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Showing posts from January, 2010

Pennsylvania Resisting Arrest is Crime of Violence Under Begay

In United States v. Stinson, No. 08-1717, the Third Circuit recently ruled that Pennsylvania Resisting Arrest is a crime of violence under Begay. The Pennsylvania statue specifies two ways in which a defendant may resist arrest: (1) by creating a substantial risk of bodily injury to an officer or another; or (2) by employing means justifying or requiring substantial force to overcome the resistance. The Court held that the first "fits squarely within the definition of a crime of violence in the residual clause." Under Begay, the Court had to analyze whether the second "typically involve[s] purposeful, violent, and aggressive conduct." The Court held that it does.


"Such conduct poses as great or greater a risk as burglary or extortion . . . . [R]esisting arrest necessarily involves confronting the authority of a police officer who is likely armed and charged with defending the public . . . . [T]he offense engenders a significant risk of conflict and, correspondi…

Proper Unit of Prosecution under § 924(c) Is the Underlying Predicate Offense

United States v. Diaz, __ F.3d__, 2010 WL 143684 (3d Cir. Jan. 15, 2010). Nelson Diaz was convicted by a jury of two counts of possession of a firearm in furtherance of drug trafficking,in violation of 18 U.S.C. § 924(c) and a single count of possession with intent to distribute heroin. The District Court sentenced Diaz to a term of 480 months imprisonment - the sum of consecutive sentences of 120 months for each firearm count and 240 months for possession with intent to distribute heroin. Nelson appealed, arguing that his convictions and consecutive sentences for the two firearm charges based on a single predicate offense violated the Double Jeopardy Clause.

The Third Circuit agreed. Consistent with nine other Courts of Appeals, the Circuit held that the proper "unit of prosecution" under the statute is the underlying predicate offense – in this case the drug distribution count – rather than the possession of a firearm. The Court recognized that two other Circuits have take…

Court Continues to Require Careful Tailoring of Internet Restrictions on Sex Offenders

In United States v. Heckman, 08-3844, the Third Circuit extended its line of precedent (Crandon, Freeman, Voelker, Thielemann) requiring district courts to carefully tailor internet restrictions for sex offenders on supervised release. Heckman had a lengthy history of child molestation, but he had never been convicted of using the internet to entice or exploit a child -- the type of conduct the Court has previously said is essential to supporting Internet bans. Nonetheless, on the instant conviction for transporting child pornography, the district court imposed a lifetime, unconditional ban on Internet access. The Court rejected this condition, refusing to make the "inferential leap" that Heckman would eventually progress to using the Internet directly to harm a child. The Court also noted that there are alternative, less restrictive means of controlling an offender's Internet use, including computer monitoring conditions. The Court made clear, however, that it was…

En Banc Court to Revisit Construction of Federal Conspiracy Statute

On the government’s request, the Circuit has ordered en banc review of the decision in US v. Rigas, No. 08-3218 (Oct. 21, 2009) (original Third Circuit Blog post here). The order granting review, filed January 13, directs that the sole issue is "whether the two clauses in 18 U.S.C. § 371 – the ‘offense’ clause and the ‘defraud’ clause – constitute separate offenses under the Double Jeopardy Clause of the United States Constitution." (More fully, the statute begins: "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States....")

The issue split the original panel. In an opinion by Judge Fuentes, the majority held that the conspiracy statute creates a single statutory offense, while Judge Rendell, in dissent, construed the statute to create distinct ones. Both opinions recognized a circuit split on the issue, although the judges offered different counts: the majority found a 4-3 split in favor of its rule,…