1. May 31, 2017 New Orleans, Louisiana
Litigating Crime-of-Violence Issues: Johnson, Beckles, and Where We Go From Here
May 31, 2017
New Orleans, Louisiana
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Hey everyone, Thank you for inviting us here. Johnson, which knocked out the residual clause in the ACCA, is really is so much fun. It has been quite a ride the last couple of years - Johnson has consumed us. And we have had our ups and downs with Johnson, but overall we have been living the dream. It has knocked off thousands of years in our clients’ sentences and will continue to do so. And be patient. Some of the post-Johnson arguments have been and will continue to be knocked down, but you have to keep making these arguments. Preserve arguments. Because sometimes it takes years for our arguments to digest with the judges. And there are several post-Johnson issues that will go to the Supreme Court.

2. Overview I. Pre-Johnson world II. Summary of Johnson
III. Implications:
A. Armed Career Criminal Act
B. Career Offender
C. U.S.S.G. §§ 2K2.1, 7B1.1
D. 18 U.S.C. § 16
E. 18 U.S.C. § 924(c)
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So today I am going to start with the pre-Johnson world and talk about how the residual clause operated before Johnson.
Then I will talk about the holding and reasoning behind Johnson.
An then I will go through Johnson’s impact on the various sentencing enhancements and 924(c).

3. Pre-Johnson Residual Clause Analysis
Inquiry under James, Begay, Chambers, Sykes: categorical approach + ordinary case
Do elements of offense in ordinary case:
a. present risk of injury at similar level to enumerated offenses (generic burglary, arson, extortion, use of explosives)+
b. require purposeful, violent, and aggressive conduct?
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Ok, so let’s start with how the residual clause operated in the pre-Johnson world. So there was much confusion about what the test actually was for determining whether an offense fell in the residual clause.
But after the Supreme Court’s case in James, Begay, Chambers, and Sykes, the test was more or less what I call the categorical approach + ordinary case inquiry.
Meaning do the elements of the offense in the ordinary case present a risk of injury at similar level to enumerated offenses that precede it +
Does the offense have an element requiring purposeful, violent and aggressive conduct.

4. Johnson: Residual Clause Void for Vagueness
Reasons turn on uncertainty of ordinary case inquiry: 1. Grave uncertainty about how to estimate risk because no one knows how to determine what the ordinary case of a crime is: Gut instinct, common sense, statistics, google search – not sufficient guides. 2. Grave uncertainty about how to determine quantum of risk (i.e., how much risk) because quantum of risk is tied to ordinary case. Again, back to ordinary case problem. Denies fair notice and invites arbitrary enforcement
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Ok, so in Johnson, Justice Scalia struck down the residual clause as unconstitutionally void in all applications.
And he said there were two features that doomed the residual clause. But really, there was one reason – It call came down to the ordinary case problem.
First, Justice Scalia said that no one knows even how to begin to estimate the risk of injury because no one knows how to figure out the ordinary case - How the crime is ordinarily committed.
Second, there is grave uncertainty about how to determine the quantum of risk (i.e. how much risk) because quantum of risk is also tied to ordinary case. To be clear, the court said the problem was not the words serious potential risk. Many statutes have the words serious potential risk. But these statutes are not problematic because under those statutes the jury or the judge is required to look at the individual facts – real world facts -- in the case to determine whether there is serious risk of injury. But that is not true with the ACCA residual clause because the court has to use the categorical approach and then on top of that determine how the crime is ordinarily committed before determining whether that ordinary case then presents a serious risk of injury. And it is impossible to determine how a crime is ordinarily committed.
So Justice Scalia said the residual clause denies fair notice to defendants because they don’t know what is going to fall within the residual clause. And judges are utterly confused too so it leads to arbitrary enforcement.

5. Johnson: Expressly overrules precedent
James (2007): Florida attempted burglary qualifies as a “violent felony” under the residual clause. Sykes (2011): Indiana offense of vehicular flight from an officer qualifies as a “violent felony” under the residual clause.
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Ok, so in striking down the residual clause, the Supreme Court expressly overruled two cases.
First, the Supreme Court overruled James v. United States. In that case, the Supreme Court said the residual clause was not void. And then court held that although attempted burglary did not fall within the force clause of the ACCA and did not fall within enumerated offenses of the ACCA because it was not a completed generic burglary, it fell within the residual clause. But now that the residual clause is gone, no attempted burglary should ever qualify as a “violent felony.”
In Sykes, the Supreme Court again said the residual clause was not unconstitutionally void. And then the Court proceeded to hold that an Indiana offense of vehicular flight from an officer was a violent felony under the residual clause even though it did not fall under the force clause or enumerated offenses clause of the ACCA . Ok, so this means that no flight from the police type of offense should even qualify as an ACCA offense.

6. What’s left of the ACCA? ACCA “violent felony” =
1. Force Clause: Has an element the use, attempted use, or threatened use of physical force against a person, or
2. Enumerated offenses: burglary, arson, extortion, use of explosives (determined by generic definition).
Categorical approach applies: If “most innocent conduct” or “full range of conduct” covered by the elements of the statute does not match these definitions, prior cannot qualify as “violent felony.” United States v. Torres-Miguel, 701 F.3d 165 (4th Cir. 2012).
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Ok so what’s left of the ACCA now that the residual clause is going. This is where we are going to spend most of our time today. There are two remaining clauses left. The force clause and the enumerated offenses clause. Now, one thing to keep in mind as we go through each of these clauses is that the categorical approach applies. That means we have to look at the most innocent conduct or minimum conduct or full range of conduct covered by the elements of the offense. If the full range of conduct does not match the requirements of the force clause or enumerated offenses clause, then the prior offense cannot qualify as a violent felony, no matter what actually happened in the prior case. The facts of the individual case do not matter.
Now the categorical approach can get very complicated. That is a whole other session. But make sure when you are applying the categorical approach, you always applying the law as recently articulated under Mathis v. United States, which says the focus must always remain on the elements. And that your only turn to the infamous modified categorical approach and look to a limited list of judicial documents in the case when an offense is divisible, meaning that the offense has alternative elements – some which match the ACCA violent felony definition and some which don’t.
If an offense does not have alternative elements – but just alternative means that a jury does not have to select, then the modified categorical approach does not apply.

7. ACCA Force Clause: Be Careful Almost Nothing Counts As “Violent Felony”
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Ok, so always keep in mind that almost nothing counts as a violent felony under the force clause. If you find yourself thinking something qualifies as a violent felony, then there is something wrong with you.

8. Fighting Against the Force Clause
Four Key Issues to look for:
Requires “violent force,” not “unwanted touching”
Force must be directed against a person, not property
Requires the use of force, not merely the causation of physical injury.
Force must be used intentionally, not recklessly or negligently
Practice Point: Many of the best force-clause cases have been litigated under U.S.S.G. 2L1.2.
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Ok, so there are four key issues to look for when assessing whether an offense qualifies under the ACCA force clause.
First, the force clause requires an element of violent physical force – which we are going to talk a lot about it in a minute and what that means
2. The force clause requires that the prior offense have an element of force against person – not property.
The force clause requires the use of strong physical force – it is not enough that a statute requires physical injury, serious physical injury or even death – because such results do not require the use of strong physical force – counterintuitive.
Keep in mind many of the best force clause cases have been litigated under 2L1.2. And there are good cases on career offender force clause (which is identical to the ACCA force clause). And the 924(c) force clause which is almost the same as the ACCA force clause.

