ARMED CAREER CRIMINAL ACT NEWS

This bulletin is for defendants charged in the federal courts as felons in possession facing enhancement under §924(e) and, indirectly, for those facing Guidelines sentencing as a Career Offender. The Supreme Court's most recent decision in Sykes on the subject of what constitutes a "violent felony" appears to be at least a temporary setback to a trend limiting application of the Armed Career Criminal Act to only those defendants with a history of convictions for crimes involving purposefully aggressive conduct. www.fedcrimes.com

What is the Armed Career Criminal Act? The ACCA imposes a 15-year mandatory minimum prison term on a felon unlawfully in possession of a firearm who has three prior convictions for committing certain drug crimes or "a violent felony," 18 U. S. C. §924(e)(1), defined as a crime punishable by more than one year's imprisonment that, inter alia, "involves conduct that presents a serious potential risk of physical injury to another," §924(e)(2)(B)(ii).

Why is it important? The Act is supposed to present a three-strikes rule to deter criminals with a history of violent criminal conduct. The problem with the Act historically has been that the statute was over extended or wrongly applied to individuals with minor criminal records for typically non-violent offenses - for example, repeat drunk driving felony conviction (Begay, infra) or failing to report to serve a prison sentence (not escape) after a defendant has been given post conviction bail and ordered to present himself at a jail or prison to serve a sentence (Chambers). Most would agree that convictions for robbery, arson, extortion, kidnapping, murder, rape and other such misconduct are violent felonies. But the criminal law has often been extended by statute to include non-violent misconduct under the same statutory sections and definitions as misconduct generally acknowledged to be crimes of violence - for instance, burning a car to recover insurance money is arson under most state criminal statutes (common law defined arson by the more violent conduct of intentionally setting a fire that causes the material wasting of a dwelling house, a crime that created a far greater risk of harm).

At issue in recent litigation is the meaning of the statute's residual or "catch-all" clause:

The Act defines a “violent felony” as a “crime punishable by imprisonment for a term exceeding one year” that also either “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or other.” §924(e)(2)(B), the ACCA’s so-called residual clause

See, Begay v. United States, 553 U.S. 137 (2008) (drunk driving crimes cannot be a crime of violence predicate) Applicable statutes 18 USC §§ 922(g) 924(e) 924(g) 924(c)

See, also Chambers v. United States, 555 U. S. 122 (2009) (failing to report for incarceration does not qualify as a "violent felony" for the purposes of the Armed Career Criminal Act (18 U.S. 924 (e)).

For purposes of the Act's definitions, it is the generic crime that counts, not how the crime was committed on a particular occasion. Taylor v. United States, 495 U. S. 575, 602. This categorical approach requires courts to choose the right category, and sometimes the choice is not obvious. The nature of the behavior that likely underlies a statutory phrase matters in this respect. The state statute at issue in Chambers placed together in a single section several different kinds of behavior, which, as relevant here, may be categorized either as failure to report for detention or as escape from custody. Failure to report is a separate crime from escape. Its underlying behavior differs from the more aggressive behavior underlying escape, and it is listed separately in the statute’s title and body and is of a different felony class than escape. At the same time, the statutory phrases setting forth the various kinds of failure to report describe roughly similar forms of behavior, thus constituting a single category. Consequently, for ACCA purposes, the statute contains at least two separate crimes, escape and failure to report.

The “failure to report” crime was held not to satisfy ACCA’s “violent felony” definition. Although it is punishable by imprisonment exceeding one year, it satisfies none of the other parts of the definition. Most critically, it does not “involve conduct that presents a serious potential risk of physical injury to another.” Conceptually speaking, the crime amounts to a form of inaction, and there is no reason to believe that an offender who fails to report is otherwise doing some- thing that poses a serious potential risk of physical injury.

The Supreme Court's opinion in Johnson last year (case involving a predicate conviction for domestic assault) provided guidance to the lower courts that a conviction did not qualify as a crime of violence unless is involved purposeful aggressive conduct. United States v. Johnson (2010). Scalia, writing for the majority, concluded that the term “force” contemplates strength or energy, violence, and pressure directed against a person – that is, a degree of power not satisfied by the merest touching. The Court reasoned that the meaning of a statute is ultimately determined by its context, as it declined to “‘force term-of-art definitions into contexts where they plainly do not fit and produce nonsense.’” The Court deemed it clear that, in the context of a statutory definition of “violent felony,” “physical force” means violent force.

Johnson had pleaded guilty to possession of ammunition by a convicted felon. 18 U. S. C. §922(g)(1). The Government sought sentencing under the Armed Career Criminal Act, which authorizes an enhanced penalty for a person who violates §922(g) and who “has three previous convictions” for “a violent felony,” §924(e)(1), defined as, inter alia, an offense that “has as an element the use … of physical force against the person of another,” §924(e)(2)(B)(i). Among the three prior felony convictions the Government proffered was Johnson’s 2003 Florida conviction for simple battery, which ordinarily is a first-degree misdemeanor, Fla. Stat. §784.03(1)(b), but was a felony conviction for Johnson because he had previously been convicted of another battery, Fla. Stat. §784.03(2). Under Florida law, a battery occurs when a person either “[a]ctually and intentionally touches or strikes another person against [his] will,” or “[i]ntentionally causes bodily harm to another person.” §784.03(1)(a). Nothing in the record permitted the District Court to conclude that Johnson’s 2003 conviction rested upon the “strik[ing]” or “[i]ntentionally caus[ing] bodily harm” elements of the offense. Accordingly, his conviction was a predicate conviction for a “violent felony” under the Armed Career Criminal Act only if “[a]ctually and intentionally touch[ing]” another constitutes the use of “physical force” under §924(e)(2)(B)(i). Concluding it does, the District Court enhanced Johnson’s sentence under §924(e)(1), sentencing him to a term of 15 years.

