RICHMOND (CN) – Sentences for hundreds, if not thousands of convicted criminals could be upended following an en banc Fourth Circuit hearing Wednesday afternoon over crimes of violence laws.
The expansion of minimum sentencing law started over 30 years ago. Under them, currently, possessing, brandishing or discharing a firearm while committing any crime guarantees that those convicted under the sentencing guidelines could get anywhere from seven to 25 years in prison before the sentence for their specific crime was applied.
The laws created leverage for prosecutors to elicit plea deals, but critics of the mandatory minimum sentences say that’s led to a glut of plea deals and scores of people being incarcerated when they might otherwise not be.
The U.S. Supreme Court has slowly winnowed down the laws in cases brought by public defenders, most notably with the Johnson decision of 2015 which which found “career criminal” sentence enhancements, based on previous offences, violated due process.
That decision has already led to hundreds of appeals from long-incarcerated inmates who constitutionally can now seek resentencing.
Earlier this year, in Sessions v. Dimaya, another aspect of these minimum sentencing laws was struck, this time dealing with when a crime “involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”
But Dimaya changed more than the language of the law, it also shifted the burden of deciding how “substantial” the risk of physical force was to juries on a case by case basis.
The case before the 4th Circuit this week began in April, 2014, when Joseph Simms and another man crawled through the drive-thru window of a McDonalds in Goldsboro, North Carolina, pointed a gun at the manager and demanded money.
They made off with over $1,000 but were caught soon thereafter. Prior to trial, Simms plead guilty to the robbery as well as brandishing a firearm in furtherance of the conspiracy and possessing a firearm as a felon.
When it came time for his sentencing, Simms learned his offenses fell under the minimum sentencing laws and he quickly appealed the charge of brandishing a weapon during the commission of a trial in like of Johnson.
On Wednesday, Simms lawyers conceded there was no doubt Simms was guilty. However, they argued the longer sentence for his use of a firearm was unconstitutional.
“Just by holding a weapon they can be prosecuted,” said North Carolina public defender and Appellate Chief Joshua Carpenter, one of two attorneys who argued on behalf of Simms.
Carpenter argued the categorical approach, which says the crime fits the statue’s language, should be used in criminal prosecution and the vague nature of “substantial risk” is unconstitutional.
“If you accept the government’s approach, you could allow non-violent crimes be considered crimes of violence,” he said.
Carpenter used the act of someone crossing the border of the country illegally as an example. While illegal crossing is a crime itself, if the person was holding a gun at the time he crossed, that could be used as evidence to suggest he had a “substantial risk” of committing a crime thereby increasing his punishment.
U.S. Circuit Judge Harvie Wilkinson pushed back on this theory and said Carpenter simply lacked faith in the judicial process.
“Juries take criminal arguments all the time,” he said.
U.S. Circuit Judge Allyson Duncan agreed, noting there was utility in the statute and she couldn’t imagine the “parade of horribles” that Carpenter saw in leaving the law intact.
U.S. Circuit Judge Paul Niemeyer also pushed back on the idea that Johnson’s striking of past convictions should be connected to Simms.
He said that even using the categorical approach, the Simms case and the others it could impact rely on issues related to the crimes being committed and tried.
“We don’t have a prior conviction here to analyze, we have current charged conduct: using a gun in a crime of violence. And they have been charged, it has to be proved to a jury under instructions,” he said. “That’s different that going back to a five year old conviction.”
But the judges were equally hard on Phil Rubin who argued on behalf of the government in their defense of the law, mainly with the level of confusion the statute would have on juries.
“These are the same concerns Johnson talked about,” said Chief U.S. Circuit Judge Roger Gregory. “They’re impractical. It would collapse the [crime] itself. Would using a gun create that since of risk? Unless you can’t consider the gun at all and weigh it solely [on the crime]. That’s not a model of clarity.”
Rubin said it was the jury’s job to decide and proper instruction could help them understand the specifics. But Gregory continued to push back.
“When a jury is involved it’s easy to determine the nature of the offense?” he asked. “Cause it’s not the conduct, it’s the nature of the offense itself … The Supreme Court gave us the categorical approach and it had many chances to deconstruct it … but never did.”
“We’ll charge someone of a crime using a firearm, but now never mind that fire arm, let’s see it without the gun,” he said. “Impractical concerns don’t go away cause you come to a fact specific device.”
“Juries decide these questions every day …” Ruben pushed back before U.S. Circuit Judge Stephanie Thacker said.
“On your jury instruction, they can ask ‘is there a substantial risk,’ but they’ll have to say ‘was there a risk by its nature, this conduct involved that substantial risk of physical force but you may not rely solely on the fact that a gun was used,’” she said. “Even I sitting here am having trouble understanding how that inquiry goes forward.”
No matter the outcome at the fourth circuit, the issue has lead to split decisions around the country in other courts and talk about the Supreme Court’s involvement in the law is sure to be realized eventually.
And in the interim, not only are those who have been convicted under minimum sentencing statutes in a kind of legal limbo, those awaiting sentencing also face an unsure future. As Carpenter explained, over 200 convicted criminals in his district alone had their sentencing dates stayed in anticipation of the Fourth’s decision. He said he couldn’t imagine how many more sentences were at stake.