commit voluntary manslaughter, but the opinion does not discuss conspiracy. How could merely conspiring to do something ever have as an element the use, attempted use, or threatened use of force? The opinion has no intention of answering that question. (Come to think of it, how could you even conspire to commit a murder under a "sudden, violent, and irresistible passion"? The state of Georgia is going to have to answer that one.)

But even after the opinion dedicates itself to addressing a different crime than the one the defendant was convicted of, it finds ways to shoot down a few sacred cows of Johnson jurisprudence. It simply shrugs off the notion that you can easily kill someone in ways that do not involve "force" as defined by the Supreme Court, "like poisoning or laying a trap" or through "deceit or fraud," suggesting that this issue is already settled in the Sixth Circuit. The panel alights on United States v. Anderson, 695 F.3d 390 (6th Cir. 2012), but it ignores cases like United States v. Jones, 673 F.3d 497 (6th Cir. 2012) (acknowledging that Tennessee attempt to commit second degree murder could not have an element of force because it "includes poisoning, which need not involve direct physical contact or force").

Even though Jackson was relegated to the unpublished opinions, defenders will need to sharpen their pencils and be prepared to distinguish this case -- and the inevitable bad cases to follow -- if they want Johnson to have any appreciable impact on clients.