Third Circuit Finds Defendant Was Not Seized Where He Briefly Paused and Raised Hands Before Fleeing

In United States v. Amos, ---F. 4th---, 2023 WL 8636910 (3d Cir. Dec. 14, 2023), the Third Circuit affirmed a district court's denial of a defendant's motion to suppress.  Officers observed the defendant, Shiheen Amos, near the scene of a reported assault.  The officers approached Mr. Amos in a marked patrol car with the lights running and ordered Mr. Amos to put his hands up.  According to the police, Mr. Amos put his hands halfway up and stopped for approximately one second before running away.  When an officer caught up to Mr. Amos and handcuffed him, a handgun fell out of his pocket.  He was charged with being a felon in possession of a firearm and moved to suppress the handgun, which the district court denied.

The question on appeal was whether Mr. Amos was seized by the officers before he starting running.  The Third Circuit found he was not.  The Court first found there was a show of authority because the officers drove toward Mr. Amos with their lights on and ordered him to put his hands up, a situation in which no reasonable person would feel free to leave.  The Court nevertheless found that Mr. Amos was not seized because his "one-or two-second pause and halfway hand raise did not manifest submission to the officer's show of authority."  In so holding, the Court relied on earlier caselaw stating that a "momentary pause" does not qualify as submission to an officer's show of authority.

The Third Circuit did remand the case for resentencing, however, because Mr. Amos received an enhancement based on a prior Pennsylvania aggravated assault conviction that no longer qualifies as a categorical crime of violence under United States v. Jenkins, 68 F.4th 148 (3d Cir. 2023).

A copy of the opinion is available at: https://www2.ca3.uscourts.gov/opinarch/203298p.pdf.

Third Circuit Deems Armed Bank Robbery a "Crime of Violence" Under 18 U.S.C. § 924(c)

In United States v. Jordan, ---F. 4th---, 2023 WL 8590446 (3d Cir. Dec. 12, 2023), the Third Circuit deemed armed bank robbery, in violation of 18 U.S.C. § 2113(d), a "crime of violence" for purposes of 18 U.S.C. § 924(c).  Section 2113(d) states: "Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined under this title or imprisoned not more than twenty-five years, or both."

The Jordan Court first found that the bank robbery statute is divisible and creates several federal bank robbery offenses.  Section 2113(a) and (b) are divisible into separate offenses.  Section 2113(a) is also internally divisible into bank robbery by (1) "force and violence, or by intimidation" and (2) by "entering . . . any bank . . . with intent to commit . . . any felony . . . or any larceny."  Finally, Section 2113(d), the armed bank robbery provision, is divisible into "crimes predicated on subsection (a) and those predicated on subsection (b)."  

Because Section 2113(d) is divisible, the Court applied the modified categorical approach and determined the defendant was convicted of the version of armed bank robbery predicated on bank robbery by force, violence, or intimidation.  The Court then reaffirmed its earlier holding in United States v. Johnson, 899 F.3d 191 (3d Cir. 2018), that this version of bank robbery is a categorical "crime of violence" under the elements clause of § 924(c).  In so doing, the Court rejected the defendant's argument that Borden v. United States, 141 S. Ct. 1817 (2021), overruled Johnson.  It also rejected a new argument about the elements of the bank robbery statute because the argument was not made in Johnson and Johnson is the law of the Circuit.

A copy of the opinion is available at: https://www2.ca3.uscourts.gov/opinarch/222153p.pdf.

Third Circuit Upholds Sentencing Commission's Definition of "Serious Bodily Injury" in Commentary to Aggravated Assault Guideline

In United States v. Caraballo, ---F. 4th---, 2023 WL 850448 (3d Cir. Dec. 8, 2023), the Third Circuit upheld the Sentencing Commission's definition of "serious bodily injury" in the commentary to USSG § 2A2.2, the guideline for aggravated assault.  The Court first found that the term "serious bodily injury" is genuinely ambiguous because the word "serious" has several potential meanings, each of which are reasonable.  The Court then found that the definition contained in the commentary—"an injury involving extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty; or requiring intervention such as surgery, hospitalization, or physical rehabilitation"—is reasonable and therefore entitled to deference under Kisor v. Wilkie, 139 S. Ct. 2400 (2019) and United States v. Nasir, 17 F.4th 459 (3d Cir. 2021) (en banc).  Finally, the Court found that the District Court did not clearly err in finding serious bodily injury where the victim sustained three stab wounds and a broken jaw in the assault.

A copy of the opinion is available at: https://www2.ca3.uscourts.gov/opinarch/221976p.pdf.

