DEFENSE LINK MONTHLY NEWSLETTER FOR CJA PANEL ATTORNEYS. Johnson Update LEIGH M. SKIPPER, CHIEF FEDERAL DEFENDER DECEMBER 2017 INSIDE THIS ISSUE

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1 DEFENSE LINK MONTHLY NEWSLETTER FOR CJA PANEL ATTORNEYS LEIGH M. SKIPPER, CHIEF FEDERAL DEFENDER DECEMBER 2017 INSIDE THIS ISSUE Johnson Update Page 1 Recent Third Circuit and Supreme Court Cases Page 6 Welcome New CJA Panel Attorneys In October, the Court approved new members to the CJA Panel for the Eastern District of Pennsylvania. We extend a warm welcome to our newest CJA Panel attorneys. The Federal Defender Office will host an Orientation Program for the new Panel members on Thursday, January 11, We also will offer new CJA attorneys the opportunity to be matched with a mentor through our Voluntary Mentor Project. If you are interested in serving as a mentor to a new CJA Panel member, please Nina C. Spizer, Chief, Trial Unit, at Nina_C_Spizer@fd.org. Johnson Update Andrew J. Dalack, Research & Writing Attorney In June 2015, the Supreme Court issued a monumental opinion narrowing the scope of an oft-used recidivist enhancement called the Armed Career Criminal Act ( ACCA ), codified at 18 U.S.C. 924(e). Johnson v. United States, 135 S. Ct (2015). Briefly, the ACCA transforms a violation of 18 U.S.C. 922(g) ( felon in possession of a firearm ) into an offense carrying a 15-year mandatory minimum sentence if the defendant has three prior convictions for a serious drug offense and/or a violent felony. Before Johnson, a violent felony meant any crime punishable by imprisonment for a term exceeding one year that (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical serious injury to another. 18 U.S.C. 924(e)(2)(B) (emphasis added). The italicized portion of 924(e)(2)(B)(ii) is commonly referred to as the ACCA s residual clause, and 924(e)(2)(B)(i) has as an element the use of force is commonly referred to as the force clause. In Johnson, the Supreme Court struck the residual clause as unconstitutionally vague. Post-Johnson, a prior conviction may be an ACCA predicate only if it qualifies as a serious drug offense under JOHNSON CONTINUED ON PAGE 2 Editors Jennifer Nimmons Herman Attorney Advisor Kimberly A. Campoli Paralegal/Panel Administrator Federal Community Defender Office for the Eastern District of PA Helen Marino, First Assistant Federal Defender Nina Carpiniello Spizer, Chief, Trial Unit Elizabeth Toplin, Assistant Chief, Trial Unit Brett Sweitzer, Chief of Appeals

2 DECEMBER 2017 PAGE 2 924(e)(2)(A), or if it fits the narrowed definition of a violent felony, i.e., the felony either (1) requires the use of force against the person of another, (2) is generic burglary, arson, or extortion, or (3) necessarily involves the use of explosives. Practitioners should recall that in determining whether an offense qualifies as a crime of violence or violent felony, courts must apply the categorical approach. See Descamps v. United States, 133 S. Ct. 2276, 2283 (2013) (applying the categorical approach to the ACCA) (internal quotation marks omitted). Under the categorical approach, courts must first ascertain the least culpable conduct hypothetically necessary to sustain a conviction under the statute. United States v. Dahl, 833 F.3d 345, 350 (3d Cir. 2016) (internal citations and quotations omitted). Then, the court must assess whether such least-culpable conduct necessarily satisfies the definition of a predicate crime-of-violence left untouched by Johnson (2015) and its progeny. The holding in Johnson, however, is not limited to the ACCA. The ACCA s now-void residual clause also appears in the definition of a crime of violence under other recidivist and firearm-related enhancements, such as 4B1.2(a)(2) of the (old) U.S. Sentencing Guidelines, 18 U.S.C. 16(b), and 18 U.S.C. 924(c)(3)(b). Notably, the Third Circuit extended Johnson to nullify the residual clause contained at 16(b) (see Baptiste v. Attorney Gen., 841 F.3d 601 (3d Cir. 2016)) and, in August 2016, the U.S. Sentencing Commission rewrote 4B1.2(a)(2) without the residual clause. Since Johnson, there have been other significant changes in how 924(c), 4B1.2(a), and 924(e) function. The list of offenses that could qualify as crimes of violence has shrunk in some ways, and expanded in others. This is a summary of some of these developments, most of which are particular to the Eastern District of Pennsylvania and the Third Circuit. Third Circuit Avoids Deciding Whether 924(c) s Residual Clause is Void by Holding Categorical Approach Inapplicable to 924(c) (With Respect to Brandishing and Discharge Cases) In 2016, the Third Circuit declined to resolve whether the residual definition of a crime of violence under 18 U.S.C. 924(c)(3)(B) was rendered invalid by Johnson. Instead, the Circuit held that the categorical approach does not apply to 924(c), at least in brandishing and discharge cases. The Court held that Hobbs Act robbery (18 U.S.C. 1951(a)) and interstate murder-for-hire (18 U.S.C. 1958) qualify as crimes of violence under 924(c)(3)(A) ( the force clause ) whenever a jury has found at trial (or the defendant has admitted in pleading guilty) that the defendant brandished or discharged a firearm in furtherance thereof. See United States v. Robinson, 844 F.3d 137 (3d Cir. 2016) (brandishing); United States v. Galati, 844 F.3d 152 (2016) (discharging). JOHNSON CONTINUED ON PAGE 3

