Crimes of Violence Updates. Michael Dwyer and Brocca Morrison Office of the Federal Public Defender, EDMO

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1 Crimes of Violence Updates Michael Dwyer and Brocca Morrison Office of the Federal Public Defender, EDMO

2 United States v. Naylor, 887 F.3d 397 (8th Cir. 2018) United States v. Naylor, 887 F.3d 397 (8th Cir. 2018) Convictions under Mo. Rev. Stat (1979) now do NOT qualify as violent felonies under the Armed Career Criminal Act. Naylor at 399. The phrase "building or inhabitable structure" in section is a single, indivisible element under Missouri law. The two alternatives are each a "means" rather than "elements." Consequently Missouri's seconddegree burglary statute covers more conduct than generic burglary which means that this offense does not qualify as a violent felony under the ACCA. Naylor at

3 Mo. Rev. Stat Burglary in the first degree penalty. 1. A person commits the offense of burglary in the first degree if he or she knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing an offense therein, and when in effecting entry or while in the building or inhabitable structure or in immediate flight therefrom, the person or another participant in the offense: (1) Is armed with explosives or a deadly weapon; or (2) Causes or threatens immediate physical injury to any person who is not a participant in the crime; or (3) There is present in the structure another person who is not a participant in the crime. 2. The offense of burglary in the first degree is a class B felony.

4 Missouri Burglary 2nd, Mo. Rev. Sat Burglary in the second degree penalty. 1. A person commits the offense of burglary in the second degree when he or she knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein. 2. The offense of burglary in the second degree is a class D felony.

5 Missouri first-degree burglary alternatives (1) is armed with explosives or a deadly weapon (2) causes or threatens immediate physical injury to any person who is not a participant in the crime (3) there is present in the structure another person who is not a participant in the crime Arguments 1. Merely being armed while committing a burglary does not qualify as use, attempted use, or threatened use of physical force against the person of another. 2. The mere presence of another person in the place burgled is not the use, attempted use, or threatened use of force.

6 United States v. Swopes, 886 F.3d 668 (8th Cir. 2018) Missouri's second-degree robbery statute, Mo. Rev. Stat , requires the use or threatened use of violent force. Swopes, 886 F.3d at 671. Whether Missouri's unlawful use of a weapon, exhibiting, statute, Mo. Rev. Stat (4), qualifies as a violent felony under the ACCA, was remanded to the panel for resolution. Swopes, 886 at

7 Stokeling v. United States, No Certiorari granted April 2, Question Presented for Review: Is a state robbery offense that includes "as an element" the common law requirement of overcoming "victim resistance" categorically a "violent felony" under the only remaining definition of that term in the Armed Career Criminal Act, 18 U.S.C. 924(e)(2)(B)(i) (an offense that "has as an element the use, attempted use, or threatened use of physical force against the person of another"), if the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance?

8 Stokeling's Implications for Missouri's Robbery second-degree Stokeling concerns the dividing line between offenses like stealing from a person and purse-snatching and robbery. In Swopes, the Eighth Circuit held that Missouri's second-degree robbery statute requires use of force capable of preventing or overcoming resistance and that this force is the equivalent of the physical force required for a violent felony under the ACCA. Swopes at 671. How the Court resolves the issue in Stokeling may require the Eighth Circuit to revisit this holding.

9 United States v. Stitt, No , and United States v. Sims, No Whether burglary of a non-permanent or mobile structure that is adapted or used for overnight accommodation can qualify as burglary under the Armed Career Criminal Act of 1984, 18 U.S.C. 924(e)(2)(B)(ii). Opinions Below: United States v. Stitt, 860 F.3d 854 (6th Cir. 2017) United States v. Sims, 854 F.3d 1037 (8th Cir. 2017)

10 Sessions v. Dimaya, 138 S. Ct (2018) Three Terms ago, in Johnson v. United States, this Court held that part of a federal law s definition of violent felony was impermissibly vague. See 135 S. Ct. 2551, 192 (2015). The question in this case is whether a similarly worded clause in a statute s definition of crime of violence suffers from the same constitutional defect. Adhering to our analysis in Johnson, we hold that it does. Dimaya, 138 S. Ct. at In sum, 16(b) has the same [t]wo features that conspire[d] to make [ACCA s residual clause] unconstitutionally vague. 135 S. Ct. at It too requires a court to picture the kind of conduct that the crime involves in the ordinary case, and to judge whether that abstraction presents some not-well-specified-yet-sufficientlylarge degree of risk. 135 S.Ct., at The result is that 16(b) produces, just as ACCA s residual clause did, more unpredictability and arbitrariness than the Due Process Clause tolerates. 135 S. Ct., at Dimaya, 138 S. Ct. at 1216.

