Today's published decision in Vowell v. United States giveth and taketh away. It "giveth" in the form of some very helpful published law disambiguating conflicting precedent regarding whether and when a knowingly-entered § 2255 waiver in a plea agreement bars a § 2255 motion asserting that a defendant was wrongly designated as an armed career criminal. A prior published decision in Slusser v. United States suggested the waiver could bar such a motion. However, the Vowell panel found that Slusser improperly considered even earlier precedent (in Untied States v. Caruthers) to be dicta when in fact it was not. The upshot? An improper ACCA designation falls squarely within the category of cases in which a defendant is challenging an increased sentence above the statutory maximum, and thus the waiver does not bar the motion.
That huge procedural win notwithstanding, the Vowell decision "taketh away" in concluding that Mr. Vowell's Georgia burglary was still an ACCA-predicate. The statute is divisible, and a Shepard analysis revealed that his conviction fell into the portion of the statute that would require entry into a "dwelling house" and thus meet the standard for generic burglary.
A few final notes:
1. Numerous footnotes are doing a lot of heavy lifting in this decision.
2. It is not clear when judges started referring to armed career criminals as having been "sentenced as a career offender under the ACCA," as this decision does 13 times, but this is incredibly confusing for criminal practitioners.
A blog by federal public defenders and criminal defense lawyers practicing in the Sixth Circuit.
Missouri third-degree assault not an ACCA predicate violent felony
In a per curiam decision in (Derrick) Johnson v. United States today, the Sixth Circuit holds that Missouri third-degree assault does not require the requisite level of force to be considered a violent felony under the Armed Career Criminal Act. The panel (a lucky draw by any standards) noted that under Missouri law, the third-degree statute could be satisfied by merely "[s]neezing at someone with the intent to transmit a minor illness." Accordingly, it did not meet the violent physical force required by the ACCA. Bless you.
No qualified immunity for officers who shot a man trying to kill himself
Officers received a call about a man who was trying to kill himself by slitting his wrist with a knife. When four officers confronted the bleeding man, he held a knife up to his neck as if to kill himself. From a distance of 30 feet away, two of the officers shot the man, killing him.
In today's decision in Studdard v. Shepherd, the Sixth Circuit describes the legal question raised by the officers' unusual mental-health intervention rather dryly: "May police officers shoot an uncooperative individual when he presents an immediate risk to himself but not to others?" The court easily answers in the negative, and thus affirms the district court's denial of qualified immunity. So let this be a lesson to officers everywhere: do not fatally shoot someone to stop him from killing himself.
A Mortgage Company Not Being a Bank the Sixth Circuit Reverses Bank Fraud Convictions
“In this case the government charged the defendants with the
wrong crimes,” begins the Sixth Circuit’s opinion in United States v. Banyan, where
it reverses the defendants’ bank fraud convictions. The reason: the government
didn’t show the defendants got any money from a bank.
The defendants were a homebuilder and a mortgage broker. The
builder fell into financial distress, and the two submitted a number of
fraudulent mortgage applications to two different mortgage companies, which
were wholly-owned subsidiaries of two different banks, Sun Trust and Fifth
Third. After things fell apart, the defendants were charged with bank fraud in
violation of 18 U.S.C. § 1344 and conspiracy to commit bank fraud in violation
of 18 U.S.C. § 1349. A jury found them guilty; the government did prove the
defendants got money by way of fraud.
The problem with the government’s case was that neither of
the mortgage companies had deposits that were federally insured, and,
therefore, neither was a “financial institution,” which is the type of entity
to which sections 1344 and 1349 apply. The court labeled as “nearly frivolous”
the government’s argument that the mortgage companies should be considered banks “because
each of them is a wholly owned subsidiary of a bank” for two reasons. One being
“a basic tenet of American corporate law” that a corporation (the mortgage
companies) and their shareholders (the banks) are “distinct entities.” The
second reason was Congress' pains to define “precisely” the term “financial
institutions” as “institutions that hold federally insured deposits – which the
defrauded mortgage companies undisputedly did not.”
