Federal Appeals blog covering all of the latest criminal decisions from the different federal courts of appeal across the nation.


United States vs. Lewis, No. 17-7033 

Lewis pled guilty to felon in possession of a firearm under 18 U.S.C. 922(g). At sentencing, the district court found Lewis to be an Armed Career Criminal based on two drug charges and one burglary charge out of Kansas. He was sentenced to 188 months and did not appeal.

Lewis filed a 2255 motion to vacate his ACCA sentence, and argued that his third prior conviction under Kansas statute 21-3715 only qualified as a violent felony under the now-void residual clause in light of Johnson v. United States and Mathis v. United States. The district court denied Lewis’ motion.

Lewis appealed and sought a certificate of appealability from the Tenth Circuit. Lewis argued that the district court erred in denying his Johnson claim and concluding that Mathis is not retroactively applicable to cases on collateral review. 

The Tenth Circuit noted that Lewis would only be granted a COA “if [Lewis] made a substantial showing of the denial of a constitutional right.”

The court looked at the Kansas burglary statute and determined that both sections went beyond the generic burglary definition because they included tents and places other than buildings. The court said that “under the ‘relevant background legal environment’ at the time of sentencing, it ‘would have been permissible for the district court to examine the underlying charging documents and/or jury instructions to determine if [Petitioner] was charged only with burglary of buildings.” (note: in the Tenth Circuit, the modified categorical approach has been deemed appropriate to determine whether defendant was charged with entering a building).

The court observed the charging documents and determined that [Lewis] “unlawfully, feloniously, willfully, knowingly and without authority enter[ed] into and remain[ed] within a building … with the intent to commit a theft therein, contrary to K.S.A. 21-3715, (Burglary), a class D felony.” Thus, based on the charging documents, “there would have been little dispute at the time of … sentencing that” Petitioner’s burglary conviction fell within the scope of the ACCA’s enumerated offenses clause.” As a result, Lewis did not prove that the sentencing court used the residual clause to classify his burglary as a predicate and as such could not prevail under Johnson.

However, the Tenth Circuit looked at their conflicting case law and saw that reasonable jurists could “debate whether the district court erred in declining to retroactively apply Mathis v. United States.”

The court determined that there two parts to the analysis of a Johnson case. First, the court looks at the law at the time of the sentencing in order to determine if a Johnson error occurred. “If a Johnson error is established, we then turn to harmless error analysis.” This is because “Johnson harmless error review goes to the question of remedies and resentencing” 

The court determined that “[t]he relevant background legal environment is […] a ‘snapshot’ of what the controlling law was at the time of sentencing and does not take into account post-sentencing decisions that may have clarified or corrected pre-sentencing decisions.”  Mathis can only be used as part of the Harmless Error analysis. 

Although the court granted COA in order to clarify when to use lawt hat was in place at the time of the sentencing and what to use post-sentencing, the Tenth Circuit still affirmed the district court’s denial of Lewis’ 2255motion on the merits. This is because for purposes of determining whether there was Johnson error, the court cannot use Mathis. Because Mathis cannot be used to determine whether there was Johnson error, Lewis’ claim fails.  The court granted the COA but affirmed the denial of the 2255. No.17-7033

JEREMY’S NOTES:  The most important thing here is that in the Tenth Circuit, the courts engage in a multiple part test regarding Johnson claims. First, the court asks whether there was a Johnson error. For that test, in the Tenth Circuit, only controlling law at the time of the sentence can be used. Second, the court asks whether there is harmless error. Courts in the Tenth Circuit can use Mathis and other post-conviction case law to determine if harmless error exists.  

Please reach out to our office for more info on this and to find out if your loved one is eligible for relief.

Fifth Circuit Holds That Sentencing Guidelines Error can Meet Plain Error Analysis

In United States vs. Qunitero,  No. 17-20727 the Fifth Circuit held that an error in the sentencing guidelines could meet the plain error analysis.

Quintero pled guilty to illegally re-entering the U.S. He wasoriginally scheduled for sentencing under the 2015 Guidelines, but was delayedto December after the 2016 Guidelines Manual had gone into effect. Quintero successfullyappealed to the Fifth Circuit. He was resentenced on November 1, 2017, underthe 2016 Guidelines but received an enhancement for a “crime of violence” under2L1.2(b)(1)(A)(ii) of the 2015 Guidelines. (Note: the 2016 Guidelines do nothave the crime of violence sentencing enhancement under 2L1.2(b)(1)(A)(ii)).Quintero raised an ex post facto challenge. At the time of Quintero’s illegalre-entry, the 2015 Guidelines were in place and, since of the recent decisionin United States v. Herrold, would have resulted in a lower sentencing range. Herroldinvalidated the use of prior Texas burglary convictions to apply the2L1.2(b)(1)(A)(ii) enhancement in the 2015 Guidelines. Without the enhancement,the respective ranges of the 2015 and 2016 Guidelines are no longer identical:the 2015 range becomes lower because the 2016 Guidelines do not include theenhancement.” (internal citations omitted)

The government argued that Quintero was prevented from raising an ex post facto challenge because of the “‘law of the case’ doctrine, the ‘invited error’ doctrine and the ‘forfeiture doctrine.’”

