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June 5, 2014

Split Fourth Circuit highlights ugly mess of SCOTUS "crime of violence" jurisprudence

If you are sentencing nerdy like me, you often wonder what crimes are properly considered "crimes of violence" under federal law.  And, if you are sentencing nerdly like me, you also know the Supreme Court's work on this issue sometimes makes very hard to answer whether a particular state crime is a "crime of violence" for federal sentencing law purposes.  This reality is on stark display in a 40-page opinion handed down today by a Fourth Circuit panel in US v. Martin, No. 12-5001 (4th Cir. June 5, 2014) (available here).

At issue in Martin is the seemingly simple question of whether the defendant's prior Maryland conviction "for fourth-degree burglary constituted a crime of violence under U.S.S.G. § 2K2.1(a)(2)."  But each judge on the panel had something distinct to say on the matter: "Chief Judge Traxler wrote the majority opinion, in which Judge Diaz joined.  Judge Diaz wrote a separate concurring opinion. Judge O’Grady wrote a dissenting opinion."   Gluttons for jurisprudential punishment will want to read the entire Martin ruling, but others will get a feel for this story from portions of Judge Diaz's concurrence:

This case raises a vexing question regarding the application of the crime of violence enhancement found in the Guidelines: To what extent does Begay’s “similar in kind” test for analyzing offenses under the residual clause survive Sykes v. United States, 131 S. Ct. 2267 (2011)?  Specifically, would the Supreme Court apply that test in determining whether Martin’s fourth degree burglary conviction under Maryland law qualifies as a crime of violence? Or would the Court again change course?...

“[T]o put it mildly,” the residual clause is “not a model of clarity.” See James, 550 U.S. at 217 (Scalia, J., dissenting).  The clause “is nearly impossible to apply consistently,” and the Supreme Court’s jurisprudence “has created numerous splits among the lower federal courts.” See Chambers v. United States, 555 U.S. 122, 133 (2009) (Alito, J., concurring in the judgment); cf. United States v. Vann, 660 F.3d 771, 797 (4th Cir. 2011) (en banc) (Davis, J., concurring) (“At the end of the day, it may well be that Justice Scalia is right: that the residual clause of the Armed Career Criminal Act is unconstitutionally vague.”)

The Supreme Court has struggled mightily to make sense of this sphinx-like provision, but the clause remains an elusive target.  We are told that a prior conviction triggers the sentencing enhancement when “the risk posed by [the offense at issue] is comparable to that posed by its closest analog among the enumerated offenses.”  See James, 550 U.S. at 203 (majority opinion).  But, at least in some cases, the offense must also be “roughly similar, in kind as well as in degree of risk posed, to the [enumerated] examples.”  See Begay, 553 U.S. at 143.  To be roughly similar in kind, the crime must be “purposeful, violent, and aggressive.” See id. at 145.  Fear not though, because “[i]n many cases the purposeful, violent, and aggressive inquiry will be redundant with the inquiry into risk.” See Sykes, 131 S. Ct. at 2275.  As Justice Scalia noted in dissent in Sykes, however, why the inquiry will often be redundant, and when it will not be, “are not entirely clear.” See 131 S. Ct. at 2285....

Beyond this case, however, “[t]he Court’s ever-evolving interpretation of the residual clause will keep defendants and judges guessing for years to come.” Id. at 2287 (Scalia, J., dissenting).  I urge Congress or the Court to shed light on this “black hole of confusion and uncertainty.”  See Vann, 660 F.3d at 787 (Agee, J., concurring).

June 5, 2014 at 04:56 PM | Permalink

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Comments

actually this is wrong!


" And, if you are sentencing nerdly like me, you also know the Supreme Court's work on this issue sometimes makes very hard to answer whether a particular state crime is a "crime of violence" for federal sentencing law purposes. "

the only question is did the STATE consider it a "crime of violence" if the answer is NO then the federal lvl has no legal right to ability to change that.

Posted by: rodsmith | Jun 5, 2014 9:54:35 PM

Rodsmith: You couldn't be more wrong about what's wrong. Go back to advocating murder of public officials and leave the legal analysis to people who are not bat shit crazy.

Posted by: Wayne-O | Jun 6, 2014 11:51:06 PM

The Supreme court since it keeps upholding sex offender registries, should define what constitutes a "crime of sex"(grabbing your niece or nephew's arm and temporarily detaining them for mischief could be false impronsement and a highest LEVEL 3, adam walsh act, us marhshalls enforced sex crime), if bill of attainder rulings and not enforced, I do agree that state courts should have more say and the federal courts should back off, .

Is Arson a crime of violence but not certain other crimes?

Posted by: Alex | Jun 7, 2014 3:19:59 AM

kiss my whatever wayne-o. I'm not wrong. It's a state crime therefore it's the state's right to decide WHAT it is. The febs don't get to rewrite history. Oh they think they can but they legally can't and sooner or later we WILL EXPLAIN IT TO THEM in the only language they seem to hear the last few decades.

Posted by: rodsmith | Jun 7, 2014 10:42:59 PM

Rodsmith: I don't know who these "febs" you are mad at are, but in federal court, it is the federal definition of "crime of violence" that controls, regardless of how a state might classify an offense. That's the way it is. I know you don't like the idea, but that's the way it is. I appreciate your opinion that it shouldn't be that way, but that's the way it is. No amount of assassination mongering will change the fact that that's the way it is. You are confused: they LEGALLY can, even if they MORALLY shouldn't. They are not breaking the law. They are making law that you happen to despise. Fine. If you insist on being an unhinged lunatic, and vandalizing this forum with your rantings, don't compound things by being flat out wrong as a matter of law and fact as well.

Posted by: Wayne-O | Jun 7, 2014 11:28:11 PM

I have no problem with a federal definition of a crime. But it only counts for federal crimes. If the state classifies something as a minor crime and doesn't decide to be part of the federal gotcha add on program that is their option. The feds don't get to come back 10-20 years later and tell someone that the minor state crime is now a federal crime with violence. Gov't fuctards like that are just asking for someone to show them some real violence.

as for the misguided ideal that they can. try again. Just because the last 40-50 years of retards on the high court have told them they can. they can't not legally. Yes right NOW they have the power but that will change. it ALWAYS does.

Posted by: rodsmith | Jun 8, 2014 2:42:14 PM

as for this!

"They are not breaking the law. They are making law that you happen to despise. Fine. If you insist on being an unhinged lunatic, and vandalizing this forum with your rantings, don't compound things by being flat out wrong as a matter of law and fact as well."

Might be time someone showed you the difference between an opinion and a rant.

that former post is an opinion. I think they are operating outside the law in this. Just like they have in pretty much every area of like in the last 50 years or so.

a rant would be

"I think we are about 50 years past the time when 50 or 60 million of us should have swarmed the capital and all the state capitals and removed every traitor Politian and two-faced buracrat we can get our hands on."

THAT's a rant!

dont' mix them up.

Posted by: rodsmith | Jun 8, 2014 2:47:18 PM

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