Third Circuit Dismisses Claim of Legal Innocence Under Jones v. Hendrix

In Voneida v. Johnson, ---F. 4th---, 2023 WL 8462455 (3d Cir. Dec. 7, 2023), the Third Circuit dismissed a postconviction claim of legal innocence for lack of jurisdiction under Jones v. Hendrix, 599 U.S. 465 (2023).  The petitioner, Steven Voneida, was convicted of transmitting threats in interstate commerce, in violation of 18 U.S.C. § 875(c), in 2008.  In 2015, Mr. Voneida filed a habeas petition under 28 U.S.C. § 2241 arguing that his conviction was no longer valid because it relied on an interpretation of the threats statute the Supreme Court rejected in Elonis v. United States, 575 U.S. 723 (2015).  In so doing, Mr. Voneida relied on the Third Circuit's decision in In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997), which held that the "savings clause" in 28 U.S.C. § 2255(e) allows petitioners to raise claims of legal innocence through § 2241 when § 2255 proves inadequate due to its restriction on second-or-successive petitions.

In Jones, however, the Supreme Court held that the bar on second-or-successive petitions does not render § 2255 "inadequate" and thereby allow petitioners to raise claims of legal innocence under § 2241.  As a result, in Voneida, the Third Circuit held that Jones officially abrogated In re Dorsainvil and closed the avenue to relief that case had opened.  The Court therefore ordered that Mr. Voneida's petition be dismissed for lack of jurisdiction.

A copy of the opinion is available at: https://www2.ca3.uscourts.gov/opinarch/221264p.pdf.

Third Circuit Holds That Brief Criminal History Check Did Not Unconstitutionally Prolong Traffic Stop

In United States v. Hunter, ---F. 4th---, 2023 WL 8405894 (3d Cir. Dec. 5, 2023), the Third Circuit held that a two-minute criminal history check did not unconstitutionally prolong an otherwise lawful traffic stop.  The defendant, Jamar Hunter, was lawfully pulled over by a Pennsylvania state trooper.  The trooper ran a license and warrant check, which came up negative.  The trooper then ran an additional criminal history check, adding one or two minutes to the stop.  When the check revealed that both Mr. Hunter and the passenger had extensive criminal histories, the trooper ordered them out of the vehicle and recovered a handgun during a Terry frisk.

On appeal, Mr. Hunter argued that the criminal history check exceeded the scope of the traffic stop and unconstitutionally prolonged it.  The Third Circuit disagreed.  It noted that under Rodriguez v. United States, 575 U.S. 348 (2015), while officers are not allowed to go off-mission and prolong traffic stops for reasons unrelated to officer safety, such as dog sniffs or extensive questioning, they are allowed to take "negligently burdensome precautions" that allow them to complete traffic stops safely.  Agreeing with the First, Fourth, Seventh, Eighth, Ninth, and Tenth Circuits, the Third Circuit held that a brief criminal history check is a permissible safety precaution that officers are allowed to conduct within the scope of a lawful traffic stop.  

The Court emphasized, however, that the criminal history check in the instant case was reasonable because it only last two minutes.  It warned that a criminal history check may become unreasonable, and therefore violative of the Fourth Amendment, if it is more than "negligently burdensome."  The Court also stated that given the potential for "mischief . . . or worse" that officer discretion creates, it is incumbent on courts to "recognize that reality and to therefore be painstaking in our attention to all the evidence presented in traffic stop cases and the circumstances out of which they arise."

In a concurrence, Judge McKee cited extensive research showing that people of color are disproportionately subjected to traffic stops as well as the risk of harm and death traffic stops portend.  He therefore calls for Fourth Amendment law to evolve to recognize these disparities and ensure "all motorists receive the same degree of protection from an officer's conscious or unconscious bias."

 The opinion is available at: https://www2.ca3.uscourts.gov/opinarch/213316p.pdf.

Third Circuit Holds That Murder in Furtherance of a Continuing Criminal Enterprise Is Not a "Covered Offense" Eligible for Resentencing Under Section 404(b) of the First Step Act

In United States v. Junius, 86 F.4th 1027 (3d Cir. 2023), the Third Circuit joined the Second, Fourth, and Sixth Circuits to hold that murder in furtherance of a continuing criminal enterprise ("CCE"), in violation of 28 U.S.C. § 858(e)(1)(A), is not a "covered offense" eligible for resentencing under Section 404(b) of the First Step Act.  A "covered offense" is an offense for which the statutory penalties were modified by the Fair Sentencing Act of 2010.  The Third Circuit found that although murder in furtherance of a CCE is predicated on a violation of a covered drug offense, the CCE offense is separate and is not a "covered offense" itself because its statutory penalties were unaffected by the Fair Sentencing Act.  The Third Circuit also held that resentencing was not required by the "sentencing package doctrine" because the defendants' sentences on the CCE offenses were not interdependent with their sentences on the covered drug offenses.

The opinion is available at: https://www2.ca3.uscourts.gov/opinarch/222208p.pdf.