9. Issue 1: “Violent Force” Requirement
“Violent Force” means “strong physical force” that is “capable of causing physical injury or pain” to another person. Johnson v. United States, 559 U.S. 133 (2010)
Examples of “unwanted touching” or “offensive touching”:
Federal assault under 18 U.S.C. § 111(a).
United States v. Bell, 158 F. Supp.3d 906 (N.D. Cal. 2016) (collecting federal appellate cases); United States v. Ama,__ Fed. Appx. __, 2017 WL (10th Cir. 2017) (same).
Assault or Battery.
United States v. Johnson, 559 U.S. 133 (2010) (Florida); United States v. Holloway, 630 F.3d 252 (1st Cir. 2011)(Massachusetts simple assault and battery); United States v. Lattanzio, __F. Supp.3d__, 2017 WL (D. Mass. 2017) (Massachusetts assault and battery with a dangerous weapon); United States v. Fish, 758 F.3d 1 (1st Cir. 2014) (same); United States v. Royal, 731 F.3d 333 (4th Cir. 2013) (Maryland second degree assault).
Resisting arrest.
United States v. Aparico-Soria, 740 F.3d 152 (4th Cir. 2014) (en banc) (Maryland); United States v. Flores-Cordero, 723 F.3d 1085 (9th Cir. 2013) (Arizona); United States v. Almenas, 553 F.3d 27 (1st Cir. 2009) (Massachusetts); United States v. Lee, 821 F.3d 1124 (9th Cir. 2016) (California)
Battery on a law enforcement officer; Battery on pregnant woman.
United States v. Carthorne, 726 F.3d 503 )(4th Cir. 2013) (Virginia); United States v. Braun, 801 F.3d 1301 (11th Cir. 2015) (Florida).
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10. Issue 1: “Violent Force” Requirement
Don’t be deceived by labels: Sometimes offense will have element labeled “force or violence,” but that does not mean it has element of ACCA “violent force.”
Examples:
Federal robbery of government property. United States v. Bell, 158 F. Supp.3d 906 (N.D. Cal. 2016) (“violence” can be accomplished by de minimis force).
Virginia robbery. United States v. Winston, __ F.3d__, 2017 WL (4th Cir. 2017) (“violence” can be accomplished by de minimis force – i.e, “physical jerking”).
Missouri second degree robbery. United States v. Bell, 840 F.3d 963 (8th Cir. 2016)(“force” can be accomplished by any physical contact, even a nudge).
North Carolina robbery. United States v. Gardner, 823 F.3d 793 (4th Cir. 2016) (“force” can be accomplished by de minimis force, i.e., pushing someone to the ground).
Massachusetts armed robbery. United States v. Parnell, 818 F.3d 974 (9th Cir. 2016) (“force and violence” can be accomplished by de minimis force); United States v. Lattanzio, __ F.Supp.3d__, 2017 WL (D. Mass. 2017).
Puerto Rico robbery. United States v. Castro-Vasquez, 802 F.3d 28 (1st Cir. 2015) (“violence or intimidation” can be accomplished by “slightest use of force”).
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We have really been having success with robberies around the country.
One thing to keep doing here is monitoring state law on robbery If there is ever a state case that comes along which upholds a robbery conviction based on de minimis force, (which by the way includes things such as phsycial jerking, pushing, grabbing, pinching or even bruising) then you can renew your argument that the offense fails to qualify as an ACCA “violent felony” under the force clause.

11. Issue 1: “Violent Force” Requirement
Don’t be deceived by labels: Sometimes offense will have element labeled “force or violence,” but that does not mean it has element of ACCA “violent force.”
Examples:
Arkansas robbery. United States v. Eason, 829 F.3d 963 (8th Cir. 2016) (court could not conclude that degree of physical force required under offense requires violent force).
Maine robbery. United States v. Mulkern, __ F.3d__, 2017 WL (1st Cir. 2017) (“any physical force suffices to satisfy physical force element”).
Kansas robbery. United States v. Nicholas, __ Fed. Appx.__, 2017 WL (10th Cir. 2017) (“violence” element of robbery includes purse snatching).
Wisconsin/Oregon//New York/Nevada/Penn. robberies. United States v. Robinson, Case No. 16-C-156 (D. Wisc. May 24, 2016); United States v. Dunlap, 162 F. Supp.3d (D. Ore. 2016); United States v. Batista, 2017 WL (W. D. Va. May 11, 2017); United States v. Johnson, __ F. Supp.3d __, 2016 WL (E.D.N.Y. Nov. 12, 2016); United States v. Avery, 2017 WL (D. Nev. Jan. 3, 2017); Thrower v. United States, __ F. Supp.3d__, 2017 WL (E.D.N.Y. 2017); United States v. Singleton, 2017 WL (E. D. Pa. April 26, 2017).
Maryland robbery. United States v. Martin, Case No (4th Cir. Sept. 16, 2016) (upon gov’t.’s concession, court found it is not a “violent felony” but no reasoning given); United States v. Wilson, __ F. Supp.3d__, 2017 WL (D.D.C. 2017).
D.C. robbery. In re Sealed Case, 548 F.3d 1085 (D.C. 2008) (“force or violence” defined by statute to include purse-snatching offenses: “sudden or stealthy seizure or snatching”).
Note: same argument excludes similar offenses, such as “larceny from the person” or “pickpocketing”
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12. Issue 1: “Violent Force” Requirement
Kidnapping / False Imprisonment/Hostage Taking: “physical restraint,” detention,” “holding,” “mental restraint” does not automatically equal “physical force.”
Delgado-Hernandez v. Holder, 697 F.3d 1125 (9th 2012) (California kidnapping does not satisfy force clause because restraint can be accomplished through “any means of instilling fear” even through deception).
United States v. Moreno-Florean, 542 F.3d 445, (5th Cir. 2008) (determining that California kidnapping statute did not include physical force as an element because the crime could be accomplished through non-physical means).
United States v. Gonzalez-Perez, 472 F.3d 1158 (11th Cir. 2012) (Florida false imprisonment does not satisfy force clause because restraint can be accomplished “secretly”).
United States v. Sherbondy, 865 F.2d 996 (9th Cir. 1988) (Model Penal Code definition of kidnapping does not require force because it covers kidnapping by trickery or deceit).
United States v. Marquez-Lobos, 697 F.3d 759 (9th Cir. 2012) (Arizona kidnapping , which includes abduction of minor, requires lack of consent by lawful abduction but no use or threat of force).
United States v. Phelps, 17 F.3d 1334 (10th Cir. 1994) (Missouri kidnapping does not require force or threat of force).
United States v. Cervantes-Blanco, 594 F.3d 576 (5th Cir. 2007) (Colorado kidnapping does not require force or threat of force because can be accomplished by deceit).
United States v. Williams, 110 F.3d 50 (9th Cir. 1997) (Oregon kidnapping does not require force or threat of force because it can be committed by deception).
United States v. Najera-Mendoza, 683 F.3d 627 (5th Cir. 2012) (Oklahoma kidnapping can be committed by de minimis force; therefore, not “crime of violence” under force clause).
United States v. Martinez-Romero, 817 F.3d 917 (5th Cir. 2016) (Florida kidnapping does not require force or threat of force).
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Can be accomplished by deceit, deception, trickery, or stealing a baby from a carriage or hospital without the use or threat of any force.