A clear retreat from the bright-line rules established by Begay, Chambers and Johnson, all, supra, occurs in the high court's most recent decision, Sykes, a decision where the majority, Kennedy, instructs not to "read too much into" earlier decisions. Sykes v United States, No. 09–11311, decided June 9, 2011 (Kennedy, J.)(predicate convictions include an Indiana-law offense for eluding police in a motor vehicle that does not contain an element of violent conduct such as high speed chase, an assault with the vehicle or a crash). When punishable by more than one year in prison, Justice Kennedy reasoned, burglary, arson, extortion, and crimes that involve use of explosives are "violet felonies". Under the residual clause a crime is also a violent felony when it “otherwise involves conduct that presents a serious potential risk of physical injury to another,” §924(e)(2)(B)(ii), i.e., “comparable to that posed by its closest analog among” the statute’s enumerated offenses. According to the court's syllabus:

When defendant flees from police in a car, his determination to elude capture makes a lack of concern for the safety of others part of the offense, even if he drives without going full speed or the wrong way. Such a defendant, the argument goes, creates the possibility that police will exceed or almost match his speed or use force to bring him within their custody. A fleeing criminal who creates a risk of this dimension takes action similar in degree of danger to that involved in arson, which also entails intentional release of a destructive force dangerous to others. Also telling is a comparison to burglary, which is dangerous because it can end in confrontation leading to violence. In fact, the risks associated with vehicle flight may outstrip the dangers of both burglary and arson.

The majority rejected Sykes' argument that Begay v. United States, 553 U. S. 137, and Chambers v. United States, 555 U. S. 122, require predicate crimes to be purposeful, violent, and aggressive in ways that vehicle flight is not over reads those opinions. In general, levels of risk divide crimes that qualify as violent felonies from those that do not. Chambers is no exception: It explained that failure to report does not qualify because the typical offender is not “significantly more likely than others to attack, or physically to resist, an apprehender.” Begay, which held that felony repeat driving under the influence (DUI) is not an ACCA predicate and stated that it is not purposeful, violent, and aggressive, 553 U. S., at 145–148, is the Court’s sole residual clause decision in which risk was not the dispositive factor. But Begay also gave a more specific reason for its holding: DUI “need not be purposeful or deliberate,” id., at 145, and is analogous to strict-liability, negligence, and recklessness crimes. Begay’s “purposeful, violent, and aggressive” phrase is an addition to the statutory text that has no precise link to the residual clause. Because vehicle flight is not a strict-liability, negligence, or recklessness crime and is, as a categorical matter, similar in risk to the crimes listed in the residual clause, it is a violent felony.

See the fedcrimes.com website.

Fair Sentencing Act

Kevin Barron Attorney Website

The following information is adapted from the text of an opinion by Curtis L. Collier, USDCJ in the Eastern district of Tennessee:

President Obama signed the Fair Sentencing Act (FSA) into law on August 3, 2010. The preamble of the FSA states it is “[a]n Act [t]o restore fairness to Federal cocaine sentencing.” The FSA seeks to achieve this end by raising the quantities of crack required to trigger various statutory mandatory minimum sentences for crack trafficking. The Justice Department has taken the position that Fair Sentencing Act reductions in mandatory minimum crack sentences should not take effect in prosecutions for conduct before the August 2010 enactment date of the statute. The Department's position is clearly contrary to the intent of Congress but since the Act contains no statement that it applies retroactively or to all pending prosecutions, the Department argues that the "caving clause" of 1 U.S.C. § 109 applies (The "repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide….)

The Act has raised the amount of crack required to trigger a 10-year mandatory minimum under 21 U.S.C. § 841(b)(1)(A)(iii) from 50 grams to 280 grams. Pub. L. No. 111-220, § 2. and raise the amount of crack required to trigger a 5-year mandatory minimum under 21 U.S.C. § 841 (b)(1)(B)(iii) from 5 grams to 28 grams. Additionally, in a section captioned “Emergency Authority for United States Sentencing Commission,” the Act ordered the United States Sentencing Commission to “make such conforming amendments to the Federal sentencing guidelines as the Commission determines necessary to achieve consistency with other guideline provisions and applicable law,” and to do so within 90 days of the Act’s enactment. Id. at § 8. Following Congress’s mandate, the Commission promulgated amended Guidelines …“to ensure[] that the relationship between the statutory penalties for crack cocaine offenses and the statutory penalties for offenses involving other drugs is consistently and proportionally reflected throughout the Drug Quantity Table.”….

The amended Sentencing Guidelines became effective November 1, 2010, and apply to all offenders sentenced after that date, even if those offenders committed their offenses before enactment of the FSA on August 3, 2010. See 18 U.S.C. § 3553(a)(4)(ii) (sentencing courts must consider the guidelines that “are in effect on the date the defendant is sentenced”). …. ….

