§540 Armed Career Criminal Act
(18 U.S.C. §924(e) (U.S.S.G. 4B1.4)
Supreme Court to decide if “crime spree” offenses are separate under Armed Career Criminal Act. (540) The Armed Career Criminal Act requires an enhanced sentence for defendants convicted of possession of a firearm by a felon who have three prior convictions for a “violent felony” committed “on occasions different from one another.” The Supreme Court granted certiorari to decide whether crimes committed as part of a single criminal spree, but sequentially in time, were committed on occasions different from one another. Wooden v. U.S., 592 U.S. __, __ S.Ct. __ (Feb. 22, 2021).
8th Circuit counts juvenile conviction under ACCA despite Eighth Amendment argument. (140)(540) The Armed Career Criminal Act, 18 U.S.C. § 924(e), requires a minimum 15-year sentence for a defendant convicted of being a felon in possession of a firearm who has three prior convictions for a “violent felony.” Defendant had a prior felony conviction sustained while he was 15 years old. He argued that counting that conviction as an ACCA predicate violated the Cruel and Unusual Punishments Clause of the Eighth Amendment. The Eighth Circuit rejected the argument, ruling that it was foreclosed by circuit precedent. U.S. v. Winfrey, __ F.4th __ (8th Cir. Jan. 31, 2022) No. 21-1014.
8th Circuit says, under Borden, Nebraska terroristic threats statute is not a “violent felony.” (540) Under the Armed Career Criminal Act, a defendant convicted of being felon in possession of a firearm who has three prior convictions for a “violent felony” is subject to a 15-year minimum mandatory sentence. Defendant had a prior conviction for making terroristic threats under Nebraska law. In Borden v. U.S., 141 S.Ct. 1817 (2021), the Supreme Court held that an offense that can be committed recklessly does not qualify as a “violent felony.” The Eighth Circuit held that because the Nebraska offense of committing terroristic threats can be committed with a mens rea of reckless disregard, it cannot qualify as a “violent felony.” U.S. v. Williams, __ F.4th __ (8th Cir. Feb. 1, 2022) No. 20-3311.
4th Circuit bars reliance on convictions that were not identified as ACCA predicates to uphold sentence. (540)(880) Under the Armed Career Criminal Act, a defendant convicted of felon in possession of a firearm who has three prior convictions for a “violent felony” or “serious drug offense” is subject to a 15-year minimum mandatory sentence. On collateral review of defendant’s sentence, the district court found that two of his prior convictions no longer qualified as violent felonies, but denied relief on the ground that defendant had other prior violent felony convictions that were not identified in the presentence report. The Fourth Circuit reversed, relying on U.S. v. Hodge, 902 F.3d 420 (4th Cir. 2018), which held that a district court may not on collateral review rely on prior convictions that were not identified as ACCA predicates at sentencing. U.S. v. Benton, __ F.4th __ (4th Cir. Jan. 24, 2022) No. 19-7471.
4th Circuit says Virginia common law robbery is not a “violent felony.” (540) Defendant was sentenced under the Armed Career Criminal Act, based on three prior “violent felony” convictions. A “violent felony” is defined as an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. Defendant had prior convictions for common law robbery under Virginia law. The Fourth Circuit held that common law robbery is not a “violent felony” because it can be committed by threatening to accuse the victim of having committed the crime of sodomy. U.S. v. White, __ F.4th __ (4th Cir. Jan. 27, 2022) No. 19-4886.
5th Circuit holds that Texas robbery by threat is a “violent felony.” (540) Under the Armed Career Criminal Act, a defendant convicted of possession of a firearm by a felon who has three prior convictions for a “violent felony” is subject to a 15-year mandatory minimum sentence. The statute defines “violent felony” as an offense that has as an element the use, attempted use, or threatened use of physical force against the property of another. In Borden v. U.S., 141 S.Ct. 1817 (2021), the Supreme Court held that an offense that can be committed recklessly does not qualify as a “violent felony.” Defendant had a prior conviction under Texas Penal Code § 29.02 for simple robbery by threat. The Fifth Circuit found that Texas simple robbery by threat was a “violent felony.” U.S. v. Garrett, __ F.4th __ (5th Cir. Jan. 25, 2022) No. 17-10526.
7th Circuit finds that Indiana forcible compulsion to commit sex offense was a “violent felony.” (540) Defendant was convicted of felon in possession of a firearm and sentenced under the Armed Career Criminal Act. The ACCA sets a minimum sentence of 180 months if the defendant had three prior convictions for a “violent felony.” A “violent felony” is defined as an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. Defendant had a prior conviction under Indiana Code § 35-42-4-2 for criminal deviate conduct. The Seventh Circuit found that defendant’s conviction involved forcible compulsion to engage in deviate sexual conduct and therefore qualified as a “violent felony.” Johnson v. U.S., __ F.4th __ (7th Cir. Jan. 24 2022) No. 17-1912.
4th Circuit panel creates intra-circuit split over use of guidelines commentary for career offenders. (520) Over a dissent arguing that its decision was directly contrary to U.S. v. Campbell, __ F.4th __ (4th Cir. Jan. 7, 2022), a 2-1 panel of the Fourth Circuit held that the district court can rely on guidelines commentary in determining whether a defendant qualifies as a career offender under § 4B1.1. The majority rejected defendant’s argument that his prior conviction was relevant conduct to his current federal conviction and therefore did not count as a prior conviction. U.S. v. Moses, __ F.4th __ (4th Cir. Jan. 19, 2022) No. 21-4067.
2d Circuit affirms finding that prior ACCA sentence was not based on “residual” clause. (540) The Armed Career Criminal Act, 18 U.S.C. § 924(e), requires an increased sentence if the defendant has three prior convictions for a violent felony, i.e., a felony that “has as an element the use, attempted use, or threatened use of physical force against the person of another,” or “involves conduct that presents a serious potential risk of physical injury to another.” In Johnson v. U.S., 576 U.S. 591 (2015), the Supreme Court struck down the italicized “residual clause” as unconstitutionally vague. Here, a prisoner filed an 18 U.S.C. § 2255 motion, arguing that the district court relied on the “residual clause” in finding that his prior conviction for attempted Hobbs Act robbery was a violent felony. The district court denied the motion, finding that at the original sentencing, it had not relied on the residual clause. The Second Circuit affirmed, deferring to the district court’s finding that it relied on the elements clause in denying the prisoner’s motion. Savoca v. U.S., __ F.4th __ (2d Cir. Dec. 29, 2021) No. 20-1502.
11th Circuit excuses government’s failure to rely on prior ACCA predicate where law changed. (540) (855) Defendant pleaded guilty to possession of a firearm by a felon. At sentencing, the government argued that he was an Armed Career Criminal under 18 U.S.C. § 924(e) but did not rely on defendant’s prior conviction for making terroristic threats because Eleventh Circuit precedent foreclosed that argument. The district court denied an ACCA increase, but ten days after sentencing, the Eleventh Circuit reversed its precedent, and held in U.S. v. Oliver (Oliver III), 962 F.3d 1311, 1321 (11th Cir. 2020) that defendant’s prior terroristic threats conviction could be a predicate under the ACCA. The government appealed, and the Eleventh Circuit found that the government did not waive its argument that defendant’s prior conviction counted as an ACCA predicate. The case was remanded for resentencing. U.S. v. Sharp, __ F.4th __ (11th Cir. Dec. 28, 2021) No. 20-12574.
5th Circuit finds Louisiana drug trafficking is “serious drug offense.” (540) Defendant was sentenced under the Armed Career Criminal Act to 235 months based in part on his prior commission of drug-trafficking offenses under Louisiana Rev. Stat. § 40:966(A). The Fifth Circuit found that the Louisiana offenses categorically qualified as “serious drug offenses” and affirmed defendant’s ACCA sentence. U.S. v. Barlow, __ F.4th __ (5th Cir. Nov. 8, 2021) No. 18-30994.
8th Circuit affirms supervised release term despite over-sentencing as Armed Career Criminal. (540) (580) In 2004, defendant was convicted of being a felon in possession of a firearm and sentenced under the Armed Career Criminal Act to 180 months. In 2016, after Johnson v. U.S., 576 U.S. 591 (2015), the district court resentenced defendant to time served and a period of supervised release. Defendant argued that because he had served more than the ten-year statutory maximum for possession of a firearm by a felon, his supervised release sentence was illegal. The Eighth Circuit held that the maximum term of supervised release is governed by the statute and is unaffected by the maximum term of imprisonment. U.S. v. Childs, __ F.4th __ (8th Cir. Nov. 8, 2021) No. 20-3234.
11th Circuit asks Florida Supreme Court whether Florida assault can be committed “recklessly.” (540) The Armed Career Criminal Act requires a 15-year minimum mandatory sentence for a defendant convicted of possession of a firearm by a felon who has three prior convictions for, among other offenses, a “violent felony.” In Borden v. U.S., 141 S.Ct. 1817 (2021), the Supreme Court held that offenses that can be committed recklessly do not qualify as “violent felonies.” Here, defendant had a prior Florida conviction for aggravated assault, in violation of Florida Stat. § 784.021. Because of a split in Florida law, the Eleventh Circuit was unable to determine whether defendant’s conviction was a “violent felony” under Borden. Accordingly, it certified the question to the Florida Supreme Court. Somers v. U.S., __ F.4th __ (11th Cir. Sept. 28, 2021) No. 19-11484.
10th Circuit, after Borden, remands to decide if prior assault offense could be committed recklessly. (540) In Borden v. U.S., 141 S.Ct. 1817 (2021), the Supreme Court held that an offense that can be committed recklessly does not qualify as a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. §924(e). Here. the Tenth Circuit originally held that defendant’s prior conviction under New Mexico Stat. Ann. § 30-3-2 for aggravated assault with a deadly weapon was a “violent felony.” But after Borden, the panel revised its opinion and remanded to allow the district court to determine if Borden applied to defendant’s prior conviction. U.S. v. Sanchez, __ F.4th __ (10th Cir. Sept. 14, 2021) No. 19-2012 (revising 983 F.3d 1151).
11th Circuit uses modified categorical approach to find that Georgia burglary qualified under ACCA. (540) Defendant was sentenced as an Armed Career Criminal based in part on his prior Georgia conviction for aiding and abetting a burglary, O.C.G.A. § 16-7-1(a) (2011). Applying the modified categorical approach, the Eleventh Circuit held that defendant’s prior conviction was a “burglary” within the meaning of the ACCA. U.S. v. Coats, __ F.4th __ (11th Cir. Aug. 12, 2021) No. 18-13113.
7th Circuit allows substituting new ACCA prior conviction when a prior is no longer a “violent felony.” (540)(880) Defendant was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e), based three prior convictions. He later filed a 28 U.S.C. § 2255 motion arguing that one of his priors was no longer a “violent felony.” The district court found that one of his other prior convictions—for delivery of cocaine—could substitute, so he was still subject to a 15-year mandatory minimum sentence. The Seventh Circuit affirmed, finding that defendant had ample notice that his delivery of cocaine conviction could be used under the ACCA and ample opportunity to challenge that conviction before sentencing. White v. U.S., __ F.4th __ (7th Cir. Aug. 9, 2021) No. 20-2749.
7th Circuit says Indiana battery resulting in injury is a “violent felony.” (540) Defendant was sentenced as an Armed Career Criminal based on three prior convictions for a “violent felony,” i.e., an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. Defendant had a prior conviction under Indiana Code § 35-42-2-1(a)(2)(A) for Class D battery resulting in injury. The Seventh Circuit found that the Indiana offense was categorically a “violent felony.” U.S. v. Love, __ F.4th __ (7th Cir. Aug. 6, 2021) No. 20-2131.
7th Circuit says defendant failed to show that rights were restored after conviction. (540) Defendant argued that his prior conviction for Illinois armed robbery was not a “violent felony” because his rights had been restored. The Seventh Circuit rejected the argument, noting that he did not testify that he had received a restoration of rights letter and the records officer from the prison where defendant served his state sentence found no restoration of rights letter in his file. U.S. v. Love, __ F.4th __ (7th Cir. Aug. 6, 2021) No. 20-2131.
11th Circuit says Georgia aggravated assault is not a “violent felony.” (540) Defendant was sentenced as an Armed Career Criminal under 18 U.S.C. §924(e) based on three prior convictions for a “violent felony” A “violent felony” is an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. In Borden v. U.S., 141 S.Ct. 1417 (2021), the Supreme Court held that an offense that can be committed recklessly is not a “violent felony.” Based on Borden, the Eleventh Circuit held that defendant’s prior conviction under Georgia law for aggravated assault, O.C.G.A. § 16-5-21(a)(2), was not a “violent felony” because it can be committed recklessly. U.S. v. Carter, __ F.4th __ (11th Cir. Aug. 3, 2021) No. 17-15495.
11th Circuit holds Virginia drug trafficking is a “serious drug offense.” (540) A defendant sentenced for possession of a firearm by a felon who has three prior convictions for a “serious drug offense” is subject to a 15-year mandatory minimum. Here, defendant had prior convictions under Virginia Code § 18.2-248 for drug trafficking. The Eleventh Circuit held that violation of the Virginia code categorically qualified as a “serious drug offense.” U.S. v. Stancil, __ F.3d __ (11th Cir. July 13, 2021) No. 19-12001.
11th Circuit says California robbery with a firearm is a “violent felony.” (540) Defendant pleaded guilty to being a felon in possession of a firearm. A defendant who is guilty to that offense who has three prior convictions for a “violent felony” is subject to a 15-year minimum mandatory sentence. A “violent felony” is defined as an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. The Eleventh Circuit held that defendant’s 1978 California conviction for robbery with a firearm was categorically a “violent felony.” Pitts v. U.S., __ F.3d __ (11th Cir. July 6, 2021) No. 18-12096.
11th Circuit says prior convictions are separate if the offenses were separated by intervening arrests. (540) At defendant’s sentencing for possession of a firearm by a felon, the district court found he had three prior convictions for a “serious drug felony” committed on occasions different from one another, and therefore defendant was an Armed Career Criminal under 18 U.S.C. § 924(e). The Eleventh Circuit affirmed, ruling that the district court properly treated the offenses as separate because they were committed on different days and were separated by intervening arrests. U.S. v. Leonard, __ F.3d __ (11th Cir. July 8, 2021) No. 19-14142.
5th Circuit says Arkansas possession with intent to deliver is a “serious drug offense.” (540) Defendant was convicted of possession of a firearm by a felon. Under the Armed Career Criminal Act, 18 U.S.C. § 924(e), a defendant convicted of that offense who has three prior convictions for a “serious drug offense” must receive a 15-year mandatory minimum sentence. The district court found that defendant had three prior convictions under Arkansas Code § 5-64-401 for possession of a controlled substance with intent to deliver. The district court held that this was a “serious drug offense” and sentenced defendant to 180 months. The Fifth Circuit affirmed, holding that the Arkansas offense is categorically a “serious drug offense.” U.S. v. Bass, __ F.3d __ (5th Cir. May 11, 2021) No. 20-10558.
10th Circuit says mandate required treating prior robberies as committed on separate occasions. (540) (850) The Armed Career Criminal Act requires a 15-year mandatory minimum if the defendant has three prior convictions for “violent felonies” committed on separate occasions. Defendant had three prior bank robbery conviction. The district court found that his prior bank robberies were not committed on different occasions, but in the first appeal in this case, the Tenth Circuit reversed, finding that the crimes were committed on different occasions. On remand, the district court again found that the prior bank robberies were not committed on occasions different from one another. The Tenth Circuit again reversed, ruling that the district court was not free to ignore the court’s mandate on remand. U.S. v. Dutch, __ F.3d __ (10th Cir. Nov. 5, 2020) No. 19-2196.
8th Circuit okays reliance on PSR to find drug priors were committed on separate occasions. (540)(760) Defendant pleaded guilty to possession of a firearm by a felon. Under the Armed Career Criminal Act, a person convicted of that offense who has three prior convictions for a “serious drug felony” “occurring on occasions different from one another” is subject to a 15-year mandatory minimum sentence. Defendant had three prior controlled substance convictions that were entered on the same day, but the presentence report said the crimes were committed on different days. The Eighth Circuit found that the district court properly relied on the presentence report. U.S. v. Williams, __ F.3d __ (8th Cir. Sept. 30, 2020) No. 19-2235.
8th Circuit says Missouri distribution of an imitation controlled substance is not a “serious drug felony.” (540) The Armed Career Criminal Act requires a 15-year mandatory minimum sentence for possession of a firearm by a felon with three prior convictions for a “serious drug felony.” This includes a controlled substance punishable by a ten years or more years in custody. Defendant had a prior conviction under Missouri Revised Stat. § 195.242 for delivery or manufacture of an imitation controlled substance. The Eighth Circuit held that this was not a “serious drug felony” because it carried a maximum sentence of only four years. U.S. v. Coleman, __ F.3d __ (8th Cir. Oct. 5, 2020) No. 19-3119.
8th Circuit says Tennessee possession with intent to distribute is a “serious drug felony.” (540) A defendant convicted of possession of a firearm by a felon who has three prior convictions for a “serious drug felony” is subject under the Armed Career Criminal Act to a 15-year mandatory minimum sentence. The ACCA defines a “serious drug felony” as a state offense that involves the manufacture or distribution of a controlled substance. Defendant was convicted of possession of a firearm by a felon and had a prior conviction under Tennessee Code § 39-17-417(a)(4) for possession of cocaine with intent to sell. The Eighth Circuit found that this offense was a “serious drug felony.” U.S. v. Coleman, __ F.3d __ (8th Cir. Oct. 5, 2020) No. 19-3119.
8th Circuit says Wisconsin armed robbery is a “violent felony.” (540) For a defendant convicted of possession of a firearm by a felon, the Armed Career Criminal Act requires a 15-year mandatory minimum sentence if the defendant had three prior convictions for a “violent felony.” A “violent felony” is defined as an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. Defendant was convicted of possession of a firearm by a felon and had a 1992 conviction for armed robbery under Wisconsin Stat. § 943.32. The Eighth Circuit found that armed robbery under the 1992 Wisconsin statute was a “violent felony.” U.S. v. Howard, __ F.3d __ (8th Cir. Oct. 6, 2020) No. 19-2473.
8th Circuit holds North Dakota conspiracy to distribute ecstasy is a “serious drug felony.” (540) The Armed Career Criminal Act requires a 15-year mandatory minimum sentence for a defendant convicted of possession of a firearm by a felon who has three prior convictions for a “serious drug felony.” Defendant had a prior conviction under North Dakota law for conspiracy to distribute ecstasy. Defendant argued that the elements of the North Dakota offense of conspiracy did not match the federal elements of conspiracy and therefore the North Dakota offense was not a “serious drug felony.” The Eighth Circuit held that because conspiracy to distribute ecstasy involves conduct of distributing a controlled substance, it categorically qualifies as a “serious drug felony.” U.S. v. Howard, __ F.3d __ (8th Cir. Oct. 6, 2020) No. 19-2473.
11th Circuit certifies question of elements of Florida drug purchasing statute. (540) Under the Armed Career Criminal Act, a defendant convicted of being a felon in possession of a firearm who has three prior convictions for a “serious drug felony” is subject to a 15-year mandatory minimum sentence. Defendant had a prior conviction under Florida Statutes § 893.135(1) for purchasing cocaine. The Eleventh Circuit was unable to discern the elements of § 893.135(1) and certified to the Florida Supreme Court the question whether the statute requires “some form of possession—either actual or constructive—of the drug being purchased.” U.S. v. Conage, __ F.3d __ (11th Cir. Sept. 30, 2020) No. 17-13975.
11th Circuit finds defendant waived objection to ACCA sentence. (540)(855) At defendant’s sentencing for possession of a firearm by a felon, defendant, through his counsel, said that he had “research and researched,” but could not find a ground on which to challenge defendant’s being sentenced to the 15-year mandatory minimum sentence required by the Armed Career Criminal Act. The district court imposed the 15-year sentence, and defendant appealed. The Eleventh Circuit held that defendant had waived the argument that the ACCA did not apply. U.S. v. Innocent, __ F.3d __ (11th Cir. Oct. 8, 2020) No. 19-10112.
5th Circuit says ACCA need not be alleged in indictment. (540) Under the Armed Career Criminal Act, 18 U.S.C. § 924(e), a defendant convicted of possession of a firearm by a felon is subject to a 15-year mandatory minimum if the defendant has three prior convictions for a “violent felony” or a “serious drug offense.” Defendant was subject to an ACCA sentence, but he argued that the ACCA had to be alleged in the indictment. The Fifth Circuit rejected the argument, ruling that defendant was only entitled to notice of the ACCA’s requirements before sentencing, and the presentence report provided adequate notice. U.S. v. Williams, __ F.3d __ (5th Cir. Feb. 27, 2020) No. 19-60463.
Supreme Court holds ACCA prior is a “serious drug offense” if it “involves” conduct in federal statute. (540) The Armed Career Criminal Act mandates a 15-year minimum sentence for a defendant convicted of being a felon in possession of a firearm who has at least three convictions for “serious drug offense[s].” A state offense is a “serious drug offense” if it “involv[es] manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance.” Defendant had a prior conviction under Florida Stat. § 893.13(1)(a) for possessing cocaine with intent to sell. The Supreme Court held that a “serious drug offense” requires only that the state offense “involve” the conduct in the federal statute; it does not require that the state offense match certain generic offenses. In other words, the terms of the definition are not shorthand for the elements of a generic offense. Justice Ginsburg delivered the opinion for a unanimous court. Shular v. U.S., 589 U.S. __, __ S.Ct. __ (Feb. 26, 2020).
2d Circuit says “involving” in ACCA definition is not unconstitutionally vague. (135)(540) The Armed Career Criminal Act, 18 U.S.C. §924(e), requires a 15-year mandatory minimum sentence for a defendant convicted of possession of a firearm by a felon who has three prior convictions for a “serious drug offense.” A “serious drug offense” includes state law offenses “involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a [federally recognized] controlled substance” punishable by ten years or more in prison. Defendant argued that the word “involving” was too vague to put a reasonable person on notice that the prior offenses were “serious drug offenses.” Applying precedent, the Second Circuit rejected this argument. U.S. v. Ojeda, __ F.3d __ (2d Cir. Feb. 24, 2020) No. 18-1770.
9th Circuit permits challenge to career offender finding under 28 U.S.C. § 2241. (540)(880) Defendant filed a motion under 28 U.S.C. § 2241 arguing that he was “actually innocent” of his career offender sentence because one of his prior convictions no longer qualified as a career offender predicate. The district court dismissed the motion for lack of jurisdiction, but the Ninth Circuit reversed, holding that a motion under 28 U.S.C § 2255 was “inadequate or ineffective” to test the legality of his detention. Accordingly, the district court had jurisdiction under § 2241. Allen v. Ives, __ F.3d __ (9th Cir. Feb. 24, 2020) No. 18-35001.
2d Circuit finds New York first-degree robbery is a “violent felony.” (540) Defendant was convicted of possession of a firearm by a felon. A defendant convicted of that offense who has three prior convictions for a “violent felony” is subject under the Armed Career Criminal Act to a 15-year mandatory minimum sentence. A “violent felony” is defined in part to be an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. Defendant had a prior conviction under New York Penal Law § 160.15 for first-degree robbery. The Second Circuit held that this offense was categorically a “violent felony.” U.S. v. Ojeda, __ F.3d __ (2d Cir. Feb. 24, 2020) No. 18-1770.
5th Circuit says Louisiana armed robbery is a “violent felony.” (540) Under the Armed Career Criminal Act, a defendant convicted of possession of a firearm by a felon who has three prior convictions for a “violent felony” must receive a 15-year mandatory minimum sentence. A “violent felony” is defined to include an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. Defendant had a prior conviction under Louisiana Rev. Stat. Ann. § 14:64(A) for armed robbery. The Fifth Circuit held that Louisiana armed robbery is categorically a “violent felony.” U.S. v. James, __ F.3d __ (5th Cir. Feb. 18, 2020) No. 18-31009.
4th Circuit, en banc, says plea colloquy must inform defendant of ACCA sentence. (540)(790) At defendant’s change-of-plea hearing for possession of a firearm by a felon, the government said that defendant faced a 10-year penalty. At sentencing, defendant received the mandatory 15-year minimum sentence required by the Armed Career Criminal Act for defendants convicted of possession of a firearm by a felon who have three prior convictions for a “violent felony.” The Fourth Circuit, en banc, found that the district court committed plain error by failing to tell defendant at the change-of-plea colloquy that he faced a 15-year mandatory minimum. The case was remanded to allow defendant to plead anew. U.S. v. Lockhart, __ F.3d __ (4th Cir. Jan. 10, 2020) No. 16-4441.
5th Circuit says Mississippi assault may be a “violent felony.” (540) Defendant was found guilty of possession of a firearm by a felon. Under the Armed Career Criminal Act, a defendant convicted of that offense who has three prior convictions for a “violent felony” must be given a 15-year mandatory minimum sentence. A “violent felony” is defined in part to include an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. Defendant had a prior conviction under Mississippi Code Ann. § 97-3-7(2) for aggravated assault. Using the modified categorical approach, the Fifth Circuit held that defendant’s conviction was for a “violent felony.” U.S. v. Griffin, __ F.3d __ (5th Cir. Jan. 8, 2020) No. 17-60452.
7th Circuit certifies question about Illinois burglary to Illinois Supreme Court. (540) In Dawkins v. U.S., 809 F.3d 953 (7th Cir. 2016), the Seventh Circuit held that residential burglary in violation of Illinois 720 ILCS 5/19-3(a) is a “violent felony” under the Armed Career Criminal Act because the ACCA encompasses generic burglaries and residential burglary under Illinois law is a generic burglary. Defendant asked the Seventh Circuit to reconsider that holding, pointing out that Dawkins did not consider “relevant aspects” of the Illinois statute and if it had, it would have found that Illinois residential burglary is not a generic burglary. The Seventh Circuit found that defendant had raised an “important issue” concerning the reach of the Illinois statute and certified to the Supreme Court of Illinois the question whether a person who enters a public building with intent to commit a crime automatically satisfies the unlawful entry element of the Illinois burglary statute. U.S. v. Glispie, __ F.3d __ (7th Cir. Nov. 19, 2019) No. 19-1224.
Supreme Court to consider if offense committed recklessly can be a “violent felony.” (540) Under the Armed Career Criminal Act, a defendant who is found guilty of possession of a firearm by a felon and who has three prior convictions for a “violent felony” is subject to a mandatory minimum 15-year sentence. The Sixth Circuit held that robbery under Texas Penal Code § 29.02(a)(1) is a “violent felony” because an offense committed with a reckless mens rea can qualify as a “violent felony.” The Supreme Court granted certiorari to determine whether a criminal offense that can be committed with a mens rea of recklessness can qualify as a “violent felony” under the ACCA. Walker v. U.S., __ U.S. __, 140 S.Ct. __ (Nov. 15, 2019) (granting certiorari).
Supreme Court holds that burglary occurs when intent to commit crime is formed. (520)(540) A defendant who is guilty of possession of a firearm by a felon is subject to a 15-year mandatory minimum sentence under the Armed Career Criminal Act if defendant has three convictions for a “violent felony.” The Act defines “violent felony” to include “burglary.” The Supreme Court held that “burglary” occurs when defendant forms the intent to commit a crime at any time while unlawfully remaining in a building or structure, not just when a defendant has the intent to commit a crime at the exact moment when defendant unlawfully remains in a building or structure. Quarles v. U.S. __ 139 S.Ct. __, 587 U.S. __ (June 10, 2019).
4th Circuit says retaliation against a witness is a “violent felony.” (540) In 1995, defendant was convicted of possession of a firearm by a felon. Under the Armed Career Criminal Act, a defendant convicted of that offense who has three prior convictions for a “violent felony” is subject to a 15-year mandatory minimum sentence. A “violent felony” is an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. Defendant had a prior conviction under 18 U.S.C. § 1513(b)(1) for retaliation against a witness. Defendant brought a motion under 28 U.S.C. § 2255 challenging his ACCA sentence. The Fourth Circuit held that retaliation against a witness is a “violent felony.” U.S. v. Allred, __ F.3d __ (4th Cir. Nov. 7, 2019) No. 18-6843.
7th Circuit says ACCA sentence did not “double count” prior convictions. (125)(540) The Armed Career Criminal Act requires a 15-year mandatory minimum sentence for a defendant convicted of possession of a firearm by a felon, who has three prior convictions for a “violent felony” or a “serious drug offense.” Section 4B1.4(b) says the offense level is “the greatest” of the offense level for the Armed Career Criminal Act or § 2K2.1(a)(1), the guideline for possession of a firearm by a felon. Defendant argued that it was improper double counting to use his past convictions to support his offense level under § 2K2.1(a) and the ACCA. The Seventh Circuit found this contention “meritless” because the district court counted defendant’s prior convictions only once in imposing sentence under the ACCA. U.S. v. Robinson, __ F.3d __ (7th Cir. Nov. 7, 2019) No. 18-2295.
11th Circuit finds Alabama attempted first-degree assault is a “violent felony.” (540) Under the Armed Career Criminal Act, a felon in possession of a firearm who has three prior convictions for a “violent felony” is subject to a mandatory minimum 15-year sentence. A “violent felony” is an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. Defendant had a prior conviction under Alabama Code § 13A-6-20(a) for attempted first-degree assault. That statute is “divisible,” so the district court considered the factual basis for his plea, which showed that he used violence. On appeal, the Eleventh Circuit held that under Alabama law an attempted first-degree assault conviction necessarily involves intentional conduct and therefore qualifies as a “violent felony.” U.S. v. Harris, __ F.3d __ (11th Cir. Oct. 29, 2019) No. 18-11513.
5th Circuit, en banc, says Texas burglary is a “violent felony.” (540) Under the Armed Career Criminal Act, a defendant convicted of possession of a firearm by a felon who has three prior convictions for a “violent felony” is subject to a 15-year mandatory minimum sentence. Defendant had a prior conviction for burglary under Texas Penal Code § 30.02(a). The Fifth Circuit, in a unanimous en banc decision, held that the Texas statute qualifies as a violent felony even though it does not require a breaking and entering or a specific intent to commit another crime once defendant has entered the residence. U.S. v. Herrold, __ F.3d __ (5th Cir. Oct. 18, 2019) No. 14-11317.
7th Circuit says Indiana pointing a firearm is not a “violent felony.” (540) Defendant was convicted of possession of a firearm by a felon. Under the Armed Career Criminal Act, a defendant convicted of that offense who has three prior convictions for a “violent felony” receives a 15-year minimum mandatory sentence. A “violent felony” is defined as an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. Defendant had a prior conviction under Indiana Code § 35-47-4-3 for pointing a firearm. The Seventh Circuit held that this offense was categorically not a “violent felony.” Portee v. U.S., __ F.3d __ (7th Cir. Oct. 18, 2019) No. 18-1034.
7th Circuit finds Indiana intimidation is not a “violent felony.” (540) The Armed Career Criminal Act mandates a 15-year minimum mandatory sentence for a defendant convicted of possession of a firearm by a felon who has three prior convictions for a “violent felony.” A “violent felony” is defined as an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. Defendant had a prior conviction under Indiana Code § 35-42-2-1(b)(1)(A) for intimidation. The Seventh Circuit held that this offense was not a “violent felony.” Portee v. U.S., __ F.3d __ (7th Cir. Oct. 18, 2019) No. 18-1034.
1st Circuit says New Hampshire selling drugs is a “serious drug offense.” (540) The Armed Career Criminal Act requires a 15-year minimum mandatory sentence for a defendant convicted of possession of a firearm by a felon who has three prior convictions for a “serious drug offense.” A “serious drug offense” is defined to include a state offense “involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance” that carries a 10-year sentence. Defendant had a prior conviction under New Hampshire Rev. Stat. § 318-B:2(l) for selling a controlled substance. The First Circuit held that the New Hampshire statute defines a “serious drug offense” under the ACCA. U.S. v. Burghardt, __ F.3d __ (1st Cir. Oct. 3, 2019) No. 18-1767.
