How's Danny doing?

[KickahaOta]

An I-am-not-a-lawyer summary of the issue here:

The phrase "crime of violence" comes up repeatedly in federal law. For example, it's a federal crime to use a firearm during a crime of violence. And there's the Armed Career Criminal Act, which dramatically raises the penalty for some crimes if you have two or more previous convictions for crimes of violence.

At least most of these laws use the same definition (or at least a very similar one) for "crime of violence". A crime can qualify as a crime of violence in one of three ways:
* It's on a list of "enumerated crimes" spelled out in the definition. Most of these crimes are clearly violent -- murder, arson, robbery, etc. But then there's "burglary of a dwelling", which is a bit of an outlier. This is the "enumerated clause".
* It's a crime that has as an element the use of physical force against someone else -- in other words, the prosecution has to prove a use of physical force in order to convict someone of the crime. This is the "elements clause".
* It's a crime that 'otherwise, by its nature, poses a similar risk of physical injury to another'. This is the "residual clause".

The various courts, up to and including the Supreme Court, have spent decades trying to hash out a coherent definition of what state and federal crimes fall under the residual clause, and largely failing. Justice Scalia was particularly known for railing against the unmanageability of this clause. Finally, the Supreme Court started ruling, for one law after another, that the residual clause was unconstitutionally vague -- that it required judges to figure out the inherent "risk of physical injury" of every crime (not based on what the criminal actually did, but on some vague sense of what a typical crime of that sort would involve), and then compare that arbitrary risk against the equally-nebulous "risk of physical injury" inherent in burglary of a dwelling (broadly considered the least risky crime in the enumerated list). It's sort of a shame that Justice Scalia didn't live to see it.

So this leads to a followup question: Is this change retroactive, and if so, who is eligible for a retroactive change in their sentence? The general consensus is that, yes, the change is retroactive, at least in the cases where "crime of violence" is part of the definition of the crime of conviction (like 'use of a firearm during the commission of a crime of violence').

Whether or not this affects Riley's sentence probably depends on several things:
* Exactly what crime of violence was Riley found to have committed/been involved in? The crime should have been specified in the indictment. If it's a crime that's clearly covered by the enumerated clause or the elements clause, then there's no basis to change his sentence.
* Is Riley in a position to raise the issue? From looking at the appellate decision, it looks like Riley didn't raise this issue during his appeal. In some circuits, that would mean he's likely to lose right there -- that the fact that he didn't raise the issue at his first opportunity means he forfeits or waives it. Other circuits use what I've heard called the 'foregone conclusion rule' -- that if the case law was squarely the other way at the time of the appeal (so if it was well-settled that the definition of 'crime of violence' wasn't vague in that context), then you're allowed to raise it later, because otherwise prudent attorneys would feel obliged to raise umpteen dozen pointless challenges to settled law on every appeal just in case one of those settled points of law becomes unsettled again later.
* Even if he wins on this issue, that doesn't necessarily mean that his sentence instantly gets reduced to time served. In general, if someone is convicted and sentenced for multiple crimes at the same time, and one of those multiple counts of conviction is later reversed, the whole case gets sent back to the trial court for resentencing. The judge may decide to raise the sentence of the remaining count(s) in order to make the whole 'sentencing package' come out in a fair way. (In other words, the original sentencing judge may have decided to give a low sentence on the other counts because the long sentence for the crime-of-violence count was already pretty much sufficient for the whole case. With the crime-of-violence count struck down, the judge may decide that the other counts deserve a longer sentence.)
* No matter what, it will almost certainly take more than 90 days to work it out.

[AndyK]

.....

At least most of these laws use the same definition (or at least a very similar one) for "crime of violence". A crime can qualify as a crime of violence in one of three ways:
* It's on a list of "enumerated crimes" spelled out in the definition. Most of these crimes are clearly violent -- murder, arson, robbery, etc. But then there's "burglary of a dwelling", which is a bit of an outlier. This is the "enumerated clause".
* It's a crime that has as an element the use of physical force against someone else -- in other words, the prosecution has to prove a use of physical force in order to convict someone of the crime. This is the "elements clause".
* It's a crime that 'otherwise, by its nature, poses a similar risk of physical injury to another'. This is the "residual clause".

.....