13. Issue 1: “Violent Force” Requirement
Kidnapping/False Imprisonment/Hostage Taking: “physical restraint,” detention,” “holding” does not automatically equal “physical force.”
Federal kidnapping:
United States v. Jenkins, 849 F.3d 390 (7th Cir. 2017) (federal kidnapping does not have a force requirement because it can be accomplished by deception).
United States v. Bustos, 2016 WL (E.D. Cal. Nov. 17, 2016) (federal kidnapping does not have element of violent force because it can be accomplished by trickery or deceit); United States v.
Rubio, 2016 WL (E. D. Cal. Nov. 17, 2016) (same).
United States v. Hughes, 716 F.2d 234, 239 (4th Cir. 1983) (noting that a kidnapper may “use[] deceit and trickery to accomplish his purpose rather than overt force”); see also United States v. Wills, 234 F.3d 174, 177 (4th Cir. 2000) (“By its terms, § 1201(a) criminalizes kidnappings accomplished through physical, forcible means and also by nonphysical, nonforcible means.”); see Torres v. Lynch, S. Ct (2016) (suggesting that kidnapping is not cv).
Federal hostage taking:
United States v. Carrion-Caliz, 944 F.2d 220 (5th Cir. 1991); United States v. Si Lu Tian, 339 F.3d 143 (2d Cir. 2003) (hostage taking can be accomplished by deception).
Hernandez v. United States, 2016 WL (S. D. Fla. 2016) (federal hostage taking requires no use or threatened use of force);Juan Becerra-Perez v. United States, CR (C.D. Cal. Feb. 15, 2017) (same).
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14. Issue 1: “Violent Force” Requirement
Sex offenses based on absence of legally valid consent do not qualify under the force clause.
Statutory Rape
United States v. Rangel-Castaneda, 709 F.3d 373 (4th Cir. 2013) (Tennessee aggravated statutory rape); United States v. Daye, 571 F.3d 225 (2d Cir. 2009) (Vermont statutory rape); United States v. Madrid, 805 F.3d 1204 (10th Cir. 2015) (Texas aggravated sexual assault of a child).
Involuntary or Incompetent Consent
United States v. Shell, 789 F.3d 335 (4th Cir. 2015) (North Carolina second-degree rape of victim who is “mentally disabled, mentally incapacitated, or physically helpless”).
If “force” is an element, look for state case law extending the provision to “constructive force” (i.e., mental compulsion – not physical force) situations.
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Also, keep in mind that are some sex offenses that sound really bad, but they don’t require the use of violent physical force. For example, statutory rape, which is consensual sex, but is prohibited due to age of victim in relation to the defendant.
Even statutes which criminalize sex with a disabled person or mentally ill person do not require violent physical force, but rather just mental compulsion. Sometimes states will use word constructive force, but that is just mental compulsion – not violent physical force.

15. Issue 1: “Violent Force” Requirement
Offenses with a weapon element do not qualify if no active use required of weapon:
United States v. Parnell, 818 F.3d 974 (9th Cir. 2016) (armed robbery not a crime of violence because weapon need not be “fired, employed to effectuate robbery, used in a threatening manner, or even generally or openly displayed”).
United States v. Werle, 815 F.3d 614 (9th Cir. 2016) (Washington
riot statute not a crime of violence because weapon need not be
used but just “readily available”).
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16. Issue 2: Property vs. Person
Force, even violent, against property does not qualify under ACCA force clause.
Examples: Hobbs Act robbery/ federal bank robbery includes threatening to injure one’s property. That should disqualify Hobbs Act robbery/bank robbery from qualifying under the force clause:
United States v. Giddins, Case No (issue pending in the 4th Cir. as to whether federal bank robbery qualifies as “crime of violence” under force clause because it can be violated by extortionate means including threat of economic harm); United States v. Hunt, Case No (issue pending in 4th Cir. as to whether federal Hobbs Act robbery qualifies as a “crime of violence” for same reasons).
Washington state first and second degree robbery includes threatening injury to property; therefore, cannot qualify. United States v. Navarro, 2016 WL (E.D. Wash. March 10, 2016); United States v. Bercier, 192 F. Supp.3d 1142 (E. D. Wash. 2016); Lilley v. United States, WL (W. D. Wash. Nov. 30, 2016).
Maryland robbery includes threatening injury to property; therefore, cannot qualify. Douglas v. State, 9 Md. App. 647 (Md. Ct. Spec. App. 1970); Giles v. State, 8 Md. App. 721 (Md. Ct. Spec. App. 1970); United States v. Martin, Case No (4th Cir. Sept. 16, 2016).
Ohio robbery includes threat against things - not persons; therefore, cannot qualify. United States v. Litzy, 137 F. Supp.3d 920 (S.D.W.V. 2015).
Ohio robbery with a dangerous weapon also includes threatening injury to things. United States v. Patterson, 2015 WL (N.D. Ohio Sept. 25, 2015); United States v. Nagy, 144 F. Supp.3d 928 (N.D. Ohio 2015).
North Carolina conviction for discharging firearm into occupied building does not qualify because it is force against property – not a person. United States v. Parral-Dominguez, 794 F.3d 440 (4th Cir. 2015).
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So we have an argument that Hobbs Act robbery and bank robbery, which can be accomplished by threatening economic harm do not qualify under force clause.
And we have had success in the district courts on Ohio robbery, Maryland robbery, and Washington robbery, which can all be violated by threatening injury to property rather than a person.
Love Parral-Dominguez – Discharging firearm into occupied building – not a violent felony.

17. Issue 3: Using Force vs. Causing Injury
Offenses with elements requiring physical injury, serious physical injury, or even death do not equal “violent force.” This is true because physical injury can be committed without use of strong physical force: - poisoning, - laying a trap, - exposing someone to hazardous chemicals, - withholding medicine, - locking someone in car on a hot day, - starving someone to death, neglecting a child, etc., - placing a barrier in front of a car, which causes an accident, - leaving an unconscious person in middle of road
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This is where it gets counterintuitve

18. Issue 3: Using Force vs. Causing Injury
Examples: Offenses with physical injury, serious physical injury, or even death elements that do not qualify as violent felonies under the force clause:
Assault Offenses
Connecticut assault requiring intentionally causing physical injury. Whyte v. Lynch, 807 F.3d 463 (1st Cir. 2015) (post-Johnson); Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir. 2003).
Puerto Rico aggravated battery requiring intentional infliction of physical injury. Matter of Guzman-Polanco, 26 I & N Dec. 713 (BIA 2016) (post-Johnson).
Texas aggravated assault requiring intentionally causing physical injury. United States v. Zuniga-Soto, 527 F.3d 1110, 1125 n.3 (10th Cir. 2008); United States v. Villegas-Hernandez, 468 F.3d 874, 879 (5th Cir. 2006).
Colorado assault requiring defendant to cause bodily injury using a deadly weapon. United States v. Perez-Vargas, 414 F.3d 1282 (10th Cir. 2005); Colorado assault by drugging. United States v. Rodriguez-Enriquez, 518 F.3d 1191 (10th Cir. 2008).
New Jersey aggravated assault requiring a defendant to cause significant bodily injury. United States v. Martinez-Flores, 720 F.3d 293, 299 (5th Cir. 2013).
Arizona aggravated assault requiring attempt to cause injury with use of dangerous weapon. United States v. Gomez-Hernandez, 680 F.3d 1171 (9th Cir. 2012).
Arizona endangerment requiring action that creates risk of imminent death or physical injury. United States v. Hernandez-Castellanos, 287 F.3d 876, 881 (9th Cir. 2002).
North Carolina assault with dangerous weapon with intent to kill. United States v. Brown, __ F. Supp.3d __, 2017 WL )(D. D. C. 2017)( post-Johnson).
Pennsylvania aggravated assault. United States v. Fisher, 2017 WL (E. D. Pa. 2017) (post-Johnson).
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Courts have held that assaults and aggravated assault statutes do not require violent physical force because they can be accomplished without the use of strong physical force by refusing to give someone his medicine, using poison, hazard gas, guiding a blind person into traffic, etc.
In Perez-Vargas, the Tenth Circuit held that even assault with a dangerous weapon does not require the use of violent physical force – weapon could be hazardous gas or barrier that is put in front of one’s car.

