Friday, December 29, 2017
A Traffic Stop Followed by a Summons is not an Intervening Arrest for Sentencing Guidelines Purposes
Monday, December 18, 2017
Harrisburg Police Officer Dennis Simmons stopped, handcuffed, and frisked Graves based on suspicion that he had participated in a nearby shooting. Prior to the stop, Simmons observed Graves walking in a high crime neighborhood at night with another man, both of whom matched descriptions of the shooting suspects. And when Simmons first saw Graves from his unmarked car, Graves lifted his hands above his head in a manner befitting "a drug dealer or someone who sells something illegal in the street," or someone inviting a physical challenge. In the course of patting down Graves, Simmons felt several small hard objects in his Graves's pockets. Based on his training and experience, Simmons suspected those items might be crack-cocaine. Simmons removed the objects from Graves's pants and discovered they were a bullet and several packets of Depakote, a legal antidepressant. Simmons and backup officers then placed Graves in a police vehicle, advised him of his Miranda rights, and questioned him. Graves admitted that he had a firearm in his boot, which Simmons had missed in his patdown search.
The Court concluded that Officer Simmons had reasonable suspicion to stop and frisk Graves. (Simmons's use of handcuffs, and the probable cause to arrest Graves after the patdown, were not challenged.) Graves's presence in a high crime neighborhood, physical similarity with the suspect in a recent nearby shooting, and purportedly suspicious reaction to Simmons's unmarked vehicle established a reasonable basis to believe that Graves was armed. Further, the Court held that, although Simmons was ostensibly searching for a weapon, he was permitted to search the inside of Graves's pocket upon detecting several objects that felt like illegal drugs. Under the "plain feel" doctrine, because Simmons was still in the process of determining whether Graves was armed, he was free to remove this contraband from Simmons's pocket, despite knowing that it could not be a firearm. Simmons would have been prohibited from searching Graves's pocket only if he had already completed the patdown for weapons.
Next, the Court affirmed Graves's sentence by concluding that North Carolina robbery qualifies as a predicate crime of violence under the career offender guideline. In North Carolina, robbery can be committed by using or threatening de minimis force -- for example, by merely swiping a person's hand away from his or her belonging. Presumably, this offense would not qualify as a crime of violence under the career offender guideline's force clause, U.S.S.G. 4B1.2(a)(1), because it can be committed without violent force capable of causing physical pain or injury to another. United States v. Chapman, 866 F.3d 129, 132 (3d Cir. 2017). The Court, however, determined that Graves's prior offenses qualify as crimes of violence because they are not broader than generic robbery, one of the offenses enumerated in U.S.S.G. 4B1.2(a)(2).
To reach this result, the Court first had to settle upon the generic definition of robbery. Graves urged the court to adopt the version in the Model Penal Code ("MPC"), a source the Circuit previously identified as "an ideal starting point" for generic-crime analysis. United States v. Marrero, 677 F.3d 155, 165 (3d Cir. 2014). Under the MPC's robbery definition, Graves's sentence would have to be vacated: unlike in North Carolina, where robbery may committed with minimal force, the MPC limits robbery to thefts involving the infliction or threatened infliction of serious bodily injury. Graves's convictions, then, were broader than MPC robbery.
The Court, however, determined that the Model Penal Code ("MPC") does not control robbery's generic definition. Instead, the Court embraced the government's argument: that the generic version should be the one adopted by the majority of the states. Indeed, for the first time in its crime-of-violence jurisprudence, the Court held that state legislation is the "most important factor" for identifying a crime's generic definition. That was especially so here, where a supermajority of 38 states, including North Carolina, do not condition a robbery conviction upon the use or threatened use of violent force. The Court did note in a footnote that state statutes may not be dispositive where the states are closely divided on a crime's definition or legislative history indicates that Congress or the Sentencing Commission favored a particular generic result. But in cases, such as this, where the MPC has been embraced by only a small minority of states, the majority state definition will control.
Graves's sentencing holding may have long-term implications. Most obviously, under Graves, many, if not most, prior robbery convictions will qualify as crimes of violence under the career offender guideline. Graves also undermines defendants' reliance on the MPC for generic definitions of crimes, at least where the MPC diverges from the majority of state legislation. All in all, Graves will make it harder for defendants in the Circuit to avoid career offender enhancements.
Wednesday, September 13, 2017
Note: a defendant had more success last week on a double jeopardy challenge to conviction on multiple firearms counts under Virgin Islands law in United States v. Hodge, No. 15-2621. At the same time, Hodge rejected a variety of additional double jeopardy challenges, including one to multiple mandatory minimums under 18 U.S.C.§ 924(c) where the defendant committed multiple crimes of violence during the same criminal episode.
Thursday, September 07, 2017
Friday, August 18, 2017
Mailing Threatening Communications is a Crime of Violence and a Judicial Proposal for Reform of the Categorical Approach
The Court began its analysis by reviewing the definition of “crime of violence” and specifically the meaning of the words “use” and “physical force.” Quoting United States v. Castleman, 134 S. Ct. 1405 (2014), and Tran v. Gonzales, 414 F.3d 464 (3d Cir. 2005), it defined “use” as “the intentional employment of force, generally to obtain some end,” which conveys the notion that the thing used “has become the user’s instrument.” The Court confirmed the definition of “physical force” as “force capable of causing physical pain or injury to another person” as set forth in Johnson v. United States, 559 U.S. 133 (2010). The Court concluded that the “use of physical force” as used in the Sentencing Guidelines “involves the intentional employment of something capable of causing physical pain or injury to another person, regardless of whether the perpetrator struck the victim’s body.”
Next, because Section 876(c) is a divisible statute, containing alternative versions of the crime, the Court applied the modified categorical approach. Based on Chapman’s indictment, the Court focused on the second of the two versions of the crime, which has two elements: (1) “the defendant knowingly mailed a threatening communication;” and (2) “the communication contained a threat to injure the person of the addressee or another.” The Court noted that the “threat to injure” element closely tracks the language in the force clause of the Sentencing Guidelines. The Court rejected the argument that a threat to injure does not necessarily require the threat to use violent physical force. The Court relied on Castleman and also concluded that beyond “the slightest offensive touching” which does not qualify as “physical force,” there is no minimum quantum of force necessary to satisfy Johnson’s definition of physical force.
Judge Jordan’s concurring opinion is significant. He argues that the unfettered growth of the categorical approach is leading to a host of problems and not achieving its intended goal. He is troubled by the requirement that judges must ignore real world facts. He joins other judges who have urged that the categorical approach be reconsidered. He proposes that judges be permitted to consider the facts of a previous conviction when those “facts are beyond fair dispute.”