Many courts are now applying the Act’s new mandatory minimum thresholds to offenders who committed criminal conduct before enactment of the Act, but who are sentenced afterwards. The plain language of the Act neither compels nor proscribes its retroactive application. See United States v. Carradine, 621 F.3d 575, 580 (6th Cir. 2010) (“the [ACT] contains no express statement that it is retroactive nor can we infer any such express intent from its plain language”). The United States argues the absence of such a statement requires the Act not be applied retroactively. The United States bases this argument in large part upon the general “saving statute” or “saving clause.”

At common law, the repeal of a criminal statute, or its re-enactment with different penalties, “abated all prosecutions which had not reached final disposition in the highest court authorized to review them.” Bradley v. United States, 410 U.S. 605, 607-08 (1973). To abolish the common-law presumption of abatement, Congress enacted its first general savings provision in 1871. See c. 71, 16 Stat. 432 (1871); see also Warden v. Marrero, 417 U.S. 653, 660 (1974). In 1947, Congress codified the general saving statute at 1 U.S.C. § 109. Section 109 provides, in relevant part:

The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.

At first blush, the saving statute’s requirement an Act “expressly provide” for retroactivity seems to foreclose retroactive application of the Act. However, the Supreme Court has interpreted the savings statute’s effect more modestly than its strong language might seem to indicate. Over one hundred years ago the Supreme Court explained the savings statute “cannot justify a disregard of the will of Congress as manifested either expressly or by necessary implication in a subsequent enactment.” Great N. Ry. Co. v. United States, 208 U.S. 452, 465 (1908); see also Marrero, 417 U.S. at 659 n.10 (“only if § 1103(a) can be said by fair implication or expressly to conflict with § 109 would there be reason to hold that § 1103(a) superseded § 109"). In other words, saving statute notwithstanding, Congress has the power to make a statute retroactive without the use of “magical passwords,” see Marcello v. Bonds, 349 U.S. 302, 310 (1955), so long as it clearly signals its intent some other way. See Lockhart v. United States, 546 U.S. 142, 148 (2005) (Scalia, J., concurring) (“We have made clear in other cases as well, that an express-reference or express-statement provision cannot nullify the unambiguous import of a subsequent statute. . . . A subsequent Congress, we have said, may exempt itself from [express statement] requirements by ‘fair implication’ — that is, without an express statement.”). Thus, despite no express retroactivity provision in the Act, if the conclusion Congress intended the Act to apply retroactively arises by fair or necessary implication, the general saving statute is no bar to such application.

In the brief period since the Act was enacted, a large number of courts have considered whether Congress intended the Act to apply retroactively to offenders who committed crimes prior to Act’s enactment, but have not yet been sentenced. Overwhelmingly, these courts have concluded the necessary implication of the Act is that Congress intended the Act to apply retroactively. See, e.g., United States v. Douglas, No. 09-202-P-H, 2010 WL 4260221 (D. Me. Oct. 27, 2010); United States v. Gillam, No. 1:10-CR-181-2, 2010 WL 4906283 (W.D. Mich. Dec. 3, 2010); United States v Jones, No. 4:10-CR-233 (N.D. Ohio, Jan. 3, 2011); United States v. Cox, No. 3:10-CR-85-WMC, 2011 WL 92071 (W.D. Wis. Jan. 11, 2011); United States v. Johnson, No. 6:08-CR-270 (M.D. Fla. Jan. 4, 2011); United States v. English, No. 3:10-CR-53, 2010 WL 5397288 (S.D. Iowa Dec. 30, 2010); United States v. Whitfield, No. 2:10-CR-13, 2010 WL 5387701 (N.D. Miss. Dec. 21, 2010); United States v. Holloway, 3:04-CR-90 (S.D. W. Va. Dec. 20, 2010); United States v. Johnson, No. 3:10-CR-138 (E.D. Va. Dec. 7, 2010); United States v. Favors, No. 10-CR-384-LY-1 (W.D. Tex. Nov. 23, 2010); United States v. Spencer, No. CR 09-00400 JW (N.D. Cal. Nov. 30, 2010); United States v. Shelby, No. 2:09-CR-379 (E.D. La. Nov. 10, 2010).4

The leading opinion in this growing body of cases is that written by Judge D. Brock Hornby in Douglas. Nearly all of the cases cited above draw on Judge Hornby’s thorough analysis of the issue, as does this Court. After dispatching the United States’s argument the saving statute ipso facto applies because the Act does not contain an express retroactivity provision, the Douglas court went on to catalogue the evidence indicating Congress intended the Act to apply retroactively:

There is no saving clause in the Fair Sentencing Act itself. To the contrary, in this statute Congress expressly granted the Commission emergency Guideline amendment authority, so that the Commission could adopt Guideline amendments effective almost immediately. And in addition, Congress expressly directed the Commission to adopt Guideline amendments “as soon as practicable, and in any event not later than 90 days”, i.e., by November 1, 2010. What amendments? To be sure, the new enhancement provisions, but also any changes in the new crack penalty provisions. Where would the latter changes come from? From the new statutory minimum provisions. According to the statutory language, Congress instructed the Commission “pursuant to the emergency authority provided under paragraph (1), [to] make such conforming amendments to the Federal sentencing guidelines as the Commission determines necessary to achieve consistency with other guideline provisions and applicable law.” The Commission has followed Congress's instructions. Effective November 1, 2010, “the relationship between the statutory penalties for crack cocaine offenses and the statutory penalties for offenses involving other drugs is consistently and proportionally reflected throughout the Drug Quantity Table.” But the new Guidelines cannot be “conforming” and “achieve consistency” (Congress's express mandate) if they are based upon statutory minimums that cannot be effective to a host of sentences over the next five years until the statute of limitations runs on pre-August 3, 2010 conduct.

