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A Traffic Stop Followed by a Summons is not an Intervening Arrest for Sentencing Guidelines Purposes

In United States v. Ley, __ F.3d __, 2017 WL 5618617 (3d Cir., Nov. 22, 2017), the Third Circuit held that a traffic stop, followed by the issuance of a summons, is not an intervening arrest for the purpose of calculating a defendant’s prior convictions under USSG § 4A1.2(a)(2).   Defendant John Francis Ley received two speeding tickets on two consecutive days.  After writing each ticket, the police released Ley and informed him that the matter would proceed via summons.  No arrest was made and Ley was sentenced for both matters on the same day. The District Court, however, held that the issuance of the summons constituted an intervening arrest for the purposes of the Guidelines and each ticket therefore merited an individual criminal history point.  Ley appealed.  Looking at the ordinary meaning of both “arrest” and “summons,” as well as the Supreme Court’s history of distinguishing arrests from other interactions with law enforcement, the Third Circuit, joining three other circuits …

Court upholds search under "plain feel" doctrine and expands generic robbery definition

In United States v. Graves, No. 16-3995 (3d Cir. Dec. 13, 2017), the Court affirmed Shaun Graves's 100-month sentence for a single count of unlawful firearm possession.  In doing so, the Circuit rejected Graves's claims that he was subject to an unreasonable investigatory search.  More significantly, the Court held that Graves's two prior North Carolina robbery convictions qualified as "crimes of violence" under the Sentencing Guidelines, see U.S.S.G. 4B1.2(a)(2), because they were not broader than generic robbery, as defined by an overwhelming majority of states.

Harrisburg Police Officer Dennis Simmons stopped, handcuffed, and frisked Graves based on suspicion that he had participated in a nearby shooting.  Prior to thestop, 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 han…

Double Jeopardy Claim Falls Short on Deferential Habeas Review

In the habeas matter of Wilkerson v. Superintendent Fayette SCI, Nos. 15-1598 & 15-2673, the Third Circuit defers to a state court determination that the defendant’s conviction of both an attempted murder count and an aggravated assault count based on the same altercation did not violate the Double Jeopardy Clause.
The evidence was that during the altercation, the defendant both struck the victim in the head with a gun and shot him in the chest. The Pennsylvania Superior Court upheld consecutive sentences on the theory that the evidence was sufficient to permit a jury to find the striking to support one count and the shooting the other. Despite the jury instructions’ and verdict form’s failure to require each of these discrete findings, the Third Circuit holds that the state court’s reasoning was sound enough to withstand deferential review the AEDPA’s “clearly established Federal law” limitation. “[W]here the jury instructions were merely ambiguous and did not foreclose the jury…

Court Opens Door for Long-Timers Serving Mandatory Guidelines Sentences

In In re Hoffner, –F.3d–, 2017 WL 3908880, the Court today holds that persons sentenced in the bad ol’ days of the mandatory Guidelines may proceed on challenges under 28 U.S.C. § 2255 to guideline enhancements resting on the same language held unconstitutionally vague in the Supreme Court's landmark decision in Johnson v. United States, 135 S. Ct. 2551 (2015). The Circuit thus limits the sweep of Beckles v. United States, 137 S. Ct. 886, where the high court held earlier this year that Johnson’s constitutional rule, invalidating a 15-year mandatory minimum provided by statute, has no application where a defendant was sentenced pursuant to a higher range under the advisory Guidelines system that came to be in 2005. Today’s green light is of profound significance to many, albeit far from all, defendants sentenced under the “career offender” guideline, which commonly doubles and can even triple the sentencing range.

Formally speaking, the Court rules that Hoffner, a federal prisone…

Federal Court upholds RICO and wire fraud conviction for New Jersey political party official

In United States v. Ferriero, __F.3d.__, 2017 WL 3319283, 15-4064 (3rd Cir. Aug. 4, 2017), the Third Circuit upheld a RICO violation when a political party official arranged to receive a percentage of fees paid to a vender that he recommended to local offices during the course of his official duties.The Court held that there is no requirement to prove an agreement to “undermine the integrity of a public action” when the RICO charges stem from the current version of New Jersey’s bribery statute.The Court also found that a communication can be fraudulent and violate federal wire fraud law when it contains half-truths and omits critical information.Furthermore, it found that the New Jersey bribery statute is neither overbroad nor unduly vague, and the Supreme Court’s decision in McDonnell v. United States, 136 S. Ct. 2355 (2015), did not impact the present conviction because that case dealt with “officials acts” and not “public issues.”