Third Circuit Holds the Supreme Court's Decision in Concepcion v. United States Did Not Overrule Its Decision in United States v. Andrews

In United States v. Stewart, 86 F.4th 532, the Third Circuit considered whether the Supreme Court's decision in Concepcion v. United States, 597 U.S. 481 (2022), overruled its earlier decision in United States v. Andrews, 12 F.4th 255 (3d Cir. 2021). In Andrews, the Third Circuit held that "neither the length of a lawfully imposed sentence nor any nonretroactive changes to mandatory minimum sentences" qualifies as "extraordinary and compelling reasons" allowing a district court to grant a reduction in sentence under 18 U.S.C. § 3582(c)(1)(A)(i).  The defendant in Stewart argued that this limitation conflicted with the Supreme Court's decision in Concepcion, which held that courts considering whether to grant relief under Section 404(b) of the First Step Act may consider intervening changes of fact and law.

The Third Circuit disagreed and held that Andrews survives Concepcion.  The Court found Concepcion distinguishable because it did not address § 3582 and involved a defendant whom the government conceded was statutorily eligible for relief.  The Court therefore found that Concepcion did not address the threshold question of whether someone is eligible for a reduced sentence. The limitations on what qualifies as "extraordinary and compelling reasons" announced in Andrews therefore remain binding notwithstanding Concepcion.  

The Third Circuit nevertheless noted that the Sentencing Commission recently amended its policy statement to expand what qualifies as "extraordinary and compelling reasons" making a defendant eligible for a reduction in sentence.  The Court suggested it would consider the amendments' effect on Andrews in an appropriate case but declined to do so in Stewart.

A copy of the opinion is available at: https://www2.ca3.uscourts.gov/opinarch/222770p.pdf.

False contract certifications on otherwise quality work defrauded the Dept. of Transportation of its "property"; loss calculation remand

In United States v. Kousisis, 82 F.4th 230 (3d Cir. Sept. 22, 2023), pdf of opinion, the Third Circuit upheld wire-fraud convictions under 18 U.S.C. § 1343 for a scheme to falsely certify compliance with disadvantaged business enterprise (DBE) contracting requirements in federally financed infrastructure projects in Philadelphia. Because the defendants completed the painting and repair work required by the contracts at issue, they argued that the government failed to prove that they defrauded the Pennsylvania Department of Transportation of property, relying in part on Kelly v. United States, 140 S.Ct. 1565 (2020). The Third Circuit disagreed, holding that the defendants’ failure to abide by the DBE terms of the contracts meant that they were not legally entitled to payment, even if they performed the underlying infrastructure work. Consequently, the funds paid by Pennsylvania in accordance with the contracts were, under Kelly, the “object” or the “true purpose” of the fraud.

However, the Court vacated the sentence and remanded. The District Court had used Alpha’s profits to set the government’s loss amount. That was error where Alpha always stood to lawfully profit and so all of its gains were not ill-gotten. The Court remanded for the District Court to use a different measure for loss calculation: the value of the contracts less the value of performance. The Court emphasized that an upward variance might be necessary if this calculation understated the loss and failed to capture the real harm of depriving the DBE and broader industry of developing working relationships.

The District Court's indication of the sentence it would impose before the defendant allocuted was not reversible plain error.

 

            In United States v. Packer, 83 F.4th 193 (3d Cir. Sept. 26, 2023), https://www2.ca3.uscourts.gov/opinarch/222554p.pdf, the Third Circuit found that the Court’s indication it would impose a certain sentence before the defendant had allocuted was not reversible plain error. In a revocation proceeding, after three prior supervision modifications for methamphetamine use, the defendant was alleged to have made terroristic threats against his girlfriend. At the revocation hearing, the probation officer and girlfriend testified and also introduced various text messages from the defendant. The Court found the defendant had violated his terms of release and faced an advisory guideline range of 21 to 27 months. The Court indicated it would impose a 24-month term of imprisonment. Then, the Court permitted the defendant to speak. Then the Court imposed the 24 months with no further supervision.

            Even assuming the defendant had satisfied the first three prongs of plain error (obvious error that affected his substantial rights), the Court declined to exercise its discretion on the fourth prong, that the error “seriously affected the fairness, integrity or public reputation of judicial proceedings.” United States v. Adams, 252 F.3d 276, 282 (3d Cir. 2001), which permits a court to presume that an allocution error satisfies the fourth prong, was not dispositive. Here, unlike in Adams and other cases where the Court has reversed, the defendant was allowed to allocute and he did not add any additional mitigating factors or distinctive characteristics in that allocution.

Third Circuit grants habeas relief because defense counsel was ineffective in failing to object to judge threatening perjury charge to witness who changed his testimony

 In Rogers v. Superintendent Greene SCI, --- F.4th ----, 2023 WL 5763346 (3d Cir. Sept. 7, 2023), available here, the Third Circuit reversed the District Court's denial of habeas relief. Judge Matey, writing for the panel, found defense counsel ineffective for failing to object to the trial judge admonishing a witness who changed his story and also failing to cross-examine the witness about this change.