3 DECEMBER 2017 PAGE 3 Jeffrey M. Lindy, Esquire CJA Panel Representative Eastern District of PA Please contact Jeff Lindy with any CJA issues, comments, or concerns: Lindy & Tauber 1221 Locust Street Third Floor Philadelphia, PA (215) jlindy@lindylawfirm.com In Robinson, the Circuit explained that [t]he question is [] not is Hobbs Act robbery a crime of violence? but rather is Hobbs Act robbery committed while brandishing a firearm a crime of violence? 844 F.3d at 144 (emphasis in original). According to the Circuit, [t]he answer to this question must be yes. Id. Similarly, in Galati, the Circuit reiterated that the use of a firearm [in the commission of an offense] indicates the use, attempted use, or threatened use of physical force, which satisfies 924(c)(A). 844 F.3d at 152. Thus, the Circuit instructed courts to look at the elements of the predicate offense and 924(c) together, in combination with one another, to see if, between the two, an element of force was present. Accordingly, under this approach, it appears that any crime can be deemed a crime of violence under 924(c)(3)(A) whenever a gun is brandished or discharged in the commission thereof. The same cannot (yet) be said for use/carry 924(c) cases, as use/carry unlike brandishing and discharge does not necessarily involve force. Although rehearing petitions have been denied in each case, a certiorari petition remains pending in Galati. Accordingly, defense attorneys should continue to preserve this issue by moving to dismiss 924(c) counts on the ground that the predicate does not categorically match the definition of a crime of violence under 924(c)(3)(A). A Statute Criminalizing Reckless Conduct Cannot Constitute a Crime of Violence Regarding the definition of a violent felony under the ACCA force clause ( 924(e)(2)(B)(i)) and a crime of violence under the Guidelines force clause ( 4B1.2(a)(1)), the Third Circuit has ruled that only crimes requiring intentional conduct may suffice. See United States v. Otero, 502 F.3d 331, 335 (3d Cir. 2007); Tran v. Gonzales, 414 F.3d 464, 470 (3d Cir. 2005). Several district courts JOHNSON CONTINUED ON PAGE 4