Mailing Threatening Communications is a Crime of Violence and a Judicial Proposal for Reform of the Categorical Approach

In United States v. Chapman, __F.3d__, No. 16-1810, 2017 WL 3319287 (3d Cir. Aug. 4, 2017), the Third Circuit held that mailing a letter containing any threat to injure the recipient or another person in violation of 18 U.S.C. § 876(c) qualifies as a crime of violence for the purposes of the career offender enhancements of the Sentencing Guidelines Manual § 4B1.1(a).The Court acknowledged in a footnote that the analysis is the same for a violation of 18 U.S.C. § 871, threats against the president.


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 ca…

Denial of Suppression Reversed Because of De Facto Arrest

In United States v. Wrensford, __ F.3d __, 2017 WL 3222511, No. 16-1373, No. 16-1395 (3rd Cir. July 31, 2017), the Third Circuit addressed the appeals of two co-defendants who were convicted of first degree murder and charges related to the illegal use and possession of a firearm.In reversing and remanding the case as to one defendant and affirming as to the other, the Circuit provided guidance on the parameters of the Fourth Amendment and de facto arrests.It also reaffirmed prior rulings regarding the standards for reviewing (1) motions for a mistrial based on non-unanimous jury verdicts; (2) refusal to give a voluntary manslaughter instruction; and (3) arguments that the evidence submitted at trial was insufficient to support a conviction.


In the most salient part of this opinion, the Third Circuit held that the police conducted a de facto arrest when they forcibly removed Wrensford from the place where he was stopped, brought him to a police station, and placed him in a cell withou…

Government does not need warrant for cell tower information when complying with statutes allowing for court orders to cell phone companies for location information/ Religious Freedom Restoration Act cannot be used to violent crimes

USA v. Stimler, et al., No . 15-4053, 4094 and 4095 (3d Cir, 7/7/17)
The defendants were all Orthodox rabbis convicted of attempted kidnapping and conspiracy for a scheme of kidnapping and torturing Jewish men to convince them grant their wivesdivorces under Jewish law. The panel opinion, in a Hebrew and Yiddish laden explication, described the ritual practices the Defendants believed Jewish law required or entitled them to engaged in. “Observant” Jews (anyone familiar with the politics of Israel these past few months will understand the quotation marks) adhere to a doctrine that a wife cannot divorce her husband without his permission, not matter what the cause of her desire to leave the marriage. A rabbinical court can order Jewish men to give consent, but if the husband refuses, the court, outside of Israel where such courts have the power to order recalcitrant men jailed for failing to give consent, it is considered a mitzvah to get such a man to give consent, and the Defendants h…

When sentencing for state crimes under the Assimilative Crimes Act, district courts must apply Sentencing Guidelines for crimes that are “sufficiently analogous” when elements of state and federal crimes are compared

USA v. Carolyn Jackson and John Jackson, No. 16-1200 (7/6/17, 3d Cir.)
In an 80 plus page opinion, followed by a 30 or so page impassioned dissent form Judge McKee, a panel overturned a sentence imposed following a trial of two defendants who, for actions committed on a military vase, were acquitted of federal assault charges but convicted of various New Jersey laws against child abuse for which there were no precise federal counterparts.The government contended that the Court, had it followed federal sentencing guidelines, should have imposed a sentence in the range of 292 to 365 months. (The PSR had calculated a slightly lower range.) The defendants, wife and husband, received sentences of imprisonment of respectively 24 months (as well as three years of supervised release) and three years of probation (as well as 400 hours of community service and a $15,000 fine. The district court found no analogous sentencing guidelines, and the government appealed.
The panel noted the case was u…