The court explained that the “law of the case” doctrine means that “an issue of fact or law decided on appeal may not be reexamined . . . by the appellate court on subsequent appeal.”  But since Quintero had never raised his ex post facto argument in the initial appeal and since the court hadn’t ruled on it, that the issue had not been “decided on appeal.”

The court also indicated that the “invited error” doctrine failed.That doctrine prohibits a defendant from “complain[ing] on appeal of errorsthat he himself invited or provoked the district court to commit.” The doctrinealso applies when a defendant intends to “convince the district court to [dosomething] it would not otherwise have done.” In this case, when the courtasked if the 2016 guidelines applied, Quintero’s counsel said “yes yourhonor.”  The court held that this is notaffirmative persuasion and provocation that the doctrine applies to. Thus the‘invited error’ doctrine does not apply to this case. 

While Quintero did not object, he did not waive the ex post facto argument. So the court reviewed the issue under plain error. For plain error, Quintero must prove
“(1) there was error;
(2) the error was plain and obvious;
(3) the error affected [his] substantial rights; and
(4) the court should exercise its discretion to reverse because the plain error seriously affected the fairness, integrity, or public reputation of the judicial proceeding.”

With regard to plain error, Quintero indicated that the error is the violation of the ex post facto clause.  After Herrold, which invalidated the use of prior Texas burglary convictions to “apply the 2L1.2(b)(1)(A)(ii)enhancement in the 2015 Guidelines.”  Without the enhancement, the range of the 2015 Guidelines becomes lower. The district court erred by applying the2016 Guidelines and it was plain and obvious. As a result, the first two prongs of plain error were met. 

The court also said that the error affected Quintero’s substantial rights. “A defendant can show that his substantial rights were affected if he demonstrates a reasonable probability that he would have received a more favorable sentence in the absence of the district court’s misapplication of theGuidelines.”  Further, “Where the error is assessing a sentence under the incorrect Guidelines range, “the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.”

Without the 2L1.2(b)(1)(A)(ii) enhancement, the 2015 Guidelines would yield a sentencing range of 24-30 months, 16-22 months less than whatQuintero received. Plus, the government did not shown that the court would sentence Quintero to 46 months again. 

Finally, “An error affecting a defendant’s Guidelines range ordinarily will satisfy [the] fourth prong” of the plain error analysis.” While the district court may impose any sentence on resentencing, Quintero has served in excess of the 2015 Guideline range. Thus satisfying the fourth criteria of plain error. 

The Fifth Circuit vacated the sentence and remanded back down to the district court. No. 17-20727

JEREMY’S NOTES:  Although this is a rare situation, it is an example of plain error with regards to an error affecting a defendant’s Guidelines range ordinarily will satisfying [the] fourth prong of the plain error analysis. This case also shows an example of an ex post facto claim with regard to the Sentencing Guidelines. 

If you have an ex post facto claim with regards to the sentencing guidelines or other type please reach out to our office to talk to us about doing a case review.  


In United States of America vs Desmond Camp, No. 17-1879, Camp was charged with Hobbs Act robbery, in violation of 18 U.S.C. 1951; using a firearm during a crime of violence, in violation of 18 U.S.C. 924(c); and being a felon in possession of a firearm, inviolation of 18 U.S.C. 922(g)(1). He pled guilty to all three counts. Among otherthings, the district court determined that Camp was a career offender under theSentencing Guidelines because Hobbs Act robbery was a crime of violence, andthat his two prior offenses—a 2003 federal bank robbery conviction and a 1990Michigan armed robbery conviction––were also crimes of violence. Camp appealedhis sentence, arguing that Hobbs Act robbery is not a crime of violence andcould not serve as a predicate for a 924(c) conviction or a career offenderclassification. 

The Sixth Circuit first considered whether Hobbs Act robbery was a crime of violence under 924(c). The court looked to United States v. Gooch, 850 F.3d 285, 292 (6th Cir. 2017), cert. denied, 137 S. Ct. 2230 (2017), where the court held that the Hobbs Act statute was divisible and that Hobbs Act robbery “requires a finding of actual or threatened force, or violence, or fear of injury, immediate or future,” to person or property. And therefore “clearly has as an element the use, attempted use, or threatened use of physical force against the person or property of another as necessary to constitute a crime of violence under 924(c)(3)(A).” Because one panel cannot overrule a prior panel, Gooch foreclosed Camp’s argument that Hobbs Act robbery does not qualify as a crime of violence under 924(c).

Next, the court considered whether Hobbs Act robbery is a crime of violence under the U.S. Sentencing Guidelines for career offender purposes.

Under the Guidelines, a defendant is a career offender if:

(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction;
(2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and

(3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

The Guidelines further state that a crime of violence is:

[A]ny offense under federal or state law, punishable by imprisonment for a term exceeding one year, that— (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. 5845(a) or explosive material as defined in 18 U.S.C. 841(c).

The court noted that “[a]lthough both 18 U.S.C. 924(c) and USSG 4B1.1(a) have a use-of-force clause, the Guidelines’ force clause is limited to force against the person, while 924(c) covers force against person or property. “

The Hobbs Act statute provides:

Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.

