BLOG BULLETS:

• The new amendment narrowing the “crime of violence” definition in the career offender guideline took effect August 1.
• The amendment eliminates burglary of a dwelling from the definition, eliminates the residual clause, and narrows the definition of extortion in a way that probably undercuts a prior Ninth Circuit decision in United States v. Becerril-Lopez, 541 F.3d 881 (9th Cir. 2008), that saved California robbery.
• Several specific offenses are moved into the text of the definition from the commentary, but arguments to consider in preventing their application to your client’s priors are (1) whether the statute your client was convicted under is broader than the generic or other guidelines definition; (2) whether ex post facto principles prevent the new listing in the guideline from being applied to your client; and (3) whether the statute your client was convicted under also fails to satisfy the “force clause” that remains in the definition.

 

NOW THE BLOG:

Back at the beginning of the year (see “A Breaking (Well, Almost Breaking) News Bulletin on Changes to the Career Offender “Crime of Violence” Definition” in the January 2016 link at the right), I put up a post on a guideline amendment set to take effect on August 1 that made some great (well, mostly great) changes to the definition of “crime of violence” in the career offender guideline.  The amendment completely removed “burglary of a dwelling” from the definition, eliminated the residual clause (which was presumably unconstitutional anyway after the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015)), and narrowed the definition of extortion in a way that undercut a prior Ninth Circuit rationale for saving California robbery.  On the possibly negative side, it moved some offenses listed solely in the commentary – namely, murder, voluntary manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, and the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive materials as defined in 18 U.S.C. § 841(c) – into the text of the guideline.

The amendment has now taken effect as expected, so you should think about both how to use it where it’s helpful and how to prevent its use where it’s harmful.  The way to use it now that it’s in effect is pretty obvious.  Burglary convictions no longer count; there’s no residual clause the government can try to distinguish from the residual clause invalidated in Johnson (if the government was trying to make the distinction); and the narrower definition of extortion sets up an argument that the case saving California robbery – United States v. Becerril-Lopez, 541 F.3d 881 (9th Cir. 2008) – is no longer good law.  (See the prior post for a discussion of this case and the argument about why it’s no longer controlling in light of the narrower definition of extortion.)

The more complicated question is how to prevent the government and probation office from using the offenses moved into the text from the commentary – murder, voluntary manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, and the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive materials as defined in 18 U.S.C. § 841(c) – against your client.  On that, there’s at least three arguments or issues to consider.

First, you should consider whether there’s an argument that the particular statute under which your client was convicted is broader than the definition of the offense intended in the guideline.  In the case of “extortion,” “forcible sex offenses,” and “use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive materials as defined in 18 U.S.C. § 841(c),” there are definitions in the commentary and/or cited statutes.  But in the case of the other listed offenses, you’ll need to look to case law on the “generic” definitions of the offenses and compare those “generic” definitions to the particular statute under which your client was convicted.  For a good summary of the case law on those generic definitions, see a paper called “Offenses Moved from the Commentary to the Enumerated Offense Clause at USSG § 4B1.2 Effective August 1, 2016,” which can be found in the “Select Topics in Criminal Defense” section of the www.fd.org website, and is also linked here.

The second argument to consider, though only in cases where your client’s new offense took place before the August 1 effective date of the new guideline, is that (1) the new guideline’s listing of the offenses in its text can’t be applied to your client under the Ex Post Facto Clause and (2) the listing of the offenses in the commentary of the old guideline isn’t sufficient, because (a) guideline commentary can’t have independent force but can only explain guideline text, (b) the listing of offenses in the commentary was just an explanation of the residual clause, and (c) the old residual clause was invalidated by the Supreme Court’s decision in Johnson.  The details of this argument are a little too complex to set out in just a blog post, but they’re nicely laid out in another paper called “Guideline § 4B1.2 Commentary Offenses” that can be found in the “Select Topics in Criminal Defense” section of the www.fd.org website and, as with the other paper noted above, is also linked – here.  This second argument can be made only if your client’s new offense was committed prior to August 1, because the first step of the argument, the Ex Post Facto Clause point, depends on the new guideline amendment being applied to a pre-amendment offense.  You should also keep in mind the “one book rule” (codified at § 1B1.11) that prevents defendants from using the good parts of a guideline amendment while avoiding the bad parts; this means that if you want to use something good in the new amendment – or any later amendment – you’re going to have to take the bad with it.

Third, you still need to consider the force clause – the part of the crime of violence definition that includes any offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another.”  The listed offenses will sometimes – and maybe (but maybe not) often – come within this force clause, but be careful about just assuming that.  Remember the requirements established by the Supreme Court cases of Johnson v. United States, 559 U.S. 133 (2010)  (a different Johnson), and Leocal v. Ashcroft, 543 U.S. 1 (2004), along with the Ninth Circuit’s interpretation of Leocal in Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006) (en banc), that (1) the force be “violent force – that is, force capable of causing physical pain or injury to another person,” Johnson, 559 U.S. at 140 (emphasis in original), and (2) the use of force be intentional, Fernandez-Ruiz, 466 F.3d at 1132.  As just three examples of cases holding state statutes defining the listed crimes in ways that don’t satisfy these requirements, see United States v. Parnell, 818 F.3d 974 (9th Cir. 2016), holding Massachusetts armed robbery doesn’t satisfy the requirements; United States v. Dixon, 805 F.3d 1193 (9th Cir. 2015), holding California robbery doesn’t satisfy the requirements; and United States v. Garcia-Jimenez, 807 F.3d 1079 (9th Cir. 2015), holding New Jersey aggravated assault doesn’t satisfy the requirements.

Finally, in making the first and third of these arguments, remember the limits on parsing statutes created by the divisibility requirement established by the Supreme Court in Descamps v. United States, 133 S. Ct. 2276 (2013), and Mathis v. United States, 136 S. Ct. 2243 (2016) (discussed most recently in the “Even the Supreme Court Agrees With Us” post in the July 2016 link at the right).  The statute can be parsed only if (1) there’s a finite list of alternatives and (2) the alternatives are alternative elements rather than alternative means, i.e., the jury has to unanimously agree on which one of them applies.  This will prevent the government and probation office from parsing many, if not most, overbroad statutes.