Case o' The Week: Karmic Wheel Spins on Appeal -- Parnell and Johnson Crimes of Violence
What happens when state legislatures and appellate courts cram too much conduct into common law crimes, and salvage lousy convictions on appeal?
United States v. Parnell, No. 14-30208 (9th Cir. Apr. 12, 2016), decision available here.
|The Honorable Judge Raymond Fisher|
Players: Decision by Judge Fisher, joined by Judge Berzon. Concurrence by Judge Watford. Big win for AFDs Robert Schwarz and Melissa Winberg, Federal Defender Services of Idaho.
Facts: Parnell was convicted of armed robbery in Massachusetts. Slip Op. at 3. He was later convicted of 18 U.S.C. § 922(g)(1), felon in possession of a firearm. The government sought a fifteen-year mand-min sentence, arguing that the Mass. prior was a “crime of violence” that – along with other priors -- triggered the Armed Career Criminal Act (ACCA). Id. The district court agreed. Id. at 4.
Issue(s): “The district court concluded Parnell qualifies as an armed career criminal based in part on his [Mass.] conviction for armed robbery . . . . Parnell argues this offense does not have ‘as an element the use, attempted use, or threatened use of physical force against the person of another.’” Id.
Held: “We agree with Parnell that the force required by the actual force prong of robbery under Massachusetts law does not satisfy the requirement of physical force under § 924(e)(2)(B)(i) – ‘force capable of causing physical pain or injury to another person.’ Johnson, 559 U.S. at 140. Because the ‘degree of force is immaterial’ [under Massachusetts’ law], any force, however slight, will satisfy this prong so long as the victim is aware of it. Such force is insufficient under Johnson.” Id. at *6.
“[B]ecause the degree of force required to commit armed robbery in Massachusetts is immaterial so long as the victim is aware of it, Massachusetts’ armed robbery statute does not have ‘as an element the use, attempted use, or threatened use of physical force against the person of another.’ 18 U.S.C. § 924(e)(2)(B)(i). Under the categorical approach, therefore, a conviction under the Massachusetts statute does not qualify as a violent felony under ACCA’s force clause. The government does not argue Parnell’s conviction falls under § 924(e)(2)(B)(ii) or that the modified categorical approach applies. Accordingly, we hold Parnell’s 1990 armed robbery conviction does not qualify as a predicate conviction for purposes of a sentencing enhancement under ACCA.” Id. at *11.
|The Honorable Judge Paul Watford|
Of Note: “Holding that armed robbery doesn’t qualify as a violent felony seems . . . absurd.” Id. at *13 (Watford, J., concurring) (emphasis in original). Judge Watford is a reluctant convert to the Johnson religion, but is ultimately convinced by the absurdity of what the Commonwealth will tolerate to uphold an “armed robbery” conviction. Id. at *14 (“[S]trange as it may seem, in Massachusetts a defendant can be found guilty of armed robbery without using or threatening to use any violence whatsoever.”)
This frank concurrence illustrates two points. First, take nothing for granted when thinking about Johnson crimes of violence: even armed robbery can be vulnerable.
Second, think back on all of those aggravating decisions we've suffered over the years, where courts stretched criminal statutes to the breaking point and beyond to uphold a conviction. Johnson is our spin of the karmic wheel – it is those selfsame crazy decisions that now make whole swaths of prior convictions subject to Johnson attack.
How to Use: This is a very good opinion. We like the outcome, of course, but Judge Fisher’s decision also clearly works through the steps of a (successful!) Johnson challenge. He explains the modified categorical approach, and its limitation to divisible statutes. Id. at *4. He works through the force prong of the Crime of Violence analysis, and rejects the argument that being armed – alone – satisfies that prong. Id. at *5. Judge Fisher also discusses the “realistic probability” requirement, and applies it to the Mass. statute. Id. at *7 & n.4. Plus, look for a bonus holding: reckless assault and battery by dangerous weapon doesn’t count, either! Id. at 12 & n.5.
If you’re mounting a Johnson challenge, you'll find Parnell an accessible and helpful starting point and guide.
For Further Reading: Is Johnson retroactivity for guideline sentences a substantive inquiry, or procedural? And why is the government arguing that at all in a non-guideline case?
For some troubling dicta-baiting by DOJ, see the transcript of the Welch Supreme Court argument, available here.
Image of Judge Raymond Fisher from https://law.ucdavis.edu/blogs/deans/images/neumiller02.jpg
Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org