What is more, for years the Sentencing Reform Act of 1984 has directed expressly that the governing Guidelines are those in effect on the day a defendant is sentenced. The Guideline commentary refers to this statutory provision as “Congress's directive to apply the sentencing guidelines in effect at the time of sentencing.” Thus, during the past two decades of the Guidelines' existence, whenever the Commission has adopted Guideline amendments, those amendments have applied to all defendants sentenced thereafter, regardless of when the crime was committed. That is what will happen to the new Guidelines' alterations of the base offense levels for various quantities of crack: the new Guidelines will apply to all future sentencings after November 1, 2010, even if the criminal conduct occurred before the Fair Sentencing Act's effective date. Congress “expressly” required that outcome by ordering the emergency amendments within 90 days. Thus, many pre-August 3, 2010 offenders will benefit from the changed crack offense levels, at least if the mandatory minimums do not apply to them. Congress instructed the Commission to make such changes and make them immediately, under an existing statutory structure that makes them apply to those who have already offended but who have not yet been sentenced. It would be a strange definition of “conforming” and “consistency” to have these new amended Guidelines go into effect while the old and therefore inconsistent statutory minimums continue.

Finally, Congress stated that its goal was to “restore fairness to Federal cocaine sentencing.” Understandably, Congress might not have wanted a large volume of previously sentenced offenders to be released from prison immediately. But what possible reason could there be to want judges to continue to impose new sentences that are not “fair” over the next five years while the statute of limitations runs? Unlike Marrero, the explicit congressional grant of emergency guideline amendment authority and the mandate of “consistency” and “conforming” amendments, coupled with the express language of the Sentencing Reform Act of 1984 (that the Guidelines in effect on the day of sentencing control irrespective of when offense conduct occurred), unmistakably demonstrate Congress's urgency and expectation of immediate change.

Douglas, 2010 WL 4260221, at ** 4-5. The Court agrees fully with Judge Hornby’s analysis in Douglas. The context in which the Act was passed, its preamble, and most importantly its “emergency” mandate that the Guidelines be amended to achieve consistency with applicable law, that is, with the Act, give rise by necessary implication to the conclusion Congress intended the Act to apply to all offenders sentenced after its enactment.

FEDERAL CRIMINAL DEFENSE Armed Career Criminal 924(c) and Career Offender 4B1 Guideline; Preserve 2255 Claim, Deadline 3/1/11

FIRST CIRCUIT HABEAS CORPUS ALERT

FOR PERSONS SERVING ARMED CAREER

CRIMINAL AND CAREER OFFENDER SENTENCES

Attorney Kevin Barron

See new post on this subject about Sykes decision

Federal Criminal Defense Note: Certain Defendants May Wish to Act Promptly to preserve a claim for vacating their sentences. Persons sentenced in the US District Courts under 924(e) and USSG §4B1 using Massachusetts assault and battery predicate convictions and other House-of-Corrections-sentenced predicates should make efforts to inquire of counsel. §2255 relief may be available to persons who were sentenced using certain minor offense predicates that the law no longer views as "crimes of violence". The legal definition of a "crime of violence" has changed and some offenses no longer qualify. By far, the largest group includes Massachusetts Assault and Battery convictions reciting "did assault and beat". US v. Holloway now disqualifies such convictions from sentencing enhancement.

CHANGE IN LAW WITH POSSIBLE RETROACTIVE APPLICATION DISQUALIFYING CERTAIN PREVIOUSLY QUALIFYING PREDICATE OFFENSES

The Federal Defender Office for Massachusetts, Rhode Island and New Hampshire has issued a memorandum to the bar suggesting possible retrospective application of First Circuit's decision in US v. Holloway, ___ F.3d ___, 2011 WL 183963 (1 Cir. Jan. 21, 2011), and the US Supreme Court's decision in Johnson, requiring that any ACCA predicate involve actual violence. Johnson v. US, 130 S. Ct. 1265 (2010)(held that a Florida battery offense did not qualify as a violent felony under the ACCA because court was unable to determine categorically that offense of battery involve purposeful violence). However - and this is an important caution - the deadline for filing for habeas relief in a motion for new trial under 28 USC §2255 may be limited to March 1, 2011.

A conflict exists between the Circuit Courts of Appeal, making US Supreme Court review likely. Presently, a minority of Circuits represented by the 9^th Circuit hold that Johnson, supra, applies retroactively and the majority, lead by 7^th Circuit, says that it does not. By filing a collateral attack now under 28 USC 2255, a defendant may preserve his rights once the United States Supreme Court rules on this conflict among the Circuits.

The following excerpts from today's FDO memorandum may be of interest in explaining the issue:

QUOTE

When determining whether a prior conviction is a violent felony for purposes of the Armed Career Criminal Act or a crime of violence for purposes of the career offender guideline, courts take a categorical approach. See Taylor v. United States, 495 U.S. 575, 600 (1990). Under this approach a court looks to the elements of the offense of conviction, not to the specific facts of the prior conviction being considered or the manner in which it was committed.