11th Circuit says New York first-degree robbery is a “violent felony.” (540) Defendant was convicted of possession of a firearm by a felon and sentenced as an Armed Career Criminal based on his prior “violent felony” convictions, 18 U.S.C. §924(e) defines “violent felony” as an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. Defendant had a prior conviction under New York Penal Law § 160.15 for first-degree robbery. The Eleventh Circuit held that the New York offense was categorically a “violent felony.” U.S. v. Sanchez, __ F.3d __ (11th Cir. Oct. 2, 2019) No. 18-10711.
11th Circuit says New York attempted second-degree murder is a “violent felony.” (540) Defendant was convicted of possession of a firearm by a felon and sentenced as an Armed Career Criminal based on his prior “violent felony” convictions. A “violent felony” is defined in 18 U.S.C §924(e) as an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. Defendant had a prior conviction under New York Penal Law § 125.25(1) for attempted second-degree murder. That statute applies when a person acts “with the intent to cause the death of another person.” The Eleventh Circuit held that a violation of § 125.25(1) is categorically a “violent felony.” U.S. v. Sanchez, __ F.3d __ (11th Cir. Oct. 2, 2019) No. 18-10711.
11th Circuit finds no plain error in imposition of ACCA sentence. (540) Defendant, convicted of possession of a firearm by a felon, was sentenced as an Armed Career Criminal under 18 U.S.C. §924(e) based on his prior “violent felony” convictions. For the first time on appeal, he claimed that he was not subject to the 15-year mandatory minimum sentence required by the Armed Career Criminal Act because he was not convicted of some other offense in addition to possession of a firearm by a felon. Reviewing for plain error, the Eleventh Circuit found that any error could not be plain because neither the Supreme Court nor any other circuit court had addressed defendant’s argument. U.S. v. Sanchez, __ F.3d __ (11th Cir. Oct. 2, 2019) No. 18-10711.
11th Circuit says Florida aiding and abetting an armed robbery is a “violent felony.” (540) Under the Armed Career Criminal Act, a defendant convicted of possession of a firearm by a felon who has three prior convictions for a “violent felony” is subject to a 15-year mandatory minimum sentence. A “violent felony” is defined as an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. Defendant had prior convictions under Florida Stat. §§ 812.13 & 777.011 for principal to robbery with a firearm. The Eleventh Circuit held that even if defendant was convicted as an aider and abettor of armed robbery, he had nevertheless committed a “violent felony.” Boston v. U.S., __ F.3d __ (11th Cir. Sept. 30, 2019) No. 17-13870.
9th Circuit says Oregon armed robbery is not a “violent felony.” (540) Under the Armed Career Criminal Act, a defendant who is convicted of possession of a firearm by a felon and who had three prior convictions for a “violent felony” is subject to a 15-year mandatory sentence. A “violent felony” is defined to include an offense that has an element the use, attempted use, or threatened use of physical force against the person of another. Defendant had three prior convictions under Oregon Revised Statutes § 164.415 for first-degree armed robbery. The Ninth Circuit held that first-degree robbery under Oregon law is categorically not a “violent felony” even though it requires that the perpetrator be armed with a weapon, because the weapon does not have to be displayed. U.S. v. Shelby, __ F.3d __ (9th Cir. Sept. 19, 2019) No. 18-35515.
6th Circuit says Ohio burglary statute remained a “violent felony” despite its repeal. (540) Under the Armed Career Criminal Act, 18 U.S.C. §924(e), a “violent felony” is defined in part to include “burglary.” Defendant had a prior conviction under a now-repealed Ohio statute (§§ 2911.11(a), 2909.01) for aggravated burglary. The Sixth Circuit held that the now-repealed statute categorically defined a “violent felony.” Greer v. U.S., __ F.3d __ (6th Cir. Sept. 12, 2019) No. 16-4755.
8th Circuit says “offering” to sell drugs is a “serious drug offense.” (540) Under the Armed Career Criminal Act, a “serious drug offense” includes a state offense “involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance.” Defendant had a prior conviction under Texas Health & Safety Code § 481.112(a) for distributing drugs. Defendant argued that the Texas statue was not a “serious drug offense” because it made criminal an offer to sell drugs. The Eighth Circuit held that an offer to sell drugs qualifies as a “serious drug offense.” U.S. v. Block, __ F.3d __ (8th Cir. Sept. 9, 2019) No. 18-2470.
9th Circuit holds Minnesota robbery is a “violent felony.” (540) The Armed Career Criminal Act, 18 U.S.C. §924(e), defines ”violent felony” to include an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. Defendant had a prior conviction under Minnesota Stat. Ann. § 609.24 for aiding and abetting simple robbery. The Ninth Circuit held that robbery under Minnesota law is categorically a “violent felony.” Ward v. U.S., __ F.3d __ (9th Cir. Sept. 3, 2019) No. 17-35563.
2d Circuit says prior conviction was a “crime of violence” despite later change in law. (540) The Armed Career Criminal Act, 18 U.S.C. §924(e) requires an enhanced sentence if the defendant has three prior drug convictions with an authorized sentence of at least 10 years. In this case, the penalty for defendant’s prior New York drug conviction was 25 years. But after he was convicted, the penalty was reduced to nine years and some defendants sentenced earlier were permitted to take advantage of the nine-year maximum. The Second Circuit held that defendant was not eligible for the reduction in sentence because his New York offense was his second drug offense, so the maximum penalty was 12 years. U.S. v. Wallace, __ F.3d __ (2d Cir. Sept. 3, 2019) No. 17-0472.
2d Circuit holds attempting to sell drugs is a “serious drug offense.” (540) Under the Armed Career Criminal Act, a defendant convicted of possession of a firearm by a felon who has three prior convictions for a “serious drug offense” is subject to a 15-year mandatory minimum sentence. A “serious drug offense” includes a state offense for possessing a controlled substance with intent to distribute. Defendant had a prior conviction under New York Penal Law § 220.39 for selling a controlled substance. Defendant argued that because selling under New York law could include attempting to sell, he had not been convicted of a “serious drug offense.” The Second Circuit held that a violation of New York Penal Law § 220.39 categorically qualifies as a “serious drug offense.” U.S. v. Wallace, __ F.3d __ (2d Cir. Sept. 3, 2019) No. 17-0472.
8th Circuit says aiding and abetting a violent felony is a “violent felony.” (540) Under the Armed Career Criminal Act, a defendant convicted of possession of a firearm by a felon who has three prior convictions for a “violent felony” is subject to a 15-year minimum mandatory sentence. Defendant had a prior conviction under Minnesota Stat. §§ 609.582(2)(a) & 609.05 for aiding and abetting second-degree burglary. The Eighth Circuit held that aiding and abetting is not itself an offense, but is simply one way of committing an offense. For that reason, because defendant conceded that Minnesota second-degree burglary was a “violent felony,” aiding and abetting that offense constituted a “violent felony” as well. U.S. v. Gammell, __ F.3d __ (8th Cir. Aug. 8, 2019) No. 18-2211.
8th Circuit says Arkansas displaying a weapon creating a danger is a “violent felony.” (540) The Armed Career Criminal Act requires a 15-year minimum mandatory sentence for a defendant convicted of felon in possession of a firearm who has three prior convictions for a “violent felony.” The term “violent felony” is defined as an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. Defendant pleaded guilty to possession of a firearm by a felon and had a prior conviction under Arkansas Code Ann. § 5-13-204(a)(2) for aggravated assault, which makes it a crime to display a firearm in a manner that creates a substantial danger of death or serious physical injury to another person. The Eighth Circuit held that the Arkansas offense is categorically a “violent felony.” U.S. v. Hataway, __ F.3d __ (8th Cir. Aug. 12, 2019) No. 18-1953.
8th Circuit finds Arkansas residential burglary is a “violent felony.” (540) A defendant convicted of possession of a firearm by a felon who has three prior convictions for a “violent felony” is subject under the Armed Career Criminal Act to a 15-year mandatory minimum sentence. The term “violent felony” is defined in part to include “burglary.” Defendant had a 1986 conviction for residential burglary under Arkansas Code Ann. § 5-39-201(a)(1). The Eighth Circuit found that this was categorically a “violent felony.” U.S. v. Sims, __ F.3d __(8th Cir. Aug. 13, 2019) No. 16-1233.
8th Circuit requires resentencing after prior “violent felony” is vacated under Johnson. (540)(880) Defendant was convicted of drug trafficking and possession of a firearm by a felon. He was sentenced on the firearms count to the 15-year mandatory minimum under the Armed Career Criminal Act based on three prior “violent felony” convictions, and a concurrent 15-year sentence on the drug-trafficking count. Based on Johnson v. U.S., 135 S.Ct. 2551 (2015), defendant filed a motion under 28 U.S.C. § 2255 alleging that his prior convictions were not “violent felonies” under the ACCA. The district court agreed, but held that defendant was not entitled to relief because he had received a concurrent 15-year term on the drug-trafficking count. The Eighth Circuit reversed, holding that the concurrent drug-trafficking sentence did not make the error on the ACCA count harmless. Raymond v. U.S., __ F.3d __ (8th Cir. Aug. 13, 2019) No. 18-2349.
8th Circuit rejects § 2255 challenge to prior “violent felonies” after Johnson. (540)(880) In 2009, defendant was convicted of possession of a firearm by a felon, found to have four prior “violent felonies,” and sentenced to a 12-year mandatory term under the Armed Career Criminal Act. In Johnson v. U.S., 135 S.Ct. 2551 (2015), the Supreme Court held unconstitutional the “residual clause” of the ACCA’s definition of “violent felony.” Defendant filed a motion under 28 U.S.C. § 2255, arguing that his convictions no longer qualified as “violent felonies.” The Eighth Circuit held that defendant did not qualify for relief under § 2255 because three of his prior convictions were unaffected by Johnson. Moreover, Johnson was not a new rule that was made retroactive by the Supreme Court. Forest v. U.S., __ F.3d __ (8th Cir. Aug. 15, 2019) No. 18-1011.
6th Circuit says Tennessee aggravated burglary is a “violent felony.” (540) Under the Armed Career Criminal Act, a defendant convicted of possession of a firearm by a felon who has three prior convictions for a “violent felony” is subject to a 15-year mandatory minimum sentence. A “violent felony” is defined in part to mean “burglary.” Defendant had prior convictions for aggravated burglary under Tennessee Code Ann. § 39-14-403. In U.S. v. Stitt, 139 S.Ct. 399 (2018), the Supreme Court held that burglary of a nonpermanent structure that is used for overnight accommodation can be burglary. Relying on Stitt, the Sixth Circuit held that Tennessee aggravated burglary is categorically a “violent felony.” Brumbach v. U.S., __ F.3d __ (6th Cir. July 11, 2019) No. 18-5703.
10th Circuit says Oklahoma conspiracy is not a “violent felony.” (540) A defendant who is convicted of possession of a firearm by a felon and who has three prior convictions for a “violent felony” is subject under the Armed Career Criminal Act to a 15-year mandatory minimum sentence. A “violent felony” is defined to mean an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. Defendant had a prior conviction for conspiracy to shoot to kill another under Oklahoma law. The Tenth Circuit held that a conspiracy is categorically not a “violent felony.” U.S. v. Wartson, __ F.3d __ (10th Cir. July 10, 2019) No. 18-7033.
8th Circuit says despite aiding and abetting, Iowa law is “serious drug offense” and “controlled substance offense.” (520)(540) Defendants had prior convictions under Iowa Code § 124.401, which prohibits the manufacture, delivery, and possession with intent to manufacture or deliver a controlled substance. The district court ruled that these convictions constituted a “serious drug offense” under the Armed Career Criminal Act, 18 U.S.C. § 924(e), and a “controlled substance offense”” under the career offender guideline, § 4B1.1. The Eighth Circuit rejected defendants’ argument that Iowa’s doctrine of aiding and abetting liability—which is included in Iowa Code § 124.401—is broader than the generic definition of aiding and abetting. Accordingly, the Iowa statute is not too broad to be a “serious drug offense” or a “controlled substance offense.” U.S. v. Boleyn, __ F.3d __ (8th Cir. July 8, 2019) No. 17-3817.
4th Circuit says South Carolina drug offense may be a “serious drug offense.” (540) A defendant convicted of possession of a firearm by a felon who has three prior convictions for a “serious drug offense” is subject under the Armed Career Criminal Act to a 15-year mandatory minimum sentence. A “serious drug offense” is defined to include a state offense involving the distribution of a controlled substance. Defendant had a prior conviction under South Carolina Code § 44-53-375(b) for distribution of crack cocaine. The Fourth Circuit held that because the South Carolina statute reached the “purchase” of a controlled substance, it did not categorically qualify as a “serious drug offense.” However, the panel found that the statute was “divisible,” and using the modified categorical approach found that defendant had committed a “serious drug offense.” U.S. v. Furlow, __ F.3d __ (4th Cir. June 27, 2019) No. 18-4531.
4th Circuit says treating Georgia arson as a “violent felony” is not plain error. (540) The Armed Career Criminal Act requires a 15-year mandatory minimum sentence for a defendant convicted of possession of a firearm by a felon who has three prior convictions for a “violent felony.” A “violent felony” is defined as an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. Here, the district court sentenced defendant as an Armed Career Criminal based in part on his prior conviction for arson in violation of Georgia Code Ann. § 16-7-60(a)(1). Defendant did not challenge this in the district court. Reviewing for plain error, the Fourth Circuit upheld the district court’s finding that arson in violation of Georgia Code Ann. § 16-7-60(a)(1) was a “violent felony.” U.S. v. Furlow, __ F.3d __ (4th Cir. June 27, 2019) No. 18-4531.
4th Circuit reverses itself in light of Stokeling, says North Carolina robbery is a “violent felony.” (540) A defendant convicted of possession of a firearm by a felon faces a mandatory 15-year sentence under the Armed Career Criminal Act if defendant has three prior convictions for a “violent felony.” A “violent felony” is defined to include an offense that has “as an element the use, attempted use, or threatened use of physical force against the person of another.” Defendant had prior convictions under North Carolina common law for robbery and accessory before the fact to armed robbery. Although the Fourth Circuit had held that North Carolina robbery did not constitute a “violent felony,” the Supreme Court’s decision in Stokeling v. U.S., 139 S.Ct. 544 (2019) “abrogated” its prior precedent. Accordingly, the court found that robbery and accessory before the fact to armed robbery were categorically “violent felonies.” U.S. v. Dinkins, __ F.3d __ (4th Cir. 2019) No. 18-6264.
6th Circuit says Armed Career Criminal Act is based on sentence at time it is imposed. (540) Under the Armed Career Criminal Act, a defendant who is convicted of being a felon in possession of a firearm and who has three prior convictions for a “serious drug offense” is subject to a 15-year mandatory minimum sentence. A “serious drug offense” is defined in part to include a state offense for distributing a controlled substance “for which the maximum term of imprisonment is ten years.” Defendant had three prior convictions under Kentucky Rev. Stat. § 218A.1412(1) for trafficking cocaine. At the time he was sentenced, the Kentucky violations carried a maximum of ten years, but the state legislature later reduced the penalty to five years. The Sixth Circuit affirmed defendant’s ACCA sentence, holding that the maximum sentence at the time that defendant was sentenced determines whether it qualifies as a predicate offense under the ACCA. U.S. v. Mayes, __ F.3d __ (6th Cir. June 27, 2019) No. 18-5902.
8th Circuit reiterates that Missouri offenses are “violent felonies.” (540) When a defendant convicted of possession of a firearm by a felon has three prior convictions for a “violent felony,” the Armed Career Criminal Act requires a 15-year mandatory minimum sentence. A “violent felony” is defined to include an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. In prior precedent, the Eighth Circuit has held that the Missouri offenses of unlawful use of a weapon (Mo. Rev. Stat. § 571.030.1(4)) and first-degree assault (Mo. Rev. Stat. § 565.050.1)) are “violent felonies” under the ACCA. The Eighth Circuit declined to reconsider its precedent and reiterated that both offenses met the statutory standard. U.S. v, Pryor, __ F.3d __ (8th Cir. June 26, 2019) No. 18-2267.
8th Circuit says Arkansas terroristic threatening may be a “violent felony.” (540) Defendant pleaded guilty to possession of a firearm by a felon. A defendant who is guilty of that offense and has three prior convictions for a “violent felony” is subject under the Armed Career Criminal Act to a 15-year mandatory minimum sentence. A “violent felony” is defined to include an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. Defendant had a prior conviction under Arkansas Code Ann. § 5-13-301(a)(1)(A) for first-degree terroristic threatening. Applying the modified categorical approach, the Eighth Circuit examined documents showing that defendant was convicted of threatening to kill his girlfriend. Accordingly, the panel found that this offense was a “violent felony.” U.S. v. Myers, __ F.3d __ (8th Cir. July 2, 2019) No. 17-2415.
8th Circuit says Missouri second-degree burglary is not a “violent felony.” (540) Under the Armed Career Criminal Act, a defendant who is convicted of being a felon in possession of a firearm and who has three prior convictions for a “violent felony” is subject to a 15-year mandatory minimum sentence. A “violent felony” is defined in part to include “burglary.” Defendant had a prior conviction under Missouri Rev. Stat. § 560.070 for second-degree burglary. The Eighth Circuit held that Missouri second-degree burglary did not qualify as “burglary” as the ACCA uses that term. Brown v. U.S., __ F.3d __ (8th Cir. July 3, 2019) No. 17-1420.
4th Circuit says Maryland assault with intent to commit murder is a “violent felony.” (540) Under the Armed Career Criminal Act, a defendant convicted of possession of a firearm by a felon who has three prior convictions for a “violent felony” is subject to a 15-year mandatory minimum sentence. A “violent felony” “has as an element the use, attempted use, or threatened use of physical force against the person of another.” In the present case, defendant had a prior conviction under Maryland Code Ann. Art. 27, § 12 (1991) for assault with intent to commit murder. The Fourth Circuit held that the Maryland offense was categorically a “violent felony.” U.S. v. Battle, __ F.3d __ (4th Cir. June 11, 2019) No. 18-6754.
6th Circuit grants habeas relief for defendant sentenced under “residual clause” of ACCA (540)(880) In 2006, defendant pleaded guilty to possession of a firearm by a felon. He had three prior convictions for a “violent felony” and was sentenced under the Armed Career Criminal Act to a mandatory minimum of 180 months. After Johnson v. U.S., 135 S.Ct. 2551 (2015) struck down the “residual clause” of the ACCA as unconstitutionally vague, defendant filed a motion under 28 U.S.C. § 2255 alleging that he no longer qualified for a mandatory minimum sentence under the ACCA. The Sixth Circuit held that the “substantive requirement” of § 2255(h) that a defendant advance a new rule of constitutional law is not jurisdictional and did not prevent the court from hearing defendant’s claim. Because the district court relied on the residual clause when it sentenced defendant and a prior Sixth Circuit decision had held that defendant’s prior offense did not qualify as a “violent felony” under the elements clause, the court granted him relief. Williams v. U.S., __ F.3d __ (6th Cir. June 11, 2019) No. 17-3211.
7th Circuit says Illinois robbery is a “violent felony.” (540) A defendant found guilty of possession of a firearm by a felon is subject to a 15-year mandatory minimum under the Armed Career Criminal Act if defendant has three prior convictions for a “violent felony.” A “violent felony” “has as an element the use, attempted use, or threatened use of physical force against the person of another.” The Seventh Circuit held that robbery and armed robbery in violation of 720 Illinois Cons. Stats. 5/18-1(a) & 5/18-2 are categorically “violent felonies” under the ACCA. Klikno v. U.S., __ F.3d __ (7th Cir. June 21, 2019) No. 16-2312.
6th Circuit says Michigan assault with intent to do serious bodily injury is a “serious violent felony.” (520)(540) Defendant was convicted of rape in federal territorial jurisdiction. Defendant had previously twice been convicted of offenses involving rape in state court, including a conviction under Michigan Compiled Laws § 750.84 for assault with intent to do great bodily harm less than murder. Under 18 U.S.C. § 3559(c), a defendant convicted of a “serious violent felony” who has two prior convictions for a “serious violent felony” is subject to a life sentence, and defendant received a life sentence. The statute defines “serious violent felony” in part to mean an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. The Sixth Circuit held that Michigan assault with intent to do great bodily harm less than murder is categorically a “serious violent felony.” U.S. v. Ruska, __ F.3d __ (6th Cir. June 10, 2019) No. 18-1194.
4th Circuit says South Carolina domestic violence is a “violent felony.” (540) A defendant convicted of beinga felon in possession of a firearm who has three prior felony convictions for a “violent felony” is subject to a 15-year mandatory minimum sentence under the Armed Career Criminal Act. A “violent felony” is one that has as an element the use, attempted use, or threatened use of physical force against the person of another. Defendant had prior convictions for criminal domestic assault under South Carolina Code Ann. §§ 16-25-20(A) and 16-25-65. The Fourth Circuit held that these were “violent felonies” under the ACCA. U.S. v. Drummond, __ F.3d __ (4th Cir. June 5, 2019) No. 18-4197.
6th Circuit holds Tennessee methamphetamine offense is a “serious drug offense.” (540) The Armed Career Criminal Act requires a 15-year minimum mandatory sentence for a defendant convicted of being a felon in possession of a firearm who has three prior convictions for a “serious drug offense.” A “serious drug offense” includes a state offense “involving the manufacture” of a controlled substance. Defendant had a prior conviction under Tennessee Code Ann. § 39-17-435 for “initiating a process intended to result in the manufacture of methamphetamine.” The Sixth Circuit held that this Tennessee offense is categorically a “serious drug offense.” U.S. v. Myers, __ F.3d __ (6th Cir. June 3, 2019) No. 18-5099.
8th Circuit finds prior drug convictions were committed on separate dates. (540) Defendant, convicted of being a felon in possession of a firearm, was sentenced as a Armed Creer Criminal based on three prior convictions for selling cocaine, in violation of Missouri Rev. Stat. § 195.211. Although all three convictions were alleged in the same indictment and two were alleged to have occurred on the same date, a subsequent information clarified that defendant sold cocaine on three separate dates. Defendant confirmed that the sales were on separate dates at his state court plea proceeding. The Eighth Circuit found that the information and state court plea transcript showed that defendant was convicted of selling cocaine on three separate dates and upheld his ACCA sentence. U.S. v. McDaniel, __ F.3d __ (8th Cir. May 30, 2019) No. 18-1477.
8th Circuit finds Missouri cocaine sale is “serious drug offense.” (540) Defendant was convicted of being a felon in possession of a firearm and was sentenced as a Armed Career Criminal based in part on his prior conviction for selling cocaine under Missouri Rev. Stat. § 195.211. The Eighth Circuit had previously held that Missouri Rev. Stat. § 195.211 defined a “controlled substance offense” under § 4B1.2 of the guidelines. In the present case, the Eighth Circuit likewise found that this crime was a “serious drug offense,” which, like the definition of “controlled substance offense” in the guidelines, is defined to reach any offense prohibiting the distribution of a controlled substance. U.S. v. McDaniel, __ F.3d __ (8th Cir. May 30, 2019) No. 18-1477.
8th Circuit says Indiana burglary is a “violent felony.” (540) The Armed Career Criminal Act imposes a 15-year mandatory minimum sentence on a defendant convicted of possession of a firearm by a felon who has three prior convictions for a “violent felony.” Defendant, convicted of being a felon in possession, had a prior conviction under Indiana Code § 35-43-2-1 (1984) for burglary. The Eighth Circuit held that Indiana burglary is categorically a “violent felony.” Faulkner v. U.S., __ F.3d __ (7th Cir. June 7, 2019) No. 18-1984.
2d Circuit finds federal bank robbery is a “violent felony.” (540) A defendant convicted of possession of a firearm by a felon who has three prior convictions for a “violent felony” is subject to a 15-year minimum mandatory sentence under the Armed Career Criminal Act. A “violent felony” is defined in part to mean an offense that has an element the use, attempted use, or threatened use of physical force against the person of another. Defendant had a prior conviction for bank robbery under 18 U.S.C. § 2113(a). The Second Circuit found that federal bank robbery categorically qualifies as a “violent felony.” U.S. v. Evans, __ F.3d __ (2d Cir. May 8, 2019) No. 17-2245.
5th Circuit says Texas juvenile adjudication for aggravated assault is not a “violent felony.” (540) A person convicted of possession of a firearm by a felon who has three prior convictions for a “violent felony” is subject under the Armed Career Criminal Act to a 15-year mandatory minimum. To be a “violent felony,” a juvenile adjudication must involve the use or carrying a knife, firearm, or destructive device and must have as an element the use, attempted use, or threatened use of physical force against the person of another. Defendant’s prior juvenile adjudication for Texas aggravated assault, did not require the attempted use or threatened use of physical force against the person of another. Accordingly, the Fifth Circuit held that his juvenile adjudication was categorically not a “violent felony.” U.S. v. Flores, __ F.3d __ (5th Cir. Apr. 30, 2019) No. 18-40334.
8th Circuit holds Missouri first-degree robbery is a “violent felony.” (540) Under the Armed Career Criminal Act, a defendant convicted of possession of a firearm by a felon is subject to a 15-year minimum mandatory sentence if defendant has three prior convictions for a “violent felony.” A “violent felony” is defined in part to mean an offense that has an element the use, attempted use, or threatened use of physical force against the person of another. Defendant had a prior conviction for first-degree robbery under Missouri Rev. Stat. § 560.120 (1969). The Eighth Circuit held that § 560.120 is categorically a “violent felony.” Jones v. U.S., __ F.3d __ (8th Cir Apr. 29, 2019) No. 17-2214.
9th Circuit reaffirms that Arizona aggravated assault is not a “violent felony.” (540) In 2012, defendant was convicted of possession of a firearm by a felon. A defendant convicted of possession of a firearm by a felon who has three prior convictions for a “violent felony” is subject to a 15-year minimum mandatory sentence under the Armed Career Criminal Act. Defendant had a conviction for Arizona aggravated assault under A.R.S. § 13-1203(A)(1). The Ninth Circuit held in Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (2006), that the Arizona statute did not define a “violent felony.” The government argued that Fernandez-Ruiz had been overruled by Voisine v. U.S., 136 S.Ct. 2272 (2016), which held that a reckless assault could be a “crime of violence.” The Ninth Circuit rejected this argument and reaffirmed Fernandez-Ruiz. Although the court held that Voisine “casts serious doubt” on Fernandez-Ruiz, it found that that Voisine decided a different issue than this case. U.S. v. Orona, __ F.3d __ (9th Cir. May 10, 2019) No. 17-17508.
2d Circuit holds that North Carolina second-degree burglary is a “violent felony.” (540) Defendant was convicted of possession of a firearm by a felon, and was sentenced to a 15-year mandatory minimum term under the Armed Career Criminal Act because he had three prior convictions for a “violent felony.” The term “violent felony” is defined in part to include “burglary.” Defendant had a prior conviction under North Carolina Gen. Stat. § 14-51 for second-degree burglary. The Second Circuit found that the North Carolina offense categorically constituted a “violent felony.” U.S. v. Evans, __ F.3d __ (2d Cir. May 8, 2019) No. 17-2245.
5th Circuit, in new decision, holds Texas robbery is a “violent felony.” (540) Under the Armed Career Criminal Act, a defendant convicted of possession of a firearm by a felon who has three prior convictions for a “violent felony” is subject to a 15-year mandatory minimum. A “violent felony” is defined to include an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. In a prior decision, the Fifth Circuit had held that robbery in violation of Texas Penal Code § 29,02(a) was not a “violent felony.” In a new opinion, the Fifth Circuit held that Texas robbery is categorically a “violent felony.” U.S. v. Burris, __ F.3d __ (5th Cir. Apr. 10, 2019) No, 17-10478.
6th Circuit finds Tennessee rape was not a “violent felony” on its facts (540) A defendant convicted of possession of a firearm by a felon faces a 15-year mandatory minimum sentence under the Armed Career Criminal Act if defendant has three prior convictions for a “violent felony.” That term is defined to include any felony that has as an element the use, attempted use, or threatened use of physical force against the person of another. Defendant, convicted of possession of a firearm by a felon, had a prior conviction under Tennessee Code Ann. § 39-2-604 (1982) for rape. The Sixth Circuit held that the statute is categorically not a “violent felony.” Although the court held that the statute is divisible and that therefore some violations of it could be “violent felonies,” defendant’s violation was not. Lowe v. U.S., __ F.3d __ (6th Cir. Apr. 4, 2019) No. 17-5490.
8th Circuit says Illinois aggravated sexual abuse of a minor is not a “violent felony.” (540) Defendant was convicted of possession of a firearm by a felon. A defendant convicted of that offense who has three prior convictions for a “violent felony” is subject to a 15-year mandatory minimum under the Armed Career Criminal Act. A “violent felony” is a felony that has as an element the use, attempted use, or threatened use of physical force against another person. Defendant had a prior conviction under 720 Illinois Comp. Stat. 5/12-16(c)(1)(i) (1998) for aggravated sexual abuse with a minor. The Eighth Circuit held that the Illinois statute is not a “violent felony.” Lofton v. U.S., __ F.3d __ (8th Cir. Apr. 5, 2019) No. 17-2847.
8th Circuit finds Illinois delivery of cannabis is not a “serious drug offense.” (540) A defendant convicted of possession of a firearm by a felon who has three prior convictions for a “serious drug offense” is subject to a 15-year mandatory minimum penalty under the Armed Career Criminal Act. A “serious drug offense” is defined in part to mean an offense for which the maximum penalty is ten years or more. Defendant had a prior conviction under Illinois Rev. Stat. ch. 38, par. 1005-8-1(7) (1988) for unlawfully delivering cannabis. The Eighth Circuit held that because that offense carries a three-year maximum, it is not a “serious drug offense.” Lofton v. U.S., __ F.3d __ (8th Cir. Apr. 5, 2019) No. 17-2847.
9th Circuit holds North Carolina breaking-and-entering is a “violent felony.” (540) Defendant pleaded guilty to possession of a firearm by a felon. Under the Armed Career Criminal Act, a defendant convicted of that offense who has three prior convictions for a “violent felony” must receive a 15-year mandatory minimum sentence. A “violent felony” includes a felony conviction for burglary. Defendant had a prior conviction under North Carolina Gen. Stat. § 14-54 for breaking-and-entering. The Ninth Circuit held that North Carolina breaking-and-entering constituted generic burglary and therefore qualified as a “violent felony.” Mutee v. U.S., __ F.3d __ (9th Cir. Apr. 4, 2019) No. 17-15415.
11th Circuit holds that Georgia aggravated assault is not a “violent felony.” (540) Under the Armed Career Criminal Act, a defendant convicted of possession of a firearm by a felon is subject to a 15-year mandatory minimum if defendant has three prior convictions for a “violent felony.” That term is defined to include any felony that has as an element the use, attempted use, or threatened use of physical force against the person of another. Defendant had a prior conviction for aggravated assault under Georgia law. O.C.G.A. § 16-5-21(a)(2). Georgia defines aggravated assault as assault with a deadly weapon or any other object that can cause serious bodily injury. The Eleventh Circuit held that because the Georgia assault statute can be satisfied by the reckless use of force, it is not a “violent felony.” U.S. v. Moss, __ F.3d __ (11th Cir. Apr. 4, 2019) No. 1710473.
11th Circuit holds that Florida aggravated battery may be a “violent felony.” (540) A defendant convicted of possession of a firearm by a felon is subject to a 15-year mandatory minimum sentence under the Armed Career Criminal Act if the defendant has three prior convictions for a “violent felony.” That term is defined to include a felony that has as an element the use, attempted use, or threatened use of physical force against the person of another. Defendant had prior convictions under Florida Stat. § 784.045(1) for aggravated battery and under Florida § 784.03(2) for third-degree felony battery. Applying the modified categorical approach, the Eleventh Circuit held that defendant had committed a “violent felony” under both Florida statutes. U.S. v. Vereen, __ F.3d __ (11th Cir. Apr. 5, 2019) No. 17-11147.