The case involved three men shooting and a bystander dying in the crossfire. Three eyewitnesses came forward at different times. Two men (Rogers and Hayes) were charged with the murder. Only two of the witnesses could be located by the time of trial. Hayes was tried first and acquitted. At Rogers’s trial, one of the witnesses changed his testimony, giving testimony supporting the defense by naming Hayes—not Rogers—as the first shooter. The judge excused the jury, admonished the witness for his flip-flop, and warned of the penalty for perjury, specifically saying the witness committed “[p]erjury on the record.” The judge warned [the witness] that if he was “playing some little game here,” the judge would ensure he “receive[d] a maximum consecutive sentence” for perjury. Before dismissing [the witness], the judge advised him to “[d]o some long hard thinking” before resuming his testimony, because if he “sa[id] that [Hayes shot first] again, it is [p]erjury.” Defense counsel neither objected to the judge’s actions, nor cross-examined the witness the next day when he returned to the pro-prosecution version of events.

The Third Circuit explained that Pennsylvania courts have warned against such judicial conduct for decades. And so counsel was ineffective for failing to object because she “maintained an unreasonable belief that the trial judge’s threats against [the witness] were permissible.” 

The Third Circuit also found prejudice and that the lower court’s standard to show prejudice was “contrary to . . . clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). While Strickland requires only “a reasonable probability that . . . the result of the proceeding would have been different,” the lower court wrongly used a higher outcome determinative standard: “that but for the act or omission in question, the outcome of the proceedings would have been different.”

Third Circuit Finds Reasonable Expectation of Privacy Where Defendant Had Lawful Possession of Keys to Girlfriend's Rental Car

In United States v. Montalvo-Flores, ---F. 4th---, 2023 WL 5521062 (3d Cir. Aug. 28, 2023), the Third Circuit found the defendant, Christopher Montalvo-Flores, had a reasonable expectation of privacy in a rental car, giving him Fourth Amendment standing to challenge a search of the vehicle.  The majority pointed to the fact that Mr. Montalvo-Flores was in possession of the vehicle's keys; the vehicle was locked; the vehicle had been rented by his girlfriend; and officers had seen the couple exchange the keys just prior to the search.  The majority found that Mr. Montalvo-Flores satisfied both prongs of the Katz test for Fourth Amendment standing because he expressed a subjective expectation of privacy in the vehicle and that expectation was objectively reasonable under the circumstances.  The majority also found that Mr. Montalvo-Flores's lack of a valid driver's license was immaterial to the issue of standing because a person without a driver's license can still exercise lawful dominion and control over a parked car.  

 The Court accordingly vacated Mr. Montalvo-Flores's conviction and remanded for further proceedings on his motion to suppress.  In dissent, Judge Hardiman argued that Mr. Montalvo-Flores failed to carry his burden of showing that his possession of the vehicle (vis a vis the keys) was lawful.

Third Circuit Clarifies Meaning of "Officer or Employee of the United States" in Federal Assault Statute

In United States v. Washington, ---F. 4th---, 2023 WL 5440527 (Aug. 24, 2023), the Third Circuit clarified the meaning of "officer or employee of the United States" in 18 U.S.C. § 111 and 1114(a), which make it a crime to assault such a person while they are engaged in their official duties.  The defendant, Mr. Washington, was convicted of assaulting two private contractors paid by the Federal Protective Service to protect the Social Security Administration building in Philadelphia.  The Third Circuit held that the contractors were not "officer[s] or employee[s] of the United States" because they did not hold an office of trust; their tenure was transient or fixed by agreement; their contract resembled an employment contract rather than an appointment or election; their pay was set by contract rather than law; and they were not nominated, confirmed, or appointed by a federal official such as the President of the United States or a department head.  

Because Mr. Washington did not assault an "officer or employee of the United States," and the evidence was insufficient to convict him under an alternative theory of liability, the Third Circuit reversed his conviction and remanded with instructions to enter a judgment of acquittal.

Third Circuit Vacates Sentence Based on Extrapolated Drug Weight

In United States v. Titus, ---F. 4th---, 2023 WL 5356241 (3d Cir. Aug. 22, 2023), the Third Circuit found that a district court erred when calculating the converted drug weight for sentencing under U.S.S.G.§ 2D1.1.  To calculate the total amount of drugs the defendant had unlawfully prescribed, the District Court extrapolated from a sample of 24 files and found thousands of additional prescriptions to be unlawful.  That analysis was insufficient, the Third Circuit held, because "the government never showed that the sample was large enough to be reliably representative of the remaining thousands of prescriptions."  The Third Circuit accordingly vacated the defendant's sentence and remanded for resentencing.