19. Issue 3: Using Force vs. Causing Injury
Examples: Offenses with physical injury, serious physical injury, or even death elements that do not qualify as violent felonies under the force clause:
Threat Offenses
United States v. Torres-Miguel,701 F.3d 165 (4th Cir. 2012) (Cal. terroristic threats: threatening an act that results in serious bodily injury or death); United States v. Rico-Mejia, 2017 WL (5th Cir. Feb. 10, 2017) (Arkansas terroristic threats: threatening an act that results in serious physical injury or death) (post-Johnson).
Child Abuse Offenses
United States v. Gomez, 690 F.3d 194 (4th Cir. 2012) (child abuse resulting in physical injury); United States v. Andino-Ortega, 608 F.3d 305 (5th Cir. 2010) (causing physical injury to a child); United States v. Lopez-Patino, 391 F.3d 1034, 1037 (9th Cir. 2004) (causing child physical injury does not require use of force).
Manslaughter Offenses
United States v. Garcia-Perez, 779 F.3d 278 (5th Cir. 2015) (Florida manslaughter).
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Rico-Mejia - Great recent case; We love Torres-Miguel.

20. Issue 3: Using Force vs. Causing Injury
Examples continued: Common offenses with physical injury, serious physical injury, or even death elements that do not qualify as violent felonies under the force clause:
Murder See United States v. Hernandez, 831 F.3d 284 (5th Cir. 2016) (Florida second degree attempted murder); United States v. Watts, WL (D. Kan. Jan. 31, 2017) (Missouri second degree felony murder); United States v. Martinez, Case No. 07-cr REB-1 (D. Co. Feb. 1, 2017) (Nevada second degree murder);United States v. Nicks, Case No. WJM (D. Co. April 4, 2016) (Colorado second degree murder); United States v. McCutcheon, Case No. JFM (D. Md. Aug. 24, 2016)(attempted Maryland second degree murder).
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Wins on murder cases – One can be killed by poison, starving another to death, withholding medicine, etc.
Robbery with a dangerous weapon.

21. Issue 3: Using Force vs. Causing Injury
Examples Continued: Common offenses with physical injury, serious physical injury, or even death elements that do not qualify as violent felonies under the force clause:
Federal crimes: Hobbs Act robbery, bank robbery, armed bank robbery, VICAR, carjacking, murder, assault, use of weapon of mass destruction
All can be accomplished by putting someone in fear of physical injury or actually causing physical injury or death, but violent force not required.
But see United States v. McNeal, 818 F.3d 141 (4th Cir.
2016) (finding that federal bank robbery satisfies
force clause because it will be “rare” case that offense is
accomplished by non-violent force such as poisoning);
United States v. Evans, 848 F.3d 242 (4th Cir. 2016)
(finding same for federal carjacking).
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There are lots of federal offenses which also should not fall under the force clause even though they require physical injury or threat of physical injury. Now, mostly you will see these offenses in 924© charges. But you can use the same reasoning here to argue that these offense don’t qualify as crimes of violence under 924© force clause.

22. Issue 3: Using Force vs. Causing Injury
Beware:
1) United States v. Castleman, 134 S. Ct (2014) (holding that physical injury requires physical force under 18 U.S.C. § 922(g)(9) misdemeanor crime of domestic violence definition, but not deciding whether physical injury necessarily requires violent physical force).
But see decisions holding Castleman is inapposite – United States v. Rico-Mejia, 2017 WL (5th Cir. Feb. 10, 2017) (rejecting government’s Castleman theory); Whyte v. Lynch, 807 F.3d 463 (1st Cir. 2015) (same); United States v. McNeal, 818 F.3d 141 n.10 (4th Cir. 2016) (same); In re Guzman-Polanco, 26 I & N Dec. 713 (BIA 2016) (same); United States v. Fennell, 2016 WL (N.D. Tex. Sept. 8, 2016) (same); United States v. Hill, __ F. Supp.3d__, 2016 WL (W. D. Penn. 2016) (same); United States v. Villanueva, 191 F. Supp. 3d 178 (D. Conn. 2016) (same); United States v. Watts, 2017 WL (D. Kan. Jan. 31, 2017) (same); United States v. Fisher, 2017 WL (E. D. Pa. 2017) (same); United States v. Brown, 2017 WL (D.D.C. 2017) (same); United States v. Rice, 813 F.3d 704 (8th Cir. 2016) (see dissent rejecting government’s Castleman theory).
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Beware of Castleman – It is a Supreme Court which held in a different context that an offense with a physical injury element equals violent physical force; however, in Castleman at issue was whether a prior assault offense qualified as misdemeanor crime of domestic violence for purposes of the federal statute which prohibits possession of a gun by someone who has such prior. The force clause under the domestic crime of violence definition looks the same as the ACCA force clause, but the Supreme Court went to great length to point out that it is very different from the ACCA force clause. The domestic crime of violence definition is much broader and includes de minimis force. And the Supreme Court specifically said it is not deciding whether physical injury requires violent physical force for purposes of the ACCA force clause. Therefore, Castleman has not overruled the line of cases holding that physical injury does not require the use of violent physical force. And in fact, there is a growing chorus of cases holding that Castleman is inapposite to the ACCA force clause analysis.
Absence of force – distinguish Castleman.

23. Issue 4: Intentional vs. Reckless Conduct
All offenses must require intentional use of violent force or intentional threat of violent force; reckless mens rea will not suffice.
See Garcia v. Gonzales, 455 F.3d 465 (4th Cir. 2006) (assault requiring defendant to recklessly cause serious physical injury using a deadly weapon); United States v. McMurray, 653 F.3d 367, (6th Cir. 2011) (aggravated assault requiring defendant to recklessly cause serious bodily injury); Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132 (9th Cir. 2006) (en banc) (assault statute requiring reckless physical injury to another); United States v. Vargas-Duran, 356 F.3d 598 (5th Cir. 2004) (child endangerment can be satisfied with reckless mens rea); Purohit v. Holder, 441 Fed. Appx. 458 (9th Cir. 2011) (voluntary manslaughter has reckless mens rea); United States v. Aitken, 2015 WL , 2015 WL (C. D. Cal. 2015) (same); United States v. Dixon, 805 F.3d 1193 (9th Cir. 2015) (California robbery does not require intentional use of force); United States v. Parnell, 818 F.3d 974 (9th Cir. 2016) (Mass. assault and battery with dangerous weapon has reckless mens rea); United States v. Barcenas-Yanez, 826 F.3d 752 (4th Cir. 2016) (Texas aggravated assault offense can be violated with reckless mens rea); United States v. Benally, 843 F.3d 350 (9th Cir. 2016) (federal involuntary manslaughter has gross negligence mens rea); United States v. Hernandez, 831 F.3d 284 (5th Cir. 2016) (Government agrees Florida second degree murder does not have intentional mens rea); United States v. Johnson, __ F. Supp.3d __, 2016 WL (N.D. Cal. 2016) (federal arson has reckless mens rea); United States v. Hill, __ F. Supp.3d __, 2016 WL (W.D. Pa. 2016) (Pennsylvania simple assault has reckless mens rea); United States v. Watts, 2017 WL (D. Kan. 2017) (Missouri second degree murder has reckless mens rea); United States v. Sabetta, __ F. Supp.3d__ , 2016 WL (D.R.I. 2016) (Rhode Island assault with a dangerous weapon has reckless mens rea); United States v. Wehunt, __ F. Supp.3d__, 2017 WL (E.D. Tenn. 2017) (Tenn. aggravated assault has a reckless mens rea); United States v. Moore, 203 F. Supp.3d 854 (N.D. Ohio 2016) (Ohio aggravated robbery has reckless mens rea).
Argue that even if some general intent exists, a crime satisfies the force clause only if it specifically requires an intent to use or threaten violent force.
See Flores-Lopez v. Holder, 685 F.3d 857, 863 (9th Cir. 2012); Covarrubias Teposte v. Holder, 632 F.3d 1049 (9th Cir. 2011); United States v. Coronado, 603 F.3d 706 (9th Cir. 2010) (intentionally discharging a firearm in a negligent manner that creates a risk of injury or death); Brown v. Caraway, 719 F.3d 583 (7th Cir. 2013); United States v. Calderon-Pena, 383 F.3d 254 (5th Cir. 2004) (intentionally endangering child without intending to cause victim injury).
Paresh slide
Ok, so moving on to the fourth requirement – the force clause also requires the intentional application of force. So offenses with a reckless mens rea or less cannot qualify under the force clause. And courts continue to adhere to this principle.
Now, some statutes will have some general intent element, but they do not require a specific intent to threaten force. Those statutes cannot qualify as violent felonies under the force clause. For example, the Ninth Circuit held that a statute which requires the intentional discharge of a firearm, but it does not require the intent to harm anyone does not require the requisite intent to qualify as a crime of violence.