8th Circuit finds pointing a gun at a person is a “crime of violence.” (520)(540) Based on defendant’s three prior serious drug offenses, the district court found that defendant was an Armed Career Criminal under 18 U.S.C. §924(e). It also increased the sentence to level 34 under guideline § 4B1.4(b)(3)(A) based on its finding that defendant possessed the firearm “in connection with a crime of violence” as defined in the career offender guideline, 4B1.2(a). Under U.S. v. Eason, 907 F.3d 554, 560 (8th Cir. 2018), “[t]his is not a categorical inquiry; it turns on the facts of defendant’s offense of conviction.” The district court found that defendant’s prior state conviction resulted from an incident in which he pointed a gun at a person attempting to repossess his car. The Eighth Circuit agreed that this was a “crime of violence” under § 4B1.4. U.S. v. Meux, __ F.3d __ (8th Cir. Mar. 18, 2019) No. 18-1416.
6th Circuit holds Tennessee purchasing an ingredient for meth manufacture is a serious drug offense. (540) The Armed Career Criminal Act, 18 U.S.C. §924(e) provides a 15-year mandatory minimum sentence for a defendant convicted of possession of a firearm by a felon who has three prior convictions for a “serious drug offense.” That term includes a state offense “involving manufacturing, distributing, or possessing with intent to manufacture or distribute a controlled substance.” Defendant had prior convictions under Tennessee Code Ann. § 39-17-433(a) for promoting the manufacture of methamphetamine. Applying the modified categorical approach, the Sixth Circuit found that defendant’s convictions at least were for recklessly “purchasing” an “ingredient” used in making methamphetamine and therefore qualified as “serious drug offenses.” U.S. v. Eason, __ F.3d __ (6th Cir. Mar. 22, 2019) No. 18-5387.
8th Circuit rules that Arkansas kidnapping is not a “violent felony.” (540) A defendant is subject to a 15-year mandatory minimum sentence under the Armed Career Criminal Act if he is convicted of possession of a firearm by a felon and has three prior “violent felony” convictions. That term means an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. Here, defendant had a prior conviction for kidnapping under Arkansas Code § 5-11-102. The Eighth Circuit held that this offense was not a “violent felony” under the ACCA and that it was not divisible into any violent felonies. U.S. v. Coleman, __ F.3d __ (8th Cir. Mar. 18, 2019) No. 18-2400.
8th Circuit finds Arkansas drug offense is a “serious drug offense.” (540) The Armed Career Criminal Act requires a 15-year minimum sentence for a felon in possession of a firearm who has three prior convictions for a “serious drug offense” That term includes an offense “involving the manufacturing, distributing, or possessing with intent to manufacture or distribute” a controlled substance. Defendant had a prior conviction under Arkansas Code § 5-64-401(a) for manufacturing, delivering, or possessing with intent to manufacture or deliver a controlled substance. Applying the modified categorical approach, the Eighth Circuit found that defendant had committed a “serious drug offense.” U.S. v. Meux, __ F.3d __ (8th Cir. Mar. 18, 2019) No. 18-1416.
6th Circuit says Michigan unarmed robbery is categorically a “violent felony.” (540) Under 18 U.S.C. §924(e), a defendant convicted of possession of a firearm by a felon who has three prior convictions for a “violent felony” is subject to a 15-year mandatory minimum sentence. That term is defined in part to mean an offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” Defendant had a prior conviction under Michigan Comp. Laws § 750.530 for attempted unarmed robbery. The Sixth Circuit held that this offense is categorically a “violent felony.” Chaney v. U.S., __ F.3d __ (6th Cir. Mar. 11, 2019) No. 17-2024.
11th Circuit remands to allow § 2255 defendant to show that court relied only on “residual clause.” (540) (880) The district court granted defendant’s 28 U.S.C. § 2255 motion, ruling that he no longer qualified as an Armed Career Criminal in light of the Supreme Court’s ruling in Johnson v. U.S., 135 S.Ct. 2551 (2015), that the “residual clause” definition of violent felony in the ACCA was unconstitutionally vague. The government appealed, but before briefing, the 11th Circuit ruled in Beeman v. U.S., 871 F.3d 1215 (11th Cir. 2017), that § 2255 movants were required to show that it was more likely than not that the district court relied only on the residual clause in applying the ACCA enhancement. The Eleventh Circuit concluded that defendant did not meet this standard. However, defendant could not have known that he would be required to meet the heightened Beeman standard on appeal, and the panel could not discern from the record whether the district court relied only on the residual clause. Therefore, the panel remanded allow defendant to make his case under the new standard. U.S. v. Pickett, __ F.3d __ (11th Cir. Feb. 20, 2019) No. 17-13476.
9th Circuit finds firearms sentence was not based on the ACCA. (330)(540) Defendant pleaded guilty to possession of a firearm by a felon. Although the government initially sought the 15-year mandatory minimum mandated by the Armed Career Criminal Act, 18 U.S.C. §924(e), at sentencing it did not seek a sentence required by the ACCA, and defendant received a sentence below his guidelines range. When the Supreme Court later held that the residual clause of the ACCA was void for vagueness in Johnson v. U.S., 135 S.Ct. 2551 (2015), defendant argued that his prior convictions no longer qualified under the ACCA and that he would not have pleaded guilty if he had not been subject to a mandatory minimum sentence under the ACCA. The Ninth Circuit rejected this argument, holding that defendant had not shown that his sentence was based on the ACCA. U.S. v. Hill, __ F.3d __ (9th Cir. Feb. 7, 2019) No. 17-35719.
3d Circuit finds Pennsylvania drug offense is “serious drug offense.” (540) Defendant pleaded guilty to possession of a firearm by a convicted felon. Under the Armed Career Criminal Act, 18 U.S.C. § 924(e), defendants convicted of that offense who have three prior convictions for a “serious drug offense” are subject to a 15-year mandatory minimum sentence. Defendant had three prior convictions under Pennsylvania Stat. Ann. § 780-113(a)(30) for possession with intent to deliver cocaine. The Third Circuit held that the Pennsylvania statute defines a “serious drug offense” as the ACCA uses that term. The court found that attempt and accomplice liability under the Pennsylvania statute is co-extensive with the meaning of those terms under federal law. U.S. v. Daniels, __ F.3d __ (3d Cir. Feb. 7, 2019) No. 17-3503.
4th Circuit says South Carolina assault on an officer is not a “violent felony.” (540) Under the Armed Career Criminal Act, 18 U.S.C. § 924(e), a defendant convicted of possessing a firearm as a felon is subject to a 15-year mandatory minimum sentence if the defendant has three prior convictions for a “violent felony.” The ACCA defines “violent felony” to mean an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. Defendant, convicted of being a felon in possession of a firearm, had a prior conviction under South Carolina Code § 16-9-320(b) for assaulting, beating, or wounding a law enforcement officer while resisting arrest. The Fourth Circuit held that the South Carolina offense is categorically not a “violent felony.” U.S. v. Jones, __ F.3d __ (4th Cir. Feb. 4, 2019) No. 18-6070.
8th Circuit says Missouri attempted assault is a “violent felony.” (540) A defendant convicted of possession of a firearm by a felon who has three prior convictions for a “violent felony” is subject to a 15-year mandatory minimum under the Armed Career Criminal Act, 18 U.S.C. § 924(e). A “violent felony” is defined in part to mean an offense that has an element the use, attempted use, or threatened use of physical force against another person. Defendant, convicted of possession of a firearm by a convicted felon, had two convictions under Missouri Rev. Stat. § 565.082.1 for attempted assault on a law enforcement officer. The Eighth Circuit held that attempted assault under Missouri law was a “violent felony.” U.S. v. Darden, __ F.3d __ (8th Cir. Feb. 12, 2019) No. 17-3373.
8th Circuit finds remand unnecessary in Johnson collateral attack on ACCA sentence. (540)(880) In Johnson v. U.S., 135 S.Ct. 2551 (2015), the Supreme Court held that the “residual clause” of the Armed Career Criminal Act, 18 U.S.C. § 924(e), was unconstitutionally vague. In the Eighth Circuit, a defendant who collaterally attacks their conviction based on Johnson, must show that it is “more likely than not” that the district court relied on the residual clause in applying the ACCA enhancement. At her sentencing in 2008, defendant had six convictions for “violent felonies” and conceded that she should be sentenced under the ACCA. The Eighth Circuit found that defendant could not carry her burden to show that her sentence was based on felonies that no longer qualified as “violent felonies” under the ACCA because she conceded that she had two convictions for a “violent felony” and at least one of her other convictions qualified as a “violent felony.” Golinveaux v. U.S., __ F.3d __ (8th Cir. Feb. 11, 2019) No. 17-3099.
2d Circuit finds New York third-degree robbery and attempted robbery are violent felonies. (540) A defendant convicted of being a felon in possession of a firearm is subject to a mandatory minimum 15-year sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e), if defendant has three prior convictions for a “violent felony.” The ACCA defines “violent felony” in part to mean any felony that has as an element the use, attempted use, or threatened use of physical force against the person of another. The Second Circuit held that New York robbery in the third degree (New York Penal Law § 160.05) and New York attempted robbery in the third degree (New York Penal Law § 110.00) each qualify as a “violent felony.” U.S. v. Thrower, __ F.3d __ (2d Cir. Jan. 31, 2019) No. 17-445.
10th Circuit says Kansas robbery and aggravated robbery are not a “violent felonies.” (540) Defendant was convicted of possession of a firearm by a convicted felon. Under 18 U.S.C. § 924(e), a conviction for that offense carries a 15-year mandatory minimum if defendant has three prior convictions for a “violent felony.” The term “violent felony” is defined in part to reach any offense that “has as an element the use, attempted use, threatened use of physical force against the person of another.” Defendant had prior convictions under Kansas Stat. Ann. § 21-3426 for robbery and under Kansas Stat. Ann. § 21-3427 for aggravated robbery. The latter offense consists of robbery while armed. The Tenth Circuit found that neither robbery nor aggravated robbery under Kansas law categorically qualifies as a “violent felony” because “mere purse-snatching” could satisfy either statute. U.S. v. Bong, __ F.3d __ (10th Cir. Jan. 28, 2019) No. 16-3323.
Supreme Court says force sufficient to overcome victim’s resistance satisfies “violent felony.” (540) Defendant pleaded guilty to possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g). A defendant convicted of that offense who has three prior convictions for a “violent felony” must receive a mandatory minimum 15-year sentence under the Armed Career Criminal Act, 18 U.S.C. §924(e). A “violent felony” is defined in part as an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. Defendant had a prior conviction for robbery in violation of Florida Statute, § 813.13(1), which requires force necessary to overcome the resistance of the victim. The Supreme Court, by a 5-4 vote, held that physical force necessary to overcome the resistance of the victim is sufficient to qualify Florida robbery as a “violent felony.” Justice Thomas wrote the decision; Justice Sotomayor dissented, joined by the Chief Justice and Justices Ginsburg and Kagan. Stokeling v. U.S., 586 U.S. __, 139 S.Ct. __ (Jan. 15, 2019).
Supreme Court to decide if unlawful presence in house is a burglary. (540) A defendant convicted of being a felon in possession of a firearm is subject to a 15-year minimum mandatory sentence under the Armed Career Criminal Act if the defendant has three prior convictions for, among other offenses, a “burglary.” The Supreme Court granted certiorari to decide whether a state offense that criminalizes continued unlawful presence in a dwelling following the formation of intent to commit a crime has “the basic elements of unlawful … remaining in … a building or structure, with intent to commit a crime,” under Taylor v. U.S., 495 U.S. 575, 599 (1990), and thereby qualifies as “burglary” under the ACCA. Quarles v. U.S., __ U.S. __, 139 S.Ct. __, (Jan. 11, 2019) (granting certiorari).
8th Circuit says Missouri drug offense is a “serious drug offense” even though it includes “offers.” (540) Defendant, convicted of being a felon in possession of a firearm, was subject to a 15-year mandatory minimum sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e), if he had three prior convictions for a “serious drug offense.” The term “serious drug offense” includes an offense under state law “involving manufacturing, distributing, or possessing with intent to distribute” a controlled substance. Defendant had a prior felony conviction under Missouri Revised Statutes § 195.211.1 for delivery of a controlled substance, which includes an offer to sell drugs. The Eighth Circuit held that the Missouri offense is a “serious drug offense” under the ACCA. The court rejected defendant’s argument that a statute making criminal an offer to sell drugs does not qualify as a “serious drug offense.” U.S. v. Hill, __ F.3d __ (8th Cir. Jan. 10, 2019) No. 17-2425.
Supreme Court to consider if “crime of violence” in 924(c) firearm statute is vague. (120)(280)(330)(540) Recent Supreme Court cases have struck down as unconstitutionally vague the “residual clauses” of the definitions of “crime of violence” in both 18 U.S.C. § 16(b) and the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B). There is a nearly identical “residual clause” in the definition of “crime of violence” in § 924(c)(3)(B), which makes it a crime to possess, use, or carry a firearm in connection with a crime of violence. On January 4, 2019, the Court granted certiorari to consider whether the residual clause of 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague. U.S. v. Davis, __ U.S. __, 139 S.Ct. __ (Jan. 4, 2019).
6th Circuit, en banc, says Ohio felonious assault is divisible, and can be a violent felony or crime of violence. (520)(540) Sitting en banc, the Sixth Circuit held that Ohio’s felonious assault statute, Ohio Revised Code § 2903.11(a)(2), is categorically neither a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e), nor the career offender guideline, § 4B1.1, because the Ohio statute defines “physical harm” to include mental harm. Nevertheless, the en banc court ruled that the statute is “divisible,” and, after examining defendant’s conviction documents, the court found that defendant had in fact committed a violent felony and a crime of violence. U.S. v. Burris, __ F.3d __ (6th Cir. Jan. 3, 2019) No. 16-3855.
2d Circuit holds that Connecticut robbery is a “violent felony.” (540) Defendant was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). A defendant convicted of that offense who has at least three prior convictions of a “violent felony” is subject to a mandatory minimum 15-year sentence. Defendant had prior robbery convictions under Connecticut Gen. Stat. § 53a-133. The Second Circuit held that the Connecticut robbery statute has as an element the use, attempted use, or threatened use of physical force against the person of another. It therefore categorically qualifies as a violent felony. Shabazz v. U.S., __ F.3d __ (2d Cir. Jan. 4, 2019) No. 17-167.
10th Circuit finds Oklahoma assault on law enforcement officer is not a “violent felony.” (540) Defendant was convicted of being a felon in possession of a firearm. Under 18 U.S.C. § 924(e), Defendants convicted of that offense who have three prior convictions for a “violent felony” are subject to a mandatory minimum 15-year sentence. Defendant had a prior conviction under Oklahoma Statute tit. 21, § 649(B) for assault and battery on a law enforcement officer. The Tenth Circuit held that the state statute is not divisible and that it is not a violent felony because it does not always require proof that force, attempted force, or threatened force would be used against the person of another. U.S. v. Johnson, __ F.3d __ (10th Cir. Dec. 26, 2018) No. 17-6165.
Supreme Court says ACCA “burglary” includes structure adapted for overnight accommodation. (540) The Armed Career Criminal Act, 18 U.S.C. § 924(e), requires a mandatory minimum 15-year prison term for felons convicted of possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), who have at least three previous convictions for certain “violent” or drug-related felonies. The ACCA defines “violent felony” to mean, among other things, a felony burglary. Defendants had prior convictions under a Tennessee statute and an Arkansas statute that prohibit burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation. The Supreme Court held that “burglary” in the ACCA includes burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation. For that reason, the Court held that the Tennessee burglary statute was categorically a “burglary” under the ACCA; the Court remanded for the court of appeals to determine under state law whether the Arkansas burglary statute categorically qualified as an ACCA burglary. U.S. v. Stitt, 586 U.S. __. 139 S.Ct. __ (Dec. 10, 2018).
6th Circuit reverses ACCA sentence because prior Tennessee drug offense did not carry a ten-year sentence. (540) Defendant was convicted of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). Under 18 U.S.C. § 924(e), a defendant convicted of § 922(g) is subject to a 15-year minimum mandatory sentence if defendant has three prior convictions for, among other things, a “serious drug offense.” A “serious drug offense” is any drug offense on which the maximum penalty is ten years or more. Defendant had a prior conviction under Tennessee law for delivery of cocaine. After reviewing Tennessee’s complex statutes, the Sixth Circuit found that defendant’s prior sentence was based on his lack of criminal history, and therefore he was not subject to a ten-year sentence. U.S. v. Rockymore, __ F.3d __ (6th Cir. Nov. 20, 2018) No. 18-5148.
8th Circuit reaffirms that Minnesota first-degree aggravated robbery is a “violent felony.” (540) Defendant was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Under 18 U.S.C. § 924(e) (the Armed Career Criminal Act), he was subject to a 15-year mandatory minimum sentence if he had at least three prior convictions for, among other things, a “violent felony.” The Eighth Circuit reaffirmed a prior decision holding that a violation of Minnesota Statutes § 609.245, subdivision 1, which defines a first-degree aggravated robbery, is categorically a “violent felony” under the ACCA. U.S. v. Perry, __ F.3d __ (8th Cir. Nov. 15, 2018) No. 17-3236.
8th Circuit finds that robbery and assault were committed on separate occasions. (540) At defendant’s sentencing for being a felon in possession of a handgun, the district court imposed a 15-year minimum mandatory sentence under 18 U.S.C. § 924(e) (the Armed Career Criminal Act) in part because defendant had prior convictions for robbery and assault and therefore, the court held, two prior convictions for “violent felonies.” Defendant’s robbery and assault convictions occurred because he robbed a gas station and then shot at a witness who followed him after the robbery. The Eighth Circuit found that the assault was committed on an occasion different from the robbery and upheld the ACCA sentence. U.S. v. Perry, __ F.3d __ (8th Cir. Nov. 15. 2018) No. 17-3236.
8th Circuit says Minnesota domestic assault was properly treated as a felony. (540) Defendant, convicted of being a felon in possession of a firearm, was sentenced to a 15-year mandatory minimum under 18 U.S.C. § 924(e) (the Armed Career Criminal Act) in part because he had a prior conviction under Minnesota Statute § 609.2242, subdivision 4, for domestic assault, which the district court characterized as a “violent felony” under the ACCA. Although a violation of this Minnesota statute can be a misdemeanor, it is a felony if a conviction came within ten years of a second-degree assault conviction. Defendant argued that because his sentence had been separately enhanced under the ACCA for second-degree assault, categorizing his domestic assault conviction as a felony constituted an impermissible form of “double dipping.” The Eighth Circuit held that because Minnesota law plainly classifies domestic assault as a felony if the defendant had a prior conviction for second-degree assault, his prior domestic assault conviction fit into the ACCA’s definition of “violent felony.” U.S. v. Perry, __ F.3d __ (8th Cir. Nov. 15, 2018) No. 17-3236.
11th Circuit finds Florida second-degree murder is “violent felony.” (540) A defendant convicted of being a felon in possession of a firearm who had three prior convictions for, among other things, a “violent felony” is subject to a 15-yer mandatory minimum sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e). A “violent felony” is defined in part as a felony that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” The Eleventh Circuit held that second-degree murder, in violation of Florida Statute § 782.04(2), is categorically a “violent felony” under the ACCA. U.S. v. Jones, __ F.3d __ (11th Cir. Oct. 25, 2018) No. 17-12240.
5th Circuit upholds sentence for violating supervised release even though original sentence was no longer proper. (540)(580) Defendant pleaded guilty to possession of a firearm by a person convicted of a felony, in violation of 18 U.S.C. § 922(g), and received a 15-year sentence under the Armed Career Criminal Act, 18 U.S.C. §924(e). He did not challenge that sentence on appeal, and after completing his prison time, he was placed on supervised release. Thereafter, he violated the conditions of release, and the district court sentenced him to five years in custody. For the first time on appeal, defendant argued that his original ACCA sentence was invalid because, after the Supreme Court’s decision in Johnson v. U.S., 135 S.Ct. 2551 (2015), his prior convictions were no longer “violent felonies.” Thus, his original sentence should have been lower, and he should not have been on supervised release at the time that he violated the conditions of release. Reviewing for plain error, the Fifth Circuit found none, and upheld the supervised release sentence. U.S. v. Fuentes, __ F.3d __ (5th Cir. Oct. 11, 2018) No. 17-50407.
9th Circuit finds Washington drug trafficking is not a categorical match for generic offense. (330)(540) Defendant was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). He had three prior convictions under Washington Revised Code § 69.50.401 for unlawful delivery of a controlled substance. Based on these prior convictions, the district court sentenced him to 15 years under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The Ninth Circuit held that a violation of Washington Revised Code § 69.50.401 is not a categorical match for the generic offense of drug trafficking because Washington’s accomplice liability is broader than the generic offense. For that reason, , defendant should not have been sentenced under the ACCA. U.S. v. Franklin, __ F.3d __ (9th Cir. Sept. 13, 2018) No. 17-30011.
3rd Circuit holds Pennsylvania aggravated assault is not a violent felony under ACCA. (540) In his second § 2255 motion, defendant argued that, in light of Johnson v. U.S., 135 S.Ct. 2551 (2015), none of his prior convictions qualified as violent felonies under the ACCA. The district court found that each of the convictions remained a violent felony. The Third Circuit disagreed, holding that defendant’s Pennsylvania aggravated assault conviction, under 18 Pa. Cons. Stat. § 2702(a)(1), was not a violent felony under the ACCA’s elements clause. As Pennsylvania interprets § 2702(a)(1), it does not necessarily involve the element of physical force against another person as required by the Supreme Court’s interpretation of the ACCA. Pennsylvania case law establishes that a person violates § 2702(a)(1) by causing “serious bodily injury,” regardless of whether that injury results from any physical force, let alone the type of violent force contemplated by the ACCA. Because the Pennsylvania statute criminalized certain acts of omission, it swept more broadly than the ACCA’s definition of “physical force.” U.S. v. Mayo, __ F.3d __ (3d Cir. Aug. 22, 2018) No. 16-4282.
4th Circuit holds Maryland robbery with a deadly weapon is a violent felony under ACCA. (540) Defendant’s 40-year mandatory minimum sentence included a 15-year sentence under the ACCA based on the district court’s finding that he had at least three prior convictions “for a violent felony or a serious drug offense. The district court relied on two 1985 Maryland convictions for “robbery with a deadly weapon” and a 1991 federal conviction for “possession with intent to distribute – cocaine base.” The Fourth Circuit agreed that the Maryland convictions for robbery with a deadly weapon qualified as violent felonies. The court rejected defendant’s argument that Maryland recognized only one crime of robbery that could be committed with de minimis force or with force directed solely against property. The offense of armed robbery in Maryland required proof that the defendant committed (1) “[a] felonious taking and carrying away of the personal property of another from his person by the use of violence or by putting in fear,” (2) while using a “dangerous or deadly weapon.” Thus, the crime had as an element the use, attempted use, or threatened use of physical force against the person of another. U.S. v. Bell, __ F.3d __ (4th Cir. Aug. 28, 2018) No. 16-4343.
4th Circuit rejects substituting different prior conviction on collateral review to support ACCA increase. (540)(880) Defendant filed a second motion under § 2255, arguing that his ACCA sentence was invalid in light of Johnson v. U.S., 135 S.Ct. 2551 (2015). The government conceded that defendant’s Maryland reckless-endangerment conviction was no longer a violent felony post-Johnson. However, it argued that his Maryland cocaine conviction qualified as an ACCA predicate, even though the PSR did not identify it as one. The district court denied defendant’s § 2255 motion, finding that his Maryland drug conviction qualified as an ACCA predicate. The Fourth Circuit agreed that Maryland reckless endangerment no longer qualified as a violent felony. However, it also rejected the government’s attempt to revive the ACCA enhancement by arguing for the first time on collateral review that a different conviction could serve as a substitute predicate. When the government or the sentencing court chooses to specify which of the convictions listed in the PSR it is using to support an ACCA enhancement, it thereby narrows the defendant’s notice of potential ACCA predicates. The government failed to provide defendant with sufficient notice of its intent to use this conviction to support an ACCA enhancement. Therefore, it lost its right to use the conviction to prevent defendant from obtaining relief now. U.S. v. Hodge, __ F.3d __ (4th Cir. Aug. 22, 2018) No. 17-6054.
10th Circuit denies § 2255 relief where defendant did not show that court relied on “residual clause.” (540)(880) Relying on Johnson v. U.S., 135 S. Ct. 2551 (2015), which invalidated the residual clause of the Armed Career Criminal Act, defendant moved under 28 U.S.C. § 2255 to vacate his sentence. He contended that his prior burglary conviction under Kansas statute 21-3715 only qualified as a violent felony under the now-void residual clause. The district court denied the petition, and defendant sought a certificate of appealability. The Tenth Circuit granted the COA, but denied the petition on the merits. Although defendant Johnson claim was timely, he failed to show that the district court relied on the “residual clause” in finding that defendant’s prior conviction was for a violent felony. The sentencing court did not articulate which of the three § 924(e)(2) clauses it relied on. Defendant did not meet his burden in showing that the sentencing court more likely than not relied on the residual clause in classifying his Kansas burglary as a predicate crime of violence and, thus, did not establish a Johnson error. U.S. v. Lewis, __ F.3d __ (10th Cir. Sept 13, 2018) No. 17-7033.
3rd Circuit holds Pennsylvania robberies were not categorically violent felonies. (540)(880) In a second § 2255 motion, defendant challenged his 15-year sentence under the Armed Career Criminal Act in light of the Supreme Court’s decision in Johnson v. U.S., __ U.S. __, 135 S.Ct. 2551 (2015), which invalidated the residual clause in the ACCA’s definition of a violent felony. The district court denied the motion, but on appeal, the Third Circuit reversed, holding that the Pennsylvania robbery convictions did not qualify as violent felonies under the ACCA’s “elements” clause. The Pennsylvania robbery statute was divisible, and the least culpable act covered by the statute at the time of defendant’s convictions criminalized physically taking or removing “property from the person of another by force however slight.” 18 Pa. Cons. Stat. § 3701(a)(1)(v). Pennsylvania law interpreted “force however slight” to include “any amount of force applied to a person while committing a theft[,]” including the mere “use of threatening words or gestures, and operates on the mind.” This was insufficient to meet the “physical force” requirement under the ACCA’s elements clause. U.S. v. Peppers, __ F.3d __ (3d Cir. Aug. 13, 2018) No. 17-1029.
3rd Circuit says defendant forfeited argument that Pennsylvania burglary was not a violent felony. (540) Defendant challenged his 15-year sentence under the Armed Career Criminal Act in light of the Supreme Court’s decision in Johnson v. U.S., __ U.S. __, 135 S.Ct. 2551 (2015), which invalidated the “residual” clause in the ACCA’s definition of a violent felony. The district court denied the § 2255 motion, finding that his prior convictions remained predicate offenses for ACCA purposes. With regard to defendant’s prior burglary conviction under 18 Pa. Cons. Stat. § 3501, the Third Circuit found that defendant forfeited his claim by failing to raise it in the district court or in his appeal. The court did note, however, the Pennsylvania burglary statute is broader than the generic definition of burglary because it includes vehicles within its definition of occupied structure, while generic burglary does not. U.S. v. Peppers, __ F.3d __ (3d Cir. Aug. 13, 2018) No. 17-1029.
6th Circuit holds Tennessee reckless aggravated assault is a crime of violence under “force” clause of ACCA. (540) Defendant filed a §2255 motion to vacate his ACCA sentence on the grounds that his prior Tennessee aggravated assault convictions did not qualify as violent felonies. The district court granted the petition, relying on U.S. v. McMurray, 653 F.3d 367, 377 (6th Cir. 2011), which held that reckless aggravated assault was not a violent felony under the ACCA’s use-of-force clause. The Sixth Circuit reversed, agreeing with the government that Voisine v. U.S., __ U.S. __, 136 S.Ct. 2272 (2016), had overruled McMurray by holding that the ACCA’s use-of-force clause encompassed reckless conduct. Moreover, in U.S. v. Harper, 875 F.3d 329, 330 (6th Cir. 2017) the court concluded that reckless aggravated assault in Tennessee is a crime of violence under guideline § 4B1.2’s use-of-force clause. Harper’s reasoning applies as well to the ACCA’s use-of-force clause. Thus, Tennessee reckless aggravated assault, § 39-13-102(a)(1), is a crime of violence. Davis v. U.S., __ F.3d __ (6th Cir. Aug. 16, 2018) No. 17-5659.
8th Circuit remands to address whether residual clause provided basis for ACCA sentence. (540) Defendant was sentenced under the Armed Career Criminal Act, based in part on the district court’s finding that his prior Missouri burglary convictions were violent felonies. His first § 2255 motion was denied, but after Johnson v. U.S., 576 U.S. __, 135 S.Ct. 2551 (2015) invalidated the ACCA’s “residual” clause, defendant was allowed to file a successive § 2255 motion. The district court denied relief, finding that the burglary convictions still qualified as violent felonies under the “enumerated offenses” clause. Defendant appealed, arguing that his original sentence relied on the residual clause. The Eighth Circuit agreed with those circuits that require a movant to show by a preponderance of the evidence that the residual clause led the sentencing court to apply the ACCA enhancement. It remanded for the defendant to show that the district court relied on the residual clause in finding that his prior convictions were violent felonies. The district court should proceed on the merits only if defendant is able to carry his burden. Walker v. U.S., __ F.3d __ (8th Cir. Aug. 20, 2018) No. 16-4284.
11th Circuit holds Indiana felony battery convictions were violent felonies. (540) In a § 2255 motion, defendant argued that his Indiana battery convictions were no longer violent felonies under the ACCA in light of Johnson v. U.S., 576 U.S. __, 135 S.Ct. 2551 (2015). The district court acknowledged that Johnson invalidated the ACCA’s residual clause, but ruled that the Indiana convictions were still violent felonies under the ACCA’s “elements” clause. Under Curtis Johnson v. U.S., 559 U.S. 133, 140 (2010), the requirement of “physical force” means “violent force—that is, force capable of causing physical pain or injury to another person.” In U.S. v. Vail-Bailon, 868 F.3d 1293 (11th Cir. 2017) (en banc), the Eleventh Circuit held that the Curtis Johnson test for physical force was “whether the statute calls for violent force that is capable of causing physical pain or injury to another.” Here, the Eleventh Circuit held that Vail-Bailon established that defendant’s Indiana felony battery convictions qualified as violent felonies. A conviction for Indiana felony battery required “bodily injury.” Under state law, that meant, at a minimum, that the victim must suffer physical pain or injury. Therefore, the Indiana statute necessarily required that the defendant use “force capable of causing physical pain or injury.” U.S. v. Colon, __ F.3d __ (11th Cir. Aug. 16, 2018) No. 17-15357.
(540) U.S. v. Cornish 103 F.3d 302, 309 (3d Cir. 1997), abrogated by Johnson v. U.S., 559 U.S. 133, (2010); U.S. v. Peppers, __ F.3d __ (3d Cir. Aug. 13, 2018) No. 17-1029.
1st Circuit says Massachusetts ADW, New York attempted second-degree assault, and New York first degree robbery were violent felonies. (540)(880) Relying on Johnson v. U.S., __ U.S. __, 135 S.Ct. 2551 (2015), defendant moved under § 2255, arguing that he should not have been sentenced under the Armed Career Criminal Act (ACCA). The First Circuit upheld the district court’s denial of his motion, holding that (1) defendant’s Massachusetts conviction for assault with a deadly weapon was a predicate offense under the ACCA’s force clause, (2) his New York conviction for attempted second-degree assault under New York Penal Law § 120.05(7) qualified as a violent felony under the ACCA’s force clause, and (3) his conviction for New York first-degree robbery under New York Penal Law § 160.15(4) qualified as a violent felony. The panel’s analysis was consistent with that of many other circuits, and as to the New York first-degree robbery conviction, consistent with the Second Circuit in Stuckey v. U.S., 878 F.3d 62 (2d Cir. 2017), petition for cert. filed, No. 17-9369 (June 11, 2018). U.S. v. Lassend, __ F.3d __ (1st Cir. Aug. 2, 2018) No. 17-1900.
