Tuesday, November 15, 2016

Bell and the Commentary to USSG § 4B1.2

Here’s what the government will say:

“Maybe Bell is right that robbery doesn’t have a force element. But there’s more than one way to skin a crime of violence. The commentary to § 4B1.2 said (prior to the August 1, 2016 amendment) that the definition of a ‘crime of violence’ includes ‘robbery’. And because your client was convicted of robbery, she has been convicted of a crime of violence.”
Not so.
A quick post-Johnson review. After Johnson smacked down the residual clause, there are two ways for something to be a crime of violence under § 4B1.2. First, it can be an enumerated offense: burglary, arson, extortion, or the use of explosives. I don’t see robbery anywhere in that list. Second, it can be an offense that involves the use, attempted use, or threatened use of physical force. And as Bell establishes, robbery doesn’t qualify there, either. So what to do with the commentary to 4B1.2 listing robbery as a crime of violence?
The First Circuit answered that question in United States v. Soto-Rivera. Remember, guidelines come in two parts: text and commentary. The text is binding. The commentary is not. When the commentary is inconsistent with the text, the text controls. And after Johnson, commentary that says an offense is a crime of violence is inconsistent with the text when that offense is not burglary, arson, extortion, the use of explosives, and lacks a force element. As a Seventh Circuit decision expounding on Soto-Rivera explains,
Under § 4B1.2(a), "crime of violence" means subpart 1 (the elements clause) and subpart 2 (the four specific crimes followed by the residual clause). If the application note's list is not interpreting one of those two subparts---and it isn't once the residual clause drops out---then it is in effect adding to the definition. And that's necessarily inconsistent with the text of the guideline itself.

Bell followed the First and Seventh Circuits, holding that “[p]ost–Johnson . . . § 4B1.2's commentary, standing alone, cannot serve as an independent basis for a conviction to qualify as a crime of violence because doing so would be inconsistent with the post-Johnson text of the Guideline itself.”
The Tenth Circuit agreed, long ago, as we blogged about here. In United States v. Armijo, our Circuit held that commentary which expanded the text could not support classifying a prior offense as a crime of violence. After Johnson, a crime of violence must be an enumerated offense (burglary, arson, extortion, use of explosives) or have a force element. As Bell explains, a prior offense which does not fit those categories is not a crime of violence. At least prior to the August 1, 2016 amendments. More on that later.

---From Kirk Redmond

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