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 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.
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.
Case summaries of recently decided Third Circuit criminal law cases and other relevant updates provided by Federal Defenders and CJA Panel Attorneys.
Monday, December 18, 2017
Court upholds search under "plain feel" doctrine and expands generic robbery definition
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