Wednesday, December 8, 2021
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Defining ‘crime of violence’ leaves justices confounded

The high court gave few clues on how it will rule in the latest case looking at discrepancies on how crimes involving a gun are punished. 

The Supreme Court is seen in Washington on Sept. 3, 2021. (AP Photo/J. Scott Applewhite)

WASHINGTON (CN) — Justice Clarence Thomas invoked "Alice in Wonderland" Tuesday as the Supreme Court tackled the question of whether an attempted robbery can be considered a crime of violence. 

“It just seems that if you look at the actual facts, and you consider your argument, there's a bit of a through-the-looking-glass feel to this case,” the Bush appointee said at oral arguments this morning.

The case stems from the 2003 murder of Martin Silvester as he tried to buy marijuana from Justin Eugene Taylor and an accomplice armed with a 9-millimeter semiautomatic pistol. Though it was Taylor who came up with the robbery plot, his accomplice was the one who pulled the trigger when Silvester resisted.

Justice Brett Kavanaugh showed sympathy for the government’s arguments that it cannot, and would not, prosecute actions that do not at least threaten the use of force.

“I take you to be saying that we should upend hundreds of thousands of convictions against violent criminals who committed violent crimes with firearms because we shouldn't accept the government's representation that it cannot, will not, and does not prosecute attempted threats, and I'm trying to figure out how that makes any sense,” the Trump appointee said. 

But Justice Neil Gorsuch called the government’s argument “unpersuasive,” saying he thought its argument was trying to open up more prosecutions for similar crimes. 

“It seems to me that what they're trying to do … is to move a lot of prosecutions that would otherwise fall into that into a broader and more capacious understanding of threats,” the Trump appointee said. 

Justice Elena Kagan said the government relies on being able to show an attempt to threaten force without actually needing to prove an attempt to use force for the purpose of negotiating a plea. 

“The government is relying and the government gets what it wants because it only needs to show an attempted threat,” the Obama appointee said. 

Justice Samuel Alito wondered if the issue being argued would even come in the real world. 

“Is this something that comes up in the real world and not just in a law school criminal law class,” the Bush appointee asked.  

A grand jury indicted Taylor on seven counts. He pleaded guilty to two of those counts — including Hobbs Act conspiracy and using a firearm during a crime of violence — as part of a plea deal and was sentenced to 30 years in prison. Taylor appealed on the grounds that the court incorrectly calculated his sentence. After striking out in the Court of Appeals and the Supreme Court, Taylor claimed the crimes he committed did not qualify as crimes of violence.

This time, the Fourth Circuit agreed with him that an attempted Hobbs Act robbery cannot qualify as a crime of violence. The Supreme Court took up the case at the end of the last term in July.

Rebecca Taibleson, assistant to the solicitor general, said attempted robbery was a quintessential example of force crimes. She said affirmation of the Fourth Circuit’s ruling would expand attempt liability. 

“To make his theory work, respondent would dramatically expand attempt liability,” Taibleson said. “If reconnoitering a store is an attempted robbery today, then googling a fraud scheme is attempted wire fraud tomorrow. That is not the law.” 

Michael Dreeben, a partner at O’Melveny and Myers representing Taylor, argued that an attempt to commit Hobbs Act robbery is not a crime of violence using the elements clause. He said the government’s approach went against the court’s precedents. 

“The government distorts the meaning of use of force and threatened use of force and adopts a very unorthodox meaning of attempt liability,” Dreeben said. “It argues that attempted threats are tempted uses of force, positing a meaning of use of force that contradicts this court's cases. It argues that the robber on the way to the Target has already threatened force adopting a definition of threatened that is foreign to criminal law, appears in no case, and has never been used before.” 

The Department of Justice declined to comment further on the case following oral arguments, and Dreeben did not respond to requests for comment.

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