Violent Crime Defense

Murder

Section 1111 of Title 18, United States Code, proscribes first and second degree murder when either is committed “[w]ithin the special maritime and territorial jurisdiction of the United States” or, as provided in section 1114, against “any officer or employee of the United States” engaged in the performance of official duties. Section 1111(a) defines murder as “the unlawful killing of a human being with malice aforethought.”


Murder in the first degree is defined as:

[e]very murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual  abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children; or ,perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed.

Person with hands raised in a stop gesture, obscured face, against a dark background.

Section 2A1.1 applies to: (i) premeditated killings; (ii) the commission of certain enumerated felonies resulting in death (“felony murder”), as outlined by statute and set forth in cross references from other guidelines, such as §2A4.1 (Kidnapping, Abduction, Unlawful Restraint) and §2B3.1 (Robbery); and (iii) offenses where the applicable guideline requires the offense level to be calculated using the underlying crime, such as §2E1.3 (Violent Crimes in Aid of Racketeering Activity), where the underlying crime would meet the definition of first degree murder. With respect to felony murders covered by §2A1.1, the government must prove that the defendant had the requisite intent to commit the underlying felony that resulted in death, rather than intent to commit murder.


Under §2A1.1, a sentence of life imprisonment is appropriate in cases involving premediated killing, and a downward departure from a term of life imprisonment is appropriate only where the government files a motion based on a defendant’s substantial assistance. In contrast, in felony murder cases where the defendant did not intentionally or knowingly cause death, a downward departure may be warranted. The court should consider case-specific factors, including the defendant’s state of mind, the riskiness of the defendant’s conduct, and the nature of the underlying offense in determining the extent of a departure. Further, Application Note 2(B) recommends against departing below the minimum sentence under the second degree murder guideline, §2A1.2, or below what the guideline for the underlying offense would provide in the absence of death.


Murder in the second degree is defined as “[a]ny other murder” (i.e., “unlawful killing of a human being with malice aforethought”) not defined as first degree murder. Second degree murder is punishable by imprisonment for any term of years or for life.


Section 2A1.2 provides a base offense level of 38.26 There are no specific offense characteristics. Like the first-degree murder guideline, §2A1.2 may be applied through a cross reference or specific offense characteristic from another offense guideline. Applying a cross reference to §2A1.2 is appropriate where a killing with malice aforethought qualifies as relevant conduct to the underlying offense. Malice aforethought may be established with evidence of extreme recklessness and wanton disregard for human life. An upward departure from §2A1.2’s base offense level may be warranted where “the defendant’s conduct was exceptionally heinous, cruel, brutal, or degrading to the victim.” The extreme conduct departure focuses on the defendant’s conduct, not the victim’s characteristics, and thus may apply even when a victim is dead or unconscious at the time of the defendant’s conduct.

Assault

Similar to the federal murder statute, 18 U.S.C. § 113 proscribes assault offenses committed within the maritime and territorial jurisdiction of the United States and provides their statutory penalties and applicable definitions. Section 113(a) lists the statutory maximum terms of imprisonment for assault offenses of varying degrees of seriousness, including:


  • (1) Assault with intent to commit murder or sexual abuse offenses under sections 2241 or 2242 (20-year maximum);
  • (2) Assault with intent to commit any felony except murder or sexual abuse offenses under sections 2241 or 2242 (10-year maximum);
  • (3) Assault with a dangerous weapon with intent to do bodily harm (10-year maximum);
  • (4) Assault by striking, beating, or wounding (1-year maximum);
  • (5) Simple assault (6-month maximum) and simple assault with a victim under the age of 16 years (1-year maximum);
  • (6) Assault resulting in serious bodily injury (10-year maximum);
  • (7) Assault resulting in substantial bodily injury to a spouse, intimate partner, dating partner, or victim under the age of 16 years (5 year maximum); and
  • (8) Assault of a spouse, intimate partner, or dating partner by strangling, suffocating, or attempting to do either (10-year maximum).


Section 113(b) defines several terms used in subsection (a),39 including substantial bodily injury; serious bodily injury; spouse, intimate partner, and dating partner; strangling; and suffocating.

Kidnapping

Section 1201 of title 18, United States Code, proscribes certain kidnapping offenses, providing jurisdictional constraints and statutory penalties for both completed and inchoate offenses. Specifically, section 1201(a) outlines punishments for “[w]hoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise” any person when:


  • (1) The person is willfully transported through interstate or foreign commerce “or the offender travels in interstate or foreign commerce or uses the mail or any means, facility, or instrumentality of interstate or foreign commerce in committing or in furtherance of the commission of the offense”;
  • (2) Any kidnapping act is done within the special maritime and territorial jurisdiction of the United States;
  • (3) Any kidnapping act is done within the special aircraft jurisdiction of the United States;
  • (4) The person is a foreign official, an internationally protected person, or an official guest; or
  • (5) The person is a certain domestic officer or employee and any of the above acts are done while the victim is engaged in, or on account of, the performance of official duties.


If a victim is not released within 24 hours, a rebuttable presumption that the victim was transported in interstate or foreign commerce applies. Further, the United States can exercise jurisdiction over an internationally protected person outside the United States if: (1) the victim is a representative, officer, employee, or agent of the United States; (2) the defendant is a national of the United States; or (3) the defendant is found afterwards in the United States. The penalty range for kidnapping or a conspiracy to commit kidnapping, where at

least one conspirator performs an overt act to effect the object of the conspiracy, is any term of years or life imprisonment. Where the death of any person results, the penalty is life imprisonment or death. A 20-year mandatory minimum penalty applies to offenses involving unrelated adult defendants and child victims under the age of 18 years. A 20-year statutory maximum applies to attempted kidnappings.


The guideline at §2A4.1 (Kidnapping, Abduction, Unlawful Restraint) applies to various kidnapping offenses, including those outlined above, hostage taking under 18 U.S.C. § 1203, and kidnapping of specific types of victims in violation of 18 U.S.C. §§ 115(b)(2) and 351(b). Federal kidnapping offenses generally encompass three categories of conduct: limited duration kidnapping with an unharmed victim; kidnapping that facilitates another offense (such as sexual assault); and kidnapping for ransom or political demand. Section 2A4.1(a) provides a base offense level of 32.151 Where a victim is killed under circumstances that would constitute murder under the federal murder statute at 18 U.S.C. § 1111 had the killing taken place in the territorial or maritime jurisdiction of the United States, the cross reference in §2A4.1(c) directs that §2A1.1 (First Degree Murder) applies.


Section 2A4.1(b) provides seven enhancements to the base offense level: (1) a 6-level increase if ransom was demanded; (2) a tiered increase based on the degree of the victim’s bodily injury; (3) a 2-level increase for use of a dangerous weapon; (4) a tiered increase based on the time that passed before the victim was released; (5) a 6-level increase where the victim was sexually exploited; (6) a 3-level increase where the victim was a minor who was placed with another in exchange for money or other consideration; and (7) various increases if the kidnapping occurred in connection with another offense.


These crimes are the most serious in the code, and the most severely punished. I have handled many such cases and taken numerous murder cases to trial. I know how to fight these: by challenging the government’s evidence, thoroughly investigating the facts, and aggressively filing motions to take the initiative. Contact me to fight these cases like no other with violent crime defense solutions.