FWIW; I hear echoes of the underlying justification for the various "stand your ground" laws here. In specific, who is to be the arbiter of the perceived risk of physical injury in the eyes of the person who stood his ground?

[Gregg]

Whatever it does in any rehearing, it would be just a little pleasing if he has to wait an extra few years for it to get heard, behind all the phuckstiks taking their CtC tax returns to the Supreme Court, Sov'runs trying to prove they weren't driving, they were travelling and maybe a few demanding the Courts order the Department of Free Energy fund their QEG project. Is anyone suing to release the UFO information from Roswell?

Maybe someone might see the damage their stupidity is doing to the other ones even more stupid than them...

[KickahaOta]

FWIW; I hear echoes of the underlying justification for the various "stand your ground" laws here. In specific, who is to be the arbiter of the perceived risk of physical injury in the eyes of the person who stood his ground?

Still I-am-not-a-lawyer discussion: That's a good observation, and one that's covered in the case. There is a big difference between 'vague' and 'unconstitutionally vague'.

There are all sorts of circumstances -- justifiable homicide, self-defense, duress, etc. -- where the factfinder has to compare some specific set of facts (like someone's behavior during a confrontation) against a nebulous standard like 'justified', etc. Even 'reasonable doubt' itself is a nebulous standard. But as long as the standards give the factfinder some understandable benchmark to apply the facts of the case to, there's not an unconstitutional vagueness problem.

The thing that made the 'crime of violence' residual clause uniquely problematic in the judge's eyes is the multi-layered nature of the vagueness. Rather than taking a case's specific set of facts and applying them to a nebulous standard, the residual clause makes the court apply multiple layers of handwaving (as many as four, depending on how you want to count):

• Decide on the 'typical' set of facts that go into the commission of the crime in question -- which may have little to do with the actual facts of the defendant's behavior.
• Decide the level of risk that goes with those 'typical' facts.
• Decide the level of risk that goes with the 'typical' case of burglary of a dwelling.
• Decide whether the level of risk of the 'typical' case of the crime in question is 'similar' to the level of risk of the 'typical' case of burglary of a dwelling.

By the end, you have a standard that's completely unmoored from anything resembling the facts of the case at hand.

[tmtoulouse]

It seems the government is conceding that Riley gets a new appeal post-Davis decision, Riley is claiming he will be out on bond in a week or two.

[grixit]

I hope he's learned something.

But i very much doubt it.

[tmtoulouse]

I am actually really curious how this turns out. I read through Riley's sentencing transcript (and by the way he has a 30 minute monologue of grad A sov cit nonsense) and the judge never explicitly says he relies on the 924 c 3 b statue that was declared vague.

My understanding is that the government gets a chance to show that his sentence should still apply under 924 c 3 a ("has as an element the use, attempted use, or threatened use of physical force against the person or property of another") which I think it clearly does based on his actions and statements.

Well I will be watching, anyone else following Davis and Johnson able to educate me on some of this?

[tmtoulouse]

So Riley wants bail the government objected with the following calculation:

Here, the Court imposed a sentence of 72 months on Count 1 (conspiracy under 18
U.S.C. § 372), 25 months on Counts 2 and 3 (conspiracy under 18 U.S.C. § 371 and accessory
after the fact under 18 U.S.C. § 3) that are concurrent to Count 1, and 360 months on Count 6
(the now vacated 18 U.S.C. § 924(c) offense), to produce a total term of 432 months that was
later reduced to 388 months. As a result of the § 2255 relief, the defendant now faces a statutory
maximum of 16 years (6 years on Count 1 and 5 years on Counts 2 and 3). The defendant has
presently served just over 12 years.

So Riley is likely to see a SUBSTANTIAL reduction in his prison term. I am not sure the government had to roll over so quickly on the 924c offence as I think an argument could be made that they were not explicitly sentenced under the residual clause but wth do I know. Ed and Elaine are likely to get similar reductions but also likely to have proportionally more time left and are may still die in prison...but maybe not. Gerhard...he might be out.

[Dr. Caligari]

Riley has already served longer than his original sentence on all of the non-vacated counts. The trial judge does get to re-sentence him, and can say that he would have given Riley a longer sentence on counts 1 & 2 if he didn't think he was getting a mandatory 30-year sentence on top of that. But I suspect he may be going home pretty soon.