24. Issue 4: Intentional vs. Reckless Conduct
Threats: Argue intimidation/putting someone in fear of bodily injury does not equal intentional threat if statute does not require defendant to have intent to put another in fear of bodily injury. See United States v. King, 979 F.2d 801, 803 (10th Cir. 1992) (threat under force clause “means both an intent to use force and a communication of that threat”). Examples of statutes that do not have intentional mens rea: Utah witness tampering can be committed without any intent to threaten force – Culp v. United States, 2016 WL (D. Utah Sept. 27, 2016). Federal bank robbery can be committed without proof of intent to intimidate: United States v. Doriety, Case No. C JCC (W. D. Wash. Nov. 10, 2016)(federal unarmed bank robbery is not “crime of violence” under “force” clause because no intent to use force or communication of that threat required – note: case dismissed after Beckles, but you can still use reasoning); United States v. Knox, 2017 WL (W. D. Wash. Jan. 24, 2017) (same ); see also cases demonstrating that federal bank robbery can be violated without intentional threat of force: United States v. Yockel, 320 F.3d 818 (8th Cir. 2003); United States v. Kelley, 412 F.3d 1240 (11th Cir. 2005); United States v. Woodrup, 86 F.3d 359 (4th Cir. 1996). But see United States v. McNeal, 818 F.3d 141 (4th Cir. 2016) (finding that federal bank robbery satisfies intentional mens rea); United States v. Armour, 840 F.3d 904 (7th Cir. 2016) (same); In re Sams, 830 F.3d 1234 (11th Cir. 2016) (same).
Jennifer slide
Ok, also be careful with threats statutes – There are statutes with an intimidation or putting someone in fear of bodily injury element that sound like a threat, but shouldn’t qualify because they don’t require an intentional threat. In fact, a threat under the force clause means intent to use force and a communication of that threat.
Some statutes, like federal bank robbery, do not satisfy these terms. Bank robbery can be committed without any intent to intimidate another. The Western District of Washington has already found as such because bank robbery only requires that a reasonable person in the victim’s shows fear bodily injury from the defendant’s actions – regardless of whether the defendant himself has any intent to create the fear. So for example, a defendant who comes up to someone and says give me your money or you are going to hell has committed bank robbery, even if he has no intent to intimidate the person.

25. Issue 4: Intentional vs. Reckless Conduct
Continued examples: Federal first degree murder – includes felony murder, which does not require intentional use of violent force. Federal second degree murder – can be committed with reckless disregard for human life.
Jennifer slide
Some other offenses that can be committed without intentional use of force are federal felony murder, which only requires that the defendant have the intent to commit an underlying felony (which does not require the use of force) that results in death – but does not require that the defendant have any intent to commit the murder. See U.S. v. Watts - Kansas district court case which held Missouri felony murder not a violent felony under force clause for this reason.
Federal second degree murder can also be committed recklessly.

26. Issue 4: Intentional vs. Reckless Conduct
Beware:
Voisine v. United States, 136 S. Ct (2016) (holding that force clause for purposes of § 922(g)(9) misdemeanor crime of domestic violence only requires mens rea of recklessness; but recognizing that force clause under 18 U.S.C. § 16 may require intentional mens rea because it has different purpose; so Voisine does nothing to disturb rulings of lower courts requiring intentional mens rea for § 16 and other analogous force clauses like ACCA/career offender/924(c)); United States v. Fogg, 836 F.3d 951 (8th Cir. 2016) (applying Voisine to ACCA); United States v. Howell, 838 F.3d 489 (5th Cir. 2016) (applying Voisine to U.S.S.G. § 4B1.2).
See United States v. Lattanzio, __ F. Supp. 3d __, 2017 WL (D. Mass. 2017) (Voisine inapposite to ACCA force clause);; Bennett v. United States, 2016 WL (D. Me. 2016) (same); United States v. Johnson, __ F. Supp.3d __, 2016 WL (N. D. Cal. 2016) (same); United States v. Sabetta, __F. Supp.3d __ , 2016 WL (D. R. I. 2016) (same); United States v. Fennell, 2016 WL (N.D. Tex. Sept. 8, 2016) (same); Jefferson v. United States, 2016 WL (S. D. Ala. Oct. 13, 2016) (same); Jaramillo v. United States, 2016 WL (D. Utah Oct. 13, 2016) (same); United States v. Fisher, 2017 WL (E. D. Pa. 2017) (same); United States v. Brown, __ F. Supp.3d__, 2017 WL (D.D.C. 2017) (same); Broadbent v. United States, 2016 WL (D. Utah Oct. 11, 2016) (Voisine inapposite to career offender force clause); United States v. Wehunt, __ F. Supp.3d__, 2017 WL (E. D. Tenn. 2017) (same); United States v. Hill, __ F. Supp.3d__, 2016 WL (W. D. Penn. 2016) (same).
Jennifer
Ok, beware of Voisine v. United States – In that case, the Supreme Court held that the misdemeanor domestic crime of violence force clause for purposes of 922(g)(9) can be satisfied with reckless mens rea. But the Supreme Court, citing to its previous Castleman decision, recognized that the domestic crime of violence definition is different from the force clause of other statutes like 18 U.S.C. 16(b), which has a force clause analogous to the ACCA. And then the Court said it was not overruling all those cases which have said that the force clause in these other contexts requires an intentional mens rea. Therefore, all the cases which have held that the force clause requires intentional use of force are still good law. And there are a growing number of cases that have held Voisine does not undo these cases.

