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December 2, 2018

En banc Fifth Circuit overrules multiple precedents to clean up (and expand) its "crime of violence" jurisprudence

A helpful reader made sure I did not miss a remarkable en banc opinion handed down by the Fifth Circuit on Friday in US v. Reyes-Contreras, No. 16-41218 (5th Cir. Nov. 30, 2018) (available here).  Regular readers may recall that I suggested in this post that it might feel like dropping through Dante's various levels of hell when seeking to sort through intricate precedents to figure out what is and what is not a "violent felony" or a "crime of violence" for federal sentencing purposes.  There is a hellish-landscape quality to the 30+ pages of Reyes-Contreras, but the start and close of the opinion hints at how the en banc Fifth Circuit is doing its level best to escape (with footnotes omitted):

Fredis Reyes-Contreras pleaded guilty of illegal reentry.  Because he had been convicted of voluntary manslaughter in Missouri, the district court applied a sentencing enhancement for a crime of violence (“COV”).  Well represented by the Federal Public Defender, Reyes-Contreras appealed to challenge the enhancement.  Burdened by binding caselaw that required us to declare that killing a person with a baseball bat is not a COV, the panel vacated for resentencing.  The court granted the government’s petition for rehearing en banc, thus vacating the panel opinion.  Finding it necessary to overrule several of our precedents, we now affirm the judgment of conviction and sentence....

It is high time for this court to take a mulligan on COVs.  The well-intentioned experiment that launched fifteen years ago has crashed and burned.  By requiring sentencing courts and this court to ignore the specifics of prior convictions well beyond what the categorical approach and Supreme Court precedent instruct, our jurisprudence has proven unworkable and unwise.  By employing the term “crime of violence,” Congress and the U.S. Sentencing Commission obviously meant to implement a policy of penalizing felons for past crimes that are, by any reasonable reckoning, “violent,” hence the term.

As with many legal standards, decisions are difficult at the margins.  But this case is nowhere near the margin.  Except as otherwise directed by the Supreme Court, sentencing should not turn on “reality-defying distinctions.” United States v. Verwiebe, 874 F.3d 258, 261 (6th Cir. 2017), cert. denied, 139 S.Ct. 63 (2018).  The interests of justice and Congress’s commands are not served by the absurd conclusion that intentionally killing with a baseball bat, and intentionally ramming a vehicle into a car containing a child, are not COVs.  A more realistic approach comports with reason and common sense. 

In sum, we hold that MISSOURI REVISED STATUTES § 565.023.1 is divisible. Using the modified categorical approach, Reyes-Contreras was convicted under Subdivision (1), which is generic manslaughter, a COV.  In the alternative, even if Section 565.023.1 were not divisible, we hold that the statute as a whole is a COV because Subdivision (2) satisfies the use-of-force requirement and thus is independently a COV.

In finding “use of force” for purposes of identifying COVs, the distinction between direct and indirect force is abolished.  Likewise for the now-repudiated distinction between causing injury and using direct force. We show that the Missouri assisted-suicide statute satisfies the use-of-force requirement.  And we hold that, even if it did not, there is not the realistic probability of enforcement.

The holdings just announced, true to Supreme Court precedent, are in conflict with numerous panel and en banc decisions of this court. We therefore overrule, in whole or in part, as explained herein, the following [18] decisions and their progeny....  Reyes-Contreras’s conviction of voluntary manslaughter under MISSOURI REVISED STATUTES § 565.023.1 is a crime of violence that calls for a sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii).  The judgment of conviction and sentence is AFFIRMED.

December 2, 2018 at 11:06 AM | Permalink

Comments

"The interests of justice and Congress’s commands are not served by the absurd conclusion that intentionally killing with a baseball bat, and intentionally ramming a vehicle into a car containing a child, are not COVs"

That's puzzling. I don't understand how the definition of a crime of violence hinges on whether a child is or is not in a car. I would think that whether a human person is in the car is what counts, not whether the person is or is not an adult.

Posted by: Puzzled | Dec 2, 2018 4:53:12 PM

It's good to see that the Courts have worked out that intentionally killing someone with a baseball bat is in fact violent. Fine work.

Posted by: William Jockusch | Dec 3, 2018 9:37:52 AM

Puzzled:

Presumably, if the human being within the car being struck had a name like "Fredis Reyes-Contreras", deliberately crashing into it might be interpreted less as a crime of violence and more as a clumsy attempt at "deportation" to the crimson gorgets that constitute the bulk of political office holders in the Federal Fifth District.

Posted by: G. B. Robinson | Dec 4, 2018 6:17:25 AM

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