The impact of stacked 924(c) "Crime of Violence" charges and why they may be unconstitutionally applied . . . . .
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Bundy Ranch Standoff
What Happened on April 12th, 2014
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The Impact of Stacked 924(c) “Crime of Violence” Charges – And Why They May Be Unconstitutionally Applied
Introduction
Defendants in the USA vs Bundy et al case face multiple charges of 18 USC 924(c), or “Crimes of Violence”. These charges are “enhancements” that get stacked upon a “predicate offense” (the primary offense). A 924(c) charge is unique primarily for two reasons:
- It introduces stiff mandatory minimum sentences that cannot be subject to probation and
- cannot be served concurrently with any other 924(c) conviction or concurrently with any other sentence for an applicable predicate offense.
The outcome is one where first-time offenders could potentially face absurdly excessive penalties, including life sentences, simply for being in possession of a weapon; exactly what we are seeing with regard to Idaho’s four political prisoners.
A Brief History
The first mandatory minimums for firearms-related crimes were introduced with the Gun Control Act of 1968. Mandatory minimums and the applications thereof fluctuated with varying legislation over the years, settling in 1990 with the inclusion of short-barreled firearms and destructive devices. Up until this point, a 924(c) required the “use” of a firearm in order to secure a conviction.
In Bailey vs The United States (1995), the Supreme Court (SCOTUS) ruled that “[…] ‘use’ must connote more than mere possession of a firearm by a person […]”. In response to this, 924(c) was updated by Congress in 1998 to not only prohibit “use” but also “possession in furtherance” of a predicate offense.
Related Statutory Provisions
Two provisions in the US Code are related to 924(c):
- The Armed Career Criminal Act (ACCA) – 18 USC 924(e)
- Definition of a “Crime of Violence” – 18 USC 16
From 18 USC 16, a crime of violence is defined as:(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or prop*erty of another, or
(b) any other offense that is a felony and 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.
18 USC 924(c) is nearly identical to 18 USC 16 in wording, the ACCA differs in the wording of its “residual clause” as it defines a “violent felony”, or: (e)(2)(B)(ii) “[…] or otherwise involves conduct that presents a serious potential risk of physical injury to another; […]”. The ACCA, which enhances sentences for repeat offenders, was successfully challenged in late 2015 through Johnson vs The United States.
The Johnson Decision
In 2015, SCOTUS ruled that the residual clause of ACCA was unconstitutionally vague under the void-for-vagueness doctrine; or simply stated, the residual clause of ACCA violates a defendant’s 5th Amendment rights to due process. SCOTUS determined:In the first place, the residual clause leaves grave uncertainty about how to estimate the risk posed by a crime. […] At the same time, the residual clause leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony.
Leading up to Johnson, courts used a “categorical approach” (from Taylor vs the United States (1990) ) to determine if a predicate offense classified as a crime of violence under ACCA. With the residual clause being found unconstitutionally vague, courts can now only consider the force clause. In this consideration, a defendants actions (or facts underlying a conviction) are irrelevant. Instead the court looks to the elements of the predicate offense and see if there is a “categorical match” to the generic offense (which specifies the enhanced penalty). In limited circumstances, a “modified categorical approach” is used, but is mostly outside the scope of the predicate offenses charged in the Superseding Indictment in USA vs Bundy et al.
Connecting The Dots
The Sixth, Seventh, Ninth (which hears appeals for the District of Nevada) and Tenth Circuit courts have all ruled that 18 USC 16(b) is not meaningfully indistinguishable from ACCA’s residual clause such that it must be deemed unconstitutionally vague. The wording in 18 USC 16(b) is nearly identical to the wording in 18 USC 924(c)(3)(b).
ACCA – 18 USC 924(e)(2)(B)(ii) – is unconstitutionally vague per Johnson and is similar to 18 USC 16(b). Several circuits have decided that 18 USC 16(b) is, by extension, unconstitutionally vague. The wording in 18 USC 16(b) is almost identical to 18 USC 924(c)(3)(b)(ii)… giving rise to a preponderance of evidence that it too is unconstitutionally vague.
