Talk to anyone lucky enough to earn his/her livelihood through criminal appellate practice, and you’ll likely hear some version of the following complaint: the Government is never held to the same standard as the criminal defendant on appeal. Whether it’s waiver during the trial-level proceedings, or a purported waiver during oral argument or in the briefing, it often seems like appellate courts give the Government a degree of latitude that is not usually afforded to the defense. This case is an exception and a refreshing reminder to the Government that not dotting i’s and crossing t’s can have some meaningful consequences.
In United States v. Reyes-Rivas, the defendant/appellant argued during sentencing and on appeal that he did not meet the criteria for a “career offender” enhancement under section 4B1.1 of the Sentencing Guidelines. Specifically, he argued one of his priors – a Puerto Rico conviction for fourth degree aggravated battery – did not qualify as a “crime of violence.” He also argued that the conviction could not qualify as a “crime of violence” under the residual clause of section 4B1.1. He reasoned that the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015) applied to the career offender enhancement because the residual clause language in the Armed Career Criminal Act was almost identical to the residual clause language in the Sentencing Guidelines.
Michael Brownlee is board-certified as an appellate expert by the Florida Bar. He is a First Circuit CJA attorney and practices in federal appellate courts around the country. He is also the founding member of The Brownlee Law Firm. To learn more, visit appealattorney.com or email Mike at email@example.com.