Monday, July 23, 2018

U.S. v. Thompson, 72 F. App'x 492 (1/9/18) (N.M.) (unpub'd) - The 10th holds New Mexico attempts are "attempts" under the ACCA's elements clause. Mr. Thompson argued New Mexico attempt includes just "slight acts," not the substantial steps required by the ACCA. The 10th finds New Mexico requires an attempt to be more than preparation, not necessarily the last act before completion, but at least the first or some subsequent step in a direct movement toward the offense's commission. That's good enough for the ACCA, the 10th holds.

U.S. v. Robinson, 720 F. App'x 946 (1/9/18) (Okl.) (unpub'd) - Interesting concurrence by Judge Holmes on what is generic burglary. The majority rejects Mr. Robinson's Johnson challenge to counting his burglary as an ACCA enumerated offense based on U.S. v. Snyder, 871 F.3d 1122 (10th Cir. 2017). The majority uses the modified categorical approach that it couldn't use now under Mathis and finds that back when Mr. Robinson was sentenced he was convicted of burglarizing a house, not a vehicle being used as a residence. So his ACCA sentence that would be unconstitutional now is okay because, due to the application of incorrect law. It wasn't based on the residual clause at the time it was imposed. Judge Holmes opines that Shepard v. United States, 544 U.S. 13 (2005), has abrogated U.S. v. Spring, 80 F.3d 1450 (10th Cir. 1996), which held a motor vehicle used as a home was a "structure" under the generic burglary definition, even though Taylor said that a motor vehicle was not a generic structure. Judge Holmes thought Shepard's description of a generic burglary as unlawful entry into "an enclosed space, not a boat or motor vehicle" scuttled Spring. The Supremes will decide the question next term in U.S. v. Sims and U. S. v. Stitt.