Robbery is in turn defined as:

the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.

The Sixth Circuit further noted that the Tenth Circuit had squarely addressed this issue in United States v. O’Connor, 874 F.3d 1147 (10th Cir. 2017), where the court held that Hobbs Act robbery is broader than the enumerated offenses of robbery and therefore fails to qualify under the Guidelines’ use-of-force clause.

Next, the court noted that the case law and the Guidelines support using the categorical approach for both the instant offense (the Hobbs Act Robbery) and the prior offensess (the bank robbery and the other armed robbery).  

The court looked at whether the Hobbs Act robbery qualified as a crime of violence under the use-of-force clause. The plain text of the Hobbs Act statute criminalizes robbery accomplished by using or threatening force against “person or property.” Although this is enough under 924(c), this is not enough to criminalize someone as a career offender under the Guidelines. 

The court then examined whether Hobbs Act robbery could be a categorical match under the enumerated offense clause of 4B1.2. There are two crimes that could possibly fit the statute: robbery or extortion. 

The court agreed with the Tenth Circuit that Hobbs Act robbery reaches conduct that falls outside of generic robbery because the statute “plainly criminalizes the ‘misappropriation of property under circumstances’ that do not involve ‘immediate danger to the person[.]’”

Next, the court determined whether Hobbs Act robbery could fit the enumerated offense of extortion. The Guidelines define extortion as: “obtaining something of value from another by the wrongful use of (A) force, (B) fear of physical injury, or (C) threat of physical injury.” This does not include threats against property.  Because Hobbs Act robbery includes threats against property, then it cannot be a categorical match with generic robbery or extortion and is not a crime of violence.

Thus, the Sixth Circuit found that aHobbs Act robbery is not a crime of violence under the Guidelines for careeroffender purposes. Accordingly, the Sixth Circuit VACATED Camp’s sentence andremanded back to the district court. No. 17-1879

For more information on this and other Hobbs Act issues, please reach out to our office.  

Welcome to the Gutenberg Editor

Of Mountains & Printing Presses

The goal of this new editor is to make adding rich content to WordPress simple and enjoyable. This whole post is composed of pieces of content—somewhat similar to LEGO bricks—that you can move around and interact with. Move your cursor around and you’ll notice the different blocks light up with outlines and arrows. Press the arrows to reposition blocks quickly, without fearing about losing things in the process of copying and pasting.

What you are reading now is a text block the most basic block of all. The text block has its own controls to be moved freely around the post…

… like this one, which is right aligned.

Headings are separate blocks as well, which helps with the outline and organization of your content.

A Picture is Worth a Thousand Words

Handling images and media with the utmost care is a primary focus of the new editor. Hopefully, you’ll find aspects of adding captions or going full-width with your pictures much easier and robust than before.

Beautiful landscape
If your theme supports it, you’ll see the “wide” button on the image toolbar. Give it a try.

Try selecting and removing or editing the caption, now you don’t have to be careful about selecting the image or other text by mistake and ruining the presentation.

The Inserter Tool

Imagine everything that WordPress can do is available to you quickly and in the same place on the interface. No need to figure out HTML tags, classes, or remember complicated shortcode syntax. That’s the spirit behind the inserter—the (+) button you’ll see around the editor—which allows you to browse all available content blocks and add them into your post. Plugins and themes are able to register their own, opening up all sort of possibilities for rich editing and publishing.

Go give it a try, you may discover things WordPress can already add into your posts that you didn’t know about. Here’s a short list of what you can currently find there:

  • Text & Headings
  • Images & Videos
  • Galleries
  • Embeds, like YouTube, Tweets, or other WordPress posts.
  • Layout blocks, like Buttons, Hero Images, Separators, etc.
  • And Lists like this one of course 🙂

Visual Editing

A huge benefit of blocks is that you can edit them in place and manipulate your content directly. Instead of having fields for editing things like the source of a quote, or the text of a button, you can directly change the content. Try editing the following quote:

The editor will endeavor to create a new page and post building experience that makes writing rich posts effortless, and has “blocks” to make it easy what today might take shortcodes, custom HTML, or “mystery meat” embed discovery.

Matt Mullenweg, 2017

The information corresponding to the source of the quote is a separate text field, similar to captions under images, so the structure of the quote is protected even if you select, modify, or remove the source. It’s always easy to add it back.

Blocks can be anything you need. For instance, you may want to add a subdued quote as part of the composition of your text, or you may prefer to display a giant stylized one. All of these options are available in the inserter.

You can change the amount of columns in your galleries by dragging a slider in the block inspector in the sidebar.

Media Rich

If you combine the new wide and full-wide alignments with galleries, you can create a very media rich layout, very quickly:

Accessibility is important — don’t forget image alt attribute

Sure, the full-wide image can be pretty big. But sometimes the image is worth it.

The above is a gallery with just two images. It’s an easier way to create visually appealing layouts, without having to deal with floats. You can also easily convert the gallery back to individual images again, by using the block switcher.

