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Aussies Seek Information About Interstellar Visitor

A telescope in outback Western Australia has been used to listen to a mysterious cigar-shaped object that entered our solar system late last year.

The unusual object – known as ‘Oumuamua – came from another solar system, prompting speculation it could be an alien spacecraft. So astronomers went back through observations from the Murchison Widefield Array (MWA) telescope to check for radio transmissions coming from the object between the frequencies of 72 and 102 MHz – similar to the frequency range in which FM radio is broadcast.

While they did not find any signs of intelligent life, the research helped expand the search for extraterrestrial intelligence (SETI) from distant stars to objects closer to home.

When ‘Oumuamua was first discovered, astronomers thought it was a comet or an asteroid from within the solar system. But after studying its orbit and discovering its long, cylindrical shape, they realised ‘Oumuamua was neither and had come from interstellar space.

Telescopes around the world trained their gaze on the mysterious visitor in an effort to learn as much as possible before it headed back out of the solar system, becoming too faint to observe in detail.

John Curtin Distinguished Professor Steven Tingay, from the Curtin University node of the International Centre for Radio Astronomy Research (ICRAR), said the MWA team did not initially set out to find ‘Oumuamua.

“We didn’t set out to observe this object with the MWA but because we can see such a large fraction of the sky at once, when something like this happens, we’re able to go back through the data and analyse it after the fact,” Professor Tingay said.

“If advanced civilizations do exist elsewhere in our galaxy, we can speculate that they might develop the capability to launch spacecraft over interstellar distances and that these spacecraft may use radio waves to communicate. Whilst the possibility of this is extremely low, possibly even zero, as scientists it’s important that we avoid complacency and examine observations and evidence without bias.”

The MWA is located in Western Australia’s remote Murchison region, one of the most radio-quiet areas on the planet and far from human activity and radio interference caused by technology. It is made up of thousands of antennas attached to hundreds of “tiles” that dot the ancient landscape, relentlessly observing the heavens day after day, night after night.

Professor Tingay said the research team was able to look back through all of the MWA’s observations from November, December and early January, when ‘Oumuamua was between 95 million and 590 million kilometres from Earth.

“We found nothing, but as the first object of its class to be discovered, `Oumuamua has given us an interesting opportunity to expand the search for extra-terrestrial intelligence from traditional targets such as stars and galaxies to objects that are much closer to Earth. This also allows for searches for transmitters that are many orders of magnitude less powerful than those that would be detectable from a planet orbiting even the most nearby stars.”

‘Oumuamua was first discovered by the Pan-STARRS project at the University of Hawaii in October. Its name loosely means “a messenger that reaches out from the distant past” in Hawaiian, and is the first known interstellar object to pass through our solar system.

Combining observations from a host of telescopes, scientists have determined that ‘Oumuamua is most likely a cometary fragment that has lost much of its surface water because it was bombarded by cosmic rays on its long journey through interstellar space.

Researchers have now suggested there could be more than 46 million similar interstellar objects crossing the solar system every year. While most of these objects are too far away to study with current technologies, future telescopes such as the Square Kilometre Array (SKA) will enable scientists to understand more about these interstellar interlopers.

“So once the SKA is online,” said Professor Tingay, “we’ll be able to look at large numbers of objects and partially balance out the low probability of a positive detection.”

Virgin Galactic Success! First Rocket-powered Unity Space Craft Launches & Returns Crew Safely To Ground

Virgin Galactic successfully launched and landed its Unity spacecraft by rocket power, completing its first powered flight in almost four years.

Richard Branson’s space company shared a photo of the SpaceShipTwo model spacecraft as it blasted into the air above the Mojave Air and Space Port before going supersonic and landing safely.

“VSS Unity completed her first supersonic, rocket-powered flight this morning in Mojave, California. Another great test flight, another step closer to being,” Virgin Galactic wrote on Twitter.

Unity took off at about 8:02 a.m. as it was propelled to an altitude of 46,500 feet by the WhiteKnightTwo carrier aircraft, VMS Eve.

Eve then released Unity from under its wing and the SpaceShipTwo’s pilots Mark Stucky and Dave Mackay brought the spacecraft’s engines to life and propelled it into an 80 degree climb, accelerating to Mach 1.87 during the 30 seconds of rocket burn.

“On rocket shutdown, Unity continued an upwards coast to an apogee of 84,271 feet before readying for the downhill return,” Virgin Galactic said.