11 Sessions v. Dimaya, 138 S. Ct (2018) Johnson tells us how to resolve this case. That decision held that [t]wo features of [ACCA s] residual clause conspire[d] to make it unconstitutionally vague. 135 S. Ct., at Because the clause had both an ordinary-case requirement and an ill-defined risk threshold, it necessarily devolv[ed] into guesswork and intuition, invited arbitrary enforcement, and failed to provide fair notice. 135 S. Ct., at Section 16(b) possesses the exact same two features. And none of the minor linguistic disparities in the statutes makes any real difference. So just like ACCA s residual clause, 16(b) produces more un-predictability and arbitrariness than the Due Process Clause tolerates. 135 S. Ct., at We accordingly affirm the judgment of the Court of Appeals. Dimaya at 138 S. Ct. at 1223.

12 18 U.S.C. 16 The term crime of violence means (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

13 18 U.S.C. 924(c) (3) For purposes of this subsection the term crime of violence means an offense that is a felony and (A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

14 Post-Dimaya The Federal Public Defenders' Sentencing Resource Counsel are crafting litigation support materials to assist with Post-Dimaya issues. At the moment, the consensus is that counsel should continue cases when possible. If you have a case involving Dimaya and 924(c) or 16(b), please contact us and we'll share what we receive from the Sentencing Resource Counsel. Currently there are a number of cert. petitions challenging 924(c)'s residual clause as unconstitutionally vague. Last week the following cases were re-listed for conference. Carreon v. United States, No ; Davis v. United States, No ; Ecourse-Westbrook v. United States, No ; Eizember v. United States, No ; Enix v. United States, No ; Glover v. United States, No ; Lin v. United States, No McCoy v. United States, No ; Prickett v. United States, No ; Taylor (Rejon) v. United States, No ; Taylor (Brannon) v. United States, No ; United States v.jackson, No ; United States v. Jenkins, No ; Winters v. United States, No

15 Additional Issues - Recklessness Whether offenses with a mens rea of recklessness qualify as violent felonies remains a difficult issue. Voisine v. United States, 134 S. Ct (2016), confuses lower courts, including the Eighth Circuit. For example, United States v. Fields, 863 F.3d 1012 (8th Cir. 2017), reaffirmed precedent holding that Mo. Rev. Stat (3), which encompasses reckless driving resulting in injury, assault second-degree, is not a crime of violence. Judge Loken offered his usual indignant dissent. There is good reason, however, to broaden Fields's holding to offenses other than reckless driving.

16 Additional Issues - Causing Bodily Harm The Circuits are split about how to interpret United States v. Castleman, 134 S. Ct (2014). Castleman construed the definition of a misdemeanor crime of violence, holding that it is broader than the ACCA's notion of physical force. The misdemeanor crime of violence includes not only the type of violent force needed for a violent felony under the ACCA but also the common-law meaning of force which includes even the slightest offensive touching. United States v. Rice, 813 F.3d 704, 707 (8th Cir. 2016) (Kelly, J., dissenting) 7th, 8th, & 9th Circuits have found Castleman supported existing precedent that offenses criminalizing causation of bodily harm qualify as violent felonies. 1st, 2nd, & 5th Circuits disagree. 4th & 10th Circuits have interpreted Castleman to reconsider precedent. 6th Circuit will deal with the controversy in Williams v. United States, 882 F.3d 1169 (6th Cir. 2018) (granting en banc reconsideration of Williams v. United States, 875 F.3d 803 (6th Cir. 2017).

17 924(c) not a violent felony predicate for ACCA United States v. Bowman, 873 F.3d 1035 (8th Cir. 2017) Under the categorical approach, a 924(c)(1) conviction is not a predicate offense for ACCA purposes. Bowman at Section 924(c)'s definition of crime of violence is not divisible and sweeps broader than the definition of violent felony under the ACCA. Thus, it does not qualify as predicate offense for ACCA purposes.

18 Missouri Unlawful Use of a Weapon, Exhibiting, Mo. Rev. Stat Unlawful use of weapons exceptions penalties. 1. A person commits the offense of unlawful use of weapons, except as otherwise provided by sections to , if he or she knowingly:.... (4) Exhibits, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner;