Failure To Abide By "Transitional Supervision" Not A Violent Felony Within The Meaning of ACCA

United States v. Mills, Docket No. 07-0308-cr (2d Cir. June 26, 2009)

Mills challenged a district court's finding that he qualified for ACCA sentencing because of his prior Connecticut escape conviction.  Specifically, Mills was released from Connecticut prison and placed in "transitional supervision," under which he was authorized to reside in a private residence.  By statute, however, he remainder under the jurisdiction of the Connecticut Commissioner of Correction, and was required to satisfy conditions similar to those required of parolees, including reporting regularly to a community enforcement officer.  Mills failed to appear as required after his initial report date.  Thus, he was charged with escape.

Under Taylor v. United States, 495 U.S. 575 (1990) courts are required to take a "categorical approach" when determining whether an offense qualifies as a "violent felony" under the ACCA.  But where a statute encompases crimes that would qualify both as violent felonies and crimes that would not -- like the Connecticut statute at issue here, which defined escape as both an affirmative escape from custody or a mere failure to return -- courts can make a limited inquire into which part of the statute the defendant was convicted of violating.  So, when the Second Circuit combined its limited inquiry into Mills' conduct (he basically walked away) and the Supreme Court's decision in Chambers v. United States, 129 S.Ct. 687 (2009) (finding that a failure to report or failure to return is not a violent felony under the ACCA) . . . well, you can imagine what happened.  Reversed and remanded for resentencing.  Even the Government conceded the mistake.

Prison Not Appropriate For Rehabilitation?

United States v. Perone, No. 08-0052-CR., 2009 WL 52070 (2d Cir. Jan. 9, 2009)

Perone appealed his 60 month sentence, imposed notwithstanding an advisory Guidelines range of 18-24 months, as substantively unreasonable.  Objectively, it seems like an awfully large percentage upward variance.  But, as the Second Circuit found, it wasn't substatively unreasonable given Perone's criminal history and conduct.

Perone did, however, argue that "the need for long-term psychiatric treatment is an inappropriate reason for imposing long-term imprisonment."  And the Second Circuit sort-of agreed.  It found that while "imprisonment is not an appropriate means of promoting correction and rehabilitation . . . it is not improper for a sentencing court to note the added benefit which a structured prison environment provides for a defendant's long-term treatment."

Seems to me, though, that there's a wide gulf between actual psychiatric treatment and a "structured prison environment."  But Perone didn't seem like the type of defendant for which slack should be cut.

Also, did I hear the Second Circuit correctly?  Imprisonment is not an appropriate means for promoting rehabilitation?

Serving Time For The Same Crime

United States v. Armstrong, No. 07-CR-874 (JBW), 2008 WL 5459177 (E.D.N.Y. Dec. 22, 2008)

This is interesting. 

Armstrong pled guilty to a serious offense -- he was "a member of a gang that disturbed the peace and threatened the safety of a public housing project."  The advisory Guidelines recommended a 135-168 month sentence (and a 5 year mandatory minimum), yet Judge Weinstein sentenced him to 84 months.  Why?  Well, "Armstrong's childhood was affected by inadequate parental control."  Moreover, he was "of slight stature and juvenile appearance, which may make his time in prison particularly hazardous."

But perhaps more interestingly, he "had already served fourteen months time under a state sentence for essentially the same conduct." 

Reveral Where District Court Did Not Make Adequate Findings Concerning Nature, Severity And Likely Duration Of Injury

United States v. Guang, et al., Docket Nos. 05-4724-cr(L), 05-6171-cr(CON), 2007 WL 4335556 (2d Cir. Dec. 13, 2007)

Among other things, the district court increased the Guidelines offense level under Section 2B3.2(b)(4), which provides for an increase in offense level if any victim sustained bodily injury, according to the seriousness of the injury.  In Guang, the court increased the Guidelines offense level by 6 offense levels based on the injury to the victim's eyes during the course of the commission of the offense.  The district court's enhancement, however, was based solely on testimony that "something went into [the victim's] eyes that hurt tremendously" and the following:

Q:  Mr. Zhang, did the beating that you received that evening affect your eyesight?
A:  Yes.  Whomeve knows me knew that I liked to read newspaper a lot in the past.  After that occasion, it's difficult for me to read newspapers.  And so from that point on, I don't even buy newspapers and I don't even read newspapers.
Q:  Why is it difficult for you to read newspapers now?
A:  If I spend more time in reading, you know, it hurts my eyes.

The Second Circuit concluded that that there "is no question that Zhang suffered substantial impairment of his eyesight at the time of the assault" and that "Zhang has difficult reading may constitute an impairment."  But it found that that there was "insufficient record evidence to warrant a finding that the assault resulted in substantial impairment that was likely to be permanent," as is required for a 6 level enhancement under the Guidelines.  The Second Circuit therefore remanded "for consideration of the nature, severity and likely duration of Zhang's impaired eyesight."