Once the spacecraft began to descend, the pilots raised its tail booms to a 60 degree angle from the fuselage into the “feathered” configuration, which was adopted after fatal 2014 VSS Enterprise test flight crash.

At 50,000 feet, the tail-booms were lowered again and the Unity glided toward a safe landing on the runway.

“The flight has generated valuable data on flight, motor and vehicle performance which our engineers will be reviewing,” Virgin Galactic said. “It also marks a key moment for the test flight program, entering now the exciting phase of powered flight and the expansion to full duration rocket burns.”

The newest SpaceShipTwo model was unveiled in February 2016, when the late professor Stephen Hawking gave the ship the name “Unity.”

In the future Virgin Galactic’s spacecraft will take passengers 68 miles above the Earth’s surface for a price of $250,000.

Supreme Court To Consider Whether Florida Robbery Qualifies As A Violent Felony Under ACCA

This past Monday, the Supreme Court granted certiorari in Stokeling v. United States, No. 17-5554. The question presented is: “Whether a state robbery offense that includes ‘as an element’ the common law requirement of overcoming ‘victim resistance’ is categorically a ‘violent felony’ under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), when the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.”

The circuits are in conflict on whether “overcoming resistance” in robbery statutes categorically requires “violent force.” The Tenth and Eleventh Circuits have held that two different common law robbery offense offenses, both of which require overcoming “victim resistance,” categorically require violence force, that is, “force capable of causing physical pain or injury to another person,” which is “a substantial degree of force;” the word “violent” connotes “strong physical force.”

In contrast, the Fourth and Ninth Circuits have held that similar offenses (and in the case of the Ninth Circuit, the exact same robbery offense as addressed by the Eleventh Circuit) do not categorically require violent force.

Federal Courts Beef Over Definition Of “Violent Crime”

A forthcoming University of Miami Law Review article titled A Touchy Subject: The Eleventh Circuit’s Tug-of-War Over What Constitutes Violent Physical Force, examines internal disagreements within the Eleventh Circuit, and that Court’s conflicts with other circuits, about the proper application of the Armed Career Criminal Act’s elements clause after United States v. Johnson, 135 S. Ct. 2551 (2015) (Johnson II). The article is written by Assistant Federal Defenders Conrad Kahn and Danli Song from the Middle District of Florida. The abstract of the article, available for download on SSRN here, states:

In a prosecution for possession of a firearm by a convicted felon, a pivotal question is whether an individual is subject to a sentencing enhancement under the Armed Career Criminal Act (ACCA). If an individual has three or more prior convictions that qualify as “violent felonies” or “serious drug offenses,” the ACCA increases his statutory range of imprisonment from zero-to-ten years to fifteen years to life.

Historically, a prior conviction could qualify as a “violent felony” if it satisfied at least one of the three “violent felony” clauses—the elements clause, the enumerated-offenses clause, or the catch-all residual clause. But on June 26, 2015, the Supreme Court invalidated the residual clause in Johnson v. United States, 135 S. Ct. 2551 (2015) (Johnson II).

Since Johnson II, substantial disagreements have emerged both within the Eleventh Circuit and among the other circuits regarding Johnson II’s reach and the proper application of the ACCA’s elements clause. This Article examines those disagreements, including three ways the Eleventh Circuit got it wrong—specifically, the court’s unusual conduct in ruling on requests to file second or successive post-conviction motions based on Johnson II and recent rulings on whether the Florida offenses of robbery and felony battery qualify as “violent felonies” under the elements clause. This Article argues the ACCA’s elements-clause analysis should focus on the degree of force used in an act, and the Supreme Court should resolve these disagreements and provide guidance to the lower courts by reviewing whether one of these offenses satisfies the elements clause.

In Unique Move, Federal Court of Appeals Urges Supreme Court to Sanity on Gun Statue Overkill

In United States v. Rivera-Ruperto, No. 12-2364, 2018 WL 1060694 (1st Cit. Feb. 27, 2018), the en banc First Circuit unanimously “urge[d] the Supreme Court to consider whether the Eighth Amendment permits . . . the mandatory stacking of sentences under § 924(c) that—due to their cumulative length—necessarily results in the imposition of a mandatory sentence of life without parole.” Id. at 22.

The decision comes from a concurring opinion by Circuit Judge Barron, joined by all First Circuit Judges, to an order denying a petition for rehearing and rehearing en banc. Defendant Rivera-Ruperto was convicted in the United States District Court for the District of Puerto Rico, of conspiracy and attempted possession with intent to distribute controlled substance, possession of firearm in relation to drug trafficking crime, and possession of firearm with obliterated serial number. His convictions stemmed from a federal sting operation that targeted Puerto Rican police officers. “As part of that sting, Rivera participated, while armed, in a number of supposed ‘deals’ involving large amounts of fake cocaine in which agents of the Federal Bureau of Investigation (FBI) posed as both buyers and sellers.”

Rivera-Ruperto was sentenced to a 161-year and ten-month prison term, 130 years of which were for six convictions under 18 U.S.C. 924(c). Section 924(c) mandated that the defendant get 130-years imprisonment for his six 924(c) violations—five years for the first conviction, plus twenty-five years for each of the subsequent convictions—even though all but one of his convictions were imposed at the same trial and the defendant had no prior criminal history.

On appeal, Rivera-Ruperto argued that his sentence was grossly disproportionate as to be unconstitutional under the Eighth Amendment in as much as his 924(c) convictions required a life sentence. Indeed, as Judge Brannon’s concurrence observes, Rivera-Ruperto received a de facto life “even though this case is replete with factors that—under a discretionary sentencing regime—would surely have been relevant to a judge’s individualized rather than arithmetical assessment of whether what Rivera did should not only be punished severely but also deprive him (absent a pardon or commutation) of any hope of ever enjoying freedom again.” Id. at 2.

Judge Barron’s en banc concurrence examines Eighth Amendment proportionality jurisprudence exhaustively. Applying the Supreme Court’s three-criteria framework for evaluating whether the length of a prison term is impermissibly disproportionate to the seriousness of the offense, see Solem v. Helm , 463 U.S. 277, 292 (1983) (holding sentence of life imprisonment for uttering no acount check for $100 violated the Eighth Amendment), Judge Barron explained, “based on a consideration of those criteria, . . . I would find that Rivera’s mandatory, more-than-century-long sentence was grossly disproportionate and thus in violation of the Eighth Amendment.”

But the opinion recognizes that “Solem . . . is not the last word” from the Supreme Court. Rather, Judge Barron concluded: “I am compelled by precedent—and, in particular, by the nearly three-decades old, three-Justice concurrence in Harmelin v. Michigan, 501 U.S. 957, 1006 (1991) (opinion of Kennedy, J.)—to uphold Rivera’s greater-than-life sentence.” Hamerlin held the imposition of a mandatory life in prison sentence without possibility of parole, without any consideration of mitigating factors, such as the fact that the petitioner had no prior criminal history, was not cruel and unusual punishment under the Eighth Amendment. Hamerlin did not produce a majority opinion and the Supreme Court has recognized that Justice Kennedy’s three-judge concurrence in Hamerlin is controlling. See Graham v. Florida, 650 U.S. 48, 60 (2011).

After explaining why Hamerlin compelled affirmance of Rivera-Ruperto’s sentence, the concurrence addressed several reasons why the Supreme Court should “revisit the logic of the Hamerlin concurrence,” at least as it relates to 924(c) stacking. The First Circuit decision ends with these concluding paragraphs:

Rivera faces the longest and most unforgiving possible prison sentence for conduct that, though serious, is not of the most serious kind. He does so not because the legislature had authorized its imposition and a judge had then considered all of the aggravating and mitigating circumstances and determined that this sentence was appropriate. He does so only because Congress has been deemed to have made a blanket judgment that even an offender like Rivera—who has no prior criminal record and whose series of related crimes resulted in no harm to an identifiable victim—should have no hope of ever living free. And he does so even though virtually every comparable jurisdiction punishes comparable criminal conduct less harshly, and even though the federal government itself punishes nearly the same or seemingly worse conduct more leniently.

Almost three decades have now passed since the concurring Justices in Harmelin concluded, without reference to real-world comparative benchmarks, that the Eighth Amendment afforded the Michigan legislature the scope to try out what at the time was viewed as a permissible sentencing experiment to address a newly concerning crime problem. In those intervening decades, virtually no jurisdiction has been willing to replicate that state’s experiment. In fact, even the state that the Harmelin concurrence permitted to try it has abandoned it. And yet the Harmelin concurrence still controls.

In my view, a consequence as grave as the one that Harmelin requires in a case like this should have the imprimatur of more than only a nearly three-decade old, three-Justice concurrence. I thus urge the Supreme Court to consider whether the Eighth Amendment permits, at least in a case such as this, the mandatory stacking of sentences under § 924(c) that—due to their cumulative length—necessarily results in the imposition of a mandatory sentence of life without parole.