Sunday, January 31, 2016

Into the Morass: The Cert Grant in Welch and Kansas Robbery

We are very excited that the Supreme Court decided to review the Eleventh Circuit’s decision in Welch v. United States. The issue in Welch garnering all of the press coverage is whether the Court’s decision in Johnson is retroactive to cases on collateral review.

But the Court also agreed to resolve another question of immediate importance to us in Kansas—whether a robbery statute that equates force to mere touching  can support a federal sentencing enhancement as a violent felony of crime of violence. In Welch, the Florida statute permitted a robbery conviction by purse snatching.  

This is, for us, kind of a big deal. In Kansas, robbery is the “taking of property from the person or presence of another by force”. Merely grabbing someone else’s property satisfies Kansas’ diluted force requirement. In short, Welch will resolve whether Kansas robbery meets the federal enhancement definition.

But there’s more! You know who agrees with our view of things in Welch? The Department of Justice. As Mr. Welch’s supplemental brief notes, “[T]here is no dispute that Petitioner was sentenced pursuant to the now-void residual clause of ACCA.” DOJ is not defending the Eleventh Circuit’s judgment by arguing that a robbery predicated on mere touching satisfies the force clause. Which, well, seems to create some cognitive dissonance when the Government argues the opposite in Kansas courtrooms.

So if a prosecutor in our hallowed jurisdiction contends that Kansas robbery meets the force clause, remember that the agency that they work for, the Department of Justice, disagrees. 

-- Kirk

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