When a single statute covers multiple offenses, a court must determine which offense formed the basis of conviction. Under the “modified categorical approach,” the court may look to only a limited universe of information: the charging document, jury instructions, terms of a plea agreement, the factual basis agreed upon during a plea colloquy, or some comparable judicial record. Shepard v. United States, 544 U.S. 13, 26 (2005). If a statute covers both violent and non-violent offenses, and the court cannot determine from Shepard-approved sources the exact offense of conviction, the conviction cannot be deemed a violent felony or crime of violence.

Massachusetts G.L. ch. 265, § 13A prohibits assault and battery. Under Massachusetts common law, “battery” may be prosecuted on one of three theories: (1) harmful battery, (2) offensive battery, and (3) reckless battery. Defendants have often challenged the finding that a Massachusetts assault and battery conviction is a violent felony or crime of violence, arguing, for example, that an “offensive touching” battery is not violent, and that the Shepard-approved record (often simply a district court complaint) fails to disclose whether the defendant was prosecuted under a harmful battery or offensive battery theory. However, beginning with United States v. Mangos, 134 F.3d 460, 464 (1st Cir. 1998), the First Circuit has repeatedly held that the boilerplate charging language “did assault and beat” (see M.G.L. ch. 277, § 79, “Schedule of Forms and Pleadings”) alleges harmful battery and thus establishes that the conviction is a violent felony or crime of violence.

In United States v. Holloway, ___ F.3d ___, 2011 WL 183963 (1st Cir. January 21, 2011), the First Circuit overturned Mangos. In doing so the court has opened the door to challenges that assault and battery, and other crimes that include the elements of assault and battery, are not violent felonies or crimes of violence. Specifically, where the Massachusetts offense may be committed “recklessly,” and no Shepard-approved documents show that a “reckless theory” was not pursued, Holloway should preclude a finding that the offense is a violent felony or crime of violence.

As noted above, Massachusetts simple assault and battery convictions cannot after Holloway be deemed violent felonies or crimes of violence purely on the basis of the charging language “did assault and beat.” Other Massachusetts convictions may also be vulnerable under Holloway, based upon its ruling that reckless batteries do not qualify as violent felonies. Beyond simple assault and battery under M.G.L. ch. 265, § 13A, other varieties of Massachusetts assault and battery offenses may be

committed in a reckless manner under state law. The defendant should argue that the government must prove that the defendant was not convicted on a reckless theory.

Massachusetts courts have said that where the state legislature has not defined the assault and battery elements of another type of assault and battery crime, there is no basis for interpreting the assault and battery elements of that crime differently from the assault and battery elements in ch. 265, § 13A. See Commonwealth v. Correia, 50 Mass.App.Ct. 455 (2000)(assault and battery on a public employee under M.G.L. ch. 265, § 13D encompasses reckless assault and battery), citing Commonwealth v. Macey, 47 Mass.App.Ct. 42, 43 (1999)(conviction under assault and battery upon a child under M.G.L. ch. 265, § 13J is satisfied by reckless conduct) and United States v. Francis, 24 Mass.App.Ct. 576, 579-580 (1987)(instructions on assault and battery given generally, followed by instructions relating to assault and battery on a correction officer pursuant to M.G.L. ch. 127, § 38B). See also Commonwealth v. Montes, 49 Mass.App.Ct. 789 (2000)(court gave recklessness instruction in assault and battery on a police officer conviction where defendant swung shard of glass wildly and cut police officers).

****

Thus, even in the absence of a case specifically addressing a type of assault and battery offense, (and of course in the absence of caselaw to the contrary), it may be possible to argue that where the intent element for the assault and battery is not given by statute, state law indicates that a defendant may be convicted on a recklessness theory because the common law definitions applicable to simple assault and battery apply. One example of this would be assault and battery on an emergency medical technician, ambulance operator or ambulance attendant pursuant to ch. 265, § 13I. The government should have to then prove using Shepard documents that the defendant was not convicted on a recklessness theory.

Massachusetts offenses that appear vulnerable on recklessness theory

Assault and Battery on a Police Officer

The First Circuit has previously held that Massachusetts state convictions for assault and battery on a police officer qualify as crimes of violence, most recently in United States v. Santos, 363 F.3d 19 (1st Cir. 2004). The ruling in Santos was based largely on the career offender guideline’s residual clause and the court’s judgment that the offense posed a “serious risk of physical injury and violence.” Santos, however, was decided before Begay, and so before the Supreme Court had articulated the requirement that to qualify under the residual clause an offense must be “purposeful.” With Holloway’s recognition that state law controls, and its view that an offense with a mens rea of recklessness is not purposeful, there is a strong argument that Santos was wrongly decided.

Santos also discusses an earlier First Circuit case, United States v. Fernandez, 121 F.3d 777 (1st Cir. 1997) which asserted both that assault and battery on a police officer is a crime of violence, and that it involves purposeful conduct. Fernandez cited Commonwealth v. Moore, 36 Mass.App.Ct. 455 (1994), for the proposition that the offense is purposeful. The Massachusetts Appeals Court in Correia, decided after Moore, has said however that Moore is limited to the intentional aspect of

6 M.G.L. ch. 265, § 13D and is not controlling on the alternative definition of “reckless” assault and battery on a public employee. With Holloway’s recognition that state law controls, there is, again, a strong argument that Fernandez was wrongly decided.