The Power Of Cooperation

United States v. Baum, No. 04-CR-508 (JBW), 2007 WL 3274894 (E.D.N.Y. Oct. 30, 2007)

Baum was convicted of very serious weapons and narcotics offenses, and had a long criminal history.  According to the district court, the minimum statutory sentence Baum could receive was 10 years for one offense and a consecutive term of 7 years for another offense, for a total of 17 years or 204 months.  But the court sentenced him to a mere one day of incarceration.

Wow.  Now, granted, Baum had already been incarcerated for 4 years.  But his cooperation was truly extraordinary.  He provided information concerning six murders, including those of his two brothers.  He freely admitted to the facts concerning one of his offenses of conviction, even though the Government had no prior knowledge or information concerning those activities.  And he was incarcerated for those 4 years in the same correctional facility as his brothers' killers, where he himself was under constant threat.

Defense attorneys likely will not often face such unique circumstances.  But Baum is important to the extent it can be relied on as a basis for a quite significant departure for quite significant cooperation.  In other words, defendants can have at least some hope that cooperation will result in a significantly reduced sentence, even if the Guidelines starting point is quite high.

When Is A "Violent Felony" Not A "Violent Felony"?

United States v. Walker, Docket No. 05-3851-cr (2d Cir. March 30, 2006) (found here)

Walker appealed his 15 year mandatory minimum sentence under the ACCA arising from his three prior violent felony convictions -- including New York State convictions for robbery in the second degree, robbery in the first degree and attempted assault in the second degree.  (Walker was convicted in federal court of being a felon in possession of a weapon.)  Specifically, Walker argued (among other things) that his New York State conviction for attempted assault in the second degree should not count towards the three prior convictions that qualified him for the mandatory minimum 15 year term of imprisonment under the ACCA because "New York's own definition of 'violent felony' for purposes of its sentencing laws does not include attempted assault in the second degree."  The Second Circuit rejected Walker's argument and affirmed his sentence. 

This seems like the right result.  Congress is free to define "violent felony" in any way that it desires, regardless of how state law views the same conduct.

State Court Robbery Convictions Are "Serious Violent Felonies" Under Federal Law

United States v. Snype, Docket Nos. 04-3299-cr(L), 04-3551-cr(CON), 04-4985-cr(CON) (March 17, 2006) (found here)

18 U.S.C. § 3559(1) mandates a sentence of life imprisonment for a person convicted of a "serious violent felony" who has on two separate prior occasions been convicted of "serious violent felonies."  18 U.S.C. § 3559(c)(1), in turn, defines "serious violent felony" as including (among other offenses) robbery, as described in 18 U.S.C. §§ 2111, 2113 and 2118. 

In Snype, the disrict court sentenced Snype to life imprisonment following his conviction for conspiracy to commit bank robbery and based on his prior separate New York State convictions for attempted second degree robbery, attempted first degree robbery, and first degree robbery (two counts).  On appeal, the Second Circuit found that the elements of Snype's prior New York State robbery convictions "parallel those required to establish robbery" under federal law, and that there was therefore "no question that New York State convictions for first and second degree robbery by definition qualify as serious violent felonies under § 3559(c)(2)(F)(i)."  Thus, the Second Circuit affirmed Snype's conviction.  (It also bears noting that the Second Circuit found that the district court's findings concerning Snype's prior convictions did not violate Apprendi, notwithstanding an acknowledgement that the continued viability of the Almendarez-Torres exception to Apprendi "has been questioned.")

Third Circuit Weighs In On Question Of Whether A Felon In Possession Is A Crime Of Violence

United States v. Bowers, No. 05-4908, 2005 WL 3527017 (3rd Cir. Dec. 27, 2005) (Link)

In Bowers, the Third Circuit wades into the circuit split pool concerning the question of whether an individual charged with being a felon in possession of a weapon (18 U.S.C. 922) has committed a crime of violence (for purposes of 18 U.S.C. 3156).  (Bowers actually and directly dealt with a question of post-arrest detention.)  Simply put, the Third Circuit joined the District of Columbia Circuit (United States v. Singleton, 182 F.3d 7 (D.C. Cir. 1999), Seventh Circuit (United States v. Lane, 252 F.3d 905 (7th Cir. 2001)) and Eleventh Circuit (United States v. Johnson, 399 F.3d 1297 (11th Cir. 2005)) in finding that the crime of felon in possession is not a crime of violence for purposes of 18 U.S.C. 3156, and rejected the Second Circuit's contrary conclusion (United States v. Dillard, 214 F.3d 88 (2d Cir. 2000)).  As described by the Third Circuit, "we are unwilling to infer that a felon will use a gun violently merely because he owns it."