Any block can opt into these alignments. The embed block has them also, and is responsive out of the box:

You can build any block you like, static or dynamic, decorative or plain. Here’s a pullquote block:

Code is Poetry

The WordPress community

If you want to learn more about how to build additional blocks, or if you are interested in helping with the project, head over to the GitHub repository.

Thanks for testing Gutenberg!


The Community Safety and Security Act of 2018: Does It Spell More Trouble for Immigrants in the U.S.?

In the Wake of Dimaya, Congress Creates a Sweeping Definition of a “Crime of Violence”

A recent op-ed in the New York Times characterizes the ideology of “America First” as having three pillars – isolationism, protectionism, and restricting immigration. The third pillar is on full display in Congress’s new bill in response to the United States Supreme Court decision in Sessions v. Dimaya.

Specifically, the Supreme Court found the federal definition of “crime of violence,” unconstitutionally vague. In response, the House of Representatives passed a bill seeking to define “crime of violence” more clearly. A close look at the bill, however, reveals some serious problems for immigrants in the U.S.

Current “Crime of Violence” Definition is Too Vague – Sessions v. Dimaya

In the recent Dimaya decision, the Supreme Court struck down the definition of “crime of violence” as being too vague to be interpreted. At issue in Dimaya was whether a person, convicted of first-degree burglary, could be deported for having committed a “crime of violence,” as defined under federal law, 18 U.S.C. § 16.

The Court ultimately held the federal definition was simply too unclear to determine whether a first-degree burglary would constitute a “crime of violence” for deportation purposes.  The Court also invited Congress to pass legislation that provided a more-concrete definition of the phrase. Just a few days ago, the House of Representatives answered that invitation.

The Attempt at a Clearer Definition – The Community Safety and Security Act of 2018 – H.R. 6691

On September 7, 2018, the House passed a bill called the “Community Safety and Security Act of 2018.” The bill is focused on providing a federal definition of “crime of violence” that has the clarity and specificity to pass constitutional muster following the decision in Dimaya.

By way of summary, the Community Safety and Security Act defines the following specific criminal offenses as “crimes of violence:”

  • Abusive sexual contact;
  • Aggravated sexual abuse;
  • Sexual abuse;
  • Assault;
  • Arson;
  • Burglary;
  • Carjacking;
  • Child abuse;
  • Communication of threats;
  • Coercion;
  • Domestic violence;
  • Extortion;
  • Firearms use;
  • Fleeing;
  • Hostage taking;
  • Human trafficking;
  • Interference with flight crew members and attendants;
  • Kidnapping;
  • Murder;
  • Piracy;
  • Robbery;
  • Stalking;
  • Terrorism;
  • Unlawful possession or use a weapon of mass destruction, or explosives; and
  • Voluntary manslaughter.

In addition, the new bill has a “catch all” provision, stating that a “crime of violence” includes any offense that has, as an element of the offense, “the use, attempted use, or threatened use of physical force” against another’s person or property.

The new definition of “crime of violence” in the Community Safety and Security Act carefully tries to leave no discretion up to a court interpreting the statutory definition. Indeed, the problem with the definition in Dimaya was that the Supreme Court believed the Court was forced to speculate about whether a crime could be considered a crime of violence.

In the Community Safety and Security Act, by contrast, a “crime of violence” either expressly appears in the specific list of crimes provided, or the crime must contain an element of the offense that involves the use or threat of physical force. In short, a court does not need to speculate.  Now that the bill has passed the House, it moves to the Senate for consideration.

Why the Sweeping, Broad New Bill Means Danger for Immigrants

On the one hand, the Community Safety and Security Act demonstrates how our constitutional system of separation of powers is supposed to operate. The Judicial Branch should not be creating legislation. That is the province of the Legislative Branch. In Dimaya, the Supreme Court was concerned about having to speculate about the meaning of a statute, thereby opening the door to unwarranted “legislation.” Thus, it is appropriate that once the Court found something too vague to be interpreted, Congress then steps in with legislation to clarify the statute.

On the other hand, the Community Safety and Security Act appears to be a way in which the House is overreaching to the serious detriment of immigrants in this country, consistent with the anti-immigrant policies of the Republican-controlled Congress and White House. There are several reasons for this conclusion.

First, the new bill is incredibly broad, almost irrationally so. Crimes that do not often involve any kind of violence or physical force are now listed as “crimes of violence.” For example, the crime of “coercion” as expressly defined in the new bill includes coercing someone through fraud. No reasonable definition of “violence” could include a crime of simply lying to someone else.

Other examples of listed crimes that do not include any rational concept of “violence” include extortion, fleeing, or possession of an explosive device. Without question, it is possible that someone fleeing the police, or committing extortion, could do something violent. However, fleeing from the police is actually the opposite of being violent; it is running away from the police. Further, the new bill is trying to state that simply possessing something dangerous is a violent act.

Second, the new bill is harsher on immigrants.  Where the defendant in the Dimaya case was not deported, a similarly situated defendant would be deported under the new bill. In particular, the Supreme Court was unable to determine that Mr. Dimaya’s crime, first-degree burglary, was a “crime of violence” because burglary does not often involve confrontation with, or violence against, another person. Rather, it is typically breaking into a home or car. Thus, where the Supreme Court could not find Mr. Dimaya deportable for committing burglary, the new bill expressly says that all forms of burglary are “crimes of violence.”