Assault and Battery by Means of Dangerous Weapon

Other Massachusetts cases have found a reckless conduct theory applicable to assault and battery by means of dangerous weapon offenses (M.G.L. ch. 265, § 15A). See, e.g., Commonwealth v. Burno, 396 Mass. 622 (1986)(automobile case cited in Holloway); Commonwealth v. Cruzado, 73 Mass.App.Ct. 803 (2009)(automobile) Commonwealth v. Broderick, 16 Mass.App.Ct. 941 (1983)(gun); Commonwealth v. Fettes, 64 Mass.App.Ct. 917 (2005)(dog); Commonwealth v. Ferguson, 30 Mass.App.Ct. 580 (1991)(suggesting recklessness could be applicable in shod foot case).

The First Circuit has previously decided in United States v. Glover, 558 F.3d 71 (1st Cir. 2009) that a Massachusetts assault and battery by means of a dangerous weapon is a crime of violence. Among other things, the opinion says that the offense is purposeful, citing Commonwealth v. Ford, 424 Mass. 709 (1997). Ford characterizes the reckless form of assault and battery by means of a dangerous weapon as requiring the “intentional commission of a wanton or reckless act . . . causing physical or bodily injury to another” quoting Burno. Holloway provides grounds for arguing that the ruling in Glover cannot stand, particularly because Holloway uses Burno as grounds for its view that an offense with a recklessness mens rea is not purposeful. Holloway also rejected the government’s view that an “intentional commission of a wanton and reckless act” amounts to a purposeful offense.

The First Circuit may soon decide the continuing validity of Glover in a pending case, United States v. Dancy, No. 09-2628 (argued February 7, 2010). Dancy involves challenges to the designation of both an assault and battery with a dangerous weapon and an assault and battery on a police officer as violent felonies under the ACCA.

Other

Another Massachusetts offense that can be committed recklessly and so is vulnerable to challenge if categorized as a violent felony or crime of violence is involuntary manslaughter (M.G.L. ch. 265, § 13). See Commonwealth v. Del Verde, 398 Mass. 288, 298, n.6 (1986) (“Involuntary manslaughter is an unlawful homicide unintentionally caused in either of two ways: ‘(1) in the commission of an unlawful act, malum in se, not amounting to a felony nor likely to endanger life . . . or (2) by an act that constitutes such a disregard of probable harmful consequences to another as to constitute wanton or reckless conduct.’”). The Holloway court’s approving citation of the Seventh Circuit case finding involuntary manslaughter not to be a crime of violence provides further support for this argument. See United States v. Woods, 576 F.3d 400, 412-13 (7th Cir. 2009), cited above.

Two offenses in M.G.L. Chapter 265 incorporate reckless conduct into their statutory language and so are susceptible to a Holloway challenge:

§ 13K. Assault, Abuse, Neglect and Financial

Exploitation of an Elderly or Disabled Person, and

§ 13L. Reckless Endangerment of Children.

* * * * *

V. Retroactivity

Holloway is retroactively applicable to all cases still pending in the district court or on direct review. See, e.g., Crowe v. Bolduc, 365 F.3d 86, 93 (1st Cir. 2004). The First Circuit may be unlikely to find the decision applicable to cases on collateral review, however. In United States v. Giggey, 551 F.3d 27 (1st Cir. 2008) the First Circuit overruled itself to hold that burglary of a non-dwelling is not categorically a crime of violence. In the course of that decision, the court said that it would not apply retroactively:

Our decision to change course affects only the procedure by which a district court calculates a defendant's sentence. It does not “prohibit criminal punishment for certain types of primary conduct” or “forbid the imposition of certain categories of punishment for a particular class of defendants” and so is not a retroactive substantive change in the law. Sepulveda v. United States, 330 F.3d 55, 59 (1st Cir. 2003) (discussing the rule from Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989)). It also is not a “watershed” change in the law any more than United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), which we held non-retroactive. Cirilo-Munoz v. United States, 404 F.3d 527, 532-33 (1st Cir. 2005).

However, the Eigth Circuit has held, in the career offender context, that Begay established a substantive rule retroactively applicable to cases on collateral review, see Sun Bear v. United States, 611 F.3d 925 (8th Cir. 2010); the Seventh Circuit, in the ACCA context, has held that Begay is retroactive, see United States v. Welch, 604 F.3d 408 (7th Cir. 2010); and the Tenth Circuit has held, in the ACCA context, that Chambers v. United States, 555 U.S. 122 (2009)(failure to report is not a violent felony) is retroactive, see United States v. Shipp, 589 F.3d 1084 (10th Cir. 2009).

A one-year statute of limitations applies to the filing of a motion for collateral relief under 28 U.S.C. § 2255. The year generally runs from the date when the conviction is final, that is, when certiorari is denied, or, if certiorari was not sought but an appeal was taken, the date when the time for filing a petition for certiorari would have lapsed (90 days after the court of appeals issued its judgment). If no appeal was filed, the year runs from the expiration of the time in which an appeal could have been filed (ten days after the judgment).

In some cases, the year can run from a later date: the date when the right asserted in the motion was initially and newly recognized by the Supreme Court. Obviously, the Holloway ruling itself is not a Supreme Court ruling, so that decision cannot reset the clock. However, it may be arguable that since Holloway derives from the Supreme Court ruling in Johnson, the statute of limitations should run from the Johnson decision. The date of the Johnson decision is March 2, 2010, so there is less than one month left in which to file a § 2255 petition for any defendant whose conviction became final more than one year ago.

