Fourth Circuit: US v. Dearnta Thomas

 The federal racketeering violence statute is a crime in itself, and satisfies the requirements for a crime of violence without looking through the statute to the underlying state-law predicates of the conviction.

US v. Dearnta Thomas

Seventh Circuit: USA v. Arthur Robinson

 Since the state statute prohibiting the discharge of a firearm towards persons, occupied structures, and occupied vehicles requires a higher mens rea than recklessness, its status as a sentencing predicate wasn't changed by a Supreme Court holding that recklessness was an insufficient basis for a conviction involving the threatened or actual use of force against another person.

Issue was forfeited, not waived, when not raised on first appeal.

USA v.   Arthur Robinson

Eighth Circuit: United States v. Benjamin Yackel

 

As both the state crime of aiding and abetting and the federal application of the generic offense require intentionality but contemplate presence as a means of establishing intention, the state statute is a crime of violence under the Guidelines and ACCA.

United States  v.  Benjamin Yackel

Seventh Circuit: USA v. Elleck Christopher Vesey

Although the state offense serving as an ACCA predicate is divisible, either prong would require that the victim be close enough to have the prospect of imminent physical harm, making the state crime a valid predicate due to its elements.  General intent crimes can serve as predicate offenses.

USA v.  Elleck Christopher Vesey

Ninth Circuit: USA v. Tuan Luong

Sufficient nexus to interstate commerce for purpose of the Hobbs Act where a BB with servers in the state and redundant servers out of the state is used to facilitate a robbery, since the site operated as an interstate market and facilitated interstate transactions -- the deft's conduct therefore had an impact on interstate commerce.

As the indictment at retrial served for the same complex of facts, it was not constructively amended by the gov't suggestion that the deft's attempted use of a stole debit card was interstate in nature.

Unanimity instruction not required, as interstate commerce theories were alternate means that jurors could have used to convict on the same factual elements.

Jury instruction on "slight but not speculative" effect on interstate commerce was either correct or harmless error.

Even if mere use of the interstate instrumentality is insufficient to satisfy interstate standard, prosc. statements to contrary and statements of duty to convict were not incurable conduct.

Erroneous not to instruct that knowledge of felon status was an element of felon in possession, but not plain error, given deft's many prior felony convictions.

Hobbs Act robbery is a valid ACCA predicate.

Vacated and remanded to determine if the acceptance of responsibility sentencing reduction was inappropriately denied due to the interstate commerce challenge.

USA v. Tuan Luong

Seventh Circuit: Patrick Hrobowski v. USA

As petitioner was sentenced according to four predicate offenses, two of which were facially infirm, a subsequent change in the law enabling a challenge to the other two predicates that was ultimately successful as to one of them does not allow a late challenge to the two infirm predicates.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-17/C:16-3549:J:Kanne:aut:T:fnOp:N:2219599:S:0

First Circuit: US v. Garcia-Ortiz

As there is no realistically probable scenario in which Hobbs Act robbery could be accomplished without the use or threatened use of force, the offense is a valid predicate.

Harmless error on not revisiting sentence after revision to guidelines during pendency of appeal; original sentencing court understood its discretion to have terms run concurrently or in sequence.

http://media.ca1.uscourts.gov/pdf.opinions/16-1405P-01A.pdf

First Circuit: US v. Cruz-Rivera

Statute is a valid predicate crime of violence under use of force clause -- by analogy, since, although it can be accomplished by simple intimidation, bank robbery can also be accomplished by intimidation, and bank robbery is a valid predicate.

As-applied and facial challenge to commerce clause of statute (ACCA?) rejected, as as-applied was conceded in stipulation, and facial because of the theory of the challenge - the crime, not the gun, needs to track to interstate commerce.

Sufficient evidence.

No need for the gov't to produce the weapon at trial.

http://media.ca1.uscourts.gov/pdf.opinions/16-1321P-01A.pdf

Ninth Circuit: USA v. Blackstone

Second or successive habeas challenging residual clause conviction under mandatory sentencing guidelines is untimely, as the right has not yet been made retroactive.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/12/17-55023.pdf

Fifth Circuit: USA v. Jesus Islas-Saucedo

State burglary statute, given recent precedent holding it not to be a valid ACCA predicate, is similarly not a sentencing guidelines predicate.

http://www.ca5.uscourts.gov/opinions/pub/16/16-40672-CR0.pdf

Second Circuit: USA v. Barrett

Since Hobbs Act robbery is rarely used in cases of merely threatened harm, convictions under the act are categorically convictions for a crime of violence.

Hobbs Act robbery conspiracy is a crime of violence, as it necessarily creates a substantial risk of violence.