Third Circuit Deems Pennsylvania Robbery Under 18 Pa. Cons. Stat. § 3701(a)(1)(ii) a "Crime of Violence" for Guidelines Purposes

In United States v. Henderson, ---F. 4th---, 2023 WL 5211335 (3d Cir. Aug. 15, 2023), the Third Circuit found that Pennsylvania robbery under 18 Pa. Cons. Stat. § 3701(a)(1)(ii) is a categorical "crime of violence" under the federal Sentencing Guidelines.  The Court reiterated its earlier holding that the Pennsylvania robbery statute is divisible for purposes of the categorical approach.  It then found that the version of the offense criminalized at § 3701(a)(1)(ii) counts as a "crime of violence" under the elements clause of U.S.S.G. § 4B1.2(a)(1) because it necessarily involves the threatened use of force against the person of another.  The Court did not reach the alternative question of whether the offense also qualifies as a "crime of violence" under § 4B1.2(a)(1)'s enumerated offenses clause.

Third Circuit Finds No Convergence or Personal Benefit Requirement in Federal Wire Fraud Statute

In United States v. Porat, ---F. 4th---, 2023 WL 5009238 (3d Cir. 2023), the Third Circuit clarified what the government has to prove to prove someone guilty of wire fraud, in violation of 18 U.S.C. §1343.  First, the Court held that the wire fraud statute does not require proof that the defendant sought to personally obtain money or property from the victims.  The Court agreed with the Second Circuit that the "identify of the ultimate beneficiary is not dispositive" and the statute is broad enough to encompass "schemes by defendants to obtain money for the benefit of a favored third party."  

Second, the Court joined the majority of other Circuits in holding that the wire fraud statute does not require the defendant to deceive the same party he defrauds of money, rejecting a concept known as "convergence."  

Third Circuit Adopts a Two-Factor Test to Determine Whether a Private Party Was Acting as an Agent of the Government for Fourth Amendment Purposes

In United States v. Kramer, ---F. 4th---, 2023 WL 4875890 (3d Cir. 2023), the Third Circuit joined the Fourth, Ninth, Tenth, and Eleventh Circuits in adopting a two-factor test for determining whether a private party was acting as an agent of the government for Fourth Amendment purposes.  The two factors are: "(1) whether the government knew of and acquiesced in the intrusive conduct, and (2) whether the private citizen performing the search intended to assist law enforcement or acted to further her or his own legitimate and independent purposes."  The Third Circuit also joined its sister Circuits in holding that the defendant bears the burden of proving the private party was acting as an instrument of the government.  

Applying the test to the case at hand, the Third Circuit affirmed the District Court's denial of the defendant's motion to suppress.  The Court found that the Fourth Amendment was not implicated because, viewing the record in the light most favorable to the government, the defendant's then-wife searched his cellphone of her own volition without the government's knowledge or acquiescence.

The Confrontation Clause was not violated by the admission of a nontestifying codefendant’s confession that did not directly inculpate the defendant and was subject to a proper limiting instruction.

 In Samia v. United States, No. 22-196 (June 23, 2023), the Supreme Court held that the Confrontation Clause was not violated by the admission of a non-testifying co-defendant’s confession that did not directly inculpate the defendant and was subject to a proper limiting instruction.

18 U.S.C. § 2255 does not allow a prisoner asserting an intervening change in interpretation of a criminal statute to circumvent AEDPA's restrictions on second or successive § 2255 motions by filing a habeas petition under 28 U.S.C. § 2241

 In Jones v. Hendrix, Warden, No. 21-857 (June 22, 2023), the Supreme Court ruled that 18 U.S.C. § 2255 does not allow a prisoner asserting an intervening change in interpretation of a criminal statute to circumvent AEDPA's restrictions on second or successive § 2255 motions by filing a habeas petition under 28 U.S.C. § 2241. Petitioners who are restricted from filing a § 2255 petition can no longer seek relief under 28 U.S.C. § 2241 in lieu of § 2255, even if they are actually innocent or serving an illegal sentence. This is because the Supreme Court found that § 2255(e) - the savings clause - only covers individuals who literally cannot file a § 2255 motion. This holding abrogates the more favorable Third Circuit holding in In re Dorsainvil, 119 F. 3d 245, 251 (3d. Cir. 1997).

Third Circuit holds that Hobbs Act robbery is a crime of violence under 18 U.S.C. § 924(c) even when the conviction rests on aiding and abetting or Pinkerton liability

In United States v. Stevens, Appeal No. 21-2044 (3d Cir. June 12, 2023), Appellant Stevens challenged his § 924(c) conviction on two grounds. First, relying on United States v. Nedley, 255 F.2d 350 (3d Cir. 1958), Appellant argued that his conviction for Hobbs Act robbery must be vacated because the District Court failed to charge the jury on two elements previously read into the statutory definition of Hobbs Act robbery under 18 U.S.C. § 1951(b)(1) - a specific intent to steal and a carrying away of the property. But those elements are absent from the Hobbs Act’s unambiguous statutory definition of “robbery,” and the Court acknowledged today that Nedley has been abrogated by intervening Supreme Court precedent. Therefore, the Court affirmed Stevens’s Hobbs Act robbery conviction. In addition, because Stevens’s robbery conviction qualified as a “crime of violence” under 18 U.S.C. § 924(c) regardless of whether it was predicated on the Government’s aiding and abetting or its alternative Pinkerton conspiracy theory, the Court also affirmed his conviction for that offense.

