The Second Circuit’s decision in United States v. Barrett, 903 F.3d 166 ( 2d Cir. 2018), was vacated by the Supreme Court in a GVR order on June 28, 2019, in light of United States v. Davis, 588 U.S. __, 2019 WL 2649797. Davis held, contrary to Barrett, that the residual clause of 924(c)(3)(B) is … Read more
In Quarles v. United States, decided on June 10, 2019, a unanimous Supreme Court held that “remaining-in” burglary qualifies as a crime of violence for ACCA purposes even if the defendant does not form the intent to commit a crime in the building or structure until sometime after the unlawful remaining commences. The petitioner contended … Read more
On May 30, 2019, the Second Circuit withdrew the per curiam opinion in Thompson v. Barr, #17-3494, that was issued on May 13. The opinion found that NY assault in the second degree (NYPL § 120.05(1)) is an aggravated felony crime of violence for immigration purposes under the force clause of 18 USC § 16(a). … Read more
In United States v. Evans, the Second Circuit upheld a sentence imposed pursuant to 18 U.S.C. 924(e)(2)(B), the Armed Career Criminal Act (“ACCA”). As the Court described it, the case presented “the latest entry in a series of cases defining offenses that qualify as ‘violent felonies’” for the purposes of ACCA’s sentencing enhancement. The Court … Read more
Today, in United States v. Hendricks, the Second Circuit held that robbery of a credit union, in violation of 18 U.S.C. 2113(a), is a “crime of violence” for the purposes of 18 U.S.C. 924(c). The Circuit said it had “little difficulty in holding that bank robbery committed ‘by intimidation’ categorically constitutes a crime of violence … Read more
This week, the Fourth Circuit held in United States v. Simms, No. 15-4640 (4th Cir. 2019) (en banc) that § 924(c)(3)’s residual clause is unconstitutionally vague and therefore that conspiracy to commit Hobbs Act robbery is not a crime of violence. The decision deepens the Circuit split on this issue, which the Supreme Court will … Read more
The Supreme Court recently granted a certiorari petition in Davis v. United States that presents the following questions: (1) Whether 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague; (2) whether Hobbs Act robbery is a “crime of violence” as defined by 18 U.S.C. § 924(c)(3); and (3) whether a prior Texas conviction for burglary is a “violent … Read more
Last week, the Supreme Court held in United States v. Stitt, Nos. 17-765 & 17-766, that the Armed Career Criminal Act’s (ACCA’s) definition of “violent felony” covers burglary statutes that criminalize unlawful entry into vehicles adapted or customarily used for overnight accommodation. As explained below, the decision does not appear to have any bearing on … Read more
A petition for rehearing, available here, has been filed in United States v. Barrett, No. 14-2641 (2d Cir. 2018), which held that § 924(c)(3)’s residual clause is not unconstitutionally vague and that conspiracy to commit Hobbs Act robbery is not a crime of violence. Practitioners with Johnson petitions pending in district courts should, in appropriate cases, consider … Read more
Making Supreme Court review a virtual certainty, today the Eleventh Circuit joined the Second in holding that § 924(c)’s residual clause, 18 U.S.C. § 924(c)(3)(B), is not unconstitutionally vague. See United States v. Ovalles (11th Cir. Oct. 4, 2018) (en banc), opinion available here. There is now a 3-2 circuit split. Three Circuits have held that § 924(c)(3)(B) … Read more