Civil rights and immigrant rights groups have reason to be concerned.  The Community Safety and Security Act of 2018 is so broad in its definition of a “crime of violence” that undocumented immigrants who commit crimes that do not involve any violence or physical force could still be deportable.

The bill is now in the U.S. Senate. Time will tell how far this bill may go. In the meantime, it would not be a bad idea for immigrant rights advocates to pressure senators to cast a skeptical eye on the sweeping nature of the Community Safety and Security Act of 2018.

Jeremy Gordon, Esq., is an expert legal practitioner specializing in all types of federal criminal defense and post-conviction cases.  If you need top-notch legal representation, be sure to contact Jeremy for a free consultation at 844-ATTY-NOW.  




United States vs. Nichols, No. 17-5580

Nichols was convicted for felon in possession of a firearm in 2004. While the maximum for that offense is ten years imprisonment, he was enhanced under the Armed Career Criminal Act and received a sentence of 288 months.

While in prison, he was convicted and sentenced for conspiracy to distribute heroin and possession of heroin by an inmate. He was sentenced to 151 months to be served consecutively.

After the Supreme Court decisions in Johnson and Welch, Nichols filed a 2255 motion challenging his ACCA enhancement. The district court agreed that he should be resentenced, but instead of conducting a resentencing hearing, the court issued a memorandum opinion and order. By the time the court did this, he had already served 12 years in prison, which is two years more than the statutory maximum. The guideline range for the felon in possession was 51-63 months. The district court imposed a sentence of “time served” which ended-up being approximately 12 years. Nichols appealed claiming that his sentence exceeds the statutory maximum and the sentence is unreasonable. The reason this matters is because if he had received a sentence lower than 10 years, then the clock would start on his latest charges since both sentences were to run consecutively.

The Sixth Circuit said that the sentence was illegal and as such reversible by plain error. The district court had no authority to impose a sentence of 12 years imprisonment. The statutory maximum applied at that time because the ACCA used to enhance his sentence was already vacated. While the district court cited standard procedure in “impos[ition of] a corrected term of ‘time served’ where a petitioner entitled to Johnson-based collateral relief has already served in excess of the 120-month statutory maximum applicable to non-ACCA offenders under  18 U.S.C. § 924(a)(2),” the court also reasoned that the cases that the district court cited also involved prisoners who were eligible for immediate release following the correction of their sentences to “time served.” Nichols is not eligible for immediate release under that reasoning because he has another sentence to serve.

The government argued that there was no error committed by the court “because “[a] district court cannot actually turn back the clock to reduce the number of months a defendant has already spent in custody,” but the court disagreed, noting that “[A] sentence in excess of the statutory maximum is unlawful, regardless of how it is disguised and regardless of the amount of time the defendant has already served.”

Further, Nichols argued that his sentence was unreasonable. First, the court ruled that corrected sentences are subject to reasonable review. The court affirmed. The court can review sentences for reasonableness and the statute does not override the reasonableness standard.

Reasonableness requires that the sentence be procedurally and substantively reasonable.

“A sentence is procedurally unreasonable if the district court “fail[s] to calculate (or improperly calculate[es]) the Guidelines range, treat[s] the Guidelines as mandatory, fail[s] to consider the § 3553(a) factors, select[s] a sentence based on clearly erroneous facts, or fail[s] to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range.” “Meanwhile, “a sentence may be substantively unreasonable where the district court ‘selects the sentence arbitrarily, bas[es] the sentence on impermissible factors, fail[s] to consider pertinent § 3553(a) factors, or giv[es] an unreasonable amount of weight to any pertinent factor.’”

The Sixth Circuit reviewed the order of the court in granting the § 2255 motion. That motion stated the following:

“Petitioner has already served twelve years in prison (Doc. 51, at 5), a total exceeding the ten-year custodial maximum applicable to him post-Johnson. As a result, his motion (Doc. 50) will be GRANTED and the term of imprisonment for the instant offense will be reduced to a “time served” sentence. The judgment dated December 14, 2004 (Doc. 28) will be AMENDED to reflect a term of supervised release of three years. The Clerk’s Office will be DIRECTED to prepare an amended judgment in accordance herewith.”

The court noted that the order contains no analysis in support of the corrected sentence, no reference to the guidelines range and no acknowledgement that the length of sentence departs from the guidelines range. This sentence is unreasonable because the appellate court cannot determine whether the district court properly used the guidelines as “the starting point and the initial benchmark” for the corrected sentence.” The sentence is procedurally unreasonable because the district court “failed to adequately explain the chosen sentence —including an explanation for any deviation from the Guidelines range.” “Because the district court elected to correct Defendant’s sentence rather than to conduct a de novo resentencing, the district court could properly rely on the explanation that the sentencing court originally provided in support of Defendant’s sentence. But to the extent that Defendant’s meritorious § 2255 motion rendered the original explanation insufficient “to allow for meaningful appellate review and to promote the perception of fair sentencing,” …the district court was obligated to supplement the original explanation.” Because the order in this case has no reference to Nichols’ original sentencing proceedings and no explanation for the corrected sentence the sentence cannot survive reasonable review and must be vacated.

