Sunday, June 11, 2017

Not a Crime of Violence: KS Dangerous Weapon Agg Robb

Committing a robbery with a dangerous weapon; it sure sounds like a crime of violence. But not to Jeff Griffith, a Wichita CJA panel lawyer. Last Friday, Jeff persuaded Judge Melgren that robbing someone in Kansas while possessing a deadly weapon was not a crime of violence. And he was right. 

Jeff asked the Court to follow United States v. Parnell, where the Ninth Circuit decided that Massachusetts armed robbery is not a violent felony. Why? Because in Massachusetts, robbery can be committed by minimal, non-violent force. And the “armed robbery” component of the statute? Well, in Massachusetts, the armed robbery statute does not require a weapon be used or displayed, or even that the victim be aware of it. It is enough that the robber have a knife in his back pocket, which does not convey a threat of force to the victim.

And you know what? Kansas aggravated robbery works the same way. Just like Massachusetts armed robbery, Kansas aggravated robbery requires only that the robber be "armed with" a dangerous weapon, not that he use it or that the victim be aware of its presence. We know that Kansas robbery is not a crime of violence, and we know that possessing a dangerous weapon is not a crime of violence. (Scroll down to USSG § 4B1.2, Application Note 1.) Adding two things that aren’t crimes of violence together does not produce a crime of violence.

The case is United States v. Edward Walker, D.Kan. 16-cr-10015-EFM, D.E. 47. We’ll send around a pdf of Judge Melgren’s order tomorrow. Congratulations, Jeff.


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