5th Circuit looks at law at time of sentencing to decide if sentence was based on enumerated offenses or residual clause. (540)(880) In 2003, defendant was sentenced under the Armed Career Criminal Act (ACCA). His first habeas petition, in 2004, was denied. In 2015, the Supreme Court decided Johnson v. U.S., __ U.S. __, 135 S.Ct. 2551 (2015), which held that the ACCA’s residual clause definition of a “violent felony” was unconstitutionally vague. Relying on Johnson, defendant brought a successive habeas petition, arguing that his sentence should not have been enhanced under the ACCA because his Texas burglary conviction, Texas Penal Code § 30.02(a)(3), was no longer a violent felony. The appellate court tentatively granted permission for defendant to file the second motion, stating that “the district court must dismiss the § 2255 motion without reaching the merits if it determines that [defendant] has failed to make the showing required to file such a motion.” On remand, the district court denied defendant’s motion on the merits. In this second appeal, the Fifth Circuit held that the district court lacked jurisdiction to reach the merits of defendant’s motion. Rather, the court should have looked to the law at the time of sentencing to determine whether a sentence was imposed under the residual clause of the ACCA’s definition of violent felony. Defendant could not make that showing here because, in 2003, when defendant was convicted of being a felon in possession, all of § 30.02(a) was considered generic burglary under the enumerated offenses clause of ACCA. U.S. v. Wiese, __ F.3d __ (5th Cir. July 23, 2018) No. 17-50445.
6th Circuit reverses corrected “time served” sentence that exceeded statutory maximum. (540)(880) Defendant was convicted of firearm charges. He was sentenced to 24 years under the Armed Career Criminal Act, which overrode a 10-year statutory maximum for his conviction. While in prison, defendant was convicted of drug charges and sentenced to an additional 151 months, to be served consecutively to his existing 24-year sentence. After the Supreme Court invalidated the ACCA’s residual clause, Johnson v. U.S., __ U.S. __, 135 S.Ct. 2551 (2015), defendant filed a motion for resentencing under 18 U.S.C. 2255. The district court granted the motion. By the time the court entered defendant’s corrected sentence, defendant had already served 12 years in prison, two years more than the ten-year statutory maximum for his firearm offense. The district court denied defendant’s request for a guidelines-range sentence, and instead imposed a corrected sentence of “time served,” or 12 years. The Sixth Circuit agreed with defendant that the sentence of “time served” exceeded the statutory maximum and had to be set aside. The panel also ruled that corrected sentences imposed on motion to vacate, set aside or correct sentence are subject to reasonableness review. The corrected sentence here was both procedurally and substantively unreasonable. U.S. v. Nichols, __ F.3d __ (6th Cir. July 30, 2018) No. 17-5580.
8th Circuit holds Arkansas first-degree terroristic threatening was a violent felony. (540) Defendant was sentenced under the Armed Career Criminal Act based in part on his Arkansas conviction for first-degree terroristic threatening. His conviction was under Arkansas Code Annotated § 5-13-301(a)(1)(A), which applied to a person who “[w]ith the purpose of terrorizing another person, … threatens to cause death or serious physical injury or substantial property damage to another person.” The Eighth Circuit ruled that this was a violent felony. Under U.S. v. Boaz, 558 F.3d 800 (8th Cir. 2009), § 5-13-301(a)(1)(A) was divisible, and defined two separate offenses: threats of death or serious bodily injury and threats to property. Applying the modified categorical approach, a review of permissible materials showed that defendant was convicted of threatening to kill his girlfriend. Thus, the conviction was a violent felony because it “has as an element the … threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). U.S. v. Myers, __ F.3d __ (8th Cir. July 23, 2018) No. 17-2415.
8th Circuit says Arkansas second-degree battery was violent felony. (540) Defendant was sentenced under the Armed Career Criminal Act based in part on the district court’s finding his Arkansas conviction for second-degree battery was a violent felony. His conviction was under subsection (a)(1) of Arkansas Code Annotated § 5-13-202(a), which applied to a person who “[w]ith the purpose of causing physical injury to another person, … causes serious physical injury to any person.” The Eighth Circuit held that the court properly counted defendant’s Arkansas second-degree battery conviction as a violent felony under the ACCA. In U.S. v. Winston, 845 F.3d 876 (8th Cir. 2017), the court held that a conviction under subsection (a)(2), identical to subsection (a)(1) except requiring use of “a deadly weapon other than a firearm,” was a violent felony. Winston did not rely on subsection (a)(2)’s requirement of the use of a deadly weapon. Rather, it held that the statute required a showing of physical injury, which was equivalent to physical force. Because subsection (a)(1), like subsection (a)(2), had “as an element the use, attempted use, or threatened use of physical force” against another person, it was a violent felony under the ACCA. U.S. v. Myers, __ F.3d __ (8th Cir. July 23, 2018) No. 17-2415.
5th Circuit finds Texas simple robbery was not a violent felony under ACCA’s force clause. (540) Defendant was sentenced under the Armed Career Criminal Act (ACCA), based in part on the court’s finding that his prior Texas conviction for robbery was a violent felony. The Fifth Circuit reversed, holding that the Texas robbery statute did not have “use, attempted use, or threatened use of physical force” as an element, and therefore did not qualify as a violent felony. Texas robbery is defined in § 29.02(a) of the Texas Penal Code to include robbery by injury and robbery by threat. Neither variant satisfied the use of force requirement for a violent felony. Precedent compelled the holding that a person may “cause bodily injury” under Texas law without using “physical force” as defined under federal law, and the panel concluded that recent Supreme Court cases did not disturb this precedent. Judge Ho dissented. U.S. v. Burris, __ F.3d __ (5th Cir. July 16, 2018) No. 17-10478.
7th Circuit asks Wisconsin Supreme Court to interpret state burglary statute. (540) The district court sentenced defendants to a mandatory minimum sentence of 15 years, based on its finding that their three prior burglary convictions were violent felonies under the Armed Career Criminal Act (ACCA). The Court of Appeals affirmed, and defendants filed a petition for panel rehearing. On rehearing, the Seventh Circuit vacated the judgment, and certified the question to Wisconsin Supreme Court as to whether different subsections of the Wisconsin burglary statute, Wis. Stat. § 943.10(1m), identified alternative elements of burglary or alternative means of committing burglary. The Wisconsin statute identified multiple locations where a burglary could be committed. U.S. v. Franklin, __ F.3d __ (7th Cir. July 17, 2018) No. 16-1580, vacating U.S. v. Franklin, 884 F.3d 331 (7th Cir. 2018) .
(540) U.S. v. Franklin, 884 F.3d 331 (7th Cir. 2018), vacated by U.S. v. Franklin, __ F.3d __ (7th Cir. July 17, 2018) No. 16-1580.
11th Circuit holds that 15-year sentence under ACCA was not cruel or unusual. (140)(540) Defendant was convicted of being a felon in possession of a firearm, and was sentenced under the Armed Career Criminal Act to the statutory minimum of 15 years, 18 U.S.C. § 924(e)(1), and USSG § 4B1.4. The Eleventh Circuit rejected defendant’s argument that the armed career criminal enhancement violated his Eighth Amendment right to be free from cruel and unusual punishment. It was “well-settled law that a longer sentence may be imposed on a recidivist, based on his criminal history, even if the offense of conviction is relatively minor in nature.” U.S. v. Lyons, 403 F.3d 1248 (11th Cir. 2005) Possession of a firearm by a convicted felon is not a “relatively minor” crime.” U.S. v. Morales, 893 F.3d 1360 (11th Cir. June 29, 2018) No. 16-16507.
8th Circuit reverses where defendant was improperly sentenced as Armed Career Criminal. (540) Defendant sought post-conviction relief on the ground that his 216-month prison sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), was unconstitutional. He contended that his convictions for Missouri second-degree burglary and Illinois burglary were not violent felonies under the ACCA in light of Johnson v. U.S., __ U.S. __, 135 S.Ct. 2551 (2015), which held that the residual clause definition of “violent felony” in § 924(e)(32)(B)(ii) was unconstitutionally vague. The district court denied relief, but the Eighth Circuit later held that neither Illinois burglary nor Missouri second-degree burglary were violent felonies under the ACCA. The Eighth Circuit thus concluded, and the government conceded, that defendant did not have three qualifying prior convictions and was improperly sentenced as an armed career criminal. The error was not harmless, even though the district court could have imposed a 216-month sentence by running defendant’s two sentences consecutively. The court never said that it would have imposed the same sentence without the enhancement, and it seemed to signal the contrary in the post-conviction proceeding. Cravens v. U.S., __ F.3d __ (8th Cir. July 2, 2018) No. 16-3078.
D.C. Circuit holds D.C. assault with a dangerous weapon was violent felony. (540) The government appealed the district court’s refusal to sentence defendant as an armed career criminal, arguing in part that his prior D.C. conviction for assault with a dangerous weapon qualified as a violent felony under the Armed Career Criminal Act. In U.S. v. Brown, __ F.3d __ (D.C. Cir. June 15, 2018) No. 15-3056, decided a week earlier, the D.C. Circuit ruled that the elements of this offense indicated that it was a violent felony. The D.C. Circuit therefore agreed with the government that defendant should have been sentenced under the ACCA. The panel rejected defendant’s argument that the D.C. offense could be committed with so-called indirect force, such as using a hazardous chemical to burn someone. Moreover, in U.S. v. Castleman, 134 S.Ct. 1405 (2014), the Supreme Court refused to distinguish between indirect and direct physical force. The ACCA does require that the physical force be violent, that is “force capable of causing physical pain or injury to another person.” But by analogy to Castleman, so-called indirect violent force was still violent force. Moreover, Voisine v. U.S., 136 S.Ct. 2272 (2016), rejected the argument that the D.C. offense could be committed recklessly. U.S. v. Haight, __ F.3d __ (8th Cir. June 22, 2018) No. 16-3123.
D.C. Circuit rules Maryland first-degree assault was a violent felony. (540) Defendant argued for the first time on appeal that his Maryland first-degree assault conviction, Md. Code, Crim. Law § 3-202(a), was not a violent felony. The D.C. Circuit held that the district court did not properly classified the conviction as a violent felony under the ACCA. To convict a defendant of first degree assault, the government must prove that the defendant committed a second-degree assault, and either (1) used a firearm to commit assault, or (2) intended to cause serious physical injury in the commotion of the assault. The additional elements that converted Maryland second-degree assault into first-degree assault required defendant to use, attempt to use, or threaten to use violent force against another person. U.S. v. Haight, __ F.3d __ (8th Cir. June 22, 2018) No. 16-3123.
2nd Circuit holds Connecticut first-degree assault was a violent felony. (540) The district court ruled that defendant’s Connecticut conviction for first-degree assault, Conn. Gen. Stat. § 53a-59(a)(1), was not a violent felony under the ACCA. On appeal, the Second Circuit reversed. The Connecticut statute was divisible into subsections, and the modified categorical approach was applicable. Defendant was convicted under subsection (1), which applies when a defendant uses a deadly weapon or dangerous instrument. Defendant contended that the offense did not require the use of physical force because, under the definition of “dangerous instrument” the offense could be committed by use of a “substance,” and the use of a poisonous substance to kill or injury would not constitute the use of physical force. However, in U.S. v. Castleman, 134 S.Ct. 1405 (2014), the Supreme Court rejected this reasoning. Villanueva v. U.S., __ F.3d __ (2d Cir. June 22, 2018) No. 16-2528.
5th Circuit says Texas robbery was not a violent felony. (540) Defendant was sentenced under the Armed Career Criminal Act (ACCA) based on the district court’s finding that his prior Texas conviction for robbery was a violent felony. The Fifth Circuit reversed, ruling that it was not a violent felony because the Texas robbery statute did not have the “use, attempted use, or threatened use of physical force” as an element. Texas robbery is defined in § 29.02(a) of the Texas Penal Code to include “robbery-by-injury,” and “robbery-by-threat.” The panel found that neither one of these options required the “use, attempted use, or threatened use of physical force.” A person can cause injury without using physical force. The Texas Court of Criminal Appeals has interpreted the definition of “bodily injury” quite expansively, noting that “[t]his definition appears to be purposefully broad and seems to encompass even relatively minor physical contacts so long as they constitute more than mere offensive touching.” U.S. v. Burris, __ F.3d __ (5th Cir. June 18, 2018) No. 17-10478.
10th Circuit holds Nebraska burglary was not a violent felony. (540)(880) In 2004, defendant was sentenced as an armed career criminal based on two prior burglary convictions. The sentencing court did not state whether the burglaries counted as violent felonies under the ACCA’s enumerated offenses clause or the residual clause. Defendant then filed this 28 U.S.C. § 2255 motion arguing that it was possible the sentencing court relied on the now-unconstitutional residual clause of the ACCA. See Johnson v. U.S., 135 S. Ct. 2551 (2015). The district court denied the § 2255 motion as untimely. The Tenth Circuit reversed and remanded for resentencing. Under U.S. v. Snyder, 871 F.3d 1122 (10th Cir. 2017), defendant’s § 2255 motion was timely because he asserted a Johnson claim within a year after the decision. As for the merits of defendant’s claim, because Neb. Rev. Stat. § 28-507 included land, it did not categorically fit under the generic offense of burglary, which is limited to buildings or structures. As a result, defendant’s 1988 Nebraska burglary conviction was not a violent felony as defined by the enumerated offenses clause of the ACCA. U.S. v. Driscoll, __ F.3d __ (10th Cir. June 14, 2018) No. 16-8118.
4th Circuit says Georgia robbery was not a crime of violence. (520)(540) As a result of Johnson v. U.S., 135 S.Ct. 2551 (2015), the district court vacated defendant’s 400-month sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), because his prior Georgia robbery convictions no longer qualified as ACCA predicates. However, the court found that the convictions were crimes of violence under the 2016 career offender guideline, §4B1.2. This resulted in a higher guidelines range than the original sentencing. To avoid violating the ex post facto clause, the district court sentenced defendant under the 1991 guidelines. On appeal, the Fourth Circuit reversed, holding that Georgia robbery is broader than generic robbery because Georgia robbery can be committed “[b]y sudden snatching,” and case law has construed that term more broadly than generic robbery. Accordingly, defendant was not a career offender under either version of the guidelines. U.S. v. Fluker, __ F.3d __ (4th Cir. June 5, 2018) No. 17-4690.
10th Circuit holds Colorado robbery was violent felony, even when committed by threats or intimidation. (540)(880) Defendant was sentenced under the Armed Career Criminal Act (ACCA) based in part on the district court’s finding that his Colorado robbery conviction under Colo. Rev. Stat. §18-4-301(1) was a violent felony. The Supreme Court later held the residual clause definition of a violent felony in the ACCA was unconstitutionally vague, Johnson v. U.S., 135 S.Ct. 2551 (2015). Defendant moved to vacate his sentence under 28 U.S.C. §2255, arguing that his Colorado robbery conviction no longer qualified as a violent felony. The district court denied relief, finding Colorado’s robbery statute satisfied the “elements” clause of the ACCA, because it had as an element the use or threatened use of “physical force” against another. On appeal, the Tenth Circuit affirmed. Colorado cases have made clear that robbery in Colorado requires a “violent taking.” Because Colorado remained committed to the common law definition of robbery, the panel rejected other recent circuit-level decisions concluding that robbery was not a violent felony. U.S. v. Harris, 844 F.3d 1260 (10th Cir. 2017).
11th Circuit holds Florida third-degree battery was violent felony under elements clause of ACCA. (540) The district court sentenced defendant under the Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e), based in part on his Florida conviction for third-degree felony battery in violation of Fla. Stat. §784.03. In 2010, the Supreme Court held that Florida battery under §784.03 does not categorically satisfy the ACCA’s elements clause because it can be accomplished by any intentional touching, “no matter how slight.” Johnson v. U.S., 559 U.S. 133, (2010). Nonetheless, the Eleventh Circuit held that the defendant’s Florida §784.03 battery conviction did qualify as a violent felony under the “elements” clause of the ACCA. Moreover, the crime here could qualify under the modified categorical approach, because Shepard documents showed that defendant was convicted under the “striking” element, and not the “actually and intentionally” touching element, of §784.03. Applying the modified categorical approach, defendant’s felony battery conviction under §784.03 was a “violent felony” under the elements clause. U.S. v. Green, 842 F.3d 1299 (11th Cir. 2016).
11th Circuit finds defendant waived objection to armed career criminal enhancement. (540)(855) Defendant argued on appeal that his 2008 Florida conviction for possession of cocaine with intent to sell or deliver did not qualify as a serious drug offense for purposes of the armed-career-criminal enhancement, 18 U.S.C. §924(e). However, at sentencing, defense counsel said he had reviewed defendant’s underlying convictions and believed the enhancement applied. When the district court asked defendant to confirm that he did not contest his designation as an armed career criminal, defendant responded: “That’s what the record states, yes.” Based on this, the Eleventh Circuit concluded that defendant waived any challenge he may have had to this enhancement. Moreover, U.S. v. Smith, 775 F.3d 1262 (11th Cir. 2014), foreclosed his argument that his conviction for possession of cocaine with intent to sell or deliver under Florida Statute §893.13(1) was not a serious drug offense. U.S. v. Cobb, 842 F.3d 1213 (11th Cir. 2016).
4th Circuit holds South Carolina strong arm robbery was “violent felony.” (540) The district court sentenced defendant under the Armed Career Criminal Act based on part on its finding that his prior South Carolina conviction for strong arm robbery qualified as a violent felony. The Fourth Circuit affirmed. A defendant can commit robbery in South Carolina by alternative means of “violence” or “intimidation.” Under South Carolina law, intimidation necessarily involves the threatened use of physical force. See State v. Mitchell, 382 S.C. 1 (2009). After examining South Carolina law, the panel concluded that the force threatened constituted “physical force” within the meaning of the ACCA. The Supreme Court has defined “physical force” as “violent force—that is, force capable of causing physical pain or injury to another person.” Johnson v. U.S., 559 U.S. 133 (2010). To constitute intimidation in South Carolina, a robbery victim must “feel a threat of bodily harm” based on the defendant’s acts. These two standards aligned. There was no meaningful difference between a victim feeling a threat of bodily harm and feeling a threat of physical pain or injury. U.S. v. Doctor, 842 F.3d 306 (4th Cir. 2016).
11th Circuit relies on indictments to find that Georgia burglary convictions were violent felonies. (540) De¬fendant was sentenced under the Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e), based in part on the district court’s finding that his prior Georgia burglary convictions were violent felonies. The Eleventh Circuit affirmed. Georgia’s burglary statute, Ga. Code Ann. §16-7-1(a) (2011), was broader than generic burglary because italso encompassed unlawful entry into vehicles, railroad cars, watercraft, or aircraft. However, the plain text of the Georgia statute had three subsets of locational ele-ments, stated in the disjunctive. Thus, the burglary statute effectively created several different crimes. Here, the state court indictments made clear that defendant’s Geor¬gia burglary convictions involved an unlawful entry into a dwelling house or building, with intent to commit a crime therein. These elements substantially conformed to the generic definition of burglary, and thus, qualified as violent felonies. U.S. v. Gundy, 842 F.3d 1156 (11th Cir. 2016).
D.C. Circuit holds that Maryland convictions for robbery with a deadly weapon were violent felonies under ACCA. (540) Defendant was sentenced under the Armed Career Criminal Act (ACCA) to 188 months. He contested the applicability of the ACCA enhancement in light of an intervening Supreme Court opinion, Johnson v. United States, __ U.S. ___, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015), which held that one of the ACCA’s definitions of a violent felony was unconstitutionally vague. The D.C. Circuit upheld the ACCA sentence, ruling that Maryland Robbery with a Deadly Weapon was a violent felony under the ACCA’s still-valid force clause. Maryland armed robbery, a crime that differed from simple robbery in its requirement that the defendant commit the crime with the use of a dangerous or deadly weapon, contained “as an element the use, attempted use, or threatened use of physical force against the person of another.” Common law robbery itself is and always has been a crime against a person. The additional element of “use” of a dangerous or deadly weapon supplied at minimum a “threat” of physical force against the person of another. U.S. v. Redrick, 841 F.3d 478 (D.C. Cir. 2016).
1st Circuit reaffirms that Massachusetts assault with a dangerous weapon was violent felony. (540) Defendant argued that he was improperly sentenced under the Armed Career Criminal Act, 18 U.S.C. §924(e)(1). He conceded that his two prior drug convictions qualified as serious drug offenses, but argued that neither of his Massachusetts assault convictions qualified as the third predicate offense. However, in U.S. v. Whindleton, 797 F.3d 105 (1st Cir. 2015), the First Circuit held that a conviction under Massachusetts law for assault with a dangerous weapon qualified as a violent felony under 18 U.S.C. §924(e). Defendant argued that Whindleton was wrongly decided in light of the Supreme Court’s 2015 decision in Johnson v. United States, __ U.S. __, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015). The First Circuit disagreed, noting that the circuit had previously considered and rejected these same arguments in U.S. v. Fields, 823 F.3d 20 (1st Cir. 2016), and U.S. v. Hudson, 823 F.3d 11 (1st Cir. 2016). Accordingly, the district court properly sentenced defendant under the ACCA. U.S. v. Dawn, 842 F.3d 3 (1st Cir. 2016).
11th Circuit holds that Florida armed robbery qualified as violent felony under elements clause of ACCA. (540) The district court sentenced defendant under the Armed Career Criminal Act (ACCA) to 15 years based in part on its finding that his 1989 Florida armed robbery conviction qualified as prior conviction for a “violent felony” under the ACCA. Robbery is not an enumerated crime, and the Supreme Court struck down the ACCA’s residual clause as unconstitutionally vague in Johnson v. United States, 576 U.S. __, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015). The Eleventh Circuit affirmed the ACCA sentence, holding that the conviction qualified as a “violent felony” under the “elements” clause of the ACCA. The panel was bound by U.S. v. Lockley, 632 F.3d 1238 (11th Cir. 2011), which held that Florida robbery was categorically a crime of violence under the elements of even the least culpable of acts criminalized by Florida Statutes §812.13(1). U.S. v. Fritts, 841 F.3d 937 (11th Cir. 2016).
[Editor’s Note: Cases interpreting the phrases “crime of violence,” “violent felony,” “controlled substance offense,” and the like can be found in the termination that the Armed Career Criminal Acts’s 15-year mandatory minimum applied to him. He pointed out that his three predicate convictions occurred at the same time, as a result of a comprehensive July 2009 plea agreement, and therefore should they have been treated as a single conviction. The First Circuit disagreed. Each conviction was register¬ed in a separate judgment, and this circuit previously rejected the idea that consolidating convictions for sentencing was sufficient to merge them into a single ACCA predicate. See U.S. v. Riddle, 47 F.3d 460 (1st Cir. 1995). The panel also rejected defendant’s claim, raised for the first time on appeal, that his prior robbery conviction was not a “violent felony” under the ACCA. The court never suggested it was relying on the now-invalidated residual clause. U.S. v. Reed, __ F.3d __ (1st Cir. July 18, 2016) No. 15-1262.
6th Circuit rules Michigan breaking and entering was not “burglary” for ACCA purposes. (520)(540) Defendant pled guilty to being a felon in possession of a fire¬arm. He was sentenced under the Armed Career Criminal Act (ACCA) based in part on several prior Michigan convictions for breaking and entering, under Mich. Comp. Laws §750.110. The Sixth Circuit held that the offense did not qualify as a predicate violent felony under the ACCA because it was broader than generic burglary, and was not divisible under the Supreme Court’s recent decision in Mathis v. U.S., __ U.S. __, 136 S.Ct. 2243 (2016). Previous cases have found that although the current version of §750.110 is broader than generic burglary, courts may use the modified categorical approach to determine whether the defendant was actually convicted of generic burglary. How¬ever, Mathis limit¬ed the ACCA inquiry to the elements of a statute, rather than treating as divisible a non-generic burglary statute that listed alternative means for satisfying a particular element. The panel concluded that the Michigan law was not elements based, but provided alternate means of committing the crime. The crime was not divisible, and therefore, because it was broader than generic burglary, could not serve as a predicate offense under the ACCA. U.S. v. Ritchey, 840 F.3d 310 (6th Cir. 2016).
7th Circuit holds Illinois burglaries were not violent felonies under ACCA. (520)(540) Defendant was sentenced under the Armed Career Criminal Act (ACCA) based in part on the district court’s finding that his prior Illinois burglary convictions were violent felonies. On appeal, the parties agreed that given recent developments in the law, defendant’s burglary convictions could not count as predicate convictions under the ACCA. The Illinois statute applied not only to burglary of buildings, but also to vehicles, such as “housetrailer[s], watercraft, aircraft, motor vehicle[s] … [and] railroad car[s].” 38 ILCS §19–1 (1971). So, like the Iowa statute at issue in Mathis v. U.S., __ U.S. __, 136 S.Ct. 2243 (2016), the Illinois statute was broader than generic burglary. Thus, the Seventh Circuit agreed with the parties that defendant’s Illinois burglary convictions were not violent felonies under the ACCA. U.S. v. Shakbazyan, 841 F.3d 286 (5th Cir. 2016).
5th Circuit remands to decide if Pennsylvania aggravated assaults were violent felonies and committed on different occasions. (520)(540) Defendant was sentenced as an armed career criminal based in part on burglary convictions that the government conceded on appeal did not qualify as violent felonies. However, the government argued that defendant qualified as an armed career criminal because of three prior Pennsylvania aggravated-assault convictions. The Fifth Circuit found it unnecessary to decide this issue because, even if the aggravated assault convictions were violent felonies, defendant would still be one predicate short of being an armed career criminal if all three assaults occurred on the same “occasion.” That issue was never addressed at sentencing. The panel vacated the sentence and remanded for the district court to determine whether (1) aggravated assault in Pennsylvania was a violent felony, and (2) whether defendant committed the three assaults on different occasions. U.S. v. Shakbazyan, 841 F.3d 286 (5th Cir. 2016).
8th Circuit reverses failure to apply modified categorical approach to Minnesota burglary conviction. (540) Defendant was sentenced under the Armed Career Criminal Act (ACCA) based on his 1987 Minnesota conviction for third-degree burglary, and his 1998 Minnesota convictions for attempted aggravated robbery with a dangerous weapon and second-degree burglary. Defendant argued that Minnesota’s burglary statutes were divisible, because they defined multiple methods by which burglary could be committed, and only one subsection included an element involving violence. The Eighth Circuit agreed, noting that it recently held that Minnesota’s current third-degree burglary statute was divisible. U.S. v. McArthur, 836 F.3d 931 (8th Cir. 2016). Because §609.582(2) Minn. Statutes was divisible, the district court should have applied the modified categorical approach to ascertain which alternative of the statute form¬ed the basis of defendant’s conviction, and whether he thus qualified for enhanced an sentence under the ACCA. U.S. v. Walker, 840 F.3d 477 (8th Cir. Oct. 18, 2016) No. 15-2921.
11th Circuit holds Florida armed robberies were violent felonies under ACCA. (540) The district court found that defendant qualified as an armed career crimi¬nal under the Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e), because he had six prior Florida armed robbery convictions, each of which qualified as a “violent felony” under the ACCA. The Eleventh Circuit agreed, ruling that defendant was an armed career criminal because his prior Florida armed robbery convictions under Fla. Stat. §812.13 qualified as violent felonies under the ACCA’s elements clause in §924(e)(2)(B)(I). However, each of the three panel members disagreed as to the reasons why. Judge Hull believed that U.S. v. Dowd, 451 F.3d 1244 (11th Cir. 2006), was controlling, because it held that a Florida armed robbery conviction, such as defendant’s, categorically qualified as a violent felony under the ACCA’s elements clause. Judge Baldock declined to reach the Dowd issue because he believed that under U.S. v. Lockley, 632 F.3d 1238 (11th Cir. 2011), defendant qualified as an armed career criminal. Judge Martin believed the Dowd was no longer good law, but agreed that Lockley required defendant’s Florida convictions for armed robbery to be counted in his 2015 ACCA sentence. U.S. v. Seabrooks, 839 F.3d 1326 (11th Cir. 2016).
11th Circuit holds Alabama possession of marijuana for “other than personal use” was a serious drug offense. (540) Defendant was convicted of firearms charges. Based in part on his prior Alabama conviction for first-degree possession of marijuana, the district court sentenced him under the Armed Career Criminal Act. Defendant was convicted of first-degree possession of marijuana “for other than personal use” under §13A–12–213(a)(1) of the Alabama Code. Defendant argued that the offense was not a serious drug offense under the ACCA because the Alabama statute did not expressly require “manufacturing, distributing, or possessing with intent” to do either. See 18 U.S.C. §924(e)(2)(A)(ii). The Eleventh Circuit noted that it had previously rejected defendant’s argument in U.S. v. Robinson, 583 F.3d 1292 (11th Cir. 2009). Possession of marijuana “for someone else’s use” necessarily involves possession “with the intent to distribute” it to another person. Consequently, Robinson held that a conviction for possession of marijuana for other than personal use under §13A–12–213(a)(1) qualified as a serious drug offense under the ACCA. Robinson has not been overruled. U.S. v. White, __ F.3d __ (11th Cir. Sept. 21, 2016) No. 14-14044.
11th Circuit says Alabama cocaine trafficking was serious drug offense under ACCA. (540) Defendant was convicted of firearms charges. Based in part on his prior conviction for cocaine trafficking, in violation of §13A–12–231(2) of the Alabama Code, the district court sentenced him under the Armed Career Criminal Act. Defendant contended that trafficking in cocaine, as defined by §13A–12–231(2), was not a serious drug offense under the ACCA because it did not necessarily involve “manufacturing, distributing, or possessing [a controlled substance] with intent” to do either. See 18 U.S.C. §924(e)(2)(A)(ii). The Eleventh Circuit noted that it had previously rejected this argument in U.S. v. James, 430 F.3d 1150 (11th Cir. 2005), overruled on other grounds by Johnson v. U.S., __ U.S. __, 135 S.Ct. 2551 (2015). An inference of intent to distribute was warranted by the significant quantity of drugs a defendant must possess to violate the trafficking statute and by Alabama’s three-tiered statutory scheme designating trafficking as more serious than either simple possession or possession with intent to distribute. U.S. v. White, __ F.3d __ (11th Cir. Sept. 21, 2016) No. 14-14044.
7th Circuit remands to determine which alternative of third-degree burglary was basis for conviction. (540) Defendant argued that his prior third-degree Minnesota burglary convictions were not violent felonies under the Armed Career Criminal Act, because Minn. Stat. Ann. §609.582, subd. 3, sets forth multiple, alter¬native versions of the crime, at least one of which is not a violent felony, and that the district court should have applied the “modified categorical approach” to determine whether his convictions were violent felonies. The Seventh Circuit agreed. Section 609.582, subd. 3, was divisible, so the court had to consider whether each statutory alternative qualified as a violent felony. The second alternative of the Minnesota statute did not include the element of “intent to commit a crime” at the time of the unlawful entry or remaining. Generic burglary requires such an intent. The district court should have applied the modified categorical approach to ascertain which alternative formed the basis of defendant’s third-degree burglary convictions and then decided whether the convictions were violent felonies. The panel vacated defendant’s sentence and remanded for further proceedings. U.S. v. Shannon, 836 F.3d 815 (7th Cir. 2016).
1st Circuit reverses 84-month firearm sentence where court mistakenly believed it was statutory minimum. (330)(540) A grand jury indicted defendant for carjacking and brandishing a firearm during a crime of violence. Defendant pled guilty to carjacking and possessing, but not brandishing, the firearm. This triggered a mandatory mini¬mum 60-month sentence under 18 U.S.C. §§924(c)(1)(A), whereas a “brandishing” conviction would have required an 84-month mandatory minimum sentence. The PSR incorrectly indicated that the 84-month mandatory mini¬mum applied, and neither party objected. At sentencing, both parties asked for a 60-month mandatory minimum for the firearm offense, but the judge concluded that “[b]e¬cause the weapon was brandished, the minimum term of imprisonment for [the firearm count] is 84 months.” The First Circuit held that the judge plainly erred, and remanded for resentencing. U.S. v. Garay-Sierra, __ F.3d __ (1st Cir. Aug. 5, 2016) No. 14-1418.
