A Breaking (Well, Almost Breaking) News Bulletin on Changes to the Career Offender “Crime of Violence” Definition.

January 19, 2016
By Hanging Out with Carl Gunn


  • Effective August 1, the career offender “crime of violence” definition has been amended to eliminate the residual clause, though some specific residual clause offenses are being specifically included in the guideline.
  • The amendment also eliminates burglary of a dwelling from the guideline.
  • California robbery, which is overbroad because it includes takings by threats against property and which was previously preserved only by reliance on the generic definition of extortion, is now probably excluded because the amendment narrows the definition of extortion to exclude takings by threats against property.



We just got a great change to the career offender guideline – though it doesn’t take effect until August 1 – which will help a lot of our clients.  The Sentencing Commission adopted an amendment of the career offender “crime of violence” definition, effective August 1, which narrows the scope of the career offender guideline in several important and helpful ways.  The amendment is downloaded and attached in full here – and also available on the Sentencing Commission’s website at www.ussc.gov – but I thought I’d summarize the significant changes.

First, we won’t have to worry (at least after August) about making arguments that the invalidation of the Armed Career Criminal Act “residual clause” in Johnson v. United States, 135 S. Ct. 2551 (2015) (see the “More than a Residual Victory” post on Johnson in the June 2015 link at the right), applies to the identically worded career offender “residual clause.”  The amendment eliminates this issue by completely deleting the residual clause from the guideline.  The amendment does move at least two “residual clause” offenses – unlawful possession of an unregistered firearm and unlawful possession of explosives – from the commentary to the actual text of the guideline, so those remain “crimes of violence.”  It also moves several other specifically identified crimes from the commentary to the text of the guideline – murder, voluntary manslaughter, kidnapping, aggravated assault, forcible sex offense (which is then specifically defined in the commentary), robbery, arson, and extortion – but two of those – arson and extortion – were already expressly listed and at least some of the others would be included by the “has as an element the use, attempted use, or threatened use of physical force” clause, depending on what generic definition the courts adopt, see, e.g., United States v. Garcia-Jimenez, 807 F.3d 1079, 1085-86 (9th Cir. 2015) (suggesting generic definition of “aggravated assault” requires willful use of force).  Some of the offenses moved into the text probably wouldn’t be included by this clause, however, so the amendment does save a few residual clause offenses.

The Commission did far more than simply recognize what Johnson did to the residual clause, however.  Though we’ve already had a lot of success in establishing the overbreadth of many, if not most, of the state burglary statutes in our circuit (see “More More on What’s a Divisible Statute Under Descamps: An Application of Last Week’s Post to the Offense of Burglary” in the April 2014 link at the right), this amendment expressly removes one of the most common career offender predicates – burglary of a dwelling.  So we’ll no longer need to fight about what statutes fall outside the generic definition of burglary.  Burglary isn’t included as a “crime of violence” in any form.  Though the amendment does add an application note stating that an upward departure “may be appropriate” in “cases in which a burglary involves violence.”

In addition to this, there’s another part of the amendment that gives us a good argument for excluding California robbery from the priors that qualify as “crimes of violence.”  (Credit on this point to Brianna Mircheff of the Central District of California FPD.)  The Ninth Circuit recognized that California robbery is broader than generic robbery in United States v. Becerril-Lopez, 541 F.3d 881 (9th Cir. 2008) because California robbery includes takings accomplished by mere threats against property.  See id. at 891.  The court “saved” California robbery as a career offender predicate only because the “crime of violence” definition also includes extortion and “[t]akings through threats to property and other threats of unlawful injury fall within generic extortion.”  Id.

The amendment undercuts this reasoning.  The amendment adds a specific definition of “extortion” which is narrower than the generic definition recognized in Becerril-Lopez.  It defines extortion as “obtaining something of value from another by the wrongful use of (A) force, (B) fear of physical injury, or (C) threat of physical injury.”  It does not include takings by threats to property.  So we have a good argument California robbery can no longer be saved by the Becerril-Lopez reasoning and will no longer qualify as a career offender crime of violence.  (Note that whether Becerril-Lopez stands as a good law for the particular guideline it addressed – the illegal reentry guideline – is a different question and will depend on how, if at all, the Commission modifies the illegal reentry guideline.)

The amendment also adds an application note that suggests a downward departure “[i]n a case in which one or both of the defendant’s ‘two prior felony convictions’ is based on an offense that is classified as a misdemeanor at the time of sentencing for the instant federal offense.”  I originally thought this meant offenses like California “wobblers” (for those of you outside California, that’s a term used for certain California offenses that can be treated as either misdemeanors or felonies), and for those we’re already protected by United States v. Bridgeforth, 441 F.3d 864 (9th Cir. 2006).  But then I focused on the “classified as a misdemeanor at the time of sentencing” language and thought of its application to offenses that had been reclassified statutorily – such as drug possession offenses and/or California Prop 47 offenses.  Though I’m not sure how many of those would satisfy the other requirements of the “crime of violence” or “controlled substance” definitions.  How much this application note helps and how often it applies may depend on what state’s prior convictions you’re working with.  Still, it’s worth keeping in mind.

Finally, why do I say “breaking news bulletin” in the title of this post when the amendment doesn’t become effective until August 1?  Because you can start using it in your cases now – in several ways.  The wisest and safest course will be to try to stretch things out so your client gets sentenced after the favorable guideline takes effect.  (Remember that the guidelines in effect at the time of sentencing are the ones that apply, unless they’re harsher, in which case the Ex Post Facto Clause makes them inapplicable, see Peugh v. United States, 133 S. Ct. 2072 (2013).)  And if you can’t stretch things out that far, or there’s reasons you don’t want to, you can use the upcoming guideline to argue for a variance.  See United States v. Ruiz-Apolonio, 657 F.3d 907, 917 (9th Cir. 2011) (recognizing that sentencing court “has the discretion to grant a variance from the Guidelines after promulgation but before adoption of a proposed amendment,” though “not required to consider that amendment” (emphasis in original)).