Thursday, April 25, 2019

NC Assault With a Deadly Weapon on a Government Official Is Not a “Crime of Violence”

US v. Simmons: Simmons was on supervised release when he was involved in a high-speed chase with police during which he sideswiped a state trooper. The district court, upon revoking Simmons’ term of supervised release, concluded that he had committed a Grade A violation because Simmons had committed the NC offense of assault with a deadly weapon on a government official (“AWDGOGO”), which qualified as a “crime of violence.” The district court then sentenced Simmons to 36 months in prison, the top of the resulting advisory Guideline range.

On appeal the Fourth Circuit vacated the sentence, concluding that AWDGOGO was not a crime of violence. Analyzed both under the enumerated offense clause (as “aggravated assault”) and the force clause, the problem was the same – AWDGOGO requires only a mens rea of “culpable negligence,” which is less than the recklessness required by the Guidelines. In doing so, the court restricted itself to the “least culpable conduct under the North Carolina statute,” rejecting the Government’s argument that it should look to the “ordinary or typical case.” The error of classifying  AWDGOGO as a crime of violence was plain, impacted Simmons’ substantial rights, and required vacation of his sentence.

Harmless Error Saves Court from Resolving Crime of Violence Issue

US v. Mills: Mills pleaded guilty to being a felon in possession of a firearm. At sentencing, his base offense level was enhanced based on a prior conviction in North Carolina for assault with a deadly weapon inflicting serious injury, which was deemed a “crime of violence.” The resulting advisory Guideline range was 70 to 87 months in prison. Mills objected to that designation and argued for a sentence within a range of 37 to 46 months in prison. The district court concluded the conviction was a crime of violent and imposed a 70-month sentence, explaining that it would have imposed the same sentence even if the Guideline calculations had been different.

The Fourth Circuit affirmed the sentence. It avoided the question of whether the North Carolina prior conviction was a crime of violence because even if there was an error, the error was harmless. First, the district court specifically said on the record it would have imposed the same sentence regardless of the Guideline calculations. Second, the court concluded, that 70-month sentence was otherwise reasonable, noting that the issue was its substantive reasonableness, not its procedural reasonableness. Thus it was irrelevant whether the district court did not adequately address Mills’ mitigation arguments, which might have been more persuasive with a lower Guideline range.

No IAC Based on Law at Time of Sentencing

US v. Morris: Morris (aka “Worm”) was convicted in 2013 of conspiracy to distribute coke and crack. He was sentenced as a career offender based, in part, on a 2005 conviction in Virginia for attempted abduction, which was classified as a “crime of violence.” Morris’ counsel did not object to that classification, but did manage to secure a variance sentence of 294 months in prison (below the advisory Guideline range of 360 months to life). Morris later filed a 2255 motion arguing that his counsel had been ineffective for not objecting to the career offender designation because the Virginia conviction was not a crime of violence. The district court denied the motion.

On appeal the Fourth Circuit affirmed the denial of Morris’ 2255 motion. Applying the law as it existed in 2013, when Morris was sentenced, the court concluded that his counsel had not been deficient by not objecting to the career offender designation. With both parties agreeing the Virginia conviction did not require an element of force, the issue is whether it fit under either the residual clause or was enveloped in the enumerated (in the commentary) offense of kidnapping. The court concluded that while case law at the time of sentencing “strongly suggested” that the Virginia offense was not generic kidnapping, it could still have qualified as a crime of violence under the residual clause. Not only was the law on that issue unsettled in 2013, it “tilted decidedly in the other direction, making it unlikely (though not inconceivable) that his claim could succeed.” Thus, Morris’ counsel was not deficient because the “relevant precedent” did not “strongly suggest[] that an objection would be warranted.”