Third Circuit grants as-applied constitutional challenge to 18 U.S.C. § 922(g)(1) for individual convicted of welfare fraud nearly 25 years ago

In Range v. Attorney General, Appeal No. 21-2835 (3d Cir. June 6, 2023) (en banc), Petitioner Bryan Range was prohibited from purchasing a firearm under 18 U.S.C. § 922(g)(1) by virtue of having a 1995 conviction for making false statements to obtain food stamps in violation of 62 Pa. Stat. Ann. § 481(a), a crime Pennsylvania classifies as a misdemeanor punishable by up to five years in prison. He sued seeking a declaration that § 922(g)(1) violates the Second Amendment as applied to him. The Court agreed, holding 11-4 that the government did not carry its burden of proving that disarming him is consistent with the Nation’s historical tradition of firearm regulation. There were six opinions, between the majority, concurrences, and dissents.

Potentially broad impact: The various opinions exhaustively debate whether Range has a narrow or incredibly broad impact. Here are the immediate takeaways:

(1) not all felons are covered by § 922(g)
(2) felons “like Range” are not
(3) what “like Range” means remains to be determined: minor fraud, all fraud, all nonviolent, all nonthreatening to public order when armed, all felons, other?

Stay tuned for further developments!

Resolving a circuit split, Supreme Court holds that sentence imposed under 18 U.S.C. § 924(j) can run either concurrently or consecutively to another sentence

In Lora v. United States, Case No. 22-49 (June 16, 2023), the United States Supreme Court resolved a circuit split and held that 18 U.S.C. § 924(c)’s bar on concurrent sentences does not extend to a sentence imposed under a different subsection, 18 U.S.C. § 924(j). A § 924(j) sentence therefore can run either concurrently with or consecutively to another sentence.

Supreme Court holds that when a conviction is reversed because the prosecution occurred in the wrong venue, retrial is allowed and does not violate the Double Jeopardy Clause

In Smith v. United States, Case No. 21-1576 (June 15, 2023), the United States Supreme Court held that the Constitution permits the retrial of a defendant following a trial in an improper venue conducted before a jury drawn from the wrong district. The Court found that a judicial decision on venue is fundamentally different from a jury’s general verdict of acquittal. When a jury returns a general verdict of not guilty, its decision cannot be upset by speculation or inquiry into such matters by courts. Conversely, retrial is permissible when a trial terminates on a basis unrelated to factual guilt or innocence of the offense of which the defendant is accused, e.g., juror deadlock. Similarly, the reversal of a conviction based on a violation of the Venue or Vicinage Clauses, even when styled as a “judgment of acquittal” under Rule 29, plainly does not resolve the bottom-line question of criminal culpability. In this case, then, the Eleventh Circuit’s decision that venue was improper did not adjudicate Smith’s culpability, and thus does not trigger the Double Jeopardy Clause.

Supreme Court defines when a defendant "uses" a means of identification "in relation to" a predicate offense under 18 U.S.C. § 1028A

 In Dubin v. United States, Case No. 22-10 (June 8, 2023), the United States Supreme Court considered the limits of when a defendant "uses" another person's means of identification under 18 U.S.C. § 1028A. The Court found that a defendant “uses” another person's means of identification “in relation to” a predicate offense when the use is at the crux of what makes the conduct criminal. The Government suggested a broader reading of "uses" to cover any situation where a defendant employs a means of identification to facilitate or further the predicate offense in some way. The Court found this reading too broad, finding that § 1028A(a)(1) would thus apply automatically any time a name or other means of identification happens to be part of the payment or billing method used in the commission of a long list of predicate offenses.

The sixteen-level enhancement under U.S.S.G. §2L1.2(b)(1)(A)(i) for a "drug trafficking offense" includes both completed and inchoate offenses, even conspiracies without overt acts

 In United States v. Garcia-Vasquez, Appeal No. 22-2219, the Third Circuit held that the sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) (2015) applies to anyone with a prior conviction for a “drug trafficking offense.” The enhancement’s text captures a wide swath of “offense[s],” both completed and inchoate, and even conspiracies without overt acts. Therefore, the Court held it need not consider the Guideline’s commentary or the rule of lenity and affirmed the district court's application of the enhancement.

