Amendment 801 to § 2G2.2(b)(3)(F) is a substantive change to the Guidelines, and does not apply retroactively under § 2255

United States v. Maximus Prophet, 2021 WL 800384 (Mar. 3, 2021), 

https://www2.ca3.uscourts.gov/opinarch/183776p.pdf

           Prior to 2016, a Circuit split arose over whether the Guideline enhancement under § 2G2.2(b)(3)(F) for distribution required a finding of mens rea.  In 2016, the Sentencing Commission promulgated Amendment 801, revising the language in subsection (F) to state “If the defendant knowingly engaged in distribution.” U.S. Sent'g Guidelines Manual app. C, amend. 801.

          Prophet filed motions seeking relief under both § 2255 and § 2241 in October 2017, arguing that the amendment should apply retroactively.  The district court adopted the report and recommendation of the magistrate which found that the amendment was not retroactive. 

          To begin, the Court found that the appeal was not moot, despite Prophet’s release, because he remained on supervised release and a resentencing could merit credit against that term. 

          Moving to the substantive issue, the Court began with the legal standard for retroactive application of an amendment:  “a post-sentencing amendment to a sentencing guideline or its comments should be given effect if it ‘clarifies’ the guideline or comment in place at the time of sentencing.  If, however, the amendment effects a substantive change in the law, the defendant does not receive the benefit of the change.” (cleaned up) (quoting United States v. Marmolejos, 140 F.3d 488, 490 (3d Cir. 1998)).  This determination is made by reference to “the language of the amendment, the amendment's purpose and effect, and whether, as a matter of construction, the guideline and commentary in effect at that time is really consistent with the amended manual.” Id. at 491. 

          In concluding that Amendment 801 is not clarifying or retroactive, the Court found that 1. Adding a mens rea to the actual text rather than the commentary suggested aa substantive change; 2. The amendment did not fill an explanatory gap, but changed the application of the enhancement; 3. The purpose of the amendment, that “Based on testimony, public comment, and data analysis, the Commission determined that the 2-level distribution enhancement is appropriate only in cases in which the defendant knowingly engaged in distribution,” suggests that the earlier view was that a finding of knowledge was not required, and 4. The description of the change as “generally adopt[ing] the approach of the Second, Fourth, and Seventh Circuits” which had required a showing of knowledge to apply the enhancement, signified the amendment “is effectuating a change that adds something new.”

          Of note:  The circuit split as to the meaning or the application of the Guideline, and resolving an ambiguity may indicate either a clarification or a substantive change, and the Commission’s word choice between “clarification” and “revision” is of little importance.

Blog post written by: Christy Martin

ATT HAR / HAR Crimes of Violence under Section 924(c); Good Faith Exception to Warrant Requirement; Confrontation Clause on Work involving Collaboration

United States v. Walker, 2021 WL 833994 (Mar. 5, 2021) (Jordan, Krause, Roth), 

https://www2.ca3.uscourts.gov/opinarch/154062p.pdf

          In Walker, the Third Circuit ruled that both Hobbs Act robbery and attempted Hobbs Act robbery are 924(c) predicates.  Although Walker itself involved only a question of attempted Hobbs Act robbery, the issue of substantive Hobbs Act robbery remained undecided after an earlier decision in United States v. Copes was issued unpublished.  The Court rejected Walker’s argument that  Hobbs Act robbery cannot be a crime of violence because it can be completed by taking money from a victim “through fear of injury to the victim's intangible property” without the use or threatened use of force.  Looking to the history of the statute, the Court found that a physical act is a key component of the offense, and that “a non-forcible taking based on fear of injury to intangible property would not be sufficient to satisfy the force requirement of Hobbs Act robbery, since Hobbs Act robbery is simply a common law robbery that affects interstate commerce.” 

          Next, the Court looked to the elements of attempt: 1. an act with the intent to violate the statute, and 2. an act believed to be a substantial step in the commission of the crime; and found those elements aligned with the force element of a 924(c) crime of violence, “an element the use, attempted use, or threatened use of physical force.”  Essentially the Court held that an attempted attempt at use of force, is an “attempted use” of force.  While agreeing that “an intent to act” is not the same as an “attempt to act,” the Court found that the Congressional intent behind the statute “meant for all attempted crimes of violence to be captured by the elements clause of § 924(c), and courts are not free to disregard that direction and hold otherwise.’

          Note: There remains a circuit split on whether attempted HAR is a 924(c) predicate.  See United States v. Taylor, 979 F.3d 203, 209-10 (4th Cir. 2020).

          Additionally, the Court held that cell site location information (CSLI) evidence obtained without warrant came within the “good faith” exception to exclusionary rule, where government agents obtained the evidence in reliance on then-valid judicial order, which was issued in accordance with then-valid statute and then-binding appellate authority, prior to Carpenter v. United States, 138 S. Ct. 2206 (2018), which held that compliance with the Stored Communications Act alone is not sufficient to legally access historical cell-site records because the showing required by the government does not meet the probable cause standard required for a warrant.

          Finally, the Court held that the testimony of an investigator regarding the CSLI did not violate the Confrontation Clause because 1. the witness was arguably discussing his own work, and 2. any error was not plain where there was no consensus concerning the bounds of the Confrontation Clause when multiple people collaborate to make a testimonial statement. 

Blog post written by: Christy Martin