4 DECEMBER 2017 PAGE 4 have applied this precedent to find that offenses criminalizing reckless conduct cannot qualify as crime-ofviolence predicates. See, e.g., United States v. Harris, 205 F. Supp. 3d 651, 672 (M.D. Pa. 2016) (citing Otero to find that a conviction based upon recklessness cannot be a violent felony ); United States v. Fisher, No. CR , 2017 WL , at *6 (E.D. Pa. Apr. 21, 2017) (Kelly, Sr. J.) (same); United States v. Weygandt, No. 09-cr-24, 2017 WL , at *2 (W.D. Pa. Mar. 2, 2017). Critically, the government has been arguing that offenses criminalizing reckless conduct may qualify as crimes of violence despite Otero and Tran because of Voisine v. United States, 136 S. Ct (2016). This position is wrong and easily assailable. In Voisine, the Supreme Court clarified what constitutes the use of physical force against a domestic relation under 18 U.S.C. 921(a)(33)(A) the definitional provision of a misdemeanor crime of domestic violence under 922(g)(9), which prohibits individuals convicted of domestic-violence misdemeanors from possessing firearms. Specifically, the Court explained that, naturally read, a misdemeanor crime of domestic violence encompasses acts of force undertaken recklessly i.e. conscious disregard of a substantial risk of harm. Voisine, 136 S. Ct. at The Court expressly tethered its decision to the conclusion that Congress intended for 921(a)(33)(A) to incorporate the common-law definition of force, which includes all nonconsensual touching. Id. at 2283 n.1. In contrast, the Supreme Court has consistently refused to apply the definition of common-law force to the ACCA and therefore the Guidelines calling it a comical misfit with the term violent felony. Johnson v. United States, 559 U.S. 133, 145 (2010). Put differently, in addition to the fact that Voisine has nothing to do with 4B1.2(a)(1) or the ACCA analogue, its logic is inapplicable to this context because Voisine expressly interpreted the contours of common-law force a term of art that, when applied to this context, produce[s] nonsense. Johnson, 559 U.S. at (refusing to apply common-law force to the ACCA force clause because we do not force term-of-art definitions into contexts where they plainly do not fit and produce nonsense ). Further, the Supreme Court even acknowledged in Voisine that a majority of circuit courts have concluded that 18 U.S.C. 16(a) which defines a crime of violence in a manner virtually identical to 4B1.2(a)(1) and the ACCA force clause requires intentional conduct. Voisine, 136 S. Ct. at 2280 n.4. Notably, the Voisine Court took care to note that it had not overturned those circuit precedents. Id.; see also Baptiste, 841 F.3d at 623 n.5. Accordingly, if a statute criminalizes reckless conduct, then the offense cannot qualify as a crime-of-violence predicate under 18 U.S.C. 16(a), 924(e)(2)(B)(i) or U.S.S.G. 4B1.2(a)(1). And at least one district court has expressly rejected the government s Voisine argument. See, e.g., United JOHNSON CONTINUED ON PAGE 5

5 DECEMBER 2017 PAGE 5 States v. Haines, 2017 WL , at *5 (E.D. Pa. Oct. 31, 2017) (Rufe, J.) (holding that 4B1.2(a)(1) does not encompass the reckless conduct criminalized by Pennsylvania s aggravated assault statute despite Voisine). Intentional Infliction of Bodily Injury Practitioners may recall the argument that a statute criminalizing the intentional infliction of bodily injury was not the same as one requiring the use of force against another. The premise was that one could inflict bodily injury without employing force, e.g., by setting a trap or poisoning another. But the Third Circuit rejected that argument recently in United States v. Chapman, 866 F.3d 129 (3d Cir. 2017), which held that the use of physical force, as used in 4B1.2(a)(1), involves the intentional employment of something capable of causing physical pain or injury to another person, regardless of whether the perpetrator struck the victim s body. (emphasis added.) Significantly, Chapman leaves open the possibility that the infliction of injury through acts of neglect or omission still fails to satisfy the force clause. PA First-Degree Robbery Indivisible? Lastly, there have been important developments regarding the government s ability to use Pennsylvania first-degree robbery as a violent-felony predicate. First-degree robbery in Pennsylvania is found at 18 Pa. C.S. 3701(a)(1)(i)-(iii). The government has conceded that the version of first-degree robbery contained at 3701(a)(1)(iii) is not a violent felony, but maintains that the other two subsections do qualify. Thus, the critical question is whether the statute is divisible, an issue that the Supreme Court clarified in Mathis v. United States, 136 S. Ct (2016). Prior to Mathis, the Third Circuit held that Pennsylvania first-degree robbery was obviously divisible because it listed disjunctively-phrased alternatives to committing the offense. United States v. Blair, 734 F.3d 218, 225 (3d Cir. 2013). But this approach has been abrogated by later Supreme Court precedent on divisibility. See Mathis, 136 S. Ct. at 2247 ( Finally, a statute s listing of disjunctive means does nothing to mitigate the possible unfairness of basing an increased penalty on something not legally necessary to a prior conviction. ) (emphasis added). Instead, the relevant inquiry is whether a jury, when presented with alternative means of committing an offense, need unanimously agree on one in order to find the defendant guilty. Id. at Put differently, if a jury must unanimously agree on a particular fact or circumstance JOHNSON CONTINUED ON PAGE 6