The Sixth Circuit vacated and remanded Nichols’ sentence. No. 17-5580

The law firm of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had successful outcomes in more than 60 cases in the past three years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve.


In 2009, Kurt Harrington was convicted of seven drug offenses. The government filed a notice pursuant to 21 U.S.C. 841 and 851 based on a 2002 felony drug conviction. As a result, Harrington faced a mandatory term of life imprisonment “if death results from the use of substance and violation was committed after prior conviction for felony drug offense.” 21 U.S.C. 841(b)(1)(A). The district court sentenced Harrington to concurrent terms of life in prison on two counts, and 360 months on the five remaining counts. The Eighth Circuit Court of Appeals affirmed Harrington’s convictions in 2010.

In 2014, the Supreme Court decided Burrage v. United States, 571 U.S. 204 (2014). In Burrage, the Supreme Court held that “at least where use of the drug distribution by the defendant is not an independently sufficient case of the victim’s death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C. 841(b)(1)(C) unless use is a but-for cause of the death or injury.” 571 U.S. at 218-19.

Following the Court’s decision in Burrage, Harrington filed a petition for writ of habeas corpus under 28 U.S.C. 2241, challenging his conviction and sentence. The petition was subsequently denied. However, in 2017, Harrington filed a second 2241 petition citing intervening out-of-circuit authority holding that Burrage is retroactively applicable to cases on collateral review.

The district court dismissed Harrington’s second 2241 petition on initial review without service. The court reasoned that “neither the Supreme Court nor the Sixth Circuit has yet indicated that Burrage is retroactive to cases on collateral review.” As an alternative, the district court also dismissed the petition on the basis that Harrington was not sentenced under the mandatory guidelines that existed prior to United States v. Booker, 543 U.S. 220 (2005).

Harrington appealed to the Sixth Circuit, and argued that Burrage is retroactively applicable on collateral review. The Sixth Circuit held that Harrington did properly petition for relief under 28 U.S.C. 2241, as Harrington met the requirements of the “savings clause.” 28 U.S.C. 2255(e).

In the Sixth Circuit, a petitioner may pass through the savings clause if they are barred from proceeding under section 2255, and “actually innocent.” Wooten v. Cauley, 677 F.3d 303, 307 (6th Cir. 2012).

The Sixth Circuit found that Harrington’s claim is properly construed as one of actual innocence. In Burrage, the Supreme Court referred to the death-results enhancement as “an element that must be submitted to the jury and found beyond a reasonable doubt.” 571 U.S. at 210. Thus, the “death-results” enhancement is not a sentencing enhancement, but rather a statutory element of a crime.

The Sixth Circuit further noted that Harrington’s actual innocence claim may have merit. A petitioner may demonstrate actual innocence by:

(1) the existence of a new interpretation of statutory law, (2) which was issued after the petitioner had a meaningful time to incorporate the new interpretation into his direct appeals or subsequent motions, (3) is retroactive, and (4) applies to the merits of the petition to make it more likely than not that no reasonable juror would have convicted him.

Wooten, 677 F.3d at 307-08.

The court found that the first two prongs were satisfied: Burrage is a new interpretation of 21 U.S.C. 841(b)(1) and decided well after Harrington’s 2009 conviction, his 2010 direct appeal, and the one-year window to file a 2255.

Next, the Sixth Circuit held that Burrage is retroactive:

“Substantive decision that ‘narrow the scope of a criminal statute by interpreting its terms’ apply retroactively to cases on collateral review. Schriro v. Summerlin, 542 U.S. 348, 351 (2004) (citing Bousley v. United States, 523 U.S. 614, 620-621 (1998)). Burrage fits that bill: because but-for causation is a stricter requirement than, for example, the contributing-cause rule rejected in Burrage, see 571 U.S. at 208, some conduct punished by 21 U.S.C. 841(b)(1) pre-Burrage is no longer covered post-Burrage. At least two of our sister circuits to consider the issue have held that Burrage applies retroactively to cases on collateral review. See Santillana v. Upton, 846 F.3d 779, 783-84 (5th Cir. 2017); Krieger v. United States, 842 F.3d 490, 499-500 (7th Cir. 2016).

“For purposes of motions under 2241, it makes no difference that the Supreme Court itself has not held that Burrage applies retroactively. The rule requiring retroactivity to be determined by the Supreme Court comes from Tyler v. Cain, 533 U.S. 656 (2001), a case that interpreted the statutory limitation set forth in 28 U.S.C. 2244(b)(2) on second-or-successive petitions brought by state prisoners under 28 U.S.C. 2254. There is no comparable limitation on petitions filed under 2241.”

The Sixth Circuit found that Harrington met the first three prongs for demonstrating actual innocence. However, the court declined to determine whether Harrington met the fourth prong that “no reasonable juror would have convicted him, because the petition was dismissed at initial review and there was no evidence before the Sixth Circuit.

Accordingly, the Sixth Circuit remanded the issue to the district court to hold an evidentiary hearing.