END QUOTE

AVVO Questions Answered

Recent Questions Answered on AVVO

1. A federal criminal case can be dismissed before trial if it is shown conclusively or the government admits that it cannot prove a part of its case. For example, the the gun found in the hands of a felony in possession had not moved in commerce. What you're talking about, though, is not really a question of jurisdiction, as that term is meant in the technical legal sense. The federal government pretty much always has jurisdiction, but there are instances where a prosecutor might not have evidence to proceed for want of evidence of some statutory element of the crime.

2. Remember, this is public discussion of current events and not lawyer client advice. Consult your own lawyer. If you qualify as unable to pay for your own counsel, you will get a CJA Panel attorney or an Federal Defender, both usually having more training and expertise than retained counsel.

Feel free to contact me

3. You need to file an answer in the divorce action and oppose. Without knowing more, you could deny the existence of irreconcilable differences and oppose further court action. There are circumstances under which the Family and Probate Court can order an evaluation, but bear in mind that civil commitment has a high legal hurdle. I sympathize with you problem.

I Conduct a Divorce Practice As Well

4. The defendant needs to pursue direct appeals and seek collateral review. If defendant was tried as an adult, as your question suggests, the he gets an automatic or "unitary" collateral review in the Supreme Judicial Court, however, defendant may make motions of his own under Rule 30 to attack the judgment of conviction. Often defendants go through the system without sufficient investigative resources devoted to uncovering exculpatory evidence, though I would remark that the Commonwealth here is considered as a nationwide example for indigent legal services. Massachusetts has a unique rule (to my knowledge) allowing a defendant to attack the lawfulness of his conviction at any time where as the great majority of jurisdictions and the federal courts allow only a short limitations period after the judgment becomes final (usually once appeals are exhausted). A collateral attack on a murder conviction is serious business. Many defendants are disadvantaged in that the are appointed a lawyer too later in the proceedings.

Habeas Corpus Practice

5. You would need answer the divorce complaint and move for enforcement of the automatic order restraining the parties from transferring assets. You should do this immediately because money, investments and other personal property are often impossible to get back.

My site

6. Of course I can't give real legal advice here on an open forum etc., etc, but if I were you, I wouldn't give an inch. Do not accept any disposition that requires you to make an admission of criminal conduct. You have to be willing to go the distance, but you have a clean record and should fight to keep it. Don't give in.

7. The basic crime w/o aggravating factors carries a 0 - 20 penalty. If defendant puts anyone's life in jeopardy or commits assault in the course of the robbery, the penalty is 0 - 25. If the defendant commits kidnapping or causes death, 10 - life or death. There's also an additional consecutive sentence for conduct with firearms where applicable.

There's not much glamor or excitement in bank robbery. The great majority of bank robberies are committed by addicts passing a note to the teller claiming to have a gun. A great many of these are caught within hours passing dye-marked notes to buy narcotics. Most people who commit a bank robbery in those circumstances end up with about 12 - 15 years because they have priors and qualify as career offenders.

If the defendant is armed and has a record, he's usually looking at a 20 - 30 year sentence.

8. Emails are also governed by the Electronic Communications Privacy Act (ECPA) and the Patriot Act. Although the ECPA originally set up protections (such as a warrant requirement) to protect email, those protections have been weakened in many instances by the Patriot Act. Even where the protections remain under the ECPA, emails lose their status as a protected communication in 180 days, which means a warrant is no longer necessary and your emails can be accessed by a simple subpoena. Be sure to clear your mail server after 90 days.

9. There is no expungement of a federal conviction. A defendant may institute a collateral attack under 28 USC 2255, but any such claims, if they existed, would very likely be time barred under AEDPA's one-year statute of limitations. The only circumstances that might allow a collateral attack at this point (if there ever was such claim), would probably be newly-discovered evidence of innocence. If you are represented by an Assistant Federal Public Defender or a Criminal Justice Act Panel attorney, you should contact him. AFPD's and CJA lawyers tend to be experts in Federal Criminal Practice and almost always have greater knowledge and ability than retained counsel.

10. The state and federal courts have different statutory mandates. Much conduct that is a violation of state law is also a violation of federal law. Embezzling from the bank may be state-law theft or embezzlement but it is usually also bank and mail fraud, depending on how the crime is accomplished. Drug distribution crimes are an area of total over lap. Practically every state-law drug distribution crime is a violation of the Controlled Substances Act.

11. You ask whether there one can get tried for the same offense in state and federal court and the technical answer is no. The state-law offense and the federal offenses are different offenses. As a constitutional matter, the state and the government are "independent sovereigns" and each is entitled to enforce its criminal law. A good example of this was the prosecution of the police in the Rodney King case where the government convicted the officers of civil rights crimes after the California aggravated assault prosecutions ended in acquittal.

12. Making the following assumptions in this answer:

You're in federal court;

The Judge will apply the FSA (as most are doing);

You possessed 28+ grams of cocaine base with intent to distribute;

You possessed the gun in connection with the drug offense;

You did not brandish or discharge the gun;

You would be exposed to five years for the cocaine and another five years consecutive for the gun, maybe more depending on whether you possessed armor piercing ammunition in violation of the NFA.

This response is merely part of public debate on current issues in the law and not lawyer client advice. You need (and probably already have) a lawyer. If you have access to a computer, then you on on some form of bail. If you are charged federally, you will have to fight hard for supervised release.