27. ACCA Enumerated Offenses: Be Careful
Paresh slide

28. ACCA Enumerated Offenses: Must Be Generic
Generic Burglary: 3 elements
1. unlawful entry or remaining
California first degree burglary, Descamps v. United States, 133 S. Ct (2013).
Washington residential burglary, United States v. Wilkinson, 589 Fed. Appx. 348 (9th Cir. Dec. 11, 2014) (no trespass required).
2. in a building or structure (not in a vehicle, boat, motor home, or telephone booth)
Maryland first degree burglary, United States v. Henriquez, 757 F.3d 144 (4th Cir. 2014); Oregon first & second degree burglary, United States v. Mayer, 560 F.3d 948 (9th Cir. 2009); United States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc); United States v. Cisneros, 826 F.3d 1190 (9th Cir. 2016); West Virginia burglary, United States v. White, 836 F.3d 437 (4th Cir. 2016) (4th Cir. 2016).
3. with intent to commit a crime
Maryland fourth degree burglary, United States v. Martin, 753 F.3d 485 (4th Cir. 2014); Minnesota burglary, United States v. McCarthur, __F.3d__, 2017 WL (8th Cir. 2017).
Generic Arson
Delaware third degree arson not generic arson, Brown v. Caraway, 719 F.3d 583 (7th Cir. 2013) (lacks the generic requirement of malicious or willful mens rea). ****Generic arson definition not clear – Torres v. Lynch, 136 S. Ct (2016).
Generic Extortion
North Carolina robbery not generic extortion; robbery has an element requiring lack of consent, but extortion requires consent. United States v. Gardner, 823 F.3d 793 (4th Cir. 2016); United States v. Dixon, 805 F.3d 1193 (9th Cir. 2015) (California robbery not extortion for same reason).
See also Ocasio v. United States, 136 S. Ct (2016) (Hobbs Act extortion is not same as Hobbs Act robbery because robbery requires lack of consent, but extortion requires consent).
Paresh slide –
Now, the enumerated offense clause has four offenses – burglary, arson, extortion, and use of explosives. A prior offense only qualifies as one of these offenses if it satisfies the generic definition of these offenses. The generic definition is the equivalent of most states do. And courts sometimes look to the Model Penal Code, sometimes they do a 50-state survey, sometimes they look to the dictionary definition to determine the generic definition. You should use whatever works best for you if the generic definition of an offense is left open in your Circuit.
Now, the Supreme Court has already told us what generic burglary means – the most common offense that is going to be an issue. Generic burglary requires three separate elements 1) unlawful entry or remaining, 2) into a building 3) with intent to commit a crime. Unlawful entry = trespass. Building does not equal car. And there must be a contemporaneous intent to commit a crime at time of unlawful entry at the moment the unlawful remaining begins.

29. Final ACCA Issue – Conspiracies, Attempts, and Aiding and Abetting Be Careful
Paresh slide

30. Conspiracies
Conspiracies never qualify as “violent felonies” under the force clause or the enumerated offenses clause, no matter what the object is of the conspiracy.
1. Enumerated Offenses Clause: Does not include inchoate offenses.
See United States v. James, 550 U.S. 192 (2007)
2. Force Clause: Unlawful agreement + sometimes overt act does not = force or attempted force.
Pre-Johnson cases:
United States v. White, 571 F.3d 365 (4th Cir. 2009); United States v. Gore, 636 F.3d 728 (5th Cir. 2011); United States v. Fell, 511 F.3d 1035 (10th Cir. 2007); United States v. King, 979 F.2d 801 (10th Cir. 1992).
Post-Johnson cases:
United States v. Gonzalez-Ruiz, 794 F.3d 832 (7th Cir. 2015) (finding conspiracy to commit armed robbery not violent felony); United States v. Melvin, No (4th Cir. Oct. 20, 2015) (finding conspiracy to commit robbery with a dangerous weapon not a violent felony).
United States v. Smith and Merritte, 2016 WL (D. Nev. 2016) (conspiracy to commit Hobbs Act robbery not crime of violence under force clause); United States v. Luong, 2016 WL (E.D. Cal. 2016) (same); United States v. Edmundson, 153 F. Supp.3d 857 (D. Md. 2015) (same); United States v. Baires-Reyes, 191 F. Supp.3d (N. D. Cal. 2016) (same); Duhart v. United States, 2016 WL (S. D. Fla. Sept. 9, 2016) (same); United States v. Benitez, Case No. 13-cr UU (S.D. Fla. April 6, 2017);Alvarado v. United States, 2016 WL (Cent. D. Cal. Oct. 14, 2016) (RICO conspiracy not crime of violence under force clause); United States v. Shumilo, WL (Cent. Dist. Cal. Oct. 24, 2016) (same).
Paresh slide
Conspiracies should never qualify under force clause or enumerated offenses clause.
Enumerated offense clause doesn’t include any inchoate offenses – only completed offense. James.
2. And conspiracies can’t qualify under the force clause because they only require an unlawful agreement + sometimes an overt act. That is the not the use of force or attempted use of force. And we have a lot of law to support that point. Indeed, courts have found that even conspiracy to commit armed robbery does not qualify.

31. Attempts
Do not qualify as enumerated offenses. United States v. James, 550 U.S. 192 (2007) (attempted burglary is not burglary).
Qualify under force clause if (1) the object of the attempt satisfies the force clause and (2) the attempt statute must be generic attempt, which requires a) a “substantial step” and b) “probable desistance.” United States v. James, 550 U.S. 192 (2007); United States v. Gonzalez-Monterroso, 745 F.3d 1237 (9th Cir. 2014) (real “substantial step” required); United States v. Garcia-Jimenez, 807 F.3d 1079 (9th Cir. 2015) (generic attempt requires “probable desistance” – defendant’s actions indicate that crime will take place unless interrupted by independent circumstances).
See Montoya v. United States, 2016 WL (D. Utah Nov. 17, 2016) (Utah attempted murder only requires “prepatory steps;” thus, not generic attempt qualifying under “force” clause).
Paresh slide
Attempts
Don’t’ qualify under enumerated offenses – does not include inchoate offenses
Attempts can qualify under force clause but only if 1) object of attempt satisfies the force clause, and 2) generic attempt – substantial step + probable desistance.

32. Aiding and Abetting
May qualify if it is 1) generic aiding and abetting and 2) underlying offense
satisfies the force clause or is a generic enumerated offense.
Requires proof that the defendant 1) took an affirmative act in
furtherance of the underlying offense 2) with the intent of facilitating the
commission of the offense. See Rosemond v. United States, 134 S. Ct.
1240, 1245 (2014).
The intent requirement is satisfied only when the government proves the
person “actively participate[d] in a criminal venture with full knowledge
of the circumstances constituting the charged offense.” Id. at 1248‐49.
The required knowledge must be “advance knowledge,” which means
“knowledge at a time the accomplice can do something with it—most
notably, opt to walk away.” Id. at 1249‐50.
Paresh slide
- So there has to be knowledge as to every element.

33. CAREER OFFENDER (OLD AND NEW)
Paresh slide
Ok, so now let’s talk about Johnson’s impact on the career offender provision. Now, the career offender provision changed on August 1, 2016 so we are going to talk about each of these provisions.

34. Old Career Offender Provision before August 1, 2016: (U.S.S.G. § 4B1.2)
“Crime of violence” => Three-Part Definition
Force Clause: offense “has as an element the use, attempted use, or threatened use of physical force against the person of another.”
Enumerated offenses: burglary of a dwelling, arson, extortion, use of explosives.
Residual Clause: offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”
Commentary: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling, unlawful possession of saw-off shotgun.
Also includes conspiracy, attempt, and aiding and abetting.
Remember: Categorical approach applies
Jennifer slide
First, let’s start with the old career offender definition. And the reason we are talking about the old career offender provision is because you may have clients on direct appeal who were sentenced before the new guideline went into effect in August of So we need to figure out Johnson’s impact on those cases.
So the text of the career offender provision that existed before August 1, 2016 was almost identical to the ACCA.
The force clause was exactly the same. So everything we talked about on the force clause in the context of the ACCA applies here.
The enumerated offenses clause was slightly different. It required burglary of a dwelling (building + dwelling) rather than just burglary itself. And the residual clause was the same.
And then there were the commentary offenses – An offense could only qualify under the commentary if 1) it satisfied the generic definition of these offenses, and 2) the generic definition was consistent with the text – meaning one of these clauses. Commentary only there to interpret the text – not as a separate category expanding the text. The commentary offenses don’t have freestanding power. So we were arguing that if a prior offense did not fall within any of these three clauses, an offense could not qualify under the commentary either because that would mean the commentary was expanding the text.
Now, before Beckles and after Johnson, we were arguing that the guidelines residual clause was just as defunct as the ACCA residual clause. And the government agreed. So then were arguing that an offense which did not fall within the force clause or the enumerated offenses clause and could no longer qualify under the residual clause, had no textual hook for it to qualify under the commentary. Commentary enumerated offenses were put into place to interpret residual clause. But with residual clause gone, so went the commentary offenses.