Commission deletes residual clause from “crime of violence” in career offender guideline. (330)(340)(520) (540) In Johnson v. U.S., 135 S. Ct. 2551, 2563 (2015) the Supreme Court struck down as unconstitutionally vague the “residual clause” of the Armed Career Criminal Act’s definition of “violent felony” in 18 U.S.C. §924(e). Identical language is in the “residual clause” of the career offender guideline’s definition of “crime of violence” in §4B1.2(a)(2), i.e., “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Accordingly, the Commission deleted the residual clause from §4B1.2(a)(2). The Commission retained the “elements” clause” in subsection (a)(1), i.e., crimes that have “as an element the use, or attempted use, or threatened use of physical force against the person of another.” And it amended the “enumerated offense clause” to include murder, voluntary manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. §5845(a) or explosive material as defined in 18 U.S.C. §841(c). Involuntary manslaughter and burglary of a dwelling were deleted from the list, but departure authority was added. Amendment effective August 1, 2016.
7th Circuit holds Indiana robbery was violent felony under “elements clause.” (540) Defendant pled guilty to firearms charges. The district court sentenced him under the Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e)(2)(B)(i), based in part on its finding that his prior Indiana robbery conviction qualified as a violent felony. A person can commit robbery under Indiana Code §35–42–5–1 by taking property by “putting any person in fear.” The statute does not explain what the person must fear. However, Indiana case law says the answer is fear of bodily injury. Thus, a conviction for such “robbery by fear” has as an element “the use, attempted use, or threatened use of physical force against the person of another.” Therefore, the Seventh Circuit ruled that a conviction for robbery under the Indiana statute qualified under the still-valid elements clause of the ACCA definition of violent felony. U.S. v. Duncan, __ F.3d __ (7th Cir. Aug. 12, 2016) No. 15-3485.
11th Circuit allows Armed Career Criminal to file successive motion to vacate after Johnson. (540)(880) Defendant filed an application for permission to file a successive 28 U.S.C. §2255 motion based on Johnson v. U.S., 576 U.S. __, 135 S.Ct. 2551 (2015), which struck down the “residual clause” of 18 U.S.C. 924(e) as unconstitutionally vague. The Eleventh Circuit granted the petition. Defendant’s PSR did not specify which of his prior convictions would serve as predicates for his ACCA sentence. At the sentencing hearing, the judge observed that defendant was convicted of burglary after he was found inside a stolen car. Although burglary is listed under ACCA’s “enumerated crimes clause,” a state burglary crime meets that definition only if the state crime has “the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Because defendant was convicted of burglarizing a car rather than “a building or structure,” his crime could not have required those elements. This meant that the district court may have relied on the “residual clause” of the ACCA, which, after Johnson, is invalid. In re Davis, __ F.3d __ (11th Cir. July 21, 2016) No. 16-13779-J.
8th Circuit holds that Arkansas robbery was not a violent felony under “force” clause. (540) Defendant was sentenced under the Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e)(1). While his appeal was pending, the Supreme Court decided Johnson v. U.S., __ U.S. __, 135 S. Ct. 2551 (2015), which held that the “residual” clause of the ACCA was unconstitutionally vague. Thus, on appeal, the only question was whether any of defendant’s prior felonies qualified as violent felonies under the ACCA’s “force” clause. The Eighth Circuit vacated defendant’s sentence, holding that the degree of physical force required to commit robbery in Arkansas did not rise to level required to establish a violent felony under the force clause. Under the Arkansas robbery statute, §5-12-102, “[a] person commits robbery if, with the purpose of committing a felony … the person employs or threatens to immediately employ physical force upon another person.” Physical force under Arkansas law is defined as “any … [b]odily impact, restraint, or confinement; or [t]hreat of any bodily impact, restraint, or confinement.” Ark. Code Ann. §5-12-101. After Johnson, this definition, on its face, fell short of requiring “force capable of causing physical pain or injury to another person.” In the context of the ACCA, the phrase “physical force” means violent force, that is force capable of causing physical pain or injury to another person. U.S. v. Eason, __ F.3d __ (8th Cir. July 14, 2016) No. 15-1254.
11th Circuit says S. Ct. will decide whether Johnson “vagueness” doctrine applies to advisory guidelines. (520)(540)(880) Defendant sought an order authorizing the district court to consider a second or successive motion to vacate, set aside, or correct his federal sentence, 28 U.S.C. §2255. He argued that under Johnson v. U.S., 576 U.S. __, 135 S. Ct. 2551 (2015), and Welch v. U.S., 578 U.S. __, 136 S. Ct. 1257 (2016), the “residual clause” of the career offender guideline, §4B1.2, was unconstitutionally vague. The Eleventh Circuit rejected the petition, ruling that it was bound by In re Griffin, __ F.3d __ (8th Cir. May 25, 2016) No. 16-12021, which held that the constitutional vagueness doctrine does not apply to the advisory guidelines. However, it noted that the Supreme Court granted certiorari in Beckles v. U.S., 616 Fed.Appx. 415 (11th Cir. 2015), cert. granted, No. 15–8544, __ U.S. __ (U.S. June 27, 2016), to decide whether Johnson applies to the guidelines. In re Sapp, __ F.3d __ (8th Cir. July 7, 2016) No. 15-3031.
7th Circuit grants authorization for successive §2255 petition based on Johnson. (540)(880) Defendant was sentenced as an armed career criminal under 18 U.S.C. §924(e). He sought authorization to file a successive motion under §2255 based on Johnson v. U.S., 135 S. Ct. 2551 (2015), which held that the residual clause of the Armed Career Criminal Act was unconstitutionally vague. The Seventh Circuit granted the petition, ruling that defendant made a prima facie showing that he might be entitled to relief. Defendant argued that his Illinois conviction for attempted robbery, 720 ILCS 5/8-4(a), 18-1(a) no longer qualified as a crime of violence. Although an unpublished opinion, U.S. v. Granados-Marin, 83 Fed.Appx. 834 (7th Cir. 2003), held that attempted robbery was a crime of violence under the “elements clause” of §2L1.2, that decision was non-precedential. Moreover, to determine whether an attempt offense constitutes a violent felony, a court must examine how state courts have applied the general attempt statute to the particular crime attempted. Granados-Marin lacked this analysis. Morris v. U.S., __ F.3d __ (7th Cir. July 1, 2016) No. 16-2407.
8th Circuit relies on predicate ACCA convictions where defendant failed to timely object. (540)(760)(855) Defendant argued that the district court erred when it sentenced him under ACCA, because no qualifying convictions were proven. The Eighth Circuit ruled that defendant’s failure to timely object to the fact of the prior state convictions listed in the PSR allowed the sentencing court to treat them as predicate ACCA convictions. In his Rule 32(f) objections letter, defendant did not object to the fact of his three second-degree assault convictions. Defendant objected only to whether they constituted violent felonies. Defendant never filed a motion requesting permission to make an untimely objection, never moved for an enlargement of time to file objections, nor showed good cause as to why an untimely objection should be considered by the district court. Any attacks on the fact of the convictions beyond the objection letter were therefore untimely and could not be considered by the court. U.S. v. Lindsey, __ F.3d __ (8th Cir. June 28, 2016) No. 15-2447.
8th Circuit says Minnesota second-degree assaults were violent felonies. (540) Defendant was sentenced under the Armed Career Criminal Act based in part on the district court’s finding that his prior second-degree assault convictions under Minnesota law were violent felonies. He argued that they were not violent felonies because the statute did not categorically require the use, attempted use, or threatened use of physical force. Specifically, he contended that “assault-fear” felonies include assaults that lack a physical force element and “assault-harm” felonies require only bodily harm, which can be inflicted without the use of physical force. The Eighth Circuit found this argument foreclosed by U.S. v. Schaffer, 818 F.3d 796 (8th Cir. 2016), which held that Minnesota’s misdemeanor domestic assault statute, which uses language virtually identical to Minnesota’s second-degree assault statute, qualified as a violent felony. U.S. v. Lindsey, __ F.3d __ (8th Cir. June 28, 2016) No. 15-2447.
11th Circuit grants permission for successive §2255 motion based on Johnson. (540)(880) Defendant was sentenced under the Armed Career Criminal Act. He filed a pro se motion for permission to file a successive motion under 28 U.S.C. §2255 based on Johnson v. U.S., 135 S. Ct. 2551 (2015), which held that the ACCA’s “residual clause” was unconstitutional. The Eleventh Circuit ruled that defendant made a prima facie showing that his application contained a proper claim based on Johnson. His PSR did not specify which of his four convictions were ACCA predicates, and at sentencing, the judge did not announce any findings about which convictions she relied upon to support defendant’s ACCA sentence. Only defendant’s prior federal drug conviction definitely qualified as a predicate. Because no “current binding precedent [made] undeniably clear” that defendant’s other convictions qualified as violent felonies under the ACCA’s “elements clause,” defendant made a prima facie showing that his application contained a Johnson claim. In re Jackson, __ F.3d __ (11th Cir. June 24, 2016) No. 16-13536-J.
11th Circuit grants application for successive §2255 motion even though motion would be filed after one-year deadline. (540)(880) After finding that defendant’s application for a successive §2255 motion stated a prima face case, the Eleventh Circuit noted that it was Friday, and the one-year statute of limitations for §2255 motions based on Johnson expired that weekend. The panel ruled that the fact that defendant’s §2255 motion would be filed after the one-year deadline did not require it to deny him permission to file that motion. The Supreme Court has held that courts “must accord the parties fair notice and an opportunity to present their positions” on the statute of limitations in federal habeas cases. Neither defendant nor the government had any such notice or opportunity. It therefore concluded that whether a §2255 motion will be timely was “not relevant to whether [the applicant] can obtain permission to bring a second or successive §2255 motion,” in cases where the parties have not had “fair notice and an opportunity to present their positions” on the limitations bar. The panel left questions about the timeliness of that motion to the district court to decide in the first instance. In re Jackson, __ F.3d __ (11th Cir. June 24, 2016) No. 16-13536-J.
11th Circuit denies successive Johnson motion based on concurrent mandatory life sentence. (540)(880) Defendant sought authorization to file a successive 28 U.S.C. §2255 motion based on Johnson v. U.S., 576 U.S. __, 135 S. Ct. 2551 (2015), which held that the “residual clause” of the Armed Career Criminal Act (ACCA) was unconstitutionally vague. The Eleventh Circuit rejected the application on the ground that defendant’s Johnson claim did not affect his concurrent mandatory life sentence on Count 1, under 21 U.S.C. §841(b)(1)(A). An applicant must show a reasonable likelihood that he would benefit from the new rule he seeks to invoke in a second or successive petition. Here, defendant was unable to show that Johnson would “benefit” him. In re Williams, __ F.3d __ (11th Cir. June 24, 2016) No. 16-13013-J.
11th Circuit grants application for successive §2255 petition based on Johnson. (540)(800) Defendant was sentenced under the Armed Career Criminal Act 18 U.S.C. §924(e)(2)(B)(ii). He later sought authorization from the Eleventh Circuit to file a successive 28 U.S.C. §2255 motion, contending that his ACCA sentence was void in light of Johnson v. U.S., 135 S.Ct. 2551 (2015), which held that the residual clause of the ACCA was unconstitutionally vague. The Eleventh Circuit granted the application, concluding that defendant had made a prima facie showing that, after Johnson, his prior Florida conviction for burglary of an unoccupied dwelling did not qualify as a valid predicate offense. It was unclear whether the district court relied on the residual clause in finding that defendant’s prior burglary conviction was a “crime of violence.” When defendant was sentenced, a conviction under Florida’s burglary statute was deemed an ACCA predicate under the residual clause, rather than the elements clause or the enumerated crimes clause. The statute contained no element of “attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. §924(e)(2)(B)(i). And, prior to Johnson, the Supreme Court had suggested that a burglary as defined by Florida law was not a violent felony under the ACCA’s enumerated crimes clause. In re Adams, __ F.3d __ (11th Cir. June 15, 2016) No. 16-12519-J.
11th Circuit denies successive §2255 petition where priors were violent felonies under “elements clause” of ACCA. (540)(880) Defendant was sentenced under the Armed Career Criminal Act (ACCA). He later sought authorization from the Eleventh Circuit to file a second or successive 28 U.S.C. §2255 motion, contending that his ACCA sentence was void in light of Johnson v. U.S., 135 S.Ct. 2551 (2015), which held that the “residual clause” of the ACCA was unconstitutionally vague. Here, however, defendant’s prior convictions for aggravated assault and robbery were found to be “crimes of violence” based on the “elements clause” of the ACCA, not the “residual clause.” Defendant’s prior convictions had “as an element the use, attempted use, or threatened use of physical force against the person of another.” Accordingly, the Eleventh Circuit denied defendant’s application for a successive §2255 petition, In re Hires, __ F.3d __ (11th Cir. June 15, 2016) No. 16-12744-J.
Commission deletes residual clause from “crime of violence” in career offender guideline. (330)(340) (520)(540) In Johnson v. U.S., 135 S.Ct. 2551, 2563 (2015) the Supreme Court struck down as unconsti¬tutionally vague the “residual clause” of the Armed Career Criminal Act’s definition of “violent felony” in 18 U.S.C. §924(e). Identical language is in the “residual clause” of the career offender guideline’s definition of “crime of violence” in §4B1.2(a)(2), i.e., “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Accordingly, the Commis¬sion deleted the residual clause from §4B1.2(a)(2). The Commission retained the “elements” clause” in sub¬sec¬tion (a)(1), i.e., crimes that have “as an element the use, or attempted use, or threatened use of physical force against the person of another.” And it amended the “enumerated offense clause” to include murder, volun¬tary manslaughter, kidnapping, aggravated assault, forci¬ble sex offenses, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. §5845(a) or explosive material as defined in 18 U.S.C. §841(c). Involuntary manslaughter and burglary of a dwelling were deleted from the list, but departure auth¬ority was added. Amendment effective August 1, 2016.
8th Circuit holds robberies were serious violent felonies under three strikes law. (504)(540) Defendant dis¬played a handgun while robbing a jewelry store, and was found guilty of violating the Hobbs Act. The federal three strikes law, 18 U.S.C. §3559, mandates a life sentence for a defendant who commits a serious violent felony after at least two such prior convictions. The Eighth Circuit held that defendant’s robbery was a “serious violent felony” under because it was punishable by 10 years or more and had as an element “the use, attempted use or threatened use of physical force against the person of another.” 18 U.S.C. §3559(c)(2)(F)(ii). Defendant’s Illinois conviction for aggravated robbery also qualified because robbery is an enumerated serious violent felony in §3559(c)(2)(F), and the offense satisfied the generic definition of robbery. Finally, defendant could not use the sentencing proceeding to collaterally attack his 2001 Tennessee aggravated rob¬bery conviction on the ground of ineffective assistance of counsel. U.S. v. House, __ F.3d __ (8th Cir. June 6, 2016) No. 14-3011.
9th Circuit says filing a second or successive application tolls one-year limitation. (540)(880) Defendant filed a motion under 28 U.S.C. §2255 arguing that his sentence under the Armed Career Criminal Act, 18 U.S.C. §924(e), should be reduced based on Johnson v. U.S., 135 S. Ct. 2551 (2015). Section 2255 motions are subject to a one-year statute of limitations that, in this case, began to run on “the date on which the right asserted was initially recognized by the Supreme Court.” The Ninth Circuit held that filing an application to file a second or successive §2255 motion tolled the running of the one-year statute of limitations. Orona v. U.S., __ F.3d __ (9th Cir. June 22, 2016) No. 16-70568.
7th Circuit reaffirms that Illinois enhanced domestic battery is crime of violence. (520)(540) The district court sentenced defendant as a career offender based in part on its finding that defendant’s Illinois conviction for enhanced domestic battery was a crime of violence. Defendant argued that the offense was not a crime of violence because the Illinois statute did not include the use of physical force as an element of the offense. He further contended that the classification could not be salvaged under the guidelines’ residual clause given the Supreme Court’s recent decision in Johnson v. U.S., 135 S. Ct. 2551 (2015). The Seventh Circuit found that defendant’s argument was foreclosed by circuit precedent holding that a conviction for domestic battery under Illinois law necessarily requires proving physical force. See. e.g. De Leon Castellanos v. Holder, 652 F.3d 762 (7th Cir. 2011). The existence of a circuit split was not a reason, on its own, to overturn precedent. No intervening Supreme Court decision justified a different result. U.S. v. Waters, __ F.3d __ (7th Cir. May 24, 2016) No. 15-2728.
Supreme Court says whether a prior offense is “generic” depends on elements, not facts. (340)(520)(540) The Armed Career Criminal Act, 18 U.S.C. §924(e), imposes a 15-year mandatory minimum on defendants who have three prior convictions for, among other things, “burglary.” To determine whether a state burglary qualifies as an ACCA predicate, a court must compare the state statute to the “generic” offense. For burglary, the “generic” offense requires proof of an unlawful entry into a building. The Iowa burglary statute, Iowa Code §702.12, requires unlawful entry into “any building, structure, [or] land, water, or air vehicle.” Under Iowa law, the list of places in the burglary statute does not set out alternative elements, but rather alternative means of fulfilling a single element. The Supreme Court held that when a statute defines only one offense, the elements of that offense determine whether it qualifies under the “categorical approach” as one of the “generic” offenses listed as a predicate offense in the ACCA. If the statute lists different factual means of committing an element, a court may not look at the factual circumstances to determine if the defendant committed the “generic” offense. Mathis v. U.S., __ U.S. __, 136 S. Ct. __ (June 23, 2016).
9th Circuit finds Oregon burglary is not a “violent felony” under the ACCA. (340)(520)(540) Defendant was sentenced to 15 years under the Armed Career Criminal Act, 18 U.S.C. §924(e), in part because he had a prior conviction for first-degree burglary under Oregon Revised Statutes §164.225. The Ninth Circuit held that the elements of the Oregon burglary statute are not a categorical match to “generic” burglary because the Oregon statute defines “building” more broadly than does generic burglary. The court also held that the Oregon statute is indivisible and therefore the modified categorical approach did not apply. U.S. v. Cisneros, __ F.3d __ (9th Cir. June 22, 2016) No. 13-30066.
4th Circuit holds North Carolina common law robbery is not violent felony under ACCA. (540) The district court found that defendant was an armed career criminal based on his three prior convictions for felony common law robbery in North Carolina. The Fourth Circuit reversed, holding that North Carolina common law robbery did not qualify as a violent felony. Because the residual clause of the Armed Career Criminal Act (ACCA) has recently been held unconstitutional, see Johnson v. U.S., __ U.S. __, 135 S. Ct. 2551 (2015), the offense could only qualify as a violent felony if it met the definition under the ACCA’s force clause. North Carolina common law robbery is the “felonious, non-consensual taking of money or personal property from the person or presence of another by means of violence or fear.” Based on various North Carolina decisions finding minimal contact qualified as the “violence” necessary for a common law robbery conviction, the panel concluded that North Carolina common law robbery did not necessarily include the use, attempted use, or threatened use of “force capable of causing physical pain or injury to another person,” as required by the force clause of the ACCA. U.S. v. Gardner, __ F.3d __ (4th Cir. May 18, 2016) No. 14-4533.
8th Circuit finds conviction was “serious drug offense,” despite sentence to boot camp. (540) Defendant argued for the first time on appeal that his Illinois drug-trafficking conviction was not a “serious drug offense” under the Armed Career Criminal Act (ACCA). He asserted that because he received a sentence of boot camp for that conviction, he was not convicted of an offense “for which a maximum term of imprisonment” was of ten years or more. 18 U.S.C. §924(e)(2)(A)(ii). The Eighth Circuit disagreed. Defendant was convicted under 720 Illinois Compiled Statutes Annotated 570/401(c)(2) of manufacturing or delivering 15 grams of cocaine. At the time, Illinois punished Class 1 felonies by “not less than 4 years and not more than 15 years” of incarceration. Previous cases have held that a defendant’s Illinois drug convictions for delivering 1 to 15 grams of cocaine constituted “serious drug offenses” because they were Class 1 felonies under state law, and thus were punishable by up to 15 years in prison. Defendant’s placement in the boot camp did not alter this conclusion. Although defendants are eligible for boot camp if they have been sentenced to less than 8 years of imprisonment, the sentencing court’s decision to sentence below the statutory maximum did not change the statutory maximum. U.S. v. Jefferson, __ F.3d __ (8th Cir. May 17, 2016) No. 15-2688.
1st Circuit holds Massachusetts possession with intent to distribute class B substance was a “serious drug offense.” (540) The district court sentenced defendant under the Armed Career Criminal Act, 18 U.S.C. §924(e), based in part on its finding that his prior Massachusetts conviction for possession with intent to distribute a class B substance qualified as a “serious drug offense.” Defendant argued that the offense did not qualify, noting that the statute, Mass. Gen. Laws ch. 94C, §32A(a), provided for concurrent jurisdiction in the district and superior courts. If the case remained in the district court, then the maximum term of incarceration was two and one-half years. Prosecution in the superior court subjected a defendant to a maximum of ten years in state prison. Because defendant was prosecuted in the district court, he argued that he was not subject to a “maximum term of imprisonment of ten years or more,” as required by the ACCA. The First Circuit noted that defendant’s claim was foreclosed by U.S. v. Moore, 286 F.3d 47 (1st Cir. 2002), which held that Mass. Gen. Laws ch. 94C, §32A(a) qualified as a “serious drug offense” irrespective of which Massachusetts court entered the conviction. U.S. v. Hudson, __ F.3d __ (1st Cir. May 9, 2016) No. 14-2124.
1st Circuit holds that Massachusetts assault with a dangerous weapon was violent felony. (540) The district court sentenced defendant under the Armed Career Criminal Act, 18 U.S.C. §924(e), based in part on a 1997 larceny conviction that qualified as a violent felony under the “residual clause,” that was invalidated by the Supreme Court in Johnson v. U.S. Pg. __ U.S. __ (2015). On appeal, the government sought to substitute in its place defendant’s Massachusetts conviction for assault with a dangerous weapon (ADW). The First Circuit agreed that defendant’s Massachusetts ADW conviction, under Mass. Gen. Laws ch. 265, §15B(b), qualified as a violent felony under the ACCA’s “force clause.” The circuit had previously held, in U.S. v. Am, 564 F.3d 25 (1st Cir. 2009), that a Massachusetts ADW conviction qualified as a predicate offense under the force clause. The panel rejected defendant’s claim that intervening authority made Am unpersuasive, and reaffirmed that a Massachusetts ADW met the physical force requirement under the force clause. U.S. v. Hudson, __ F.3d __ (1st Cir. May 9, 2016) No. 14-2124.
1st Circuit reverses where Johnson error resulted in incorrect calculation of guidelines. (540) Defendant was originally sentenced to 216 months under the Armed Career Criminal Act, 18 U.S.C. §924(e). On appeal, the government conceded that the Supreme Court’s holding in Johnson v. U.S. Pg. __ U.S. __ (2015), invalidated the district court’s application of guideline §4B1.4(b)(3)(A) to set defendant’s base offense level at 34. The government and defendant agreed that, instead, the default offense level of 33 in §4B1.4(b)(3)(B) applied. The parties also agreed that his criminal history should be reduced from VI to V, and that his proper guideline range was 151-188 months, rather than the 188-235 range calculated at sentencing. Defendant did not object to the guidelines calculation so the First Circuit reviewed for plain error. Although the government contended that defendant’s substantial rights were not affected by the error, the panel did not agree. The court’s comments did not suggest “that the court intended to untether [defendant’s] sentence” from the guideline range that had been calculated. Despite defendant’s “reprehensible” conduct and extensive criminal history, the court nonetheless chose a sentence well within the incorrectly calculated guideline range. U.S. v. Hudson, __ F.3d __ (1st Cir. May 9, 2016) No. 14-2124.
7th Circuit says ACCA language, “committed on occasions different from one another” is not vague. (540) Defendant was sentenced to 180 months under the Armed Career Criminal Act, 18 U.S.C. §924(e). He argued that the ACCA’s requirement that the three prior predicate convictions be “committed on occasions different from one another” was unconstitutionally vague because the statute did not specify a methodology for determining whether criminal acts are considered separate events. The Seventh Circuit disagreed. Case law made clear that defendant’s two drug offenses, based on sales that took place four days apart, were considered separate convictions under the ACCA. Crimes that occur “simultaneously will be deemed to have occurred on a single occasion; but the passage of even a small amount of time between crimes” is enough to separate them for purposes of the ACCA. The emphasis is on whether the defendant had the opportunity to “cease and desist or withdraw” from the criminal activity before engaging in the subsequent crime. The fact that some other circuits have applied the ACCA differently did not make the statute vague. U.S. v. Morris, __ F.3d __ (7th Cir. May 6, 2016) No. 15-3212.
8th Circuit rules three burglaries on same day within 12 miles, were separate under ACCA. (540) The district court sentenced defendant under the Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e), based on his four prior convictions for aggravated burglary. Defendant argued on appeal three of his aggravated burglary convictions were not “committed on occasions different from one another.” The Eighth Circuit disagreed. In U.S. v. Gray, 85 F.3d 380 (8th Cir. 1996), the court found that a defendant’s convictions for burglarizing two different residences were separate under the ACCA even though the homes were located “very close to each other,” and the burglaries took place within a 25-minute span. Here, defendant burglarized three different residences that were within 12 miles of each other on the same day. The burglaries were thus committed on separate occasions because they involved “different victims and [were] committed in different locations.” U.S. v. Pledge, __ F.3d __ (8th Cir. May 4, 2016) No. 15-2856.
4th Circuit says burglaries at neighboring houses on same night were committed on different occasions. (540) Defendant was sentenced under the ACCA based in part on two prior burglary convictions. The Fourth Circuit affirmed, holding that defendant’s two prior burglaries at neighboring houses on same night were committed on different occasions, and thus each could serve as a predicate offense under the ACCA. It was undisputed that the burglaries occurred at two distinct street addresses, which meant that they occurred at different geographic locations. Although the houses were only 30 feet apart, this distance gave defendant a sufficient opportunity to evaluate whether to commit another crime. Further, defendant conceded that two different people were victimized by the two burglaries. The fact that the two burglaries shared the same nature and criminal objective did not matter. The “strong presence” of just one factor can “dispositively segregate an extended criminal episode into a series of separate and distinct episodes.” The district court properly found at least three of the five factors supported the finding that the crimes occurred on different occasions. U.S. v. Linney, __ F.3d __ (4th Cir. Apr. 26, 2016) No. 14-4847.
10th Circuit holds distributing marijuana was a “serious drug offense” under ACCA. (540) Defendant argued on appeal that his classification as an armed career criminal under the ACCA, 18 U.S.C. §924(e)(1), violated his Sixth Amendment rights because the prior predicate crimes used to enhance his sentence were not proven to a jury beyond a reasonable doubt. The Tenth Circuit noted that this argument was foreclosed by Supreme Court and Tenth Circuit precedent, as defendant admitted below and again conceded on appeal. The panel also ruled that the district court properly classified defendant’s prior Oklahoma conviction for distribution of marijuana as a “serious drug offense” under the ACCA, even though he only received a six-year sentence. The maximum sentence under Oklahoma law was life imprisonment, and the plain language of the ACCA clearly states that a state offense is a serious drug offense if the “maximum term of imprisonment of ten years or more is prescribed by law.” §924(e)(2)(A)(ii) U.S. v. Villanueva, __ F.3d __ (10th Cir. May 2, 2016) No. 14-6081.
11th Circuit concurring judge lists 110 cases where prisoners might be entitled to relief under Johnson. (520)(540)(880) Defendant sought to file a second or successive 28 U.S.C. §2255 petition based on Johnson v. U.S., 576 U.S. __, 135 S. Ct. 2551 (2015), which held that the ACCA’s “residual clause” was unconstitutional. The Eleventh Circuit denied the application, because defendant’s ACCA predicate convictions for armed robbery and aggravated battery still qualified as violent felonies under the so-called “elements clause” because they contained as an element the use, attempted use, or threatened use of force. Judge Martin, concurring, noted that dozens of other prisoners had tried to file similar applications based on Johnson, but these applicants were rejected because the Eleventh Circuit had ruled that Johnson was not retroactive. However, under the Supreme Court’s recent decision in Welch v. U.S., __ U.S. __ (Apr. 18, 2016) No. 15–6418, these prisoners might now be entitled to relief. The judge then listed 110 cases in the hope that these prisoners, who filed their applications without a lawyer’s help, would know to refile their applications. In re Robinson, __ F.3d __ (11th Cir. Apr. 19, 2016) No. 16-11304-D.
8th Circuit holds that Minnesota felony domestic assault was violent felony. (340)(540) Defendant pled guilty to being a felon in possession of a firearm. He was sentenced under the Armed Career Criminal Act, 18 U.S.C. §924(e), based in part on his prior conviction for felony domestic assault under Minn.Stat. §609.2242, subd. 1(1). The district court found that the conviction was a violent felony under the ACCA’s force clause based on U.S. v. Salido–Rosas, 662 F.3d 1254 (8th Cir. 2011). Salido–Rosas held that a conviction for knowingly placing “another person in fear of imminent bodily harm” qualified as a crime of violence under the force clause of guideline §2L1.2(b)(1)(E). Here, defendant was convicted of committing an “act with intent to cause fear in another of immediate bodily harm or death.” Minn.Stat. §609.2242, subd. 1(1). The elements of the two offenses were similar enough that Salido–Rosas was not meaningfully distinguishable. The Eighth Circuit therefore affirmed the district court’s conclusion that defendant’s conviction qualified as a violent felony under the force clause. U.S. v. Schaffer, __ F.3d __ (8th Cir. Apr. 12, 2016) No. 15-2571.
Supreme Court makes retroactive Johnson’s holding that ACCA “residual clause” is unconstitutionally vague. (120)(340)(520)(540)(880) The Armed Career Criminal Act, 18 U.S.C. §924(e) provides enhanced penalties if the defendant has three or more prior convictions for “a serious drug offense,” or a “violent felony.” In defining “violent felony,” the statute includes a residual clause—”or otherwise involves conduct that presents a serious potential risk of physical injury to another.” §924(e)(2)(B). In Johnson v. U.S., 135 S. Ct. 2551 (2015), the Supreme Court held that this “residual clause” was unconstitutionally vague. In the present case, a prisoner whose conviction became final before the decision in Johnson was handed down, filed a 28 U.S.C. §2255 motion arguing that Johnson should be applied retroactively. In a 7-1 opinion written by Justice Kennedy, the Supreme Court agreed, holding that Johnson announced a substantive rule that applies retroactively to cases on collateral review. Justice Thomas dissented. Welch v. U.S., 136 S. Ct. 1257 (April 18, 2016).
8th Circuit remands in light of Johnson for court to reconsider whether Missouri convictions for resisting arrest qualified as violent felonies. (540) Defendant was sentenced under the Armed Career Criminal Act, 18 U.S.C. §924(e)(1), based on the district court finding that defendant’s three prior Missouri convictions for resisting arrest qualified as violent felonies under the residual clause of the ACCA. While defendant’s appeal was pending, the Supreme Court held that the residual clause of the ACCA was unconstitutionally vague. Johnson v. United States, 576 U.S. __ (2015). The Eighth Circuit remanded for reconsideration of whether the resisting arrest convictions qualified as violent felonies. The Missouri statute included conduct that fell under the ACCA’s force clause, such as resisting arrest “by using force or threatening the use of violent or physical force.” Mo. Rev. Stat. §575.150.1(1). However, the statute also defined the offense to include fleeing from an officer. The modified categorical approach permitted the court on remand to consider a narrow class of documents to determine the subdivision of the Missouri statue under which defendant was convicted. U.S. v. Shockley, __ F.3d __ (8th Cir. Mar. 23, 2016) No. 15-2229.
9th Circuit says Massachusetts armed robbery was not a violent felony. (540) Defendant was convicted under 18 U.S.C. §922(g)(1) of being a felon in possession of a firearm. The government sought the 15-year mandatory minimum penalty under the Armed Career Criminal Act, 18 U.S.C. §924(e), based in part on defendant’s prior conviction in Massachusetts for armed robbery, in violation of Mass. Gen. Law ch. 265, §17. The district court found that Massachusetts armed robbery was a “violent felony” under the ACCA. The Ninth Circuit held that Massachusetts armed robbery was not a “violent felony” because it did not have as an element the use, attempted use, or threatened use of physical force against another. U.S. v. Parnell, __ F.3d __ (9th Cir. April 12, 2016) No. 14-30208.
