Fault Lines
21 June 2017

3rd Circuit Gets Creative In Upholding Long Mandatory Sentences

January 3, 2017 (Fault Lines) — Title 18 U.S.C. § 924(c) is a nasty statute. According to its terms, if a person possesses, brandishes or discharges a firearm, “during and in relation to” or “in furtherance of” “any crime of violence or drug trafficking crime” that person is subject to a mandatory term of between 5 and infinity years of imprisonment consecutive to any sentence imposed for the underlying crime.

So, for example, if someone was previously convicted of a 924(c) violation, then gets caught with a distribution amount of narcotics and possesses a machinegun in furtherance of that drug crime, he is subject to a mandatory minimum prison term of “life,” which cannot even begin to run until he has finished the sentence for the drug charge. More mundanely, if a low-level meth dealer happens to have a pistol on him when selling a single bag to an undercover, he’s going to get at least five years tacked onto the end of his sentence.

Section 924(c) is a sledgehammer used by the U.S. Attorney’s office to force guilty pleas. If the statute applies in a given case, the extra five, or 10, or 30 years it can force a judge to impose is a mighty threat to lodge at a defendant who might be hesitating about whether he should take a deal. Often, if a 924(c) charge is even a tangential threat, the only “deal” the defendant can hope for is the opportunity to plead guilty to everything he’s been charged with in exchange for the gun charge to not actually be filed.

Litigation over whether 924(c) applies in a given case is therefore contentious and very important. And, one of the most fertile areas of this litigation involves whether the firearm was associated with a “crime of violence.”

This being a federal statute, a “crime of violence” takes a very specific and very convoluted definition. It means a felony that either “has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” These two clauses are called the “elements clause” and the “residual clause,” respectively.[1]

Enough abstractions. Anthony Robinson committed two armed robberies about two hours apart while brandishing a firearm. After representing himself at trial, he was unsurprisingly convicted of two Hobbs Act robberies, 18 U.S.C. § 1951(a), and one count of brandishing a firearm during one of the robberies in violation of 18 U.S.C. § 924(c)(1)(A)(ii). For his crimes, Robinson was sentenced to 20 years in federal prison for his robberies, and an extra 10 years, consecutive, for the 924(c) charge, for a total of 30 years of federal time.

Robinson appealed (because, why not at that point?), and, fortunately for him, decided to be represented by a lawyer, who argued that Hobbs Act robbery was not a “crime of violence” because it did not always have an element of force and therefore the 924(c) charge could not be added to it in the first place.[2] As Robinson’s attorney argued, Hobbs Act robbery could be achieved by placing a person in fear of loss to their property, without actually threatening the use of force. That would not seem to fit with the elements clause.

The Third Circuit disagreed, but did so in a very strange way. Writing for the majority, Judge Roth concluded that, in this case, because Robinson committed Hobbs Act robbery, which may or may not always be a violent crime, while brandishing a firearm, which is, by definition, an act of, at least threatened, violence, then the extra sentence was justified.

This is strange because it tosses out several traditional ideas of how courts look at these problems. Remember that 924(c) applies when a gun is possessed, brandished or used “during and in relation to” or “in furtherance of” a crime of violence. The definition of a crime of violence therefore looks at the crime to which the gun either related or furthered. Or that’s what the statute suggests, at least. Then, when deciding what is a “crime of violence,” courts typically employ the “categorical approach” and look only at the elements of the offense, asking if every commission of the crime necessarily meets the definition of the crime of violence.

But here, the Court threw out the old rules. First, the Court said it didn’t need to use the categorical approach at all, and instead should use what it called the “modified categorical approach,” which it said allowed it to examine the facts, at least to a limited extent, of the potentially violent offense to see if it was actually committed in a definitionally violent way.

Second, the Court decided it could then look not at the crime related to or furthered, but the 924(c) charge itself and borrow an element. Under this analysis, regardless of whether Hobbs Act robbery is a crime of violence in every case, when the defendant also brandishes a firearm in the process it is, and thus his brandishment of the firearm is related to or in furtherance of his own inherently violent brandishment of the firearm. The 10-year tail was therefore required.

The categorical approach is typically mandated by the Sixth Amendment, so the majority’s rejection of that approach draws a red flag, and certainly drew the ire of Judge Fuentes in his opinion concurring in the judgment. The Sixth Amendment makes it so that a mandatory minimum sentence cannot be imposed on the basis of facts not proven beyond a reasonable doubt to a jury or admitted by a defendant. Verdicts and guilty pleas reflect the elements of crimes, not a line-by-line account of what happened. So the categorical approach says that, in order to avoid a Sixth Amendment problem, we can only look to the elements of the crime of conviction, viewed in the abstract, to determine what facts necessarily went into the judgment.