Third Circuit affirms District Court's suppression of evidence where Government forfeited potentially winning argument

 In United States v. Donte Dowdell, Appeal No. 21-3251, the Government appealed the District Court's order granting the defendant's motion to suppress evidence. In the District Court, the government argued that the law enforcement officer who stopped Dowdell had reasonable suspicion to believe crime was afoot, which justified the officer opening Dowdell's car door. After opening the door, the officer saw in bulge in Dowdell's jacket at chest-level. He immediately ordered Dowdell out of the car and patted him down, revealing a fully loaded semi-automatic firearm with a bullet in the chamber. The District Court granted Dowdell's suppression motion after finding that the government failed to establish reasonable suspicion.

After ruling that the evidence would be suppressed because the government failed to establish that the officer opened the door without violating Dowdell’s Fourth Amendment rights, the District Court suggested that the government might have made an alternative argument that Pennsylvania v. Mimms, 434 U.S. 106 (1977), and Maryland v. Wilson, 519 U.S. 408 (1997), could be extended to permit officers to order people out of a car during a valid traffic stop without requiring reasonable suspicion to do so. Because the government failed to raise this alternative argument, however, the District Court found it had been waived and refused to rule on the issue.

On appeal, the Third Circuit acknowledged that it had not yet decided whether police officers may open car doors during routine traffic stops based on less than reasonable suspicion without violating the Fourth Amendment. The District Court suggested that the Supreme Court’s decision in Wilson might be extended to cover those circumstances. But the government never raised or litigated that argument in the District Court. So the argument was forfeited. And the
argument the government did make—that the police officer had reasonable suspicion to believe crime was afoot that justified his opening the car door—was invalid. The Court further held that the District Court did not abuse its discretion when it did not excuse the government’s forfeiture. For these reasons, the Court found the rule of law required it to affirm the order of the District Court.

Circuit Judge Fisher, in a dissenting opinion, would have vacated the District Court's order and remanded for further proceedings. Judge Fisher argued that the District Court's waiver determination was based on an incorrect application of the law. Nor was it clear to Judge Fisher that the government failed to preserve a Wilson-extension argument below. Even if the government had failed to properly preserve the Wilson-extension argument, Judge Fisher would have reversed the District Court's suppression order because "courts are obligated to apply the legal principles they identify as correct, and the District Court correctly recognized that officers do not require reasonable suspicion to open a car door when conducting a traffic stop."

The subtraction requirement in 18 U.S.C. § 3583(h)'s final clause cannot be followed where a defendant is serving a life term of supervised release

 In United States v. Simmons, Appeal No. 22-2485, the Third Circuit resolved an open question regarding 18 U.S.C. § 3583(h)'s subtraction clause. Agreeing with the majority of circuits to consider the issue, the Court held that § 3583(h)'s subtraction requirement cannot be followed where a defendant has a life term of supervision because it is impossible to quantify a life sentence. 

The Court also upheld the district court's re-imposition of a lifetime term of supervised release upon revocation despite the defendant's significant mental health issues.

Two wins in the Third Circuit interpreting whether PA aggravated assault statute is an ACCA predicate: United States v. Marc Harris and United States v. Samuel Jenkins

United States v. Marc Harris, https://www2.ca3.uscourts.gov/opinarch/171861p.pdf 

United States v. Samuel Jenkins, https://www2.ca3.uscourts.gov/opinarch/182222p.pdf

In United States v. Harris, -- F.4th --, 2023 WL 3494771 (3d Cir. May 17, 2023), the Third Circuit held that because first degree aggravated assault, 18 Pa. Con. Stat. § 2702(a)(1), requires proof that the defendant inflicted serious bodily injury upon his victim, but does not require proof that the injury result from a defendant’s “use of force,” it is not categorically a violent felony under the ACCA elements clause.

The decision was controlled by the Court’s decision in United States v. Mayo, 901 F.3d 218, 230 (3d Cir. 2018) which decided that (a)(1) is not categorically a violent felony. Since Mayo, the Third Circuit petitioned the Pennsylvania Supreme Court for a controlling decision on 18 Pa. Con. Stat. § 2702(a)(1), which that Court granted. The Pennsylvania Supreme Court held that attempted or actual infliction of serious bodily injury is a required element, but the perpetrator need not use force to inflict such an injury. Criminal liability is not tethered “to the use or attempted use of physical force but, instead, to the infliction of a specified harm, i.e., serious bodily injury, regardless of the means by which the harm is inflicted.”  United States v. Harris, 289 A.3d 1060, 1074 (Pa. 2023). Thus, the Third Circuit’s decision in Mayo was correct and would be applied to Harris. Note that the opinion called the outcome “counterintuitive”: “Although excluding aggravated assault under Section 2702(a)(1) from ACCA’s scope may be counterintuitive, it is the consequence of the Act’s restricted, and perhaps sometimes under-inclusive, application.” 