The court found no evidence supporting a peek beyond or
behind the corporate structure distinguishing the parent banks and their
subsidiary mortgage companies. First, “the government offered no evidence that
the banks here in fact had ‘some duty’ or power or authority to ‘guide or
manage’ the mortgage companies’ funds.” Second, the court rejected the argument
that the loss would be ultimately the parent banks, as an “economic” argument
inconsistent with statutory text. Third, there was no evidence either of the
banks funded any of the loans or that any agent or employee of either
considered the fraudulent mortgage applications.
The Sixth Circuit Once More Analyzes Whether Ohio State Law Convictions are “Crimes of Violence” Under the Guidelines
The Sixth Circuit waded once more into the question of
whether state convictions qualified as crimes of violence under U.S.S.G. §
2K2.1(a)(2) in United States v. Johnson. At issue were convictions under
Ohio law for robbery and for complicity to commit aggravated robbery.
The defendant, Lawrence Johnson, was convicted of one count
of being a felon in possession of a firearm. He had at least four prior felony
convictions in Ohio, in 1982 for attempted robbery, for robbery in 1983 and in
1997, and in 2005 for complicity to commit aggravated robbery. A prior appeal
had successfully vacated a district court finding that Johnson was subject to
the Armed Career Criminal Act and a statutory minimum sentence of 15 years. United
States v. Johnson, 708 Fed.Appx. 245 (6th Cir. 2017). On remand, however,
the district court determined that the 1997 robbery conviction, which was under
a different statutory subsection than the 1983 robbery conviction, and the 2005
conviction for complicity to commit aggravated robbery did constitute “crimes
of violence” under the guidelines, a finding that increased his base offense
level. A sentence of 71 months, one at the top end of guidelines range, was
imposed and appealed.
The Sixth Circuit held that the 1997 robbery conviction
qualified as a “crime of violence” because the relevant statute, ORC § 2911.02(A)(2),
“requires violent force, that is, force capable of inflicting pain or injury.”
This requirement was drawn from Johnson v United States, 559 U.S. 133,
141-42 (2010), where the Supreme Court defined “physical force” under the ACCA
to mean “force capable of causing physical pain or injury to another person”
and the incorporation of that definition for guidelines analysis by the Sixth
Circuit in United States v. Evans, 699 F.3d 858, 863 (6th
Cir. 2012), abrogated on other grounds by United States v. Havis, 927
F.3d 382 (6th Cir. 2019)(en banc)(per curiam). Furthermore, the
court noted that a conviction driven by a reckless use of force could still
qualify as a crime of violence.
The Sixth Circuit also held that the 2005 conviction for
complicity to commit aggravated robbery qualified as a crime of violence.
First, the court noted a prior decision, United States v Patterson, 853
F.3d 298 (6th Cir. 2017) holding that an Ohio conviction for
aggravated robbery under the relevant statutory subsection qualified as a crime
of violence under the ACCA and, therefore, also under the guidelines. The real
question was whether the conviction “of complicity to commit aggravated
robbery makes a difference.”
This Sixth Circuit noted that Ohio law equated complicity
with aiding or abetting another in committing the offense and that the
underlying substantive offense “must have been either attempted or completed
for a complicity conviction to stand.” Since the underlying offense, aggravated
robbery, included the element of “use, attempted use, or threatened use of
physical force” a conviction for complicity likewise included that element.
As a final point, the Sixth Circuit rejected Johnson’s
argument “that the guidelines commentary is what brings [his] aiding and
abetting offense” in as a “crime of violence” under § 4B1.2(a) of the guidelines.
Indeed, the commentary does advise that a crime of violence “includes ‘the
offenses of aiding and abetting.’” U.S.S.G. § 4B1.2, Application Note 1 (2015).
But this, as the court noted, was of no matter and the en banc court’s caution
in United States v. Havis about over-reliance on guidelines commentary immaterial because the “express text” of § 4B1.2(a) compelled
the result.
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