Judgment of the district court was vacated, and the case remanded for further proceedings.

Harrington v. Ormond, No. 17-6229

JEREMY’S TAKE: This is a great case out of the Sixth Circuit that interprets the savings clause of 28 U.S.C. 2255(e) and retroactivity of Supreme Court decisions. Every circuit has its own savings clause test, and navigating through 2241 proceedings can be extremely complex. If you are seeking assistance with a 2241 petition, please reach out to me at [email protected]

The law firm of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had successful outcomes in more than 60 cases in the past three years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve.


Pablo Lovo and Joel Sorto were found guilty of conspiracy to commit Hobbs Act robbery, 18 U.S.C. 1951, and using, carrying or possessing a firearm during a crime of violence. 18 U.S.C. 924(c). Lovo and Sorto appealed their convictions to the D.C. Circuit, which garnered a remand on claims of ineffective assistance of counsel. However, in that appeal, the D.C. Circuit held that the “residual clause” of 18 U.S.C. 924(c)(3)(B) was not unconstitutionally vague.

After that decision, the Supreme Court issued its opinion in Sessions v. Dimaya, which held that 18 U.S.C. 16(b) is unconstitutionally vague. Lovo and Sorto subsequently sought rehearing on the basis that Dimaya requires vacatur of their 924(c) convictions.

The court noted that 18 U.S.C. 16(b) and 924(c)(3)(B) were “materially identical.” And the government conceded that the panel should grant rehearing to determine the impact of Dimaya. Nonetheless, the government argued that 924(c)(3)(B) requires a case-specific approach that considers the defendant’s own conduct, rather than the “ordinary case” of the crime. As the D.C. Circuit noted, the government’s argument was an attempt to distinguish 924(c) to avoid “the constitutional concerns that [a categorical] interpretation would create following Dimaya.”

But, circuit precedent held that section 924(c)(3)(B) requires the use of the categorical approach. United States v. Kennedy, 133 F.3d 53, 56 (D.C. Cir. 1998). Therefore, the court rejected the government’s argument of distinguishing 924(c)(3) from section 16.

The D.C. Circuit held that the Supreme Court’s decision in Dimaya invalidates the residual clause of 18 U.S.C. 924(c)(3)(B). However, the court noted that it takes no position on whether conspiracy to commit Hobbs Act robbery may still qualify under 18 U.S.C. 924(c)(3)(A).
The court vacated Lovo’s and Sorto’s 924(c) convictions, and remanded to the district court for further proceedings.

United States v. Yonas Eshetu, a.k.a. Yonas Sebsibe, No. 15-3020

JEREMY’S TAKE: This case was decided earlier this month, and I have since received a lot of inquiries as to what impact Eshetu may have. The D.C. Circuit’s opinion is critical because it holds that 924(c)(3)(B) is in fact invalidated after the Court’s decision in Dimaya. But, the D.C. Circuit did not specifically address whether Hobbs Act conspiracy fails to qualify as a crime of violence under the elements clause of 924(c)(3)(A). I imagine this issue will be decided in the D.C. Circuit in the near future.

Since Dimaya, I have also received many inquiries as to what circuits have held Hobbs Act (substantive, conspiracy or attempted) fails to qualify as a crime of violence under 924(c)(3). I am working on a future newsletter that will take a circuit-by-circuit look at the impact of Dimaya, specifically on Hobbs Act related offenses. Keep an eye out for this.

The law firm of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had successful outcomes in more than 60 cases in the past three years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve.


584 U. S. ____ (2018), No. 16–1027.


The Supreme Court handed down an important search and seizure case in Collins vs. Virginia.  


Officers from the Albemarle County Police Department observed the same motorcycle driver commit a traffic infraction in two separate incidents.  In both situations, the cyclist got away from the officers. In both situations, he was driving the same motorcycle.


The officers investigated and determined that the motorcycle was stolen and in the possession of Collins.  The motorcycle had an extended frame. Collins’ facebook page showed the motorcycle that was used in the traffic infractions at the top of the driveway of a house.  The officer went to the house and parked on the street. From his position, he saw a motorcycle that had an extended frame covered with a white tarp at the same location and angle on the driveway as the facebook photograph.  The officer took a picture of the motorcycle from the street and then walked up to them to where the motorcycle was parked. In order to “investigate further” he pulled off the tarp and observed the same motorcycle that eluded them earlier, and that was in the facebook photos.  The officer ran the plates and found that it was stolen. When Collins returned him, he admitted that he bought the motorcycle without a title. He was charged with receiving stolen property.


Collins filed a motion to suppress the evidence that was obtained as a result of the warrantless search of the motorcycle.  He argued that the officer trespassed on the curtilage to conduct an investigation in violation of the Fourth Amendment. The trial court denied the motion.  The Court of appeals affirmed because the officer had probable cause and that there were numerous exigencies that justified the officer’s entry. The Supreme court affirmed saying that the Fourth Amendment’s Automobile Exception and that the motorcycle was contraband.  


