Michigan Robbery by Confinement Requires Use of Force, Is “Serious Violent Felony”

US v. Lightfoot: In 2000, Lightfoot was convicted of bank robbery and a firearm offense after having been previously convicted of the same offense in Virginia and Michigan state courts. As a result, Lightfoot was sentenced to a mandatory life term under the “three strikes” provision of 18 U.S.C. § 3559(c), plus a consecutive life sentence for the firearm offense. After Johnson was decided in 2015, Lightfoot filed a §2255 motion arguing that the Michigan bank robbery conviction was no longer a “serious violent felony” under either the enumerated offense clause or force clause. The district court disagreed and denied the motion.

On appeal, a divided Fourth Circuit affirmed the denial of Lightfoot’s §2255 motion. The court first concluded that the Michigan robbery statute was divisible and that Lightfoot had been convicted of the version of the offense known as “assaultive bank robbery.” The court then concluded that the offense fell under the enumerated offense clause because it shared the “essence of robbery in the federal statutes.” It rejected Lightfoot’s argument that because the offense could be committed by “confinement” it was not sufficiently similar to federal bank robbery, concluding that Michigan law showed that “confinement requires force or intimidation, just like all the other assaultive acts listed in the robbery statute.” The court noted that Lightfoot “has not identified any case where confinement without force or fear was the basis of an assaultive bank robbery conviction” under Michigan law.

 Judge Benjamin dissented, arguing that Michigan assaultive bank robbery “in its lease culpable form, can be accomplished without the use or threat of physical force.”

Completed Carjacking Remains Crime of Violence

US v. Fulks: Fulks and his codefendant, Basham, escaped from prison together and went on a multi-state crime spree that resulted in a kidnapping, rape, and murder in West Virginia (which is not the subject of this appeal) and a similar kidnapping, rape, and murder in South Carolina (which is the subject of this appeal). They were both charged with numerous offenses, including kidnapping, carjacking, and use of a firearm in connection with a crime of violence and conspiracy to use a firearm during a crime of violence. Fulks pleaded guilty to all counts, while Basham was convicted at trial on all counts. Both were sentenced to death (plus 744 months in prison). They challenged, via a second or successive §2255 motion, whether their firearm convictions were invalid after Johnson and its progeny because the alleged crimes of violence in which the firearms were used no longer qualified as such. The district court denied their motions.

On appeal, the Fourth Circuit affirmed the denial of Fulks’ and Basham’s §2255 motions. The parties agreed that, under Fourth Circuit precedent, kidnapping could no longer serve as a predicate crime of violence. Fulks and Basham argued the carjacking statute was indivisible and that because attempted carjacking could not be a crime of violence (as the Supreme Court held that attempted Hobbs Act robbery was not) then carjacking categorically was not a crime of violence. The court disagreed on both fronts. First, the court concluded that the carjacking statute was divisible between completed and attempt offenses. Second, the court held that it was clear that what Fulks and Basham were convicted of was completed carjacking, not attempt. Third, the court held that because completed carjacking requires the use or threatened use of force it was a crime of violence that could sustain Fulks’ and Basham’s convictions. Finally, the court held that the record was clear that their convictions were based on both a valid (carjacking) and invalid (kidnapping) predicate and therefore could not be vacated.

No Breach of Plea Agreement by Government Arguing for Upward Variance on Remand

US v. Johnson: In 2018, Johnson was charged with a drug conspiracy count and possession with intent count and entered into a plea agreement with the Government to plead guilty to the possession-with-intent count. The parties stipulated to the relevant conduct and that Johnson was entitled to a reduction for acceptance of responsibility. Johnson agreed to waive his right to appeal “from a sentence in excess of the applicable Guideline range that is established at sentencing,” while the Government reserved the ability to “make a sentence recommendation” and present additional evidence to respond to arguments made by Johnson. The probation officer concluded that Johnson was a career offender and calculated his Guideline range accordingly. At sentencing, the district court varied down from the career offender Guideline range and imposed a sentence of 128 months in prison.

Johnson appealed, initially arguing that one of his prior conviction upon which the career offender designation was based had been modified in state court “such that it no longer qualified as a felony.” The Fourth Circuit granted a motion to remand the case for resentencing. The probation officer recalculated the Guideline range as 57 to 71 months in prison. The Government filed a motion for an upward departure or variance, arguing the court should reimpose the original 128-month sentence. The district court imposed a sentence of 120 months.

The Fourth Circuit affirmed Johnson’s 120-month sentence. Johnson argued that by arguing for the upward departure/variance the Government had breached the plea agreement. The court disagreed, noting first that Johnson had not made that argument in the district court, so it was reviewing for plain error. Regardless, the court rejected Johnson’s argument that “reading the agreement as a whole, the Guidelines Stipulation must be interpreted to limit the Government’s sentencing recommendation rights,” holding that no such agreed-to-limit was present in the agreement. In addition, the reservation of the ability to “make a sentence recommendation” was broad, “but that doesn’t make it ambiguous or vague.”