35. Beckles v. United States, 137 S. Ct. 886 (Mar. 6, 2017)
Holding: Johnson does not render the residual clause under the advisory guideline unconstitutionally void because the void for vagueness doctrine does not apply to advisory guidelines:
“advisory guidelines do not fix the permissible range of sentence,” but “merely guide the exercise of a court’s discretion in choosing an appropriate sentence.”
Note: Beckles did nothing at all to undo Johnson’s holding
that the residual clause is a “black hole” and “hopelessly indeterminate.”
Paresh slide
So then Beckles came along. Beckles held that Johnson does not render the guidelines residual clause unconstitutionally void because void for vagueness doctrine does not apply to advisory guidelines because they do not fix the permissible range of sentences, but merely guide the court in its discretion.
Beckles did nothing at all to undo Johnson’s holding that the residual clause is a “black hole” and “hopeless indeterminate.” It did not touch Johnson’s ruling that the residual clause is impossible to determine because no one knows how to figure out how a crime is ordinarily committed – a necessary step to determining whether a crime falls under the residual clause.

36. Post-Beckles direct review career offender cases based on old guideline
1. Argue that under Begay, the crime does not qualify as a “crime of violence” under the residual clause due.
2. Alternatively, argue that a “crime of violence” finding based on residual clause would be procedurally unreasonable because:
- it is impossible to interpret the “hopelessly indeterminate” residual clause as Johnson says.
- in turn, it is impossible for the court to
correctly calculate the guideline range
based on the residual clause.
- thus, sentence is procedurally unreasonable under Gall v. United States, 552 U.S. 38, 49 (2007).
See United States v. Lee, 821 F.3d 1124, 1136 (9th Cir. 2016) (Ikuta, C.J., dissenting); In re Hunt, 835 F.3d 1277, 1283 (11th Cir ) (Rosenbaum, D.J., concurring, joined by Wilson and J. Pryor, C.J.J.)
Paresh slide
Ok so what we do with Beckles. Well, if you have a client on direct review who was sentenced under the old guidelines before August 1, 2016, then make the following arguments:

37. Post-Beckles direct review career offender cases based on old guideline: continued
3. If commentary offense is in issue, argue that sentence is still procedurally unreasonable because: a) your client’s relevant prior does not satisfy generic definition of commentary enumerated offense and b) Commission was no more capable of deciphering the inscrutable residual clause than the Supreme Court and the lower courts. Thus, reliance on the commentary to calculate the guideline range is just as procedurally unreasonable as reliance on the residual clause itself. 4. Alternatively, argue that a sentence based on the residual clause is substantively unreasonable because it results in an arbitrary increase in sentence and unwarranted sentencing disparity. Note that scores of prisoners already got relief pre-Beckles and your client should too. In fact, assistant solicitor general at oral argument said that those who already got relief will “keep their sentences.”
Paresh slide
Arbitrary – Judges still speculating.

38. New Career Offender Provision
(Effective August 1, 2016)
1. Force Clause: Has an element the use, attempted use, or threatened use of physical force against a person, or
2. Enumerated offenses:
murder, voluntary (not involuntary) manslaughter, kidnapping, aggravated assault, burglary of a dwelling, forcible sex offense, robbery, arson, extortion, or use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) (sawed off shotgun, silencer bomb, machine gun), or explosive material as defined in 18 U.S.C. § 841(c).
Forcible sex offense for minors and extortion defined in commentary, but all other enumerated
offenses determined by generic definition.
Note: This definition is incorporated into 2K2.1 and 7B1.1, so the same arguments apply there.
Paresh slide
Amy Baron Evans memo; burglary of a dwelling
No residual clause

39. New Career Offender Provision
2. Enumerated offenses continued:
Extortion – narrowed definition of generic extortion to obtaining something of value from another by wrongful use of (A) force, (B) fear of physical injury, or (C) threat of physical injury. Threat against property or reputation no longer enough.
Forcible sex offense – includes sex offenses where consent is involuntary, incompetent, or coerced.
But sexual abuse of a minor and statutory rape count only if they satisfy elements of 18 U.S.C. § 2441(c). In other words, these offenses must have following elements:
Either minor victim must be between ages and 4 years younger than defendant + defendant engaged in sexual act using force, threats of force, rendered minor unconscious, or drugged minor, etc., or
Sexual act with minor under the age of 12.
Remember: categorical approach applies under old law and new law.
Paresh slide

40. New Career Offender Commentary
The new commentary only includes inchoate offenses: conspiracy, attempts, and aiding and abetting
Two challenges:
1. The commentary cannot expand the text of the guideline (force clause or enumerated offenses clause) because it is does not have freestanding power. United States v. Stinson, 508 U.S. 36 (1993); United States v. Shell, 789 F.3d 335, 340 (4th Cir. 2015); United States v. Bell, 840 F.3d 963 (8th Cir. 2016); United States v. Rollins, 836 F.3d 737 (7th Cir ); United States v. Soto-Rivera, 811 F.3d 53 (1st Cir. 2016); United States v. Armijo, 651 F.3d 1226 (10th Cir. 2011).
Enumerated offenses: Under Stinson, no inchoate offenses can qualify as enumerated offenses because text of career offender guideline only includes completed enumerated offenses.
Force clause: Also, conspiracies noted in commentary can’t qualify under force clause because not included in text of force clause.
2. The prior conspiracy, attempt, or aiding and abetting offense is not generic. See previous slide on generic definition of attempt and aiding and abetting. See also United States v. Martinez-Cruz, 836 F.3d 1305, 1314 (10th Cir. 2016) (generic conspiracy requires an agreement to commit a crime plus an overt act in furtherance of the agreement); United States v. Garcia-Santana, 774 F.3d 528, (9th Cir. 2014) (same).
Also, argue that generic conspiracy requires bilateral agreement to commit crime – not enough that one of the conspirators was undercover cop.
Paresh slide
Argue Stinson – expansion of text
Argue not generic

41. Career Offender: Challenges to Instant Offense
Be Careful: Make challenge to instant federal offense as well as priors. If instant offense does not qualify as “crime of violence,” then can’t be career offender no matter what the priors are.
Paresh slide

42. 18 U.S.C. § 16 “Crime of violence” definition (Used for determining old 8-level “aggravated felony” bump in U.S.S.G. § 2L1.2(b)(1)(C) and many other federal provisions like VICAR, Three-Strikes, Bail Reform Act).
1. 18 U.S.C. § 16(a) – Force Clause U.S.C. § 16(b) – Residual Clause Note: No Enumerated Offenses Clause
Paresh slide
Now, let’s talk about Johnson’s impact on 18 U.S.C. 16.

