Gary D. Harris was found guilty of second-degree murder, attempted robbery, and aiding and abetting the use or possession of a handgun during and in connection with a violent crime. He was sentenced to 420 months in prison for aiding and abetting murder, with an additional 60 months for violating 18 USC 924(c).

Gary filed a post-conviction habeas corpus application under 28 USC2255, but it was denied, as are the vast majority of them. Gary filed a second 28 USC 2255 petition after United States v. Davis altered the picture on what offenses were and were not crimes of violence.

It is difficult to submit a second 2255. A prisoner must first obtain authorization from the Court of Appeals to submit one, and the requirements are stringent: you must have recently acquired information that essentially exonerates you or be the beneficiary of a retroactive Supreme Court constitutional ruling.

Gary requested authorization from the 6th Circuit. The 6th Circuit ruled against him last week.

Gary contended that his 60-month consecutive sentence should be dismissed because the district court may have imposed it under the unconstitutionally broad “residual clause.” Furthermore, Gary maintained that his 924(c) sentence could not be covered by the “elements clause” since neither his conviction for second-degree murder nor his conviction for attempted robbery could have been considered “crimes of violence.”

It’s a persuasive argument. It appears that you may help or abet a violent crime without really committing one yourself, such as lending your automobile to someone who uses it to rob a bank. The Circuit, on the other hand, was not convinced. “To justify relief under § 2255,” the 6th said, Gary had to not only show “constitutional error but also harm that he suffered from that error.” He had to “show that he could not have been sentenced to the concurrent 60-month jail term under the factors clause of Section 924(c)(3).” Gary cannot do that because the 18 USC 2113 felony of aiding and abetting attempted robbery “necessarily constitutes a crime of violence,” according to the Court.

As a result, helping and abetting as well as attempted acts of violence are both violent. The Garys of the world, on the other hand, lose. Right?

“Not so fast, my friend,” as Lee Corso may remark. The Supreme Court heard oral arguments in United States v. Taylor yesterday, in which the question is whether attempting to conduct a Hobbs Act robbery constitutes a violent felony. For hundreds, if not thousands, of convicts, the decision of that case might revive the question of aiding and abetting/attempt.

Justin Taylor was a cannabis dealer in Richmond, Virginia, who robbed his customers. This was a company approach that produced fantastic short-term success but was terrible at retaining customers. Justin and his accomplice plotted a heist in August 2003. While his companion pulled out the theft, Justin sat in the getaway car. When the customer refused to hand over his money, Justin’s friend shot him to death. Without the money, Justin and his companion left.

Justin was found guilty of Hobbs Act conspiracy and a crime of violence under Section 924 of the Criminal Code (c). He was sentenced to 20 years in prison for the plot and an additional ten years for using a pistol in a violent crime.

After Davis, Justin filed a 2255 petition, claiming that his crime was not a violent crime because it was only an attempt. The 10-year sentence for using the pistol would have to be overturned as a result. Justin’s conviction under Section 924(c) was vacated by the United States Court of Appeals. “Because the components of attempted Hobbs Act robbery do not always necessitate ‘the use, attempted use, or threatened use of physical force,’ the conduct does not qualify as a ‘crime of violence,'” according to the appeals court.

The Government complained at yesterday’s argument that the Fourth Circuit “has excised from 924(c) a core violent federal crime, based on the imaginary supposition that someone might commit it with a purely non-threatening attempted threat and still come to law enforcement’s attention and be prosecuted.”

But how fantastical would such a scenario be? The debate was dominated by the question.

At one point, Chief Justice John Roberts wondered aloud what charges Woody Allen’s character in “Take the Money and Run” might have faced for delivering the teller the message “I have a gun.” Michael Dreeben, Justin’s lawyer, said that the Woody Allen character’s acts would be in violation of the Hobbs Act. “A failed effort can still be prosecuted as an attempt,” Dreeben added.

The government, as usual, anticipated that if Justin Taylor’s viewpoint won, the legal system would collapse and convicts would be released in large numbers. Justice Sonia Sotomayor was understandably suspicious, pointing out that whether or not an effort might sustain a 924(c) was a matter of enhancement, not convictability (my words, not the Justice’s). She said the government made it sound like a defense victory would result in the release of “all of these horrific criminals,” but she stressed that defendants still face lengthy sentences on other offenses, such as Justin’s 20-year conspiracy sentence, which isn’t at question here.

Justice Brett Kavanaugh was concerned about a favorable finding for the prosecution. “Obviously, Congress imposed this because there’s a significant problem with violent crime done with weapons, and they decided the penalties weren’t enough to safeguard the public,” he added.

Harris v. United States, Case No. 21-5040, 2021 U.S. App. LEXIS 35494 (6th Cir., December 1, 2021)

United States v. Taylor, Case No. 20-1459 (Supreme Court, oral argument December 7, 2021)

Bloomberg Law, Violent-Crime Definition Gets High-Court Hearing in Gun Case (December 7, 2021)