Case o' The Week: (En) Banc Robbery - Chandler and Conspiracy Offenses as ACCA Crimes of Violence
Three concurring judges, all urging en banc review of the decision they felt forced to deliver because of binding (and dubious) Ninth precedent.
A rare concurring opinion – and hopefully not the end for this decision of first impression.
United States v. Chandler, 2014 WL 644698 (9th Cir. Feb. 20, 2013), decision available here.
Players: Per curiam decision by Judges Bybee and Tashima and District Judge Wood.
Facts: Chandler plead open to a Section 922(g) charge. Id. at *1. He had three Nevada priors: second degree kidnapping, coercion, and conspiracy to commit robbery. Id. Over defense objection, the district court found that all three priors were “violent felonies” under the Armed Career Criminal Act (ACCA) and sentenced Chandler to 235 months imprisonment. Id.
Issue(s): “We have not previously considered whether conspiracy to commit robbery is a violent felony.” Id. at *3. [ ] [W]e consider whether conspiracy to commit robbery under Nevada law is a ‘violent felony’ as that term is defined in § 924(e)(2)(B)(ii).” Id.
Held: “A Nevada conviction for robbery is a violent felony because it creates a serious risk of harm that is comparable to the risk posed by burglary [an enumerated offense in the ACCA definition of ‘crime of violence.’] And because after [the Ninth Circuit’s] decision in Mendez, the § 924(e) analysis of a prior conspiracy conviction is governedt by the substantive offense that was the object of the conspiracy, . . . conspiracy to commit robbery, pursuant to Nev. Rev. Stat. §§ 199.480, 200.238, is also a ‘violent felony’ under the ACCA’s residual clause.” Id. at *6 (internal quotations and citation omitted).
Of Note: The Ninth also decides, as a question of first impression, that the Nevada offense of second degree kidnapping is categorically “crime of violence” that triggers ACCA exposure. Id. at *8.
How to Use: The interesting aspect of this decision is not the opinion, but Judge Bybee’s concurrence – joined by Judge Tashima and District Judge Wood. Id. at *8. Judge Bybee questions the on-going validity of the Ninth’s 1993 decision in Mendez. He points out that the old Mendez approach proceeds from a faulty premise: it treats the elements of conspiracy the same as the elements of the underlying crime. Id. at *9. Based on that bad premise, Mendez equates conspiracy to commit robbery as an offense as dangerous as robbery – even though conspiracy “rarely, if ever, presents a serious potential risk of injury to another.” Id.
This old approach doesn’t square with the Supreme Court’s ACCA analysis in James, which treated an inchoate offense – attempted burglary – as different than the substantive offense of burglary. Id. As Judge Bybee observes, “until we are willing to reevaluate Mendez, offenders like Chandler will be categorized as ‘career offenders’ based on robberies which they discussed but not actually commit.” Id. at *10.
While he acknowledges a circuit split on whether conspiracy can be a violent felony, Judge Bybee and his colleagues end a great concurrence by urging en banc consideration of the questionable Mendez decision. Id. at *13.
Preserve objections to the use of conspiracy priors as ACCA crimes of violence: with luck, an en banc court will be revising this issue soon.
For Further Reading: Mandatory minimums increase disparity, by vesting too much unilateral power in the prosecutor. So argues a Chicago Law instructor, in a study of data from thousands of federal sentencings. See Crystal Yang, Have Inter-Judge Sentencing Disparities Increased in an Advisory Guidelines Regime? Evidence from Booker here.
For a New Yorker piece discussing the study, see here.
“En banc” image from http://www.craigalexander.net/wp-content/uploads/2012/10/en-banc-logo.png
Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org