More news out of the Midwest: In United States v. Cross, the Seventh Circuit held that Beckles v. United States applies only to post-Booker cases in which the Sentencing Guidelines were advisory. In pre-Booker cases in which the Guidelines were mandatory, the residual clause of the career-offender guideline is unconstitutionally vague under Johnson v. United States.
Today, in a short opinion, the Second Circuit confirmed that second-degree robbery in New York is categorically a crime of violence under the residual clause of the pre-2016 Career Offender Guideline (COG). See U.S.S.G. § 4B1.2 (2015). The opinion in United States v. Smith, No. 15-3313 (2d Cir. 2018) (Winter, Cabranes, Restani) (appeal from Failla, … Read more
Two valuable opinions have been published outside the Second Circuit in recent weeks: (1) The First Circuit has held that attempted second-degree robbery in New York is not a “crime of violence” for purposes of the Career Offender Guideline’s force clause, U.S.S.G. § 4B1.(2)(a)(1). The opinion in United States v. Steed, No. 17-1011 (1st Cir. 2018) (Barron, J.) … Read more
This month two circuits held, respectively, that offenses cannot serve as predicates under the Career Offender Guideline or the Armed Career Criminal Act (ACCA) because they can involve force against property as well as against persons. The Tenth Circuit held that robbery under the Hobbs Act, 18 U.S.C. § 1951, is not a crime of … Read more
Yesterday the Circuit re-decided United States v. Jones. The panel held that in light of the Supreme Court’s recent decision in United States v. Beckles, armed New York first-degree robbery is categorically a crime of violence under the residual clause of the pre-2016 Career Offender Guideline. See U.S.S.G. § 4B1.2 (2015). (The Guidelines have since been … Read more
In Beckles v. United States, 580 U.S. ___, 2017 WL 855781 (March 6, 2017) the Supreme Court held that Johnson v. United States, 576 U.S. 2551, 135 S.Ct. ___ (2015), does not apply to the Guidelines’ residual clause because “the advisory Guidelines are not subject to vagueness challenges under the Due Process clause.” Slip op. … Read more
In United States v. Anthony Lewis, Docket Nos. 15-3245-cr (L) & 15-3307-cr (CON), an unpublished summary order, the Court (Calabresi, Livingston & Rakoff (by designation)) rejected two appeals by Mr. Lewis from two denials of two § 3582(c)(2) motions for a reduced sentence based on two retroactively applicable Guideline amendments, one in 2010 and the … Read more
In a recent ruling, Judge Woods of the Southern District held first-degree manslaughter in violation of N.Y. Penal Law § 125.20(1) is not a “crime of violence” under the pre-August 1, 2016, Career Offender Guideline, U.S.S.G. § 4B1.2. A person commits such manslaughter when, “[w]ith intent to cause serious physical injury to another person, he causes the … Read more
In United States v. Jones, previously blogged about here, the Second Circuit held New York robbery is not a categorical “crime of violence” under the Career Offender Guideline, U.S.S.G. § 4B1.2. The Court’s opinion was based in part on the view, shared by the government and all but one of the circuits, that the Guideline’s residual clause … Read more
Today the Circuit amended its decision in Blow v. United States, No. 16-1530 (Katzmann, chief judge; Wesley and Hall, circuit judges). It added a single line at the end of the opinion to say that the district judge has discretion to proceed on Blow’s 2255 petition and is not required to hold the petition in … Read more