The Supreme Court noted that “When a law enforcement officer physically intrudes on the curtilage to gather evidence, a search within the meaning of the Fourth Amendment has occurred.”  Furthermore, the court determined that the part of the driveway where the motorcycle was parked and searched was curtilage. In this case, it was because it was “an area adjacent to the home and ‘to which the activity of home life extends,” thus being in the curtilage and requiring a warrant.  This is because “A visitor endeavoring to reach the front door of the house would have to walk part way up the driveway, but would turn off before entering the enclosure and instead proceed up a set of steps leading to the front porch” and “When [the officer] searched the motorcycle, it was parked inside this partially enclosed top portion of the driveway that abuts the house.”  


Because of this, the officer’s actions were an encroachment on the fourth amendment in the item searched (the motorcycle) but also in the encroachment of his home.  So the next question was if the automobile exception justified the invasion of the curtilage. Writing for the court, Justice Sotomayor used the following hypothetical:


“Applying the relevant legal principles to a slightly different factual scenario confirms that this is an easy case. Imagine a motorcycle parked inside the living room of a house, visible through a window to a passerby on the street. Imagine further that an officer has probable cause to believe that the motorcycle was involved in a traffic infraction. Can the officer, acting without a warrant, enter the house to search the motorcycle and confirm whether it is the right one? Surely not.


The reason is that the scope of the automobile exception extends no further than the automobile itself.”


Sotomayor noted that “Nothing in our case law, however, suggests that the automobile exception gives an officer the right to enter a home or its curtilage to access a vehicle without a warrant.”  Further, “The Court already has declined to expand the scope of other exceptions to the warrant requirement to permit warrantless entry into the home.” The court went on to say that “searching a vehicle parked in the curtilage involves not only the invasion of the Fourth Amendment interest in the vehicle but also an invasion of the sanctity of the curtilage[ ]” for the same reason that officers may not enter a home to make an arrest without a warrant even when they have probable cause.  She also said that “The automobile exception does not afford the necessary lawful right of access to search a vehicle parked within a home or its curtilage because it does not justify an intrusion on a person’s separate and substantial Fourth Amendment interest in his home and curtilage.”


The court denied Virginia’s request to make a bright-line rule saying that “the automobile exception does not permit warrantless entry into ‘the physical threshold of a house or a similar fixed, enclosed structure inside the curtilage like a garage’” so that the officers wouldn’t have to make case by case determinations.  The court stated that the officers already have to do this because the curtilage has already been afforded constitutional protection. Also, Virginia’s proposed rule mistakenly places emphasis on visibility. Sotomayor said, “So long as it is curtilage, a parking patio or carport into which an officer can see from the street is no less entitled to protection from trespass and a warrantless search than a fully enclosed garage.”  Finally, “Virginia’s proposed bright-line rule automatically would grant constitutional rights to those persons with the financial means to afford residences with garages in which to store their vehicles but deprive those persons without such resources of any individualized consideration as to whether the areas in which they store their vehicles qualify as curtilage.”


The Supreme Court held that the automobile exception did not allow the officer to enter a home or its curtilage in order to search a vehicle.  The Supreme Court of Virginia reversed the decision on the Supreme Court of Virginia.


Koons v. United States. No. 17-5716

The petitioners in Koons v. United States had committed crimes that invoked the use of the mandatory minimums, their sentences were based on these ranges.  Each of them provided information to the government that assisted in the investigation and prosecution of a case. As a result of this the prosecutor filed for reduction motions that resulted in sentences below the mandatory minimums.  The court did not consider the guideline ranges on the case. This is because the court discarded those when the court sentenced the petitioners to the mandatory minimums.

Later, the sentencing commission approved Amendment 782, which retroactively reduced the guidelines allowing a proportional reduction in sentence for those convicted under the advisory guidelines. In this case, the petitioners claimed they should be eligible for a sentence reduction.  The court said that the petitioners would have to prove that their sentence was based on a sentence that was “based on” the guidelines. They were unable to, and their motions were denied.

Writing for the court, Justice Alito held that petitioners do not qualify for sentence reductions under §3582(c)(2) because their sentences were not “based on” their lowered Guidelines ranges, but instead their sentences were “based on their mandatory minimums and on their substantial assistance to the Government.


The court noted that they had ruled in Hughes that “for a sentence to be “based on” a lowered Guidelines range, the range must have at least played “a relevant part [in] the framework the [sentencing] judge used” in imposing the sentence,” but “when the ranges play no relevant part in the judge’s determination of the defendant’s ultimate sentence—the resulting sentence is not “based on” a Guidelines range.”  Here, the guideline ranges played no part in their sentences because “the ranges play[ed] no relevant part in the judge’s determination of the defendant’s ultimate sentence” as the guideline ranges were discarded for the mandatory minimums.


The court also noted in response to the petitioners argument that “What matters, instead, is the role that the Guidelines range played in the selection of the sentence eventually imposed—not the role that the range played in the initial calculation. And here, while consideration of the ranges may have served as the “starting point” in the sense that the court began by calculating those ranges, the ranges clearly did not form the “foundation” of the sentences ultimately selected.”


The Supreme Court affirmed the decision of the appellate court, denying the petitioner’s motions.  Koons v. United States. No. 17-5716