In United States v. Jenkins, -- F.4th --, 2023 WL 3516086 (3d Cir. May 18, 2023), the Third Circuit held that because 18 Pa. Cons. Stat. § 2702(a)(3), second-degree aggravated assault of a protected individual, can be violated by a “failure to act” (the minimum conduct criminalized by the statute), convictions under this sub-section are not categorically “violent felonies” under the ACCA elements clause. The Court took no position on if section (a)(3) can be violated by offensive touching. Because the state statute was overbroad, the realistic probability test—which requires defendants to show “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime” – did not apply. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). Note that the final section of the opinion discusses the “bizarre” results that the categorical approach necessitate: “The categorical approach requires this upside-down result even though criminal sentences should be governed by justice and fairness, not formalism.”

A recap of other decisions regarding PA aggravated assault:

Not a violent felony:

First-degree aggravated assault, 18 Pa. Cons. Stat. § 2702(a)(1), “attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life (can be violated by omission). United States v. Mayo, 901 F.3d 218, 230 (3d Cir. 2018).

Categorically a crime of violence under the Sentencing Guidelines:

Second-degree aggravated assault, 18 Pa. Cons. Stat. § 2702(a)(4), “attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon” (bodily-injury + deadly-weapon elements indicates that the provision can be violated only through the use or attempted use of physical force, not by omission). United States v. Ramos, 892 F.3d 599, 611–12 (3d Cir. 2018).

Third Circuit amends local rules: new 5:00 p.m. E.S.T. deadline for filings (electronic and otherwise) will become effective on July 1, 2023.

The Third Circuit adopted amendments to its Local Appellate Rules (L.A.R.), creating a new L.A.R. 26.1 and modifying L.A.R. Misc. 113.3(c). The amended rules create a uniform 5:00 p.m. E.T. deadline for filings (electronic and otherwise) and will become effective on July 1, 2023.

Press release: 

extension://elhekieabhbkpmcefcoobjddigjcaadp/https://www.ca3.uscourts.gov/sites/ca3/files/FinalOrderAdoptingRule26.1.pdf

Supreme Court win: Percoco v. United States

Percoco v. United States, 598 U.S. ----, --- S.Ct. ----, S.Ct. No. 21-1158, 2023 WL 3356527 (May 11, 2023)

https://www.supremecourt.gov/opinions/22pdf/21-1158_p8k0.pdf

Defense win! Percoco was convicted, among other offenses, of honest services fraud under Second Circuit law that private citizens owe a duty of honest services to the public even when not in public employ or delegated public responsibilities if they “dominated and controlled any governmental business” and “people working in government actually relied on” them.  The Supreme Court found this theory void for vagueness and reversed and remanded because the instructional error was not harmless.

Supreme Court win: Ciminelli v. United States

Ciminelli v. United States, 598 U.S. ---- --- S.Ct. ----, S.Ct. No. 21-1170, 2023 WL 3356526 (May 11, 2023)

 https://www.supremecourt.gov/opinions/22pdf/21-1170_b97d.pdf

 

Defense win: Writing for a unanimous Supreme Court, Justice Thomas held that the Second Circuit’s right-to-control theory cannot form the basis for a conviction under the federal fraud statutes because the right to valuable economic information needed to make discretionary economic decisions is not a traditional property interest. The government conceded that the right-to-control theory was invalid but sought to save the conviction on remand under a fraudulent inducement theory: that Mr. Ciminelli had committed property fraud by engaging in a fraudulent scheme (colluding with the insiders connected to Andrew Cuomo’s administration to be a preferred bidder for contracts in a one billion dollar infrastructure investment campaign) for the purposes of obtaining money (the contract value). This fraudulent inducement theory is questionable as it would make it a federal fraud to lie to obtain property even if there was no deprivation/wronging/harming/loss/even intended loss.

US Sentencing Commission video recordings of hearings on proposed amendments to US Sentencing Guidelines

February 23, 2023

Topics: Compassionate release

February 24, 2023

Topics: Sex abuse of a ward, acquitted conduct

https://www.ussc.gov/policymaking/meetings-hearings/public-hearing-february-23-24-2023

(5:51 on February 23 starts the panel of formerly incarcerated individuals re: compassionate release)

March 7, 2023

Topics: Firearms offenses, fake pills, First Step Act (drug offenses), Circuit conflicts

March 8, 2023

Topics: Career offender, criminal history

https://www.ussc.gov/policymaking/meetings-hearings/public-hearing-march-7-8-2023

NOTICE: On February 23 and 24, 2023, the Sentencing Commission is holding hearings on proposed amendments to the US Sentencing Guidelines on the topics of: 

• Reductions in Sentencing/aka Compassionate Release
• Prohibition of Use of Acquitted Conduct at Sentencing
• Guidelines for Sex Abuse of a Ward

The hearings will stream live at this link:  two days of hearings 

Written testimony is available at that link also, and Defender witness testimony is also available on the website of Sentencing Resource Counsel, here. 

There will be additional hearings on March 7 and 8, on Firearms, Fake Pills and the First Step Act-Drug Offenses, Circuit Conflicts, Career Offender, and Criminal History.