43. 18 U.S.C. § 16(b) Crime of violence definition under residual clause
Residual Clause: Offense qualifies as crime of violence if “by its nature, [it] involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”
Shuti v. Lynch, 828 F.3d 440 (6th Cir. 2016); Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), United States v. Vivas-Ceja, 808 F.3d 719 (7th Cir. 2015), Golicov v. Lynch, 837 F.3d 1065(10th Cir. 2016), Baptise v. Attorney General, 841 F.3d 601 (3d Cir. 2016) hold 16(b) void for vagueness because:
1) same categorical ordinary case inquiry applies here that was struck down in Johnson. See United States v. Avila, 770 F.3d 2014 (4th Cir. 2014); United States v. Keelan, 786 F.3d 865 (11th Cir. 2015); Rodriguez-Castellon v. Holder, 733 F.3d 847 (9th Cir. 2013).
2) same uncertainty about how to determine quantum of risk – substantial risk of force – tied to ordinary case.
Note: The type of risk – “substantial risk” in 16(b) vs. “serious potential risk” in ACCA completely irrelevant because
Johnson turned on ordinary case approach – not type of risk.
See United States v. Welch, 136 S. Ct. 1257, 1262 (2016).
Jennifer slide

44. 18 U.S.C. § 16(b) Crime of violence definition under residual clause
Beware:
United States v. Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016) (en banc) (16(b) not void for vagueness).
But the Supreme Court granted cert in Lynch v. Dimaya to resolve split.
Jennifer slide

45. What’s left of 18 U.S.C. § 16 ?
16(a) “crime of violence” force clause same as career offender/ACCA but has element of physical force against property of another: Force Clause: Has an element the use, attempted use, or threatened use of physical force against a person, or property of another. But still must be violent force against property, not just injury to property – so, for example, Hobbs Act robbery and bank robbery, which can be violated by injury to property – even intangible property – do not qualify. And must be force against property of another – Lookout for arson statutes that do not require as such (for example, federal arson). Categorical approach: If “most innocent conduct” or “full range of conduct” covered by the statute does not match this definition, prior cannot qualify as “crime of violence.” United States v. Torres-Miguel, 701 F.3d 165 (4th Cir. 2012).
Jennifer slide
If residual clause is gone, then we are left with force clause. Now, almost the same as the ACCA/career offender. So all of the force clause arguments that we talked about under the ACCA apply here. However, there is one difference. The force clause includes force against property – but still has to be 1) physical force 2) and force against the property of another. Arson does not require force against property of another.

46. Elements of 18 U.S.C. § 924(c)
Section 924(c) provides in pertinent part: [A]ny person who, during and in relation to any crime of violence or drug trafficking crime for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime - [be sentenced to a certain number of years depending on the facts of the crime]
Paresh slide

47. 18 U.S.C. § 924(c)(3) Crime of violence definition: two clauses
Identical to 18 U.S.C. § 16, but looking at instant offense rather than prior conviction: U.S.C. § 924(c)(3)(A)– Force Clause U.S.C. § 924(c)(3)(B) – Residual Clause Note: No Enumerated Offenses
Paresh slide

48. Same language as 18 U.S.C. § 16(b)
18 U.S.C. § 924(c)(3)(B): Crime of violence definition under residual clause
Same language as 18 U.S.C. § 16(b)
Residual Clause: Offense qualifies as crime of violence if “by its nature, [it] involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”
Void for vagueness for same reasons noted under §16(b). Same categorical ordinary case inquiry applies to § 924(c)(3)(B). Supreme Court’s decision in Dimaya should control here, but government may fight even if we win Dimaya.
See United States v. Acosta, 470 F.3d 132, 135 (2d Cir. 2006); United States v. Fuertes, 805 F.3d 485, (4th Cir. 2015); United States v. Jennings, 195 F.3d 795, (5th Cir. 1999); United States v. Moore, 38 F.3d 977, 979 (8th Cir. 1994), abrogated on other grounds by Leocal v. Ashcroft, 543 U.S. 1 (2004); United States v. Amparo, 68 F.3d 1222, 1225 (9th Cir. 1995); United States v. Serafin, 562 F.3d 1105, (10th Cir. 2009); United States v. McGuire, 706 F.3d 1333, (11th Cir. 2013); United States v. Kennedy, 133 F.3d 53, (D.C. Cir. 1998)
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49. 18 U.S.C. § 924(c)(3)(B) Crime of violence definition under residual clause
Courts finding 924(c) residual clause void for vagueness for same reasons 16(b) is void for vagueness: United States v. Cardena, 842 F.3d 959 (7th Cir. 2016); United States v. Baires-Reyes, 191 F. Supp.3d 1046 (9th Cir. 2016); United States v. Smith and Merritte, 2016 WL (D. Nev. 2016); United States v. Luong, 2016 WL (E.D. Cal. 2016);United States v. Lattanaphom, 159 F. Supp.3d 1157 (E.D. Cal. 2016); United States v. Bell, 158 F. Supp.3d 906 (N.D. Cal. 2016); United States v. Edmundson, 153 F. Supp.3d 857 (D. Md. 2015); Duhart v. United States, 2016 WL (S. D. Fla. Sept. 9, 2016); United States v. Shumilo, 2016 WL (Cent. Dist. Cal. Oct. 24, 2016). Beware: United States v. Taylor, 814 F.3d 340 (6th Cir. 2016) (holding that § 924(c) residual clause is not void for vagueness – but holding in conflict with Shuti; nonetheless, Shuti says no conflict because categorical approach does not apply to § 924(c)) – Cert pending. United States v. Hill, 832 F.3d 135 (2d Cir. 2016)(§ 924(c) not void for vagueness). United States v. Prickett, 839 F.3d 697 (8th Cir. 2016) (§ 924(c) not void for vagueness) – Cert pending.
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Taylor, the 6th Circuit found that 924(c) is not unconstitutionally void. However, in Shuti, which came later, the Court rejected all the government’s arguments it accepted in Taylor in finding that 16(b) is unconstitutionally void, but then said 924© is different because it does not require the categorical approach – rather juries can look at individual facts of the case in determining whether an offense is a crime of violence. This distinction makes no sense because in Taylor, court said that whether or not an offense qualifies as a “crime of violence” is a legal determination that requires the categorical approach based on the elements of the underlying offense.
Anyway, preserve the issue.

50. What’s left of 18 U.S.C § 924(c)(3)?
Same as 18 U.S.C. § 16(a):
Force Clause (18 U.S.C. § 924(c)(3)(A)): Has an element the use, attempted use, or threatened use of physical force against a person, or property of another (But still must be violent force against property, not just injury to property).
Examples of underlying offenses that should not fall under force clause for reasons previously noted: All conspiracies, Hobbs Act robbery, robbery of government property, kidnapping, hostage taking, bank robbery, armed bank robbery, assault, murder, arson, racketeering, VICAR, escape.
Categorical approach: If “most innocent conduct” or “full range of conduct” covered by the statute does not match this definition, prior cannot qualify as “crime of violence.” United States v. Torres-Miguel, 701 F.3d 165 (4th Cir. 2012).
Note: no enumerated offenses.
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51. Beware: Badly reasoned unpublished and published § 924(c) cases:
Wrong use of United States v. Castleman, 134 S. Ct (2014), modified categorical approach, and/or bad residual clause analysis, etc.
Example: United States v. Hill, 832 F.3d 135 (2d Cir. 2016)(924(c) (Using Castleman to find that Hobbs Act robbery is a § 924(c) “crime of violence” under force clause and also finding that residual clause is not unconstitutionally void); see also In re St. Fleur, 824 F.3d (11th Cir. 2016) (Hobbs Act robbery qualifies as a § 924(c) “crime of violence” under force clause); United States v. House, 825 F.3d (8th Cir. 2016) (same); United States v. Anglin, 846 F.3d 954 (7th Cir ) (same); United States v. Robinson, 844 F.3d 137 (3d Cir ) (same); United States v. Gooch, __ F.3d__, 2017 WL (6th Cir. 2017) (same); United States v. Howard, 650 Fed. Appx (9th Cir. 2016) (same): United States v. McNeal, 818 F.3d 141 (4th Cir. 2016) (finding that federal bank robbery qualifies as a § 924(c) “crime of violence” under force clause); United States v. Armour, F.3d 904 (7th Cir. 2016) (same); In re Sams, 830 F.3d (11th Cir. 2016) (same); In re Hines, 824 F.3d 1334 (11th Cir. 2016) (same); United States v. Evans, 848 F.3d 242 (4th Cir. 2016)
(federal carjacking qualifies as a “crime of violence” under a § 924(c) force clause ); United States v. Taylor, 814 F.3d 340 (6th Cir ) (finding (924(c) residual clause not void); United States v. Prickett, 839 F.3d 697 (8th Cir. 2016) (same).
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