AVVO Questions Answered

Recent Questions Answered on AVVO

Attorney Kevin Barron

1. A federal criminal case can be dismissed before trial if it is shown conclusively or the government admits that it cannot prove a part of its case. For example, the the gun found in the hands of a felony in possession had not moved in commerce. What you're talking about, though, is not really a question of jurisdiction, as that term is meant in the technical legal sense. The federal government pretty much always has jurisdiction, but there are instances where a prosecutor might not have evidence to proceed for want of evidence of some statutory element of the crime.

2. Remember, this is public discussion of current events and not lawyer client advice. Consult your own lawyer. If you qualify as unable to pay for your own counsel, you will get a CJA Panel attorney or an Federal Defender, both usually having more training and expertise than retained counsel.

Feel free to contact me

3. You need to file an answer in the divorce action and oppose. Without knowing more, you could deny the existence of irreconcilable differences and oppose further court action. There are circumstances under which the Family and Probate Court can order an evaluation, but bear in mind that civil commitment has a high legal hurdle. I sympathize with you problem.

I Conduct a Divorce Practice As Well

4. The defendant needs to pursue direct appeals and seek collateral review. If defendant was tried as an adult, as your question suggests, the he gets an automatic or "unitary" collateral review in the Supreme Judicial Court, however, defendant may make motions of his own under Rule 30 to attack the judgment of conviction. Often defendants go through the system without sufficient investigative resources devoted to uncovering exculpatory evidence, though I would remark that the Commonwealth here is considered as a nationwide example for indigent legal services. Massachusetts has a unique rule (to my knowledge) allowing a defendant to attack the lawfulness of his conviction at any time where as the great majority of jurisdictions and the federal courts allow only a short limitations period after the judgment becomes final (usually once appeals are exhausted). A collateral attack on a murder conviction is serious business. Many defendants are disadvantaged in that the are appointed a lawyer too later in the proceedings.

Habeas Corpus Practice

5. You would need answer the divorce complaint and move for enforcement of the automatic order restraining the parties from transferring assets. You should do this immediately because money, investments and other personal property are often impossible to get back.

My site

6. Of course I can't give real legal advice here on an open forum etc., etc, but if I were you, I wouldn't give an inch. Do not accept any disposition that requires you to make an admission of criminal conduct. You have to be willing to go the distance, but you have a clean record and should fight to keep it. Don't give in.

7. The basic crime w/o aggravating factors carries a 0 - 20 penalty. If defendant puts anyone's life in jeopardy or commits assault in the course of the robbery, the penalty is 0 - 25. If the defendant commits kidnapping or causes death, 10 - life or death. There's also an additional consecutive sentence for conduct with firearms where applicable.

There's not much glamor or excitement in bank robbery. The great majority of bank robberies are committed by addicts passing a note to the teller claiming to have a gun. A great many of these are caught within hours passing dye-marked notes to buy narcotics. Most people who commit a bank robbery in those circumstances end up with about 12 - 15 years because they have priors and qualify as career offenders.

If the defendant is armed and has a record, he's usually looking at a 20 - 30 year sentence.

8. Emails are also governed by the Electronic Communications Privacy Act (ECPA) and the Patriot Act. Although the ECPA originally set up protections (such as a warrant requirement) to protect email, those protections have been weakened in many instances by the Patriot Act. Even where the protections remain under the ECPA, emails lose their status as a protected communication in 180 days, which means a warrant is no longer necessary and your emails can be accessed by a simple subpoena. Be sure to clear your mail server after 90 days.

9. There is no expungement of a federal conviction. A defendant may institute a collateral attack under 28 USC 2255, but any such claims, if they existed, would very likely be time barred under AEDPA's one-year statute of limitations. The only circumstances that might allow a collateral attack at this point (if there ever was such claim), would probably be newly-discovered evidence of innocence. If you are represented by an Assistant Federal Public Defender or a Criminal Justice Act Panel attorney, you should contact him. AFPD's and CJA lawyers tend to be experts in Federal Criminal Practice and almost always have greater knowledge and ability than retained counsel.

10. The state and federal courts have different statutory mandates. Much conduct that is a violation of state law is also a violation of federal law. Embezzling from the bank may be state-law theft or embezzlement but it is usually also bank and mail fraud, depending on how the crime is accomplished. Drug distribution crimes are an area of total over lap. Practically every state-law drug distribution crime is a violation of the Controlled Substances Act.

11. You ask whether there one can get tried for the same offense in state and federal court and the technical answer is no. The state-law offense and the federal offenses are different offenses. As a constitutional matter, the state and the government are "independent sovereigns" and each is entitled to enforce its criminal law. A good example of this was the prosecution of the police in the Rodney King case where the government convicted the officers of civil rights crimes after the California aggravated assault prosecutions ended in acquittal.

12. Making the following assumptions in this answer:

You're in federal court;

The Judge will apply the FSA (as most are doing);

You possessed 28+ grams of cocaine base with intent to distribute;

You possessed the gun in connection with the drug offense;

You did not brandish or discharge the gun;

You would be exposed to five years for the cocaine and another five years consecutive for the gun, maybe more depending on whether you possessed armor piercing ammunition in violation of the NFA.

This response is merely part of public debate on current issues in the law and not lawyer client advice. You need (and probably already have) a lawyer. If you have access to a computer, then you on on some form of bail. If you are charged federally, you will have to fight hard for supervised release.