6 DECEMBER 2017 PAGE 6 in order to convict, then it is an element of a distinct offense. If not, then it is merely one means of committing a single, indivisible offense. Id. at Of course, if a statute is indivisible, then a court may not look into underlying records of any kind to determine what version of the offense formed the basis for the alleged predicate-conviction, and must consider whether the statute as a whole qualifies as a crime of violence. In the case of first-degree robbery, the FCDO has prepared a comprehensive analysis of why the statute is always indivisible. One district court has held that the statute is indivisible when a defendant is charged with all three subsections and enters a guilty plea to first-degree robbery, generally, without specifying a subsection. See, e.g., United States v. Singleton, --- F. Supp. 3d ---, 2017 WL , at *7-8 (E.D. Pa. Apr. 26, 2017) (McHugh, J.) (explaining that where the Commonwealth charges all first-degree Pennsylvania robbery subsections, and the relevant documents that the court is permitted to inspect fail to specify a subsection, the offense constitutes one indivisible crime that does not qualify as a violent felony). Another determined that the offense is indivisible and that Mathis abrogated Blair. See United States v. Thorn, 2017 WL , at *4 (E.D. Pa. Oct. 19, 2017) (Beetlestone, J.). Ultimately, this is a rapidly developing area of the law, and practitioners are highly encouraged to reach out to the FCDO s Johnson team for advice on how to tackle recidivist enhancements that turn on alleged crime-of-violence predicates. RECENT THIRD CIRCUIT AND SUPREME COURT CASES Christofer Bates, Research & Writing Attorney SUPREME CIRCUIT I. Death Penalty / Brain Damage / Lack of Memory Dunn v. Madison, No , 2017 U.S. LEXIS 6630 (Nov. 6, 2017). No clearly established federal law bars the execution of a defendant who, as a result of brain damage, cannot remember his crime. RECENT CASE UPDATES CONTINUED ON PAGE 7

7 DECEMBER 2017 PAGE 7 THIRD CIRCUIT I. Sentencing Guidelines / Criminal History Points / Single Arrest Rule / Summons United States v. Ley, --- F.3d ---, 2017 U.S. App. LEXIS (3d Cir. Nov. 22, 2017). When computing a defendant s criminal history category, the Sentencing Guidelines requires the cumulative counting of sentences for offenses separated by an intervening arrest. U.S.S.G. 4A1.2(a)(2). This case holds that for purposes of Section 4A1.2(a)(2), an arrest is a formal, custodial arrest. A traffic stop followed by the issuance of a summons to appear in court does not constitute an arrest. Ley s two sentences for possessing drug paraphernalia stemming from two traffic stops that resulted in police issuing him summonses, for which he was sentenced on the same day, counted as only one sentence for purposes of the Guidelines because they were not separated by an intervening arrest. II. Sentencing / Due Process / Bare Arrest Record United States v. Ferguson, --- F.3d ---, 2017 U.S. App. LEXIS (3d Cir. Nov. 28, 2017). Third Circuit precedent holds that the district court violates Due Process when it considers a defendant s bare arrest record, absent something more, in fashioning an appropriate sentence. In this case, Ferguson was sentenced to a 24 month term for violating his supervised release, to run consecutive to his new state sentence for sexually assaulting a child while on federal supervision. The district court did not violate Ferguson s Due Process rights by merely mentioning Ferguson s record of arrests that did not lead to convictions. There is a difference between reference to the arrests and reliance on them. Reliance need not be made explicit in order to constitute reversible error. However, the district court s reference in this case to Ferguson s arrests did not rise to the level of reliance. The court s description of Ferguson s long and serious criminal history was accurate irrespective of his arrests, as evidenced by his numerous convictions and juvenile adjudications. Happy Holidays from the Federal Community Defender Office, EDPA We wish you every happiness this holiday season and throughout the coming year!

8 DECEMBER 2017 PAGE 8 Leigh M. Skipper, Chief Federal Defender Helen Marino, First Assistant Federal Defender Nina Carpiniello Spizer, Chief, Trial Unit Elizabeth Toplin, Assistant Chief, Trial Unit Brett Sweitzer, Chief of Appeals Federal Community Defender Office for the Eastern District of Pennsylvania Suite 540 West The Curtis Center 601 Walnut Street Philadelphia, PA Phone (215) Contact Kimberly Campoli if you have a new address, office address, or telephone number, for any Panel related matters, or if you wish to be removed from the CJA Panel for the EDPA. Kimberly_Campoli@fd.org WANT MORE? VISIT OUR WEBSITE AT AND THE THIRD CIRCUIT BLOG AT RECENT 3d CIR CASES CONTINUED ON PAGE 8