11th Circuit applies Johnson and Descamps retroactively to first-time §2255 petition. (540)(800) After defendant’s firearms conviction and sentence under the ACCA became final, the Supreme Court decided Descamps v. United States, 570 U.S. __ (2013), and Johnson v. United States, 576 U.S. __ (2015). Descamps held that where an offense includes conduct that qualifies as violent felony and some that does not, a court can apply the “modified categorical approach” to determine if an offense is an enumerated offense only if the statute in question is “divisible.” Johnson held that the residual clause of the ACCA was unconstitutionally vague. Defendant brought a motion under 28 U.S.C. §2255 arguing that, in light of Descamps and Johnson, his prior conviction under Alabama Code §13A-7-7 for third degree burglary did not qualify as a violent felony. The Eleventh Circuit held that both cases applied retroactively in the first post-conviction context, and remanded for resentencing. The offense was not a violent felony under the enumerated clause, because the Alabama statute was not divisible. Based on Johnson, the burglary conviction could also not be considered a violent felony under the residual clause. U.S. v. Mahbub, __ F.3d __ (6th Cir. Mar. 29, 2016) No. 14-1499.
11th Circuit reverses and finds defendant’s three prior offenses were not separate under ACCA. (540) Based on defendant’s three prior convictions for armed robbery, the district court sentenced him as an armed career criminal under 18 U.S.C. §924(e). The Eleventh Circuit reversed, holding that defendant’s three prior offenses were not separate under the ACCA. The Shepard documents in this case included the charging documents for each armed robbery, the transcript of the plea colloquy, and undisputed statements in the PSR. The charging documents did not specify the time or location at which each of the three prior robbery convictions occurred. Although they showed there were three different victims, different items stolen, and three different case numbers, this information did not make it more likely that the crimes were committed successively rather than simultaneously. Similarly, the plea colloquy transcript and undisputed paragraph of the PSR indicated that at most, two separate offenses occurred. U.S. v. McCloud, __ F.3d __ (11th Cir. Mar. 16, 2016) No. 14-14547.
8th Circuit says Arkansas aggravated assault was not a violent felony under “residual” clause. (520)(540) Defendant was sentenced under the Armed Career Criminal Act (ACCA) based on the district court’s finding that his prior Arkansas conviction for aggravated assault was a violent felony under the “force and residual” clause of the ACCA. The residual clause has since been held to be unconstitutionally vague. To qualify as a violent felony under the residual clause, a statute must have “as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. §924(e)(2)(B)(i). Defendant was convicted under subsection (a)(1) of the Arkansas aggravated assault statute, which only required “a substantial danger of death or serious physical injury.” The Eighth Circuit held that the statute did not qualify as a violent felony under the residual clause. See Ark. Code Ann. §5–13204(a)(1). U.S. v. Jordan, __ F.3d __ (8th Cir. Feb. 12, 2016) No. 14-3444.
9th Circuit finds “felony riot” in Washington was not a violent felony. (540) Defendant was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. §922(g). Defendants convicted under §922(g) who have three prior convictions for a “violent felony” are subject to a mandatory minimum 15-year sentence under the Armed Career Criminal Act. The ACCA defines “violent felony” in part to mean any crime “that has an element the use, attempted use, or threatened use of physical force against another.” Defendant had a prior conviction for “felony riot” under Washington Revised Statute §9A.84.010. That section defines felony riot as follows: while acting with three or more other persons, the defendant knowingly uses or threatens to use force, or in any way participates in the use of force, against any other person or against property. Applying the modified categorical approach, the district court found that felony riot was a “violent felony.” The Ninth Circuit reversed, finding that the Washington statute is overinclusive because it applies even if the defendant uses only a minimal amount of force. U.S. v. Werle, __ F.3d __ (9th Cir. Mar. 3, 2016) No. 14-30189.
8th Circuit says armed robberies 90 minutes apart were “separate and distinct criminal episodes.” (540) The district court classified defendant as an armed career criminal, 18 U.S.C. § 924(e), based in part on two 1992 felony convictions for Use of a Firearm During the Commission of a Violent Crime. On May 3, 1992, at 3:00 a.m., defendant pulled a handgun, pointed it at a victim, and demanded money. Defendant took $220.00 from the victim, and as the victim ran away, he heard a gunshots. At 4:30 a.m. on the same morning, defendant pointed a handgun at a different victim and demanded money. After the victim complied, defendant placed the barrel of his gun to his victim’s temple, demanded more money, and threatened the victim. As defendant walked away, he turned and shot four times at the victim, who ducked inside a truck. The Eighth Circuit held that the 1992 violations were sufficiently “separate and distinct criminal episodes” to qualify as two predicate offenses under the ACCA. First, 90 minutes separated the two episodes. Second, the two criminal episodes occurred in two different places within Fort Carson, Colorado: one occurred at the base’s general commissary and the other at base’s separate store for non-commissioned officers. Third, the two criminal episodes involved different victims and different criminal aggressions. U.S. v. Boman, __ F.3d __ (8th Cir. Jan. 7, 2016) No. 14-3312.
11th Circuit says Johnson is not retroactive; denies request for successive § 2255 petition. (120)(540)(880) Defendant sought permission to file a second or successive petition under 28 U.S.C. § 2255, arguing that Johnson v. U.S., 135 S. Ct. 2551 (2015), created a new rule of constitutional law that was previously unavailable and that the Supreme Court has made retroactive to cases on collateral review. See 28 U.S.C. § 2255(h). Johnson held that one provision of the ACCA, the so-called “residual clause,” was unconstitutionally vague. Defendant argued that his prior convictions for Florida strong arm robbery fell under the now unconstitutional residual clause, and thus, he no longer had three predicate convictions required for a sentence under the ACCA. The Eleventh Circuit rejected defendant’s request for a successive writ under § 2255, since it had previously held in a published opinion that the Supreme Court had not made the new rule on which defendant relied retroactive for purposes of collateral review. See In re Rivero, 797 F.3d 986 (11th Cir. 2015). Judge Martin dissented. In re Franks, __ F.3d __ (11th Cir. Jan. 6, 2016) No. 15-15456-G.
Supreme Court to decide if elements or means determines that offense is “violent felony.” (120)(340)(520) (540) Under the Armed Career Criminal Act, 18 U.S.C. § 924(e), a defendant convicted of being a felon in possession of a firearm who has three prior “violent felonies” is subject to a 15-year minimum mandatory sentence. The district court imposed the 15-year sentence, and the court of appeals affirmed. The Supreme Court granted certiorari to determine whether a predicate prior conviction under the ACCA must qualify under the elements of the offense, without extending the modified categorical approach to separate statutory definitional provisions that merely establish the means by which referenced elements may be satisfied rather than stating alternative elements or versions of the offense. Mathis v. U.S., __ U.S. __, 136 S. Ct. __ (Jan. 19, 2016) (granting certiorari).
4th Circuit says North Carolina speeding to elude arrest is not violent felony. (540) Defendant was sentenced as an armed career criminal based in part on the court’s finding that his prior North Carolina convictions for felony speeding to elude arrest, in violation of in violation of N.C. Gen.Stat. § 20–141.5(b) (2014), were violent felonies under the ACCA. After sentencing, the Supreme Court held that the ACCA’s “residual clause” was unconstitutionally vague. Johnson v. U.S., 576 U.S. __, 135 S.Ct. 2551 (2015). The government conceded that, in light of Johnson, defendant’s North Carolina convictions for felony speeding to elude arrest no longer constituted valid ACCA predicates. The Fourth Circuit agreed. The North Carolina crime did not have as an element the use, attempted use, or threatened use of physical force, and it was not among the listed violent felonies in the ACCA. Therefore, the only way the offense qualified as a violent felony was under the residual clause, which Johnson struck down as unconstitutionally vague. U.S. v. Barlow, __ F.3d __ (4th Cir. Dec. 21, 2015) No. 15-4114.
6th Circuit holds Tennessee aggravated burglary is violent felony. (540) Defendant pled guilty to being a felon in possession of a firearm, and was sentenced under the Armed Career Criminal Act (ACCA) to 180 months. The Sixth Circuit held that defendant’s prior Tennessee convictions for aggravated burglary qualified as predicate “violent felonies” under the ACCA. Under Tennessee law, “[a]ggravated burglary occurs when an individual enters a habitation ‘without the effective consent of the property owner’ and … intends to commit a felony.” Because the Tennessee aggravated burglary statute was a generic version of the crime of burglary, it constituted a violent felony under the ACCA’s enumerated-offense clause, 18 U.S.C. § 924(e)(2)(B)(ii) (listing burglary as a violent felony). U.S. v. Priddy, __ F.3d __ (6th Cir. Dec. 15, 2015) No. 15-5136.
8th Circuit upholds Tennessee burglary convictions as violent felonies. (540) Defendant was sentenced under the Armed Career Criminal Act (ACCA) based in part on the district court’s finding that his prior Tennessee burglary convictions qualified as violent felonies. The Tennessee burglary statute provides that a person commits burglary when, “without, the effective consent of the property owner,” he (1) enters a building other than a habitation, not open to the public, with intent to commit a felony or theft; (2) remains concealed, with the intent to commit a felony or theft, in a building; (3) enters a building and commits or attempts to commit a felony or theft; or (4) enters any freight or passenger car, automobile, truck, trailer, boat, airplane or other motor vehicle with intent to commit a felony or theft. Tenn.Code Ann. § 39-14-402(a). The Eighth Circuit found that the offense was divisible under Descamps, and that the first three variants qualified as generic burglary since each involved “unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” The fourth variant did not qualify as generic burglary since the locations listed in that subsection of the statute were not buildings or structures. Here, defendant pled guilty to a Class D felony, which under Tennessee law, meant that he must have been charged under one of the first three subsections. Therefore, defendant’s offenses were necessarily generic burglaries, and thus, violent felonies under the ACCA. U.S. v. Priddy, __ F.3d __ (6th Cir. Dec. 15, 2015) No. 15-5136.
6th Circuit says Tennessee robbery is still a violent felony after Johnson. (540) Defendant was sentenced under the Armed Career Criminal Act (ACCA) based in part on the district court’s finding that his prior Tennessee robbery conviction was a violent felony. The Sixth Circuit affirmed. Under Tennessee law, robbery is defined as “the intentional or knowing theft of property from the person of another by violence or putting the person in fear.” Tenn.Code Ann. § 39-13-401(a). In U.S. v. Mitchell, 743 F.3d 1054 (6th Cir. 2014), the court held that a Tennessee conviction for robbery qualified as a violent felony under the ACCA’s use-of-force clause. The Supreme Court’s recent holding in Johnson v. U.S., __ U.S. __, 135 S.Ct. 2551 (2015), that the ACCA’s residual clause definition of violent felony was unconstitutionally vague, did not disrupt the holding of Mitchell. The Mitchell court found that under the categorical approach, a Tennessee robbery conviction was a violent felony under both the use-of-force clause and the residual clause. U.S. v. Priddy, __ F.3d __ (6th Cir. Dec. 15, 2015) No. 15-5136.
11th Circuit holds Alabama third-degree burglary is not violent felony. (540) Defendants pled guilty to being a felon in possession of a firearm. They were sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1) based in part on the court’s finding that their prior convictions for third-degree burglary under Alabama law, Ala.Code § 13A-7-7(a), were violent felonies. The Eleventh Circuit reversed, finding that under its decision in U.S. v. Howard, 742 F.3d 1334 (11th Cir. 2014), and the Supreme Court’s decision in Johnson v. U.S., 576 U.S. __, 135 S.Ct. 2551 (2015), the third-degree burglary convictions did not qualify as violent felonies. First, the third-degree burglary convictions did not qualify under the elements-based definition of a violent felony, since it did not have as an element “the use, attempted use, or threatened use of physical force against the person of another.” Second, Howard held that convictions under the same Alabama statute did not qualify under the enumerated offenses definition. Finally, Johnson declared the residual clause of the ACCA to be unconstitutionally vague. Without the residual clause of the ACCA, there was no longer any basis for characterizing the Alabama third degree burglary statute as a violent felony under the ACCA. U.S. v. Nelson, __ F.3d __ (11th Cir. Dec. 30, 2015) No. 13-11537.
Supreme Court to decide retroactivity of Johnson. (120)(340)(520)(540) Defendant was sentenced as an Armed Career Criminal under 18 U.S.C. § 924(e)(2), after the court found that his prior Florida robbery conviction was a “violent felony” under the ACCA’s “residual clause.” After his sentence was affirmed on appeal, he filed a 28 U.S.C. § 2255 motion arguing that his ACCA sentence was improper. His motion was denied, and the Eleventh Circuit denied a certificate of appealability. Thereafter, however, the Supreme Court, in Johnson v. U.S., 135 S. Ct. 2551 (2015), held that the ACCA’s residual clause is void for vagueness. On January 8, 2016, the Supreme Court granted defendant’s certiorari petition to decide (1) whether the district court erred when it denied relief on the § 2255 motion to vacate; and (2) whether Johnson announced a new substantive rule of constitutional law that applies retroactively to cases that are on collateral review. Welch v. U.S., __ U.S. __, 136 S.Ct. __ (Jan. 8, 2016) (granting certiorari).
4th Circuit reaffirms South Carolina youthful offender offenses as ACCA predicates. (540) Defendant was convicted of firearms charges, and sentenced under the Armed Career Criminal Act, 18 U.S.C. §924(e). On appeal, he contended that his prior drug convictions did not qualify as predicate ACCA offenses because the state court sentenced him pursuant to South Carolina’s Youthful Offender Act (YOA), S.C.Code Ann. §24-19-50, which permits courts to cap the maximum penalty for certain offenders at six years in custody. The court previously rejected this argument in U.S. v. Williams, 508 F.3d 724 (4th Cir. 2007). Defendant argued that Williams was no longer good law in light of U.S. v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). The Fourth Circuit rejected the argument, ruling that Simmons and its progeny reinforced Williams’ directive that, in evaluating whether a prior conviction qualifies as a predicate for a federal sentence enhancement, courts look to the statutory penalty, not the sentence the defendant received. YOA offenses can qualify as ACCA predicates because the maximum statutory penalty for the prior conviction is unaffected by the state court’s discretion to impose a sentence of six years or less in custody. U.S. v. Sellers, __ F.3d __ (4th Cir. Nov. 18, 2015) No. 14-4568.
11th Circuit finds Georgia obstruction of justice was categorically a “violent felony” under ACCA. (540) Defendant was sentenced under the Armed Career Criminal Act, 18 U.S.C. §924(e), based in part on the district court’s finding that his Georgia convictions for felony obstruction of justice constituted violent felonies under the “elements” clause. The Eleventh Circuit affirmed. A felony is a violent felony under the elements clause of the ACCA if it “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. §924(e)(2)(B)(i). “[T]he phrase ‘physical force’ means violent force—that is, force capable of causing physical pain or injury to another person.” Johnson v. U.S., 559 U.S. 133 (2010). Georgia’s felony obstruction statute applies only to those who obstruct a law enforcement officer “by offering or doing violence” to the officer’s person. O.C.G.A. §16–10–24(b). Georgia case law established that the amount of violence the Georgia statute required was sufficient to satisfy the elements clause of the ACCA. U.S. v. Brown, __ F.3d __ (11th Cir. Nov. 20, 2015) No. 14-11502.
4th Circuit says nonviolent second-degree burglary offenses were not violent felonies. (540) The district court sentenced defendant under the Armed Career Criminal Act, 18 U.S.C. § 924(e), finding defendant’s five South Carolina second-degree burglary convictions, in violation of South Carolina Code § 16–11–312, were violent felonies. Defendant argued that they did not qualify as violent felonies because the state statute was broader than generic burglary, and included breaking and entering into a vehicle, watercraft, or aircraft. The government argued that because the charging document excluded vehicles, watercraft, or aircraft, the district court did not err in considering the burglary convictions as predicate offenses. However, defendant did not plead guilty to the charge of second-degree burglary of a building under § 16-11-312(B). Rather, he pled guilty to a different crime of nonviolent burglary under § 16-11-312(A). His plea did not incorporate any facts, and the buildings described in the indictments related to the different offense under § 16-11-312(B). Because the panel could not determine whether defendant pleaded guilty to generic burglary with respect to four of his 1998 burglary convictions, they could not serve as predicate offenses under ACCA. U.S. v. McLeod, __ F.3d __ (4th Cir. Oct. 30, 2015) No. 14-4766.
5th Circuit vacates ACCA sentence where one prior only satisfied residual clause. (540) Defendant pled guilty to being a felon in possession of a firearm. The district court sentenced him under the Armed Career Criminal Act, based in part on its finding that his prior conviction for evading arrest or detention with a vehicle, under Texas Penal Code § 38.04.1, was a violent felony. See U.S. v. Harrimon, 568 F.3d 531 (5th Cir. 2009). He argued for the first time on appeal that the residual clause was void for vagueness. After the Fifth Circuit rejected his argument, he filed a petition for certiorari. Following its opinion in Johnson v. U.S., 135 S. Ct. 2551 (2015), the Supreme Court granted defendant’s petition, vacated the Fifth Circuit’s ruling, and remanded. On remand, the Fifth Circuit found that that Johnson established that it was error to sentence under the ACCA when one of the qualifying convictions satisfies only the residual clause. That error was plain, even though precedent foreclosed it at the time of sentencing, U.S. v. Hornyak, __ F.3d __ (5th Cir. Oct. 30, 2015) No. 14-50299.
9th Circuit says California robbery is not a “violent felony.” (540) Defendant was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court found that he had three prior convictions for “violent felonies” and imposed a 15-year mandatory minimum sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e). On appeal, the Ninth Circuit reversed, holding that defendant’s prior convictions for robbery under California Penal Code § 211 were not categorically “violent felonies” and therefore did not support a 15-year mandatory sentence under § 924(e). U.S. v. Dixon, __ F.3d __ (9th Cir. Nov. 20, 2015) No. 14-10318.
1st Circuit permits successive § 2255 petition based on Johnson. (540)(880) Defendant sought certification to file in the district court a second or successive 28 U.S.C. § 2255 motion to vacate his sentence. He relied on the Supreme Court’s recent decision in Johnson v. U.S., 576 U.S. ––––, 135 S. Ct. 2551 (2015), which struck down the “residual clause” of the ACCA as unconstitutionally vague. The government conceded that Johnson announced a new rule of constitutional law that was previously unavailable. It further conceded that defendant had at least made a prima facie showing that Johnson had been made retroactive by the Supreme Court. In view of the government’s concessions, the First Circuit certified that defendant had made the requisite prima facie showing that the new constitutional rule announced in Johnson “qualifie[d] as a basis for habeas relief on a second or successive petition,” and allowed him to file his petition with the district court. Pakala v. U.S., __ F.3d __ (1st Cir. Oct. 20, 2015) No. 15-1799.
8th Circuit says Johnson puts in doubt prior opinion that guidelines cannot be unconstitutionally vague. (135)(340)(520)(540) Defendant’s prior conviction was found to be a crime of violence under the “residual clause” of the career offender guideline, § 4B1.2(a)(2), because it involved “conduct that presents a serious potential risk of physical injury to another.” He argued that this clause was unconstitutionally vague under Johnson v. U.S., 576 U.S. __, 135 S. Ct. 2551 (2015), which struck down identical language in the Armed Career Criminal Act, 18 U.S.C. §924(e), as unconstitutionally vague. However, in U.S. v. Wivell, 893 F.2d 156 (8th Cir. 1990), an Eighth Circuit panel concluded that the sentencing guidelines are “not susceptible to a vagueness attack.” The Eighth Circuit found that the reasoning in Wivell that the guidelines could not be unconstitutionally vague was doubtful after Johnson. The panel remanded the case to the district court to decide whether the residual clause of the career offender guideline was unconstitutional. U.S. v. Taylor, __ F.3d __ (8th Cir. Oct. 9, 2015) No. 14-2635.
7th Circuit rules Wisconsin possession of short-barreled shotgun is crime of violence. (540) Defendant was sentenced as a career offender based in part on a prior conviction for unlawful possession of a short-barreled shotgun, which the district court found was a crime of violence. In U.S. v. Miller, 721 F.3d 435 (7th Cir. 2013), the Seventh Circuit held that possession of a short-barreled shotgun was not a violent felony under the residual clause of the ACCA. However, Note 1 to §4B1.2 specifically classifies possession of a sawed-off shotgun or rifle as a crime of violence. The Seventh Circuit held that the application note was controlling, and defendant was properly sentenced as a career offender. The panel did not address Johnson v. U.S., __ U.S. __, 135 S. Ct. 2551 (2015), which held that the residual clause of the Armed Career Criminal Act, 18 U.S.C. §924(e)(2)(B)(ii), was unconstitutionally vague. The parties agreed that Johnson did not affect this case based on U.S. v. Tichenor, 683 F.3d 358 (7th Cir. 2012), which held that as a categorical matter “the Guidelines are not susceptible to attack under the vagueness doctrine.” The panel noted, however, that the Sentencing Commission has recently published for comment a proposed amendment deleting the residual clause of the career-offender guideline in light of Johnson. U.S. v. Rollins, __ F.3d __ (7th Cir. Sept. 1, 2015) No. 13-1731.
6th Circuit holds Tennessee simple robbery is still a violent felony despite Johnson. (520)(540) Defendant was sentenced under the Armed Career Criminal Act to 262 months. While his case was on appeal, the Supreme Court decided Johnson v. U.S., __ U.S. __, 135 S. Ct. 2551 (2015), which held the ACCA ‘s residual clause unconstitutionally vague. Based on Johnson, defendant argued that his two prior convictions for simple robbery in Tennessee no longer qualified as violent felonies. The Sixth Circuit disagreed. Even though the Supreme Court struck down the residual clause, the circuit ‘s holding in U.S. v. Mitchell, 743 F.3d 1054 (6th Cir.), cert. denied, (2014) still stood. Mitchell found that Tennessee simple robbery was a violent crime under both the “use of physical force clause” and the residual clause. The crime need only qualify as a violent felony under one of the clauses, and Johnson left unaffected the fact that simple robbery in Tennessee was a predicate offense under “the use of physical force” clause. U.S. v. Taylor, __ F.3d __ (6th Cir. Aug. 25, 2015) No. 14-6048.
6th Circuit holds Kentucky burglary is still violent felony post-Johnson. (520)(540) Defendant was sentenced under the Armed Career Criminal Act based in part on his 2002 Kentucky conviction for first-degree burglary. The Sixth Circuit held that the Supreme Court ‘s recent decision in Johnson v. U.S., __ U.S. __, 135 S. Ct. 2551 (2015), which held the ACCA ‘s residual clause unconstitutionally vague, did not affect the district court ‘s finding that the Kentucky burglary conviction was a predicate offense. Second degree burglary in Kentucky is a violent felony under the enumerated offenses clause in §924(e)(2)(B)(ii), and, thus, the district court did not need to rely on the residual clause to find that second degree burglary was a predicate offense. U.S. v. Taylor, __ F.3d __ (6th Cir. Aug. 25, 2015) No. 14-6048.
1st Circuit says New York offer to sell controlled substance was “serious drug offense.” (540) Defendant was sentenced under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), based in part on the district court’s finding that his prior conviction for Criminal Sale of a Controlled Substance under New York Penal Law § 220.39(1) qualified as a “serious drug offense.” Under New York law, the definition of “sell” includes an offer to sell, and defendant’s record of conviction did not specify on what theory he was convicted. He argued that his New York conviction did not qualify as a “serious drug offense” since an offer to sell does not “involv[e] manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance.” The First Circuit disagreed. It had previously held that by using the word “involving,” Congress “captured more offenses than just those that ‘are in fact’ the manufacture, distribution, or possession of, with intent to distribute, a controlled substance.” U.S. v. McKenney, 450 F.3d 39 (1st Cir. 2006). A serious drug offense also includes offenses that are “related to or connected with such conduct.” An offer to sell a controlled substance is necessarily related to and connected with its ultimate goal, the distribution of controlled substances. U.S. v. Whindleton, __ F.3d __ (1st Cir. Aug. 10, 2015) No. 14-1932.
1st Circuit agrees that Massachusetts assault with a dangerous weapon was a violent felony. (540) Defendant was sentenced under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), based in part on the district court’s finding that his prior conviction for Assault with a Dangerous Weapon under Massachusetts General Laws ch. 265, § 15B(b), qualified as a “violent felony.” The district court had concluded that the offense qualified as a violent felony under the ACCA’s so-called force clause, as an offense that has as an element “the use, attempted use, or threatened use of physical force against the person of another.” The First Circuit agreed, based on U.S. v. Am, 564 F.3d 25 (1st Cir. 2009). Am ruled that a defendant’s assault with a deadly weapon conviction “clearly satisfie[d]” the ACCA’s force clause. The Supreme Court’s decision in Johnson v. U.S., 559 U.S. 133 (2010), did not undermine Am. U.S. v. Whindleton, __ F.3d __ (1st Cir. Aug. 10, 2015) No. 14-1932.
11th Circuit holds Johnson established new rule of constitutional law, but is not retroactive. (340)(520) (540)(880) Defendant was sentenced as a career offender under the then-mandatory sentencing guidelines. He moved for leave to file a second or successive motion under § 2255 based on the Supreme Court’s recent decision in Johnson v. U.S., __ U.S. __, 135 S.Ct. 2551 (2015), which struck down the ”residual clause” definition of “violent felony” in the Armed Career Criminal Act, 18 U.S.C. § 924(e), as void for vagueness. The Eleventh Circuit agreed that Johnson announced a new substantive rule of constitutional law, but rejected the notion that the Johnson opinion required the new rule to be applied retroactively on collateral review. “When the Supreme Court makes a rule retroactive for collateral-review purposes, it does so unequivocally, in the form of a holding.” That did not happen here. Judge Pryor dissented. In re Rivero, __ F.3d __ (11th Cir. Aug. 12, 2015) No. 15-13089-C.
8th Circuit finds Iowa burglary statute was “divisible” and affirms modified categorical approach. (540) Defendant challenged the district court’s finding that he qualified as an armed career criminal under 18 U.S.C. § 924(e), arguing that his prior Iowa second degree burglary convictions did not qualify as violent felonies. The Eighth Circuit held that the district court properly found the statute was “divisible,” following U.S. v. Mathis, 786 F.3d 1068 (8th Cir. 2015) which held that Iowa’s burglary statute “exhibits the exact type of divisibility contemplated” by the Supreme Court. Accordingly, the district court properly used the modified categorical approach to find that defendant’s prior burglary convictions were violent felonies. There was no error in applying the modified categorical approach here. U.S. v. Patrie, __ F.3d __ (8th Cir. July 27, 2015) No. 14-2576.
10th Circuit holds that burglary was a violent felony. (540) Defendant pled guilty to being a felon in possession of a firearm, and was sentenced to 15 years under the Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e)(1). The Tenth Circuit rejected his claim that the burglary conviction used to trigger the enhanced sentence should not have counted as a violent felony. There was ample proof that the burglary conviction was a qualifying burglary. The conviction was based on a “generically limited charging document “, i.e. one that “narrowed the charges to the generic limit. “Because defendant pleaded guilty to a charging document that described the elements of a generic burglary conviction, he committed a qualifying violent felony. U.S. v. Ridens, __ F.3d __ (10th Cir. July 10, 2015) No. 14-3221.
4th Circuit says North Carolina drug offense was not “serious drug offense” under ACCA. (540) Defendant was sentenced as an armed career criminal based in part on a 1984 North Carolina drug conviction. Defendant argued that the offense did not qualify as a “serious drug offense” because it was not punishable by a 10-year sentence. At the time of the 1984 conviction, North Carolina grouped felonies into different classes and assigned each class a baseline, “presumptive” term of imprisonment. It also set a maximum, aggravated term of imprisonment for each offense class. Defendant’s alleged ACCA predicate was one of eight different offenses consolidated into two different judgments. The judgments did not specify how many years were awarded for each individual offense. The alleged predicate was a drug offense that carried a presumptive term of three years, and a maximum aggravated penalty of ten years. The judgments did not list any aggravating or mitigating factors. The Fourth Circuit agreed with defendant that his offense did not qualify as a serious drug offense under the ACCA. Under U.S. v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), where there are no aggravating factors, the court considers the presumptive term to be the maximum applicable punishment. Nothing in the record supported the government’s contention that the 1984 drug offense was punishable by ten years. U.S. v. Newbold, __ F.3d __ (4th Cir. June 30, 2015) No. 10-6929.
7th Circuit says prior felony convictions are not elements of ACCA offense. (540) The district court found that defendant had three prior violent felony convictions, and therefore was subject to a mandatory minimum 15-year sentence under the Armed Career Criminal Act, 18 U.S.C. §924(e)(1). Defendant argued on appeal that the government was required to prove to the jury not only the substantive offense of conviction (possession of a firearm by a felon) but also the existence of each prior conviction. The Seventh Circuit held that prior convictions in §924(e)(1) are not elements of the offense that must be submitted to the jury. In Almendarez–Torres v. U.S., 523 U.S. 224 (1998), the Supreme Court held that prior convictions are sentencing factors that could be determined by the court and that need not be proved to a jury. The recent decision in Alleyne v. U.S., __ U.S. __, 133 S. Ct. 2151 (2013) did not change Almendarez–Torres’ holding. U.S. v. Webster, __ F.3d __ (8th Cir. June 12, 2015) No. 14-2822.
4th Circuit reverses finding that predicate ACCA robberies were committed on separate dates. (540) Defendant appealed his Armed Career Criminal Act sentence, 18 U.S.C. §924(e), arguing that the Shepard-approved documents relied on by the district court were fatally ambiguous as to whether he committed his predicate armed robbery offenses on different occasions. The government introduced three sources: (1) the North Carolina judgment; (2) four bills of indictment; and (3) a plea transcript. No single offense date for any predicate robbery conviction was consistent across all three sources. The Fourth Circuit ruled that the district court’s factual finding that defendant’s three predicate offenses were committed on separate dates was clearly erroneous. In finding that the three predicate armed robbery offenses occurred on separate dates, the district court necessarily had to disregard the offense dates in the judgment. Given the discrepancies, the district court’s reliance on the indictments and plea transcript instead of the judgment was not a “permissible view[ ] of the evidence of record.” U.S. v. Span, __ F.3d __ (4th Cir. June 8, 2015) No. 14-4655.
Supreme Court holds ACCA residual clause void for vagueness. (135)(540) The Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e), provides that a person convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. §922(g), is subject to a mandatory 15-year sentence if the defendant has three prior convictions for a “violent felony.” The term “violent felony” is defined in the residual clause of §924(e) as any felony that “involves conduct that presents a serious potential risk of physical injury to another.” Although the Supreme Court had twice rejected arguments that the residual clause was void, the Court, in a decision written by Justice Scalia, held that §924(e)’s residual clause was void for vagueness, in violation of the Due Process Clause. The Court held that the statute creates “grave uncertainty” about how to estimate the risk caused by a crime or whether a crime qualifies as a violent felony. The Court held that its prior rejection of vagueness challenges to §924(e) had not been after full briefing of vagueness. Justices Kennedy and Thomas filed opinions concurring in the judgment; Justice Alito dissented. Johnson v. U.S., 576 U.S. __, 135 S. Ct. __ (June 26, 2015).
2nd Circuit says New York drug conviction replaced by youthful offender adjudication did not qualify as ACCA conviction. (540) Defendant was sentenced under the Armed Career Criminal Act (ACCA). He argued that his 2001 New York drug conviction did not qualify as a predicate conviction because he was adjudicated as a youthful offender (YO) for that offense under New York law. The Second Circuit agreed, holding that a drug conviction under New York law that has been replaced by a YO adjudication is not a qualifying predicate conviction under the ACCA because it has been “set aside” within the meaning of 18 U.S.C. §921(a)(20) and New York law. In concluding that defendant’s YO conviction had been “set aside,” the panel found that (a) §921(a)(20) specifically required the district court to apply state law in making that determination, and (b) New York law deems such YO adjudications to be “set aside,” and does not consider YO adjudications predicate convictions for sentencing enhancements in New York State courts. U.S. v. Sellers, __ F.3d __ (2d Cir. Apr. 27, 2015) No. 13-4431-cr.
