Federal court system scrambles to meet equal justice deadline

Notorious Albuquerque bank robber among thousands likely to ask for resentencing before June 26 cutoff

ALBUQUERQUE, N.M. (KRQE) — A U.S. Supreme Court decision that last year struck down unconstitutionally vague language used to sentence violent criminals now has the federal court system working overtime to meet a June 26 deadline for appeals.

“We’re up against it,” said Stephen McCue, the federal public defender in New Mexico. “We have hundreds of cases we’re reviewing.”

The opinion, Johnson v. United States, held that one part of a federal law called the Armed Career Criminal Act didn’t define clearly enough what crimes should be deemed violent felonies. Called the residual clause, it defines a violent felony as a crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”

The residual clause defining a violent felony:

“…or otherwise involves conduct that presents a serious potential risk of physical injury to another”

Source: Armed Career Criminal Act

Defendants sentenced using the law’s enhancement are subject to a mandatory 15-year minimum term in prison. They could face up to a life sentence.

After the Supreme Court ruled the language too vague on June 26, 2015, the 80 federal defender offices and 94 U.S. District Courts began trying to figure out which cases might qualify for resentencing.

So, too, did one of Albuquerque’s most notorious bank robbers. Byron Chubbuck, known as “Robin the Hood” during his spree of more than one dozen bank robberies in the late ’90s and early 2000s, has asked a federal District Court to reconsider his sentence in light of the Supreme Court decision.

Seeking to gauge the local impact of the Johnson decision, Chief District Judge Christina Armijo asked the United States Sentencing Commission to identify potentially eligible cases in her New Mexico district.

The list she got back is more than 300 cases long.

Because federal rules allow one year after the Supreme Court changes a sentencing law to make an appeal, the people on that list have less than three weeks left to ask a judge to rehear their sentence. Every defendant across the country is in the same situation.

“It’s going to impact, nationwide, thousands upon thousands of sentences. No doubt about it,” said Albuquerque criminal defense attorney Jason Bowles. He handles federal defense cases on a contract basis and has five Johnson case reviews on his desk. Two of those were assigned to him in the past week.

Criminal defense and civil rights lawyer Mark Donatelli said many defendants sentenced under the ACCA’s residual clause may not even know they have the right to ask the court give their potentially unconstitutional prison terms a second look.

“One of the largest burdens is trying to identify those people and make sure that those people understand that they’ve got claims,” Donatelli said. “How do they get in touch with their lawyers? How do they find out if they’re eligible? What do they have to do to get into court?”

Many people in the legal community have been watching the Supreme Court wrestle with the uncertainties of the residual clause for years. While it seemed likely to them that the court would make the Johnson decision retroactive, it wasn’t until April 18, when the court decided Welch v. U.S, that it became possible for defendants already sentenced under the law to ask that their cases be reviewed.

To compound the caseload, the unconstitutional language in the Armed Career Criminal Act appears elsewhere in federal law.

“That clause – the residual clause – was used pretty broadly in sentencing. And it has been used not only in that statute but in others,” Bowles said.

In fact, the same clause exists in sentencing guidelines for career offenders. The federal three-strikes law has similar language. So, too, does some immigration legislation.

“Obviously we can’t have citizens being sentenced by laws that are not clear enough for people to know they’re violating the law,” Bowles said.

‘Robin the Hood’

Whether the Johnson decision will change much about Byron Chubbuck’s 80-year sentence is a question recently assigned to federal Magistrate Judge Gregory Fouratt.

Chubbuck’s brazen bank robberies captivated Albuquerque during the late 1990s. Because he told bank tellers that he planned to give the money he stole to the poor, he was dubbed ‘Robin the Hood.’ Federal court records show Chubbuck made off with more than $175,000 dollars.

Jason Bowles remembers it well. He was a federal prosecutor at the time and was assigned to Chubbuck’s case.

Chubbuck earned, Bowles said, “a lot of fans… on the idea that he was going to rob banks and give to the poor. I’m not sure if that was really the motive or if that was really true.”

In August 1999, Chubbuck walked into his Albuquerque apartment as two FBI agents were interviewing his wife. After a brief shootout with the agents, who fled to safety, Chubbuck holed up in the apartment. He then began to kick his way through the walls of neighboring apartments in a vain attempt to escape. A police dog eventually brought Chubbuck to heel.

Chubbuck pleaded guilty to 13 bank robberies and one attempted robbery. He also pleaded guilty to assaulting the FBI agents. He received a 40-year sentence.

16 months later, using a handcuff key he said he’d gotten from a jail guard, Chubbuck kicked out the window of a jail transport van and fled into Albuquerque’s North Valley.

He went back to work.

In the six weeks he was on the loose, the FBI pegged Chubbuck as a suspect in eight more bank robberies.

Either feeling his oats or feeling the pressure as the authorities once again closed in, Chubbuck phoned local radio disc jockey T.J. Trout to plead his case.

“I was robbing banks to help the Zapatistas in Chiapas, Mexico,” he told Trout. “That kind of got out of hand. I started getting high a little bit, but I wasn’t out of control.”

A skittish Chubbuck asked repeatedly if Trout was trying to turn him in. Finally, Chubbuck offered a warning to those pursuing him: “Dude, I’m strapped down with so many motherf—— machine guns and all kinds of cool sh–. I’m ready for whatever. I gotta go, dude.”

A few days later, police caught up with him in an Albuquerque neighborhood and shot him in the chest as he turned and pointed a TEC-9 semiautomatic pistol at them. Chubbuck survived and eventually was sentenced to another 40 years in prison.

Given the additional bank robberies and the firearm enhancement, Bowles said, there didn’t seem to be a reason to try to chase Chubbuck’s story about the Zapatistas.

“I don’t think anybody ever confirmed that,” Bowles said. “Maybe. If they did, I didn’t know about it.”

In the years since, Chubbuck has served time in the federal Supermax facility in Florence, Colo. He’s been to Leavenworth, too. Just this week, the federal Bureau of Prisons inmate locator showed he had been transferred to the high-security penitentiary in Lewisburg, Pa.

It’s there he will await word of his case review. As of today, Byron Chubbuck isn’t eligible to be released until April 2071.

A net cast too wide

Donatelli and Bowles acknowledged that the Johnson decision’s effect may be disconcerting to a public worried about the release of criminals deemed violent one day and non-violent the next.

Bowles said the decision and the pending deadline won’t mean prison doors are going to swing wide and send violent felons pouring into the streets. Because the Johnson case affected a sentencing enhancement, the defendants it impacts still have to serve time for the crimes that sent them to prison in the first place.

“Obviously we need to be protected from genuinely violent offenders,” Donatelli said, “but this legislation went far, far, too far in locking up [some] people who had never committed a violent offense in their lives.

“I think what people have to understand is that just because someone was sentenced under ACCA, that person may never have committed a violent offense.”

“Potential risk. That was what the problem was,” Donatelli said of the vague definition in the residual clause. “Does that mean that if someone had come home in the middle of (a burglary) that that’s what turns it into a life sentence? Do you have to guess at whether this is going to subject you to life without parole? If you have to guess, then it’s unconstitutional. It’s not fair to citizens.”

“That’s the balance that we strike and I think that’s a fair system and that’s what we expect in our country,” Bowles said. It’s now up to him and others to ensure that the equal justice promised by the Johnson decision is made available to everyone it impacts.

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