As statute requires that the number of predicate convictions be determined by the finder of fact in the present trial and conduct-specific aspects of the prior convictions are balanced in this determination, many of the constitutional difficulties with prior convictions under a residual clause can be avoided.  The fact that the predicate convictions weren't determined by the finder of fact in this case was harmless error.


http://www.ca2.uscourts.gov/decisions/isysquery/82545afb-53b7-40bc-96c2-b5760539665a/1/doc/14-2641_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/82545afb-53b7-40bc-96c2-b5760539665a/1/hilite/

Sixth Circuit: United States v. Desmond Cam

For the purposes of the advisory sentencing guidelines, Hobbs Act robbery is not a predicate crime of violence, either as robbery or through its use of force, since it encompasses conduct limited to the threatened harm to property.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0201p-06.pdf

Second Circuit: United States v. Pereira-Gomez

State Robbery statute is a valid predicate crime of violence, as even the passive examples raised here implied the threatened use of force.  Where the underlying offense is a crime of violence, the attempt is also a crime of violence.

http://www.ca2.uscourts.gov/decisions/isysquery/13eb0ff5-18df-4bbb-afe2-1d11a429c5aa/1/doc/17-952_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/13eb0ff5-18df-4bbb-afe2-1d11a429c5aa/1/hilite/

Seventh Circuit: USA v. Napoleon Foster

A conviction for using a firearm in the course of a robbery precludes increasing the underlying sentence for the robbery itself for explosive or weapons threats, even when those threats are unconnected to the firearm used in the robbery.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-31/C:17-3236:J:Scudder:aut:T:fnOp:N:2211361:S:0

Third Circuit: USA v. Anthony Mayo

A second or successive habeas petition will be entertained if the sentence challenged may have been based on the retroactively invalidated sentencing provision.

State statute is categorically not a valid predicate crime of violence, as it can be committed by an omission.

http://www2.ca3.uscourts.gov/opinarch/164282p.pdf

Third Circuit: US v. Ronald Peppers

ACCA residual clause minimum Habeas showing is a mere possibility that the sentencing court acted under that section of the law.

Plea deal did not waive Habeas challenge to sentence, so long as the Habeas minimum showing is met, as parties can't stipulate to a sentence in excess of legal limits.

So long as there is a valid petition arising from a Supreme Court holding made retroactive to cases on collateral review, non-retroactive cases decided in the interval can cited to describe the current state of the law.

Under categorical review, state robbery statute isn't a valid predicate; petitioner did not brief whether state burglary statute is covered under the elements clause of the law; challenge to that predicate conviction is therefore waived.

http://www2.ca3.uscourts.gov/opinarch/171029p.pdf

Tenth Circuit: US v. Mann

State assault with bodily injury statute is categorically a predicate crime of violence for the statute, despite the fact that a mens rea of recklessness suffices for conviction, as violence can be reckless.

https://www.ca10.uscourts.gov/opinions/17/17-2117.pdf

Third Circuit: USA v. Dominique Johnson

No plain error in the fact that the jury didn't decide the question of whether the weapon was brandished, an element of the increased sentence, since no reasonable finder of fact could have decided otherwise.

On remand from the Supreme Court, deft can raise claims arising from cases decided during the pendency of the direct appeal.

State crime of unarmed bank robbery is categorically a predicate crime of violence.

Although jury was erroneously instructed that accomplice liability attached for brandishing a firearm if the deft was aware of it at the time that it happened, error is insufficiently plain to justify reversal.

Where a deft is not advised that the later counseled brief supersedes the earlier pro se filing, the court can equitably consider arguments raised in the earlier filing.

Although a predicate was double-counted in the indictment, insufficiently plain error, as other predicate counts resulted in convictions.

Other challenges -- 10th Amendment, Commerce clause - sufficient evidence.

http://www2.ca3.uscourts.gov/opinarch/111615p.pdf

First Circuit: US v. Rose

 A decision that is cited in another opinion before being vacated as moot remains binding circuit precedent.

As recklessness could possibly suffice for a conviction requiring wantoness, the predicate violent felony is not in fact a predicate.

Challenging prejudice on appeal does not preserve a pro forma argument against cause.

http://media.ca1.uscourts.gov/pdf.opinions/17-1059P-01A.pdf

Seventh Circuit: USA v. Dennis Franklin

An only-apparently arcane and metaphysical question certified to Wisconsin's highest state court asking whether a certain offense is divisible, i.e., whether the jury must unanimously agree on the section of the law that was violated.  Bonus: thorough and courteous explanation of ACCA.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-17/C:16-1872:J:PerCuriam:aut:T:opGr:N:2188135:S:0