Commission clarifies “single sentence” rule for determining predicate offenses. (504)(520)(540)The Commission amended the commentary to §4A1.2 to provide that, for purposes of determining predicate offenses, a prior sentence included in a single sentence should be treated as if it received criminal history points if it independently would have received criminal history points. The amendment ensures that defendants who have committed more crimes, in addition to a predicate offense, remain subject to enhanced penalties under certain guidelines such as the career offender guideline. The amendment follows U.S. v. Williams, 753 F.3d 626, 639 (6th Cir. 2014),and abrogates King v. U.S., 595 F.3d 844, 852 (8th Cir. 2010), and cases following it: Pierce v. U.S., 686 F.3d 529, 533 n.3 (8th Cir. 2012), and U.S. v. Parker, 762 F.3d 801, 808 (8th Cir. 2014) In addition, by clarifying how the single sentence rule interacts with the time limits set forth in §4A1.2(e), the amendment provides that when a prior sentence was so remote in time that it does not independently receive criminal history points, it cannot serve as a predicate offense. Proposed Amendment 6, effective November 1, 2015.
11th Circuit remands where plea agreement failed to state ACCA sentence. (540)(790) Defendant pled guilty to firearms charges pursuant to a plea agreement that explicitly stated that he would not be subject to an enhanced sentence under the Armed Career Criminal Act (ACCA). The agreement provided that defendant could be sentenced up to a maximum of ten years, and the court repeated this information at defendant’s plea hearing. However, in preparing defendant’s PSR, the probation officer found that defendant qualified as an armed career criminal, resulting in a mandatory minimum sentence of 15 years. The district court denied defendant’s motion to withdraw his guilty plea, and sentenced him to 180 months. The Eleventh Circuit held that the district court did not err in sentencing defendant under the ACCA to 180 months. Enforcing the agreed-upon ten-year sentence would result in an illegal sentence, because application of the ACCA is mandatory when a defendant meets the statutory requirements. However, the district court abused its discretion in denying defendant’s motion to withdraw his guilty plea. Once the parties brought to the court’s attention its failure to comply with Rule 11, the court should have permitted defendant to withdraw his guilty plea. U.S. v. Symington, __ F.3d __ (11th Cir. Mar. 25, 2015) No. 14-10482.
7th Circuit rules that defendant possessed firearm “in connection with” drug offense. (540) Police searching defendant’s home found 110 grams of marijuana, drug paraphernalia, $19,900 in cash, and a loaded revolver. The Seventh Circuit upheld the district court’s finding that defendant possessed a firearm “in connection with” his drug dealing, resulting in an offense level of 34 under guideline §4B1.4(b)(3)(A). The phrase “in connection with” is defined expansively. So long as the firearm served some purpose with respect to the felonious conduct, the “in connection with” requirement is satisfied. Here, when authorities searched defendant’s home, they not only found the loaded revolver underneath the bed, but found scales, drug ledgers, cutting agents for cocaine, marijuana, and a large sum of cash in the dishwasher. These were signs of a drug dealer, so it was reasonable to infer that the loaded revolver was meant to “protect or embolden the criminal enterprise.” Although the firearm was located in defendant’s upstairs bedroom, it was still easily accessible to him. The firearm need not be found next to the drugs or drug-dealing materials for the enhancement to apply. U.S. v. Sewell, __ F.3d __ (7th Cir. Mar. 13, 2015) No. 14-1384.
7th Circuit upholds drug quantity estimate based on drug supplier’s testimony and drug paraphernalia. (254)(540) Police searching defendant’s home found 110 grams of marijuana, drug paraphernalia, $19,900 in cash, and a loaded revolver. He was convicted of (1) being a felon in possession of a firearm; and (2) maintaining a place for the purpose of distributing controlled substances. The district court found that the offense involved at least 15 but less than 50 kilograms of cocaine. The Seventh Circuit held that the district court’s drug quantity findings were not clearly erroneous. A detective testified that Castaneda admitted supplying defendant with approximately 30 to 40 kilograms of cocaine from 2008 to 2011. The court’s estimate was reasonable, given that defendant and Castaneda met more than 50 times to exchange drugs and money. Moreover, the search of defendant’s home revealed drug-dealing materials consistent with substantial quantities of cocaine. U.S. v. Sewell, __ F.3d __ (7th Cir. Mar. 13, 2015) No. 14-1384.
6th Circuit holds Tennessee conviction for attempted aggravated arson was violent felony. (540) Defendant was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), based in part on his prior Tennessee conviction for attempted aggravated arson. The Sixth Circuit affirmed, holding that attempted aggravated arson under Tennessee law qualified as a violent felony under the ACCA’s residual clause. Under the first step of the residual clause analysis, the offense always presented “a serious potential risk of physical injury to another.” Previous cases have recognized that arson (without the added element of aggravation) causes a serious potential risk of physical injury. Aggravated arson required that one or more persons be present in the structure or that serious bodily injury occurred to any individual as a result of the fire or explosion. Under the second step of the residual clause analysis, the crime “must also be similar ‘in kind as well as in degree of risk posed’“ to the enumerated crimes in § 924(e)(2)(B)(ii), e.g., burglary, arson, extortion and crimes involving explosives. Arson was the closest enumerated offense to the crime of attempted aggravated arson. Attempted aggravated arson was akin to and possessed the same kind of risk as arson. U.S. v. Fallins, __ F.3d __ (6th Cir. Jan. 22, 2015) No. 14-5153.
6th Circuit holds that Ohio domestic-violence convictions qualified as violent felonies. (540) Defendant was sentenced under the Armed Career Criminal Act, 18 U.S.C. §924(e), based in part on his two prior Ohio convictions for domestic violence. The Sixth Circuit affirmed, holding that the domestic- violence convictions qualified as violent felonies. Section 924(e) covers any crime that “has as an element the use, attempted use, or threatened use of physical force against another[.]” §924(e)(2)(B)(i). Defendant’s domestic-violence convictions established that he “knowingly caused, or attempted to cause, physical harm to a family or household member.” Ohio Rev.Code §2919.25(A). Ohio defines “physical harm” as “any injury, illness, or other physiological impairment, regardless of its gravity or duration.” Ohio Rev.Code §2901.01(A)(3). Force that causes any of those things is force “capable of causing physical injury or pain to another person.” That meant that defendant’s domestic-violence convictions were violent felonies within the meaning of §924(e). The Supreme Court’s recent decision in U.S. v. Castleman, __ U.S. __, 134 S.Ct. 1405 (2014) did not warrant the opposite conclusion. U.S. v. Gatson, __ F.3d __ (6th Cir. Jan. 15, 2015) No. 14-3227.
6th Circuit holds that Ohio arson was violent felony. (540) Defendant was sentenced under the Armed Career Criminal Act, 18 U.S.C. §924(e), based in part on his prior Ohio conviction for arson. The Sixth Circuit affirmed, holding that the arson conviction met the generic definition of arson, and thus qualified as a violent felony. Although the state crime definition did not include, as an element, a risk of harm to people, a risk of harm to people is not an element of generic arson. Generic arson embraces “the intentional or malicious burning of any property,” which is what defendant was convicted of doing. U.S. v. Gatson, __ F.3d __ (6th Cir. Jan. 15, 2015) No. 14-3227.
Supreme Court orders re-argument on validity of ACCA residual clause. (330)(540) The Supreme Court granted argument to determine whether a Minnesota conviction for possession of a short-barreled shotgun is a “violent felony” under the residual clause of the Armed Career Criminal- Act, 18 U.S.C. 924(e) (2) (B) (ii). After hearing argument on that issue, the Court set the case for reargument and directed the parties to address whether the residual clause in the ACCA is unconstitutionally vague. Johnson v. U.S., __ U.S. __. 135 S.Ct. __ (2015) (setting reargument).
9th Circuit rejects second or second petition challeng-ing ACCA sentence. (540)(880) Defendant was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). At sentencing, the district court found under the modified categorical approach that both of defendant’s prior burglaries were “violent felon-ies” under the Armed Career Criminal Act and therefore that defendant should receive a 15-year mandatory sentence. After appealing and filing an unsuccessful petition under 28 U.S.C.§ 2255, defendant sought to file a second or successive § 2255 petition based on the claim that in Descamps v. U.S., 133 S.Ct. 2276 (2013), the Supreme Court announced a new rule of constitutional law that was made retroactive on collateral review. In Descamps, the court held that the modified categorical approach applies only to statutes that are divisible. The Ninth Circuit held that Descamps did not announce a new rule and that even if it did, it was not a constitutional case. Ezell v. U.S., __ F.3d __ (9th Cir. Jan. 23, 2105) No. 14-71696.
8th Circuit says below-guideline ACCA sentence was not unreasonably high. (540)(742) Defendant was convicted of being a felon in possession of a firearm. He was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e), which subjected him to a 15-year mandatory minimum sentence. The Eighth Circuit rejected defendant’s claim that his 204-month sentence was substantively unreasonable. The district court discussed the § 3553(a) factors and acknowledged that defendant had a difficult upbringing, but also emphasized his violent criminal history and the seriousness of his crime. The court also considered the need to protect the public, see § 3553(a)(2)(C); to avoid unwarranted sentencing disparities, see § 3553(a)(6); and to promote respect for the law, see § 3553(a)(2)(A), before imposing a sentence of 204 months – 58 months below the bottom of the guidelines range of 262-327 months. U.S. v. Daniels, __ F.3d __ (8th Cir. Dec. 30, 2014) No. 13-3481.
3rd Circuit finds prior was “serious drug offense” and “controlled substance offense” despite lack of mens rea as to drug’s illicit nature. (520)(540) Defendants were sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(A) based on prior Florida convictions under § 893.13(1) of the Florida Statutes that their courts ruled were either a “serious drug offense” or a “controlled substance offense.” The Florida offense had no element of mens rea with respect to the illicit nature of the controlled substance. Because drug crimes without an element of mens rea can be “serious drug offenses” under the ACCA and “controlled substance offenses” under the Sentencing Guidelines, § 4B1.2(b), the Eleventh Circuit upheld the sentences. A “serious drug offense” is “an offense under State law,” punishable by at least ten years, “involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance.” 18 U.S.C. § 924(e)(2)(A)(ii). A “controlled substance offense” is any offense under state law, punishable by more than one year, “that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance … or the possession of a con-trolled substance … with intent to manufacture, import, export, distribute, or dispense.” § 4B1.2(b). No element of mens rea with respect to the illicit nature of the controlled substance was expressed or implied by either definition. U.S. v. Smith, __ F.3d __ (11th Cir. Dec. 22, 2014) No. 13-15227.
10th Circuit holds that pointing firearm at another constituted violent felony under ACCA. (540) Defendant was sentenced as an armed career criminal based in part on the court’s finding that his 1985 Oklahoma state conviction for pointing a firearm at another constituted a “violent felony” under the ACCA. Because the statute contained some alternative elements that would not require a threatened use of physical force, the Tenth Circuit used the modified categorical approach, and looked to the charging documents to determine the specific crime to which defendant pled guilty. The information indicated the defendant pointed the gun at Singleton “for the purpose of threatening and intimidating him and with the malicious and felonious intent to injure [] Singleton” either (1) physically,” or (2) “by mental or emotional intimidation.” Since both charges contained the words “for the purpose of threatening and intimidating him,” either method of committing the crime listed in the Information was a “violent felony” under the ACCA. So long as defendant’s crime of conviction necessarily required proof that he had pointed a firearm in a threatening manner, the court was not concerned with what injury defendant intended to inflict. U.S. v. Hood, __ F.3d __ (10th Cir. Dec. 17, 2014) No. 13-6182.
Supreme Court to decide if possession of short-barreled shotgun is a violent felony. (540) Under the Armed Career Criminal Act, 18 U.S.C. § 924(e), a defendant convicted under 18 U.S.C. § 922(g) who has three prior convictions for, among other things, a “violent felony” is subject to a mandatory 15-year sentence. The term “violent felony” is defined in part to mean a felony that “involves conduct that presents a serious potential- risk of physical injury to another.” Defendant, convicted under § 922(g), had a prior conviction for possessing a short-barreled shotgun. The Supreme Court granted certiorari to decide whether possession of a short-barreled shotgun is a “violent felony” within the meaning of the ACCA. Johnson v. U.S., 134 S.Ct. 1871 (2014) (granting certiorari).
Supreme Court reverses modified categorical approach where defendant was convicted under an “indivisible” statute. (540) The Armed Career Criminal Act, 18 U.S.C. § 924(e), increases the sentences of certain federal defendants who have three prior convictions for a “violent felony.” That term is defined to include “burglary.” Defendant had a prior conviction for burglary under California Penal Code § 459, which provides that a “person who enters” certain locations “with intent to commit larceny” commits burglary. In holding that defendant’s sentence could be used to enhance his sentence, the district court and the Ninth Circuit applied “the modified categorical approach,” which applies to statutes that are “categorically broader than the generic offense” of burglary. Because documents showed that defendant’s § 459 conviction rested on a “generic” burglary, the district court and Ninth Circuit held that defendant’s sentence could be counted under the ACCA. Writing for seven justices, Justice Kagan reversed, holding that the modified categorical approach cannot be used to find that defendant’s prior conviction was a violent felony where the statute, such as § 459, contains a single, indivisible set of elements that do not constitute a violent felony. Instead, the modified categorical approach can be used only when a person can violate a statute in more than one way and supporting documents are necessary to determine whether the manner in which the person violated the statute constitutes a “violent felony.” Justice Thomas concurred in the judgment; Justice Alito dissented. Descamps v. U.S., __ U.S. __, 133 S.Ct. 2276 (2013).
Supreme Court to decide if California burglary is a “violent felony” under modified categorical approach. (540) The California burglary statute, Cal. Penal Code § 459, encompasses conduct that qualifies as a generic burglary as well as conduct that does not. In an unpublished decision, the Ninth Circuit, using the modified categorical approach, held that an examination of the change-of-plea colloquy showed that defendant’s prior conviction under § 459 was generic burglary and therefore constituted a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e). On August 31, 2012, the Supreme Court granted certiorari to decide whether the modified categorical approach is limited to statutes that, unlike § 459, have a language and structure that formally separates qualifying offenses from non-qualifying offenses. Descamps v. U.S., __ U.S. __, 133 S.Ct. 90 (2012) (granting certiorari).
Supreme Court says ACCA predicate is determined by maximum sentence when offense was committed. (540) Under the Armed Career Criminal Act, 18 U.S.C. § 924(e), a defendant convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) is subject to a mandatory 15-year sentence if he has three prior convictions for a “violent felony” or a “serious drug offense.” The term “serious drug offense” is defined in part to mean an offense under state law carrying a maximum term of imprisonment of ten years or more. Defendant, who was convicted under § 922(g), had prior convictions under North Carolina law. When defendant committed the North Carolina crimes, the offenses carried a maximum sentence of ten years or more. After defendant committed the offenses, North Carolina reduced the maximum term for defendant’s offenses to under ten years. Writing for a unanimous Supreme Court, Justice Thomas held that a court should determine whether a defendant’s prior conviction is a “serious drug offense” by determining the maximum term of imprisonment applicable to the offense at the time the defendant was convicted. McNeill v. U.S., 564 U.S. __, 131 S.Ct. 2218 (2011).
Supreme Court holds that fleeing from police officer is a “violent felony.” (540) The Armed Career Criminal Act, 18 U.S.C. § 924(e), provides that a defendant convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) who has three prior convictions for a “violent felony” is subject to a mandatory 15-year sentence. A “violent felony” is defined in part to mean an offense that involves “conduct that presents a serious potential risk of physical injury to another.” Defendant, convicted under § 922(g), had a prior felony conviction under Indiana Code § 35-44-3-3(b)(1)(A) for using a vehicle to knowingly and intentionally flee from a law enforcement officer after being ordered to stop. In an opinion joined by four other justices, Justice Kennedy held that felony vehicle flight is a “violent felony.” Justice Thomas concurred in the result; Justice Scalia dissented; and Justice Kagan dissented in an opinion joined by Justice Ginsburg. Sykes v. U.S., 564 U.S. __, 131 S.Ct. 2267 (2011).
Supreme Court defines “violent felony” to mean offense involving “violent force.” (540) Under the Armed Career Criminal Act, 18 U.S.C. § 924(e), a defendant convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), is subject to a mandatory minimum 15-year sentence if he has three prior convictions for a “violent felony.” That term is defined in part to mean a statute that “has an element the use…of physical force against the person of another.” The Supreme Court, in an opinion by Justice Scalia, held that the Florida felony offense of battery by “actually and intentionally touch[ing] another person,” in violation of Fla. Stat. § 784.03(1)(a), is not a “violent felony.” The Court explained that the ACCA’s use of the term “physical force” in its definition of “violent felony” means “violent force” or “force capable of causing physical or pain or injury to another person.” Justice Alito wrote a dissent, which Justice Thomas joined. Johnson v. U.S., 559 U.S. __, 130 S.Ct. 1265 (2010).
Supreme Court rejects categorical approach for deciding if fraud offense is aggravated felony. (540) An alien who sustains a conviction for an “aggravated felony” is subject to a deportation. Under 8 U.S.C. § 1101(a)(43)(M)(i), the term “aggravated felony” is defined to include an offense that “involves fraud or deceit in which the loss to the victim exceeds $10,000.” The Supreme Court, in a unanimous decision written by Justice Breyer, held that to satisfy this definition of “aggravated felony,” an offense need not require proof of the loss of $10,000 as an element of the offense. Instead of using the “categorical approach” to determine whether a fraud offense satisfies the definition of “aggravated felony” in this context, a court should look to the particular circumstances in which an offender committed the fraud to determine whether it resulted in a loss of more than $10,000. The Court noted that under 8 U.S.C. § 1326, a defendant who reenters the U.S. after deportation following conviction for an aggravated felony is subject to an enhanced sentence, and it acknowledged that its “circumstance-specific” approach “could create potential constitutional problems” if the government prosecuted an alien who had a prior fraud conviction under § 1326. The Court noted, however, that the government had conceded that in a prosecution under § 1326, the jury would have to find that defendant’s prior fraud conviction involved a loss of more than $10,000. Nijhawan v. Holder, 557 U.S. __, 129 S.Ct. 2294 (2009).
Supreme Court to decide if battery is a violent felony under the ACCA. (540) The Armed Career Criminal Act, 18 US.C. §924(e), requires imposition of a 15-year mandatory sentence for a defendant convicted of being a felon in possession of a firearm who has three prior convictions for a “violent felony.” The Supreme Court granted certiorari to determine whether felony battery under Florida law is a violent felony for purposes of the ACCA. Johnson v. U.S., 555 U.S. __. 129 S.Ct. __ (Feb. 23, 2009) (granting certiorari).
Supreme Court to decide if conspiracy to commit fraud is an aggravated felony. (540) Federal immigration law defines the term “aggravated felony” to mean, among other things, “an offense that involves fraud or deceit.” 8 U.S.C. §1101(a)(43)(M)(i). Defendant was convicted of conspiracy to commit bank, mail, and wire fraud, in violation of 18 U.S.C. §371. The Supreme Court granted certiorari to determine whether defendant’s offense constituted an “aggravated felony.” Nijhawan v. Mukasey, 555 U.S. __, 129 S.Ct. __ (Jan. 16, 2009) (granting certiorari).
Supreme Court holds that failure to report to prison is not a violent felony. (540) Under the Armed Career Criminal Act, 18 U.S.C. 924(e), a defendant convicted of being a felon in possession of a firearm who has three prior convictions for a “violent felony or a serious drug offense” is subject to a mandatory minimum 15-year sentence. A “violent felony” is defined in part as an offense that “involves conduct that presents a serious potential risk of physical injury to another.” The Supreme Court, in an opinion by Justice Breyer, held that the Illinois felony of failing to report to a penal institution to serve a sentence is not a “violent felony” within the meaning of the ACCA. Justice Alito wrote an opinion concurring in the judgment in which he urged Congress to amend the ACCA to include a specific list of expressly defined crimes that support the ACCA’s sentencing enhancement. Chambers v. U.S., 555 U.S. 122, 129 S.Ct. 687 (2009).
Supreme Court holds that “maximum term” under ACCA is maximum set by recidivist provision. (540) Under the Armed Career Criminal Act, 18 U.S.C. § 924(e), a defendant convicted of possession of a firearm by a convicted felon is subject to a mandatory 15-year sentence if he has three prior convictions for a “violent felony” or a “serious drug offense.” A “serious drug offense” is defined in part to mean an offense for which “a maximum term of imprisonment of ten years is prescribed by law.” Defendant had three prior drug convictions in Washington. Under Washington law, a first drug offense was subject to a five-year maximum sentence, but second and subsequent convictions for drug offenses carried a 10-year maximum. The Ninth Circuit held that “the maximum term of imprisonment” must be determined without taking the recidivist enhancements into account. The Supreme Court, in an opinion by Justice Alito joined by five other justices, held that the “maximum term of imprisonment” for defendant’s state drug convictions was the 10-year maximum set by the state recidivist provision. U.S. v. Rodriguez, __ U.S. __, 128 S. Ct. __ (May 19, 2008).
Supreme Court to decide if escape is a violent felony. (540) Under the Armed Career Criminal Act, a defendant convicted of possession of a firearm by a convicted felon is subject to a mandatory 15-year sentence if he has three prior convictions for a “violent felony.” A “violent felony” is defined in part to mean an offense that “involves conduct that presents a serious potential risk of physical injury to another.” The Supreme Court granted certiorari to determine whether escape is a violent felony within the meaning of the definition of “violent felony.” Chambers v. U.S. __ U.S. __, 128 S. Ct. __ (April 21, 2008) (granting certiorari).
Supreme Court holds that felony DUI is not a violent felony. (540) The Armed Career Criminal Act, 18 U.S.C. § 924(e), provides that a defendant convicted of possession of a firearm by a convicted felon is subject to a mandatory 15-year sentence if he has three prior convictions for a “violent felony.” That term is defined to mean an offense that is “burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Defendant had 12 prior New Mexico convictions for driving under the influence of alcohol. Under New Mexico law, the fourth such conviction is a felony punishable by more than one year in prison. The Supreme Court held that New Mexico’s felony DUI law does not define a “violent felony” under the ACCA. In an opinion by Justice Breyer, the Court reasoned that even if felony DUI involves conduct that presents a serious risk of physical injury to others, it is too unlike the other crimes listed in the definition to qualify as a violent felony. Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008).
Supreme Court says that ACCA exemption does not apply to offender who never lost civil rights. (540) The Armed Career Criminal Act, 18 U.S.C. § 924(e), provides that a defendant convicted of possession of a firearm by a convicted felon is subject to a 15-year mandatory minimum sentence if he has three prior convictions for “violent felonies.” A state-law misdemeanor may qualify as a “violent felony” if it carries a maximum sentence of more than two years. A prior conviction that otherwise constitutes a violent felony does not qualify if the defendant “has had [his] civil rights restored” for the conviction. The Supreme Court unanimously held that the ACCA’s exemption for convictions for which the offender’s civil rights have been restored does not apply to defendants who did not lose their civil rights upon conviction. Accordingly, defendant’s misdemeanor conviction counted as a violent felony. Logan v. U.S., 552 U.S. 23, 128 S.Ct. 475 (2007).
Supreme Court to determine if driving while intoxicated is a “violent felony” under the ACCA. (540) Under the Armed Career Criminal Act, 18 U.S.C. § 924(e), a defendant convicted of being a felon in possession of a firearm is subject to a 15-year mandatory minimum sentence if he has three prior convictions for a “violent felony” or a drug-trafficking offense. The Supreme Court granted certiorari to determine whether driving while intoxicated is a “violent felony.” Begay v. U.S., 128 S.Ct. 32 (2007) (granting certiorari).
Supreme Court to determine if recidivist sentence satisfies ACCA definition of drug-trafficking offense. (540) The Armed Career Criminal Act, 18 U.S.C. § 924(e), provides for a 15-year mandatory sentence for defendants convicted of being a felon in possession of a firearm if the defendant has three prior convictions for, among other things, a state controlled substance offense “for which a maximum term of imprisonment of ten years or more is prescribed by law.” The Supreme Court granted certiorari to determine whether a state drug-trafficking offense, for which state law authorized a ten-year sentence because the defendant was a recidivist, qualifies as a predicate offense under the ACCA. U.S. v. Rodriquez, 128 S.Ct. 33, __ U.S. __, (2007) (granting certiorari).
Supreme Supreme Court says that attempt offense may be “violent felony” under ACCA. (540) Under the Armed Career Criminal Act, 18 U.S.C. § 924(e), a defendant who has three prior convictions for a “violent felony” or a “serious drug offense” is subject to a 15-year mandatory minimum sentence. The term “violent felony” is defined in part to include a felony that “involves conduct that presents a serious potential risk of physical injury to another.” Defendant argued that an attempt offense never presents a serious potential risk of physical injury to another and therefore can never qualify as an attempt offense. The Supreme Court held, however, that Congress did not intend to limit the ACCA to completed offenses and that an attempt offense could satisfy the definition of “violent felony.” James v. U.S., 550 U.S. 192, 127 S.Ct. 1586 (2007).
Supreme Court clarifies categorical approach and holds attempted burglary is a “violent felony” under ACCA. (540) The Armed Career Criminal Act, 18 U.S.C. § 924(e), defines the term “violent felony” to include a crime punishable by more than a year that is “burglary” or “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Under Florida law, attempted burglary requires proof of an “overt act directed toward entering or remaining in a structure or conveyance.” The Supreme Court held that attempted burglary under Florida law categorically qualifies as a “violent felony” because it poses a serious potential risk of physical injury to another. The Court held that the commission of an offense need not pose the requisite risk of physical injury in every case. Instead, the proper inquiry under the categorical approach is whether the conduct encompassed by the elements of the offense ordinarily presents a serious potential risk to another. James v. U.S., 550 U.S. 192, 127 S.Ct. 1586 (2007).
Supreme Court says offender must show “realistic possibility” that prior conviction was outside “generic” definition. (540) In determining whether a prior conviction is a “theft offense” under 8 U.S.C. §1101(a)(43), the Supreme Court held, in accord with Taylor v. U.S., 495 U.S. 575 (1990) that Congress intended a modern “generic” definition. In this civil immigration case, the alien argued that the California statute under which he was convicted included conduct outside the “generic” definition. The Supreme Court held that “to find that a state statute creates a crime outside the generic definition” requires a “realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.” To show such a realistic possibility, the offender “must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.” Here, the offender made no such showing. Gonzalez v. Gonzalez v. Duenas-Alvarez, 127 S.Ct. 815 (2007).
Supreme Court to decide if attempted burglary is a violent felony. (540) The Armed Career Criminal Act, 18 U.S.C. § 924(e), mandates a 15-year minimum mandatory sentence for defendants convicted of possessing a firearm who have three prior convictions for a “violent felony.” Under the statute, burglary is a violent felony, and an attempt to commit an enumerated “violent felony” may also constitute a violent felony. The Supreme Court has granted certiorari to review an Eleventh Circuit decision holding that attempted burglary under Florida law is a “violent felony.” James v. U.S., __ U.S. __, 126 S.Ct. 2860 (2006) (granting certiorari).
Supreme Court limits evidence used to determine if prior conviction is “generic” felony. (540) The Armed Career Criminal Act, 18 U.S.C. § 924(e), mandates a 15-year minimum mandatory sentence for defendants convicted of possessing a firearm who have three prior convictions for serious felonies, including burglary. In Taylor v. U.S., 495 U.S. 575 (1990), the Court held that only “generic burglaries” qualified as predicate felonies under the ACCA and that in determining whether a defendant’s prior conviction was a generic burglary, a court could look to statutory elements, charging documents, and jury instructions. In a 5-3 decision, the Supreme Court held that a sentencing court may not look to police reports or complaint applications to determine whether a defendant’s earlier guilty plea showed that defendant committed a generic burglary. Instead, a court is limited to the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge. Shepard v. U.S., 544 U.S. 13, 125 S.Ct. 1254 (2005).
Justice Thomas argues that prior convictions should be subject to Apprendi. (540) In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court held that facts, other than prior convictions, that increase the defendant’s maximum sentence must be alleged in the indictment and proved to the jury beyond a reasonable doubt. In excepting prior convictions from the Apprendi rule, the Court preserved its ruling in Almendarez-Torres v. U.S., 523 U.S. 224 (1998). In a concurring opinion in a decision on the evidence necessary to establish that a prior offense qualifies as a predicate for an increased sentence under the Armed Career Criminal Act, Justice Thomas asserted that “a majority of the Court now recognizes that Almendarez-Torres was wrongly decided” and argued that it should be reconsidered. Shepard v. U.S., 544 U.S. 13, 125 S.Ct. 1254 (2005) (Thomas, J., concurring).
Supreme Court bars using § 2255 to claim sentence is based on allegedly invalid priors. (540) Affirming the Ninth Circuit’s decision in U.S. v. Daniels, 195 F.3d 501 (9th Cir. 1999), the Supreme Court, in a 5-4 opinion written by Justice O’Connor, held that – except for convictions obtained in violation of the right to counsel – a motion under 28 U.S.C. § 2255 cannot be used to challenge a federal sentence on the ground that it was enhanced by an allegedly unconstitutional prior conviction. The majority thus extended the rule of Custis v. U.S., 511 U.S. 485, 490-497 (1994), which held that a defendant could not collaterally attack prior state convictions during his federal sentencing proceeding. The majority reasoned that a contrary rule would permit an end run around procedural barriers that would preclude the defendant from attacking the prior conviction directly. Justice Scalia concurred, except for a portion of the opinion recognizing that § 2255 may be available in rare circumstances. Justice Souter dissented, joined by Justices Stevens, Ginsburg and Breyer. Daniels v. U.S., 121 S.Ct. 1578 (2001).
Supreme Court says felon’s right to possess rifles is not restored if handguns are forbidden. (540) Under 18 U.S.C. § 922(g)(1), a convicted felon may not possess a firearm. Until 1986, federal law alone determined whether a state conviction counted as a prior felony, regardless of whether the state had expunged the conviction. Dickerson v. New Banner Institute, Inc.,460 U.S. 103, 119-122 (1983). In 1986, Congress modified this aspect of Dickerson by amending 18 U.S.C. § 921(a)(20) to provide that state law governed in determining whether a state conviction counted, adding that convictions for which the defendant’s civil rights had been restored did not count “unless such . . . restoration of civil rights expressly provides that the person may not . . . possess firearms.” In the present case, Massachusetts law allowed petitioner to possess rifles and shotguns because he had the necessary firearm permit and his felony convictions were more than five years old. However, Massachusetts law forbade him to possess handguns outside his home or business. Nevertheless, he was convicted under § 922(g)(1) based on his possession of rifles and shotguns. The Supreme Court affirmed his convictions in a 6-3 opinion written by Justice Kennedy. The court held that any “state weapons limitation on an offender activates the uniform federal ban on possessing any firearms at all.” “This is so even if the guns the offender possessed were ones the State permitted him to have.” The court recognized that any reading of the statute “creates incongruities,” but that “[p]ermission to possess one gun cannot mean permission to possess all.” Justices Thomas, Scalia and Souter dissented. Caron v. U.S., 524 U.S. 308, 118 S.Ct. 2007 (1998).
Supreme Court limits collateral attack on state convictions used to enhance sentence. (540) Defendant was convicted of possession of a firearm by a felon under 18 U.S.C. § 922(g)(1). At sentencing, the judge sentenced him under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), because he had three prior state felony convictions. Defendant claimed his prior state convictions were invalid due to ineffective assistance of counsel. The district court refused to entertain this collateral attack, noting that “[u]nlike the statutory scheme for enhancement of sentences in drug cases [§924(e)(1)] provides no statutory right to challenge prior convictions.” In a 6-3 opinion written by Chief Justice Rehnquist, the Supreme Court affirmed, holding that with the sole exception of convictions obtained in violation of the right to counsel, a defendant has no right to collaterally attack prior state convictions that are used to enhance his sentence under the Armed Career Criminal Act. “The statute focuses on the fact of the conviction and nothing suggests that the prior final conviction may be subject to collateral attack for potential Constitutional errors before it may be counted.” Justices Souter, Blackmun and Stevens dissented. Custis v. U.S., 511 U.S. 485, 114 S.Ct. 1732 (1994).
