Federal Defenders of New York Second Circuit Blog

Davis

Davis (2019), voiding the residual clause at § 924(c)(3)(B) for vagueness, is retroactively applicable to cases on collateral review

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Benjamin Hall v. United States, 2d Cir. No. 17-1513 (Jan. 19, 2023), decides a question most of us thought had been answered already – that United States v. Davis, 139 S. Ct. 2319 (2019), striking the residual clause of § 924(c) as unconstitutionally vague, rendered a substantive rule retroactive to cases on collateral review. As … Read more

Convictions for “actual and attempted Hobbs Act robbery” are crimes of violence under 18 U.S.C. § 924(c). And the imposition of 6 consecutive mandatory minimum prison sentences, totaling 115 years’ (based on the “stacking” of five § 924(c) convictions, running consecutively to a 10-year minimum drug sentence), doesn’t violate the Eighth Amendment. United States v.  Waite, No. 18-2651, __F.4th__, 2021 WL 3870712 (2d Cir. Aug. 31, 2021) (C.J.J. Cabranes, Raggi, Sullivan).

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Waite was originally sentenced in 2011, principally to 125 years’ imprisonment based on five 924(c) counts and a drug conspiracy count. The Circuit vacated his original sentence (in 2016) because of an issue with the drug sentence. At the resentencing in March 2018, the district court subtracted 10 years from the original (20-year) drug sentence, … Read more

The Second Circuit holds that the concurrent sentence doctrine applies when a defendant collaterally challenges the legality of a conviction, under 28 U.S.C. § 2255, and declines to review the § 2255 appeal. Kassir v. United States, No. 19-1477, __F.3d__ (2d Cir. July 9, 2021) (C.J.J. Jacobs, Nardini).

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The Circuit applies the “discretionary” concurrent sentence doctrine because the petitioner’s 2255 motion attacked only a single count of conviction, that resulted in a 20-year sentence that is concurrent to “two terms of life in prison” on counts unchallenged. The Circuit said it was exercising its discretion “to decline” to review Mr.  Kassir’s 2255 appeal … Read more

Challenging § 924(c) convictions based on multiple predicates after Davis.

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Since the Supreme Court decided United States v. Davis, 139 S. Ct. 2319 (2019), lower courts have grappled with pre-Davis § 924(c) convictions predicated on both a valid crime of violence and a predicate offense that no longer categorically qualifies (for example, a § 924(c) conviction predicated on both a substantive Hobbs Act robbery and … Read more

Second Circuit Holds that Attempted Hobbs Act Robbery Is a § 924(c) “Crime of Violence.”

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The Circuit ruled today in United States v. McCoy, No. 17‑1315(L) (Kearse, Parker, and Sullivan, JJ.), that the crime of attempting to commit a Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), remains a “crime of violence” under 18 U.S.C. § 924(c), even after United States v. Davis, 139 S. Ct. 2319 (2019). The Circuit … Read more

Second Circuit Panel holds residual clause definition of “crime of violence” in the Bail Reform Act is not void for vagueness

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In today’s United States v. Watkins, No. 18-3076, a panel of the Second Circuit held the residual clause definition of “crime of violence” in the Bail Reform Act is not void for vagueness. This may surprise some observers, as the Bail Reform Act’s residual clause is identical to – and subject to the same categorical … Read more

FINAL DECISION by the Second Circuit in BARRETT

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Because the residual clause of 18 U.S.C.§  924(c)(3)(B)  is unconstitutionally vague, “conspiracy” to commit Hobbs Act robbery isn’t a qualifying 924(c) predicate, since Hobbs Act conspiracy doesn’t meet the elements clause of § 924(c)(c)(3)(A). United States v. Barrett, No. 14-2641-cr, __F.3d__, 2019 WL 4121728  (Aug. 30, 2019).  The Supreme Court vacated the Second Circuit’s original … Read more

Second Circuit Throws Out § 924(c) Conviction Linked to Conspiracy . . . And Does Other Good Things, Including as to Rehaif

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In today’s United States v. Watkins, the Second Circuit (Jacobs, Pooler, Wesley) vacated a conviction for violating 18 U.S.C. § 924(c) in relation to a conspiracy to commit Hobbs Act robbery.  Because § 924(c)’s residual clause is “unconstitutionally vague,” United States v. Davis, 139 S. Ct. 2319, 2336 (2019), a “crime of violence” under § … Read more

The Supreme Court held in United States v. Davis that the so-called “residual clause” of 18 U.S.C. 924(c)(3)(B) is void for vagueness

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The Supreme Court held in United States v. Davis that the so-called “residual clause” of 18 U.S.C. 924(c)(3)(B) is void for vagueness. This means that the only way a crime can qualify as a “crime of violence” for purposes of Section 924(c) is under the “elements” (or “force”) clause of 18 U.S.C. 924(c)(A). That clause defines … Read more