The Court in Robinson avoids this problem, while also dumping the categorical approach by saying it can borrow facts from crimes proved contemporaneously. So what if the elements of Hobbs Act robbery don’t require violence? The jury in this very case already found a violent act beyond a reasonable doubt (brandishing a firearm), so the Sixth Amendment doesn’t apply when the judge slams Robinson with the extra decade. While there may be other valid reasons why the Court should have applied a strict categorical analysis in this case, it seems that it is correct, at least, that the typical Sixth Amendment problem doesn’t apply.

The real problem, to my mind, is that the Court makes the language of 924(c) meaningless. How can brandishing a firearm relate to or further a crime of violence if the only violent act is the brandishing itself? Moreover, if this analysis is valid, then assume a defendant was convicted of brandishing or using a firearm while he maliciously destroyed property on federal lands (maybe by shooting at a sign in a national forest), which is definitely not generally a crime of violence. That person must then be subject to a mandatory consecutive term of imprisonment under 924(c). That seems to reject both the letter and spirit of the statute.

For now, Robinson is the law of the Third Circuit. And, while we wait to see if the full Court revisits the opinion en banc, or perhaps SCOTUS takes the case, we will know where to find poor Robinson.

[1] If the residual clause seems familiar, it is because an identical clause was held to be unconstitutionally vague in a relatedly-draconian sentencing statute because it essentially means nothing and everything at the same time. Presumably, this applies to 924(c) as well.

[2] All the parties assumed that the residual clause of 924(c) was unconstitutional, so the only argument was on the elements clause. The Court didn’t feel it was necessary to address the residual clause directly, so it didn’t.

8 Comments on this post.

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  • Joe Potosky
    3 January 2017 at 7:16 am - Reply

    End of the day. Once you use/carry a firearm a different ballgame. So many repeat offenders caught with firearms…. If we’re going to overcrowd the jail system, those caught with a firearm should be at the head of the line.

    • Caleb Kruckenberg
      3 January 2017 at 10:19 am - Reply

      I don’t disagree that guns deserve worse penalties. The problem is the mandatory consecutive nature of the sentence. In Robinson’s case even if everyone agreed that maybe an extra 10 years tacked on the end was unnecessary, the judge was required to impose it. Sometimes defendants who have a valid defense if they went to trial end up pleading to things they shouldn’t just because the danger of a 924c enhancement is too great.

      • shg
        3 January 2017 at 10:57 am - Reply

        I’ve known a fella or two who carried a gun to a drug deal for self-defense, because some of those *other* people are violent, you know. If the option is 10 years consec or death, which option is the most reasonable?

        • Keith
          3 January 2017 at 2:27 pm - Reply

          I was taking a look at the definition in the opinion for brandishing: “[a] firearm is “brandished” when all or part of the firearm is displayed or made known to another person in order to intimidate that person.”

          Would the prosecution have to prove you were carrying it to intimidate (as opposed to wanting it for self defense) in order to get the enhancement?

          Related, would carrying the firearm for self defense (and not to intimidate) be a valid defense for that individual when the crime calling for the enhancement is the brandishing itself?

          • shg
            3 January 2017 at 2:47 pm -

            Think about this question: how would someone go about proving that he possessed a gun for self defense? Hint: He would have to testify, and then be exposed to cross examination about the entirety of the conduct, because you don’t just get to testify about the stuff you want and not the stuff you don’t want.

          • Chris PD
            3 January 2017 at 5:10 pm -

            Brandishing and discharging are almost superfluous in the statute given that possession alone is enough to activate the enhancement provision.

  • The Old Folks Home | Simple Justice
    3 January 2017 at 7:39 am - Reply

    […] drugs was scaring the crap out of America, Congress added “use and carry” enhancements, beloved to prosecutors as 18 U.S.C. 924(c), to stack a decade on the back end of other […]

  • Keith
    3 January 2017 at 5:44 pm - Reply

    Chris,

    I thought about that, but in the examples cited above, the discharge or brandishing are the “violent” acts, which the court is using the modified approach for, even when the underlying act wasn’t one.

    In the example Caleb gave above, discharge created the violent criminal act. In the Robinson action, brandishing did. A person legally permitted to carry such a weapon, wouldn’t be committing an otherwise criminal act.

    That’s why I didn’t go there.

    It’s not clear to me that in a case where possession would still be illegal, it would be considered violent to bring down the hammer of the enhancement.

    But I’m curious if the lawer-peeps agree there.