If 18 USC 924(c)(3)(b)(ii) is unconstitutionally vague, the predicate offense to which the 924(c) is applied can only be weighed categorically on 18 USC 924(c)(3)(b)(i), meaning that the predicate offense must be a categorical match of the general offense of “crime of violence” described in 18 USC 924(c)(3)(b)(i).
Post-Johnson: The Circuits Divide
As stated, The Sixth, Seventh, Ninth (which hears appeals for the District of Nevada) and Tenth Circuit courts have all ruled that 18 USC 16(b) is unconstitutionally vague. It is nearly identical to the language that defines a crime of violence in 18 USC 924(c). The Fifth Circuit, on the other hand, clearly distinguishes 18 USC 16(b) from ACCA’s residual clause.
For district courts, they would be subject to binding precedent on the circuit court of appeals above them. In the 9th Circuit, Dimaya vs. Lynch (2015), it was determined that 18 USC 16(b), which is used in the Immigration and Nationality Act to define an aggravated felony, was unconstitutionally vague. The District of Nevada, subject to binding precedent of the 9th Circuit, would also have to conclude the same about 18 USC 16(b)
Where Rubber Meets The Road
Defendant Ryan Payne has a sweeping motion to dismiss all 924(c) charges based on two criterion:
- 18 USC 924(c)(3)(b)(ii), like nearly identically worded and categorically applied 18 USC 16(b), is unconstitutionally vague, and…
- 18 USC 924(c)(3)(b)(i) fails to establish a crime of violence for the predicate offenses when subjected to the categorical approach outline in Taylor.
In this motion, Payne addresses counts 3, 6, 9, and 15 making the case that the alleged predicate offenses are not “crimes of violence”.
- Count 2: Conspiracy to Impede – 18 USC 372
This charge was dismissed by the District of Oregon during the Malheur Refuge Occupation trial. The statute does not have any requirement of actual, attempted, or threatened use of force. That is, 18 USC 372 defendants to “conspire” to use the threat of force. Precedent exists to exclude conspiracy from being a crime of violence. - Count 5: Assault on a Federal Officer – 18 USC 111(a)(1) and (b)
Payne argues that this statute is not divisible (that is, not separate crimes, but different means of committing the same crime) and therefore subject in total to the categorical approach; whereby it is categorically broader such that the entire statute cannot be classified as a crime of violence. - Count 8: Threatening a Federal Law Enforcement Officer – 18 USC 115(a)(1)(B)
Similar to Count 5, Count 8, is not divisible. It criminalizes threatening to assault, kidnap, or murder federal officers for the purpose of impeding, intimidating, or interfering with the execution of lawful court orders. Nowhere does the statute require the elements set forth in 18 USC 924(c)(3)(b)(ii). Because of this, it would fail a categorical inquiry as to whether or not it constitutes a crime of violence. - Count 14: Hobbs Act Extortion – 18 USC 1951(a)
This count is problematic (but not insurmountable) for the defendants. The Distric of Nevada has ruled in (Smith, May 2016) that Hobbs Act Extortion is divisible for the purpose of categorical analysis. Payne argues that there exists other precedent for the statute to be considered indivisible for categorical analysis. As such, when viewed as a whole, the statute is overly broad and fails to enumerate a crime of violence. Further, extortion is a crime that can be committed without violence.
Final Thoughts
The government wants to make an example of these men to cover their own lawless actions on Saturday, 12 April 2014. They have dropped a literal avalanche of litigation upon these men complete with stacked 924(c)’s that will ensure, upon conviction, that they receive effective life sentences.
Mandatory minimums were enacted with the best of intentions but ultimately ensure that certain scenarios arise where punishments far outweigh the merits of the crime. The use of 924(c) enhancements was a calculated, vindictive maneuver by the Department of Justice.
In this case, the government wants to criminalize the lawful possession of a weapon during a protest. Their avenue is to allege “crime of violence” enhancements to statutes stretched to fit their larger agenda.
Resources
Some of these resources are clearly biased; the most obvious belonging to the Dept. of Justice.
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http://2.gravatar.com/avatar/b15ea26...?s=49&d=mm&r=gAuthor anthony-dephuePosted on December 20, 2016Categories UncategorizedLeave a Reply
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