Supreme Court will decide whether defendant can challenge validity of prior convictions. (540) In U.S. v. Custis, 988 F.2d 1355 (4th Cir. 1993), the Fourth Circuit held that the district court did not err in refusing to permit defendant to challenge prior convictions that were used to enhance his sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e). The court said that a defendant may challenge predicate state convictions only when prejudice can be presumed from the constitutional violation in the sense that it undermines confidence in the defendant’s guilt. The court noted, however, that the defendant could collaterally attack his prior convictions, and if successful, he could seek revision of his federal sentence. On October 12, 1993, the Supreme Court granted certiorari to review this ruling. Custis v. U.S., 510 U.S. 913, 114 S.Ct. 299 (1993) (granting certiorari).
1st Circuit rules Massachusetts assault and battery on court officer was violent felony. (540) Defendant pled guilty to firearms charges, and was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e), based on a 2006 conviction for assault and battery on a court officer. The First Circuit affirmed, holding that assault and battery on a court officer was a violent felony under the ACCA’s residual clause. In U.S. v. Dancy, 640 F.3d 455 (1st Cir. 2011), the court held that assault and battery on a police officer, in violation of the same statute—Mass. Gen. Laws ch. 265, § 13D—was a violent felony for ACCA purposes. Moreover, U.S. v. Jonas, 689 F.3d 83 (1st Cir. 2012), relied on Dancy to hold that assault and battery on a corrections officer was a “crime of violence” under the career offender guideline, § 4B1.2(a)(1), which is almost identical to the definition of “violent felony” under the ACCA. Those cases could not be meaningfully distinguished from this case. U.S. v. Anderson, 745 F.3d 593 (1st Cir. 2014).
1st Circuit holds Massachusetts conviction for resisting arrest was a violent felony. (540) Defendant was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e), to 15 years. The First Circuit rejected defendant’s argument that his 2000 Massachusetts conviction for resisting arrest was not a violent felony under the ACCA. In U.S. v. Weeks, 611 F.3d 68, 73 (1st Cir. 2010), the court held that resisting arrest under Massachusetts law qualified as a “crime of violence” under U.S.S.G. § 4B1.2. Because that guideline and the ACCA are similarly worded, a court may treat a conviction for resisting arrest as a violent felony for purposes of the ACCA. Moreover, the two methods of resisting arrest proscribed by Massachusetts law required knowledge, and both methods fell under either the force clause, or the residual clause. U.S. v. Carrigan, 724 F.3d 39 (1st Cir. 2013).
1st Circuit holds that Massachusetts assault and battery was violent felony. (540) Defendant was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e), based in part on the district court’s finding that his prior convictions for assault and battery on a police officer and assault and battery with a dangerous weapon constituted violent felonies. The First Circuit affirmed. In U.S. v. Hart, 674 F.3d (1st Cir. 2012), the court held that assault and battery with a deadly weapon under Massachusetts law categorically qualified as an ACCA predicate under the ACCA’s residual clause. The court reasoned that the offense “clearly poses a serious potential risk of injury, comparable to the degree of risk posed by the enumerated offenses [of the residual clause].” Hart also found that even if a conviction for assault and battery with a dangerous weapon under Massachusetts law may sometimes rest on a recklessness theory, its “analysis under the residual clause [was] explicitly, and necessarily, limited to the ‘ordinary case.'” U.S. v. Carrigan, 724 F.3d 39 (1st Cir. 2013).
1st Circuit holds Massachusetts assault and battery with deadly weapon was violent felony. (540) Defendant was sentenced as an armed career criminal under 18 U.S.C. § 924(e)(1) based in part on the district court’s finding that his prior Massachusetts conviction for assault and battery with a deadly weapon (ABDW) was a violent felony. The First Circuit affirmed. An offense qualifies under the residual clause if it is “burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” § 924(e)(2)(B)(i). Under Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), the court must first evaluate the offenses’ comparative degree of risk. ABDW clearly poses a serious potential risk of injury, comparable to the degree of risk posed by the enumerated offenses, since the crime involves a touching by means of a dangerous weapon. The second prong of the Begay inquiry requires an offense to be roughly similar in kind to the enumerated offenses in that it must “typically involve purposeful, violent, and aggressive conduct.” Although ABDW may rest on a recklessness theory, this fact pattern did not represent the vast majority of ABDW convictions. U.S. v. Hart, 674 F.3d 33 (1st Cir. 2012).
1st Circuit rules Massachusetts breaking-and-entering conviction was not violent felony. (540) The district court sentenced defendant under the Armed Career Criminal Act (ACCA), finding that his 1980 Massachusetts conviction for breaking-and-entering was a violent felony. The First Circuit reversed. First, the state statute’s inclusion of ships or vessels took the statute outside the confines of “generic” burglary. Second, the Massachusetts statute did not fall within the ACCA’s residual clause. In U.S. v. Brown, 631 F.3d 573 (1st Cir. 2011), the court held that burglary of a non-dwelling building under Massachusetts’ night-time breaking-and-entering statute did not qualify as a “crime of violence” under the guidelines’ career offender provision. The issue here was distinguishable, but the panel concluded that those differences were immaterial – the predicate crime in this case and generic burglary were insufficiently congenerous. First, conduct that constitutes the element of “breaking” includes opening a closed but unlocked door or window. Also, “entering” was satisfied by “some portion of the defendant’s hand or arm” coming within the house. Conduct that satisfies these elements did not seem typically violent or aggressive, and violence was not necessarily a hallmark of breaking-and-entering convictions in the Massachusetts cases. U.S. v. Farrell, 672 F. 3d 27 (1st Cir. 2012).
1st Circuit holds that Massachusetts offense of larceny from the person was violent felony under ACCA. (540) The district court sentenced defendant under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), based in part on the district court’s finding that his prior Massachusetts conviction for larceny from the person was a violent felony. The First Circuit affirmed, holding that under the ACCA’s so-called residual clause, the offense “presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2) (B)(ii). Earlier caselaw holding that the larceny offense qualified as a crime of violence has not been undermined by Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008) (requiring a violent felony to be “purposeful, violent and aggressive”). Begay has been limited by Sykes v. U.S., 131 U.S. 2267 (2011). Under Sykes, where the prior felony has a “stringent mens rea requirement,” as was the case here, Begay provides no shelter. U.S. v. Rodriguez, 659 F.3d 117 (1st Cir. 2011).
1st Circuit excuses waiver of career criminal issue given intervening change in law. (540) Defendant was sentenced as an armed career criminal, based in part on the district court’s finding that his prior assault and battery convictions under Massachusetts law, Mass. Gen. Laws ch. 265, § 13A, were violent felonies. After defendant was sentenced, and while his appeal was pending, the First Circuit reversed prior precedent that had automatically classified such convictions as violent felonies under the Armed Career Criminal Act (ACCA). See U.S. v. Holloway, 630 F.3d 252 (1st Cir. 2011), overruling recognized by U.S. v. Hsu, 669 F.3d 112 (2d Cir. 2012). The government argued that defendant had waived this issue below by conceding that he was an armed career criminal. The First Circuit found that this was a proper case in which to excuse the waiver. However, defendant still had to meet the plain error tests of error, plainness, prejudice to the defendant, and the threat of a miscarriage of justice. Here the plain error tests were satisfied, and no threat existed of unfair prejudice to the government. On remand, the government remained entitled to establish the ACCA designation. U.S. v. Torres-Rosario, 658 F.3d 110 (1st Cir. 2011).
1st Circuit holds that assault and battery on police officer qualified as violent felony under ACCA. (540) Defendant was sentenced under the Armed Career Criminal Act based in part on the district court’s finding that his prior conviction for assault and battery on a police officer (ABPO) qualified as a violent felony. Defendant argued that the offense could be committed recklessly, and thus did not qualify as a violent felony. The First Circuit disagreed. Here, the ABPO crime had additional elements that the simple assault crime did not, including that the person assaulted must be a police officer engaged in his official duties, and the defendant must know the victim of the assault is a police officer. These additional elements differentiated the mental state required for ABPO from simple assault, and ensured that the conduct criminalized was “purposeful.” Moreover, the ABPO crime “nearly always poses a serious risk of actual or potential physical force and the likelihood of physical injury.” Law enforcement officers usually carry a weapon, and the assault is likely to provoke a response of decisive force designed to quickly end the matter. This great risk of physical injury is present even if the assault is recklessly done. U.S. v. Dancy, 640 F.3d 455 (1st Cir. 2011).
1st Circuit holds that burglary of curtilage of a structure was violent felony. (540) The district court sentenced defendant as an armed career criminal based in part on its finding that his two prior Florida convictions for burglary in the third degree were violent felonies. The First Circuit agreed. It was true that the statute under which defendant was convicted covered more than generic burglary, since the Florida statute includes “curtilage” as part of the definition of “structure.” Thus, defendant’s convictions were not “generic burglaries” under the ACCA. However, the ACCA also contains an “otherwise” clause, which defines a violent felony as a crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Both the Supreme Court and the Eleventh Circuit have held that burglary of the curtilage of a structure under Florida law presents a serious potential risk of physical injury to another for purposes of the “otherwise” clause of the ACCA. See U.S. v. Matthews, 466 F.3d 1271 (11th Cir. 2006) and James v. U.S., 550 F.3d 192 (2007). The district court properly found that defendant’s two convictions for third degree burglary under Fla. Stat. § 810.02(a) constituted “violent felonies” under the otherwise clause. U.S. v. Pakala, 568 F.3d 47 (1st Cir. 2009).
1st Circuit holds that escape from secure custody was violent felony. (540) Defendant was sentenced as an armed career criminal based in part on the district court’s finding that his escape conviction was a violent felony. However, in Chambers vs. U.S., 129 S.Ct. 687 (2009), the Supreme Court ruled that failures to report and escapes from custody, although sometimes grouped together within a single criminal statute, do not belong to the same category of crimes for purposes of the “violent felony” provision of the Armed Career Criminal Act. This eroded First Circuit cases holding that all escape crimes should be treated the same in making the violent felony or crime of violence determination. The court must now identify the category of escape crime applicable to defendant’s conviction, and determine whether crimes in that category should be considered ACCA predicate violent felonies. Defendant’s indictment revealed that his was not a failure to report crime but an escape from secure custody, by crawling under a fence at a county jail. The First Circuit held that this was a violent felony within the meaning of the ACCA. U.S. v. Pratt, 568 F.3d 11 (1st Cir. 2009).
1st Circuit says charge that defendant “did assault and beat” victim established violent felony. (540) Under Massachusetts law, assault and battery may be of two separate types, “offensive” and “harmful.” The latter type qualifies as a violent felony under the ACCA. See U.S. v. Holloway, 499 F.3d 114 (1st Cir. 2007). Based on three prior Massachusetts assault and battery convictions, the sentencing court classified defendant as an armed career criminal. The district court relied on charging language that defendant “did assault and beat” the victim to find that each assault and battery conviction was for the “harmful,” violent type of assault and battery. The First Circuit affirmed. In four previous cases, the appellate court determined that the “did assault and beat” charging language sufficed to identify the “harmful” brand of assault and battery. Although defendant presented affidavits from both a current and retired clerk in the Massachusetts state court that the “did assault and beat” charging language is used in all assault and battery cases regardless of which type was being charged, the First Circuit found that it was bound by existing precedent. U.S. v. Rivera, 562 F.3d 1 (1st Cir. 2009).
1st Circuit finds conviction for resisting arrest was “prior felony conviction” under career offender guideline. (540) Defendant was sentenced as a career offender based in part on his prior conviction for resisting arrest, in violation of Massachusetts law. The First Circuit held that the district court properly determined that resisting arrest conviction was a “prior felony conviction” because under Massachusetts law, resisting arrest, a misdemeanor offense, carries a punishment of up to two and one-half years in jail. The fact that §4A1.2(c) cites “resisting arrest” as an example of a misdemeanor or petty offense did not change this analysis. Any ambiguity is resolved by §4A1.2(o), which states that for §4A1.2(c), a “felony offense” means any federal, state, or local offense punishable by death or a term of imprisonment exceeding one year, regardless of the actual sentence imposed.” In order for a resisting arrest offense to qualify as a misdemeanor offense for purposes of §4A1.2(c), it would have to be punishable by imprisonment for a term under one year. U.S. v. Almenas, 553 F.3d 27 (1st Cir. 2009).
1st Circuit rules that resisting arrest was crime of violence. (540) Defendant was sentenced as a career offender based in part on his previous conviction for resisting arrest. The First Circuit upheld the district court’s finding that resisting arrest qualified as a crime of violence for career offender purposes. One section of the state statute defines the offense as “using or threatening to use physical force or violence against the police officer or another.” Mass. Gen Laws, ch. 268, §32B(1). This method of resisting arrest fits squarely within the definition of a crime of violence. The second method of resisting arrest involves “using any other means which creates a substantial risk of causing bodily injury to such police officer of another.” Mass. Gen Laws, ch. 268, §32B(2). Even after Begay, this second method of resisting arrest qualifies as a crime of violence under the so-called residual cause because it (a) poses a degree of risk roughly similar to the risk posed by the enumerated offenses, and (b) involves purposeful, violent and aggressive conduct. Stiffening one’s arm to avoid being handcuffed cannot be characterized as “non-violent,” or “non-aggressive.” U.S. v. Almenas, 553 F.3d 27 (1st Cir. 2009).
1st Circuit, en banc, requires categorical approach under residual clause to decide if non-residential burglary is crime of violence. (540) In U.S. v. Sawyer, 144 F.3d 191 (1st Cir. 1998), and U.S. v. Fiore, 983 F.2d 1 (1st Cir. 1992), the First Circuit held that a prior conviction for a burglary which is not of a dwelling is per se a “crime of violence'” under the Guidelines. Here, the First Circuit en banc reversed course and rejected the per se rule, holding instead that whether a prior conviction for non-residential burglary is a crime of violence turns on the application of a categorical approach under §4B1.2(a)(2)’s residual clause. In determining whether a prior offense is a violent felony under the ACCA, the Supreme Court has consistently adhered to a categorical approach. The en banc court believed that the Sentencing Commission intended this categorical approach be used in interpreting the career offender guideline, by using identical language to the ACCA in the residual clause and through its commentary. Moreover, other circuits uniformly apply a categorical approach when considering whether non-burglary crimes are included under §4B1.2(a)(2)’s residual clause. U.S. v. Giggey, 551 F.3d 27 (1st Cir. 2008) (en banc).
1st Circuit holds homicide by negligent operation of motor vehicle is not crime of violence. (540) The district court applied an enhanced offense level based on its finding that defendant’s prior Wisconsin conviction for motor vehicle homicide was a crime of violence under §4B1.2(a). The First Circuit found that under the Supreme Court’s recent decision in Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), the offense did not qualify as a crime of violence. Under Begay, the crime at issue must be “roughly similar” in kind, as well as in degree of risk posed, to the crimes listed in the “otherwise” clause (burglary, arson, extortion or crimes involving use of explosives). Begay found that DUI was not a violent felony because it was too unlike the listed examples, even though it was roughly similar in degree of risk. Here, although vehicular homicide met the necessary degree of risk to be a crime of violence, it was not similar in kind to the enumerated offenses. Although it was violent, it was not necessarily aggressive or purposeful. Vehicular homicide involving criminal negligence does not involve the requisite purposeful, intentional or deliberate conduct to be a crime of violence. U.S. v. Herrick, 545 F.3d 53 (1st Cir. 2008).
1st Circuit holds transporting minor for prostitution is categorically crime of violence. (540) Defendant was convicted of interstate transport of a minor for prostitution purposes, and sentenced as a career offender. The First Circuit affirmed, holding that the offense was categorically a “crime of violence” for career offender purposes. The fact that defendant himself was not involved in sexual contact with the minor did nothing to diminish the risk that force might be used. A prostituted child who is exploited in violation of § 2423(a) faces more and greater risks than does a seduced child. The Supreme Court’s decision in Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), did not change this conclusion. Begay, which charted a new course in interpreting the violent felony definition under the ACCA, had to be considered because this circuit reads the ACCA and the almost identical language in the career offender guideline the same. Begay, which held that DUI is not a violent felony, directs a court to focus not only on the degree of risk of harm posed by a particular crime, but whether the crime involves “purposeful, violent, and aggressive conduct.” The panel acknowledged that the offense here was different from other crimes of violence in that the defendant himself was not necessarily the agent of violence. However, since the risk of harm is so substantial and so easily foreseen by the defendant, there was no basis for distinction. U.S. v. Williams, 529 F.3d 1 (1st Cir. 2008).
1st Circuit holds attempted possession of controlled substance was “felony drug offense.” (540) A jury convicted defendant of drug charges. The district court found that he was subject to a mandatory minimum life sentence based in part on its finding that “attempt” offenses are felony drug offenses under 21 U.S.C. § 841 (b)(1). The First Circuit agreed that attempted possession of controlled substances is a “felony drug offense” under the sentencing enhancement provisions of 21 U.S.C. § 841(b)(1). A “felony drug offense” is “an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct related to narcotic drugs.” The classification that Congress built into the Controlled Substances Act sweeps broadly. To “relate” means to show or establish a logical or casual connection. An attempt to possess a controlled substance is, by definition, connected logically and causally to narcotic drugs. Case law supports this interpretation. Courts interpreting the Armed Career Criminal Act, 18 U.S.C. § 924(e), have held that attempted possession with intent to distribute qualifies as a “serious drug offense,” notwithstanding its inchoate character. In addition, the Sentencing Commission includes inchoate offenses in its definition of a “controlled substance offense.” U.S. v. Brown, 500 F.3d 48 (1st Cir. 2007).
1st Circuit holds that charging document supported violent felony finding. (540) Defendant pled guilty to being a felon in possession of ammunition. Defendant had three prior Massachusetts convictions for assault and battery. The government argued that the offenses were violent felonies, and defendant should be sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e), because each conviction was based on a charging document that alleged defendant did “assault and beat” the victim. Defendant claimed that this language was boilerplate that said nothing about the nature of the underlying crime (the Massachusetts statute included both harmful and non-harmful conduct). The district court accepted this position and refused to sentence defendant under the ACCA. The First Circuit reversed, finding defendant’s position foreclosed by precedent holding that a Massachusetts charging document that states the defendant “assault[ed] and beat” the victim is sufficient to establish that the conviction was for a violent battery and therefore a “crime of violence” under the guidelines. See, e.g., U.S. v. Estevez, 419 F.3d 77 (1st Cir. 2005). The definitions of “violent felony” in the ACCA and “crime of violence” in U.S.S.G. § 4B1.1 are essentially the same, and therefore the court may look to cases dealing with either of them. U.S. v. Holloway, 499 F.3d 114 (1st Cir. 2007).
1st Circuit holds that Massachusetts assault was a crime of violence. (540) The district court applied a 16-level enhancement under § 2L1.2(B) (1) based on its finding that his assault conviction, under Mass. Gen Laws ch. 265, § 15A, was a crime of violence. The statute contained two subsections. Subsection (b) sets out punishment for anyone who “commits assault and battery upon another by means of a dangerous weapon.” Thus, the statutory definition “admits to no interpretation other than a crime that involves the use of physical force against another person.” The First Circuit ruled that the district court did not err in relying on the state statutory definition of the crime rather than the face of the complaint to make the crime of violence finding. Although the criminal complaint technically charged defendant with assault and battery with a dangerous weapon against the Commonwealth of Massachusetts, the sentencing court rejected the argument that the complaint did not properly charge defendant with a crime under § 15A(b). Since there is no indication that § 2L1.2 contemplates collateral attack, the panel would not question the state court’s conclusion that defendant was properly convicted under § 15A(b). U.S. v. Earle, 488 F.3d 537 (1st Cir. 2007).
1st Circuit holds that indecent assault and battery is violent felony under the ACCA. (540) The district court found that defendant’s Massachusetts indecent assault and battery conviction was a violent felony under the ACCA because it was for a crime that “presents a serious potential risk of physical injury to another.” The First Circuit agreed. The district court found that all violations of the Massachusetts statute were violent felonies, relying on a Second Circuit case holding that a conviction under the particular statute was a crime of violence. Sullivan v. Reno, 228 F.3d 171 (2d Cir. 2000). Although Sullivan involved the definition of a crime of violence in 18 U.S.C. § 16, rather than a violent felony under the ACCA, the ACCA’s definition of “violent felony” has been deemed substantively identical to the definition of crime of violence under the guidelines. U.S. v. Leahy, 473 F.3d 401 (1st Cir. 2007).
1st Circuit holds that breaking and entering into steel storage shed was burglary conviction under ACCA. (540) Defendant was sentenced as an armed career criminal under 18 U.S.C. § 924(e) based on the district court finding that his prior conviction for breaking and entering a steel storage shed constituted a violent felony. The First Circuit agreed with the finding, and affirmed the ACCA sentencing enhancement. The plea colloquy clearly showed that defendant was convicted under the clause of the statute involving the burglary of “other buildings.” The types of buildings to which the Rhode Island statute referred, such as bars, stables and sheds, clearly fit within the definition of generic burglary under Taylor v. U.S., 495 U.S. 575 (1990). Defendant was convicted of “entering” into a steel storage shed, and therefore, the structure was large enough to be entered by a person. This case did not involve any issue about structure not large enough to permit human entry. U.S. v. Bennett, 469 F.3d 46 (1st Cir. 2006).
1st Circuit holds that Maine convictions for unlawful sexual contact were violent felonies under ACCA. (540) Defendant argued that the district court erred in classifying his two 1993 convictions for unlawful sexual contact as violent felonies under the ACCA. 18 U.S.C. § 924(c)(1). He argued that because the Maine statute criminalized mere touching, among other things, the offense did not “pose a serious potential risk of physical injury.” The First Circuit disagreed, rejecting the argument that a sexual offense involving mere touching did not present such a risk. See U.S. v. Sherwood, 156 F.3d 219 (1st Cir. 1998). The fact that the Maine statute required at least a three-year spread in age between the perpetrator and the victim “heightens the dangers inherent in the conduct and thus, reinforced the conclusion that a violation of the Maine statute entails a serious potential risk of physical injury to another.” U.S. v. Richards, 456 F.3d 260 (1st Cir. 2006).
1st Circuit holds that conspiracy to possess cocaine with intent to deliver was “serious drug offense” under ACCA. (540) Defendant pled guilty to being a felon in possession of a firearm, and was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e). He argued that his Rhode Island conviction for conspiracy to violate a state drug law by agreeing to possess cocaine with intent to deliver was not “an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance” and thus was not a “serious drug offense” under the ACCA. His argument was based on the fact that under the applicable Rhode Island law, a defendant may be guilty without having committed an overt act. The First Circuit rejected defendant’s argument. By using the term “involving,” Congress captured more offenses than just those that are in fact the manufacture, distribution, or possession with intent to distribute a controlled substance. The word “involving” has expansive connotations, and includes offenses that are related to or connected with the manufacture, distribution, or possession with intent to distribute a controlled substance. U.S. v. McKenney, 450 F.3d 39 (1st Cir. 2006).
1st Circuit upholds court’s refusal to impose below-guideline range sentence. (540) The district court found that defendant was subject to a mandatory minimum sentence of 180 months because he was a career offender under U.S.S.G. § 4B1.1(a) and an armed career criminal under 18 U.S.C. § 924(e)(1). He also had a guideline range of 188 to 235 months’ imprisonment. The court considered the possibility of imposing a below-guideline sentence because defendant’s parents were drug addicts who had served time in prison during his youth. The court found that these “tragic” circumstances did not absolve defendant of blame for his crime, and ultimately imposed a 188-month sentence, at the bottom of the advisory guideline range and eight months longer than the minimum sentence mandated by § 924(e)(1) and U.S.S.G. § 4B1.1(a). The First Circuit affirmed. First, the district court did not improperly treat the guideline as mandatory. The court considered both parties’ arguments, and concluded that neither side offered a persuasive reason for imposing a non-guideline sentence, and that a sentence at the low end of the guideline range was warranted. The court did not require an “extraordinary” showing to warrant a below-guideline sentence. Rather, the court found there were no “clearly persuasive reasons” for such a sentence. The sentence was reasonable. The court permissibly considered defendant’s childhood in its sentencing calculus, but found that “a tragic childhood does not absolve the defendant of blame” and that, under the circumstances, defendant’s childhood was not a ground for a below guideline sentence. U.S. v. Rivera, 448 F.3d 82 (1st Cir. 2006).
1st Circuit upholds finding that breaking and entering and stalking were separate offenses under ACCA. (540) Defendant challenged his classification as an Armed Career Criminal, contending that his prior convictions for stalking and for breaking and entering derived from conduct committed on the same occasion., and thus should count as only one predicate conviction. Under state law, stalking requires a pattern of conduct or series of acts. However, the record did not indicate that the breaking and entering was one of the “incidents” composing the stalking charge. Defendant offered evidence only that the two crimes took place on consecutive days and had the same victim. Neither of those facts prevented a finding that the crimes occurred on separate occasions. The First Circuit ruled that the district court did not err in concluding that the breaking and entering offense and the stalking offense occurred on two separate occasions and that each could be counted as a separate ACCA predicate conviction. U.S. v. Mastera, 435 F.3d 56 (1st Cir. 2006).
1st Circuit holds that Massachusetts manslaughter was predicate “violent felony” under ACCA. (540) Defendant was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e), based in part on the court’s finding that his prior Massachusetts manslaughter conviction was a “violent felony.” Defendant argued that the Massachusetts statute did not distinguish between voluntary and involuntary manslaughter, and included offenses that should not be considered “violent felonies.” The First Circuit held that manslaughter, under Massachusetts law, is a violent felony within the meaning of the ACCA as a matter of law. Under the ACCA, a prior conviction is for a “violent felony” if the prior offense was “punishable by imprisonment for a term exceeding one year … [and] … involves conduct that presents a serious potential risk of physical injury to another.” Under Massachusetts common law, both involuntary and voluntary manslaughter appear to “involve conduct that presents a serious, potential risk of physical injury to another.” “Involuntary manslaughter is an unintentional killing, resulting from wanton and reckless conduct or a battery not amounting to a felony which the defendant knew or should have known endangered human life.” U.S. v. Walter, 434 F.3d 30 (1st Cir. 2006).
1st Circuit says burglaries committed on consecutive days against same victim were discrete ACCA occurrences. (540) The Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), provides for enhanced sentences for certain defendants with three prior violent felony convictions “committed on occasions different from one another.” Defendant argued that the two burglaries he committed at the same warehouse on consecutive days in 1979 were not actually committed “on occasions different from one another,” because they were merely steps in the commission of single scheme to defraud his employer’s insurer, and the victim of both crimes was the same, i.e., his former employer’s insurer. The First Circuit disagreed. During the first burglary, defendant escaped detection, waited overnight, and then returned to the warehouse to commit the second burglary. “The overnight respite precluded any reasonable inference that [defendant] committed the two burglaries as part of a continuous course of conduct, inasmuch as during the time lapse [defendant] had the opportunity affirmatively to decide whether to initiate another criminal episode.” U.S. v. Stearns, 387 F.3d 104 (1st Cir. 2004).
1st Circuit says Blakely did not require jury to determine whether defendant’s prior convictions were violent felonies under ACCA. (540) Following oral argument, defendant submitted a letter contending that the Supreme Court’s ruling in Blakely v. Washington, 124 S.Ct. 2531 (2004) provided a ground for vacating his sentence. The First Circuit found no plain error. There were only two findings of fact that could conceivably have triggered Blakely: (1) whether the two burglaries constituted prior convictions for crimes of the type counted under the ACCA; and (2) whether the particular circumstances of these two burglaries suggested that the burglaries were part of a single “occasion” under the ACCA. As to the former finding, defendant did not dispute that he was convicted of the two burglaries, nor that they were violent felonies under the ACCA. Moreover, Blakely does not encompass sentencing enhancements based upon “the fact of a prior conviction.” The argument about separate “occasions” under the ACCA was a question of law rather than fact. The facts concerning the two burglaries were undisputed; the only question was whether these undisputed facts prevented the court from treating them as separate occasions as prescribed by the ACCA. U.S. v. Stearns, 387 F.3d 104 (1st Cir. 2004).
1st Circuit holds that “aggravated felony” is a term of art that includes certain misdemeanors carrying a sentence of one year. (540) Defendant received an eight-level enhancement under §2L1.2(b)(1) for being deported after a conviction for an aggravated felony. The prior conviction was a simple assault for punching a man in the nose. Defendant was sentenced to 12 months of imprisonment, with ten months suspended. Defendant argued that the statutory definition of “aggravated felony” in 8 U.S.C. § 1101(a)(43) was ambiguous because it encompassed crimes traditionally regarded as misdemeanors, as well as felonies, and urged that under the rule of lenity, he should not have been subject to the enhanced penalty provision. The First Circuit found no ambiguity – the term “aggravated felony” in § 1101(a)(43) is a term of art that includes within its ambit certain misdemeanors under state law that carry a sentence of at least one year. The pivotal question is not whether a crime is labeled a felony or a misdemeanor under state law, or whether it has conventionally been considered a misdemeanor, but whether the crime meets the explicit definition of “aggravated felony” under § 1101(a) (43)(F). The rule of lenity does not apply simply because a statute requires interpretation. U.S. v. Cordoza-Estrada, 385 F.3d 56 (1st Cir. 2004).
1st Circuit holds that Blakely does not apply to aggravated felony enhancement. (540) The day before oral argument, defendant filed a letter pursuant to Local Rule 28(j), arguing that his sentence was unlawful because Blakely v. Washington, 124 S.Ct. 2531 (2004) and Apprendi v. New Jersey, 530 U.S. 466 (2000) undermined the Supreme Court’s ruling in Almendarez-Torres v. U.S., 523 U.S. 224 (1998), which held that the prior “aggravated felony” language of 8 U.S.C. § 1326(b)(2) refers to a sentencing enhancement, not an element of the offense. The First Circuit found no plain error in defendant’s receipt of an aggravated felony enhancement. Blakely did not disturb the distinction between “the fact of a prior conviction” and other facts that “increase the penalty for a crime beyond a prescribed maximum.” There was no error in the trial judge’s consideration of the prior conviction. U.S. v. Cordoza-Estrada, 385 F.3d 56 (1st Cir. 2004).
1st Circuit holds that drug conviction was serious drug offense under ACCA. (540) Defendant had previously been convicted four times in Massachusetts of possessing cocaine with intent to deliver – a crime punishable “by imprisonment in the state prison for not more than ten years, or in a jail or house of correction for not more than two and one-half years….” Mass. Gen. Laws ch 94C, § 32(a). He argued that the four convictions did not constitute “serious drug offenses” under the Armed Career Criminal Act, 18 U.S.C. § 924(e), because they were adjudicated in the state district court, a court which, by statute, cannot impose a sentence of more than two and one-half years. A “serious drug offense” is defined to include certain drug offenses which carry a maximum sentence of ten or more years. § 924(e)(2)(A)(ii). The First Circuit rejected this claim, since under the “formal categorical approach” used to determine whether a prior offense qualifies as a predicate conviction under the ACCA, the sentencing court typically must limit its inquiry to the fact of conviction and the statutory definition of the prior offense. The Massachusetts law in question allowed for a maximum penalty of ten years’ incarceration, and thus, the offense qualified as a serious drug offense. U.S. v. Moore, 286 F.3d 47 (1st Cir. 2002).
1st Circuit reaffirms that Apprendi does not apply to sentence enhancements based upon prior convictions. (540) Defendant argued that his enhanced sentence under the Armed Career Criminal Act violated Apprendi v. New Jersey, 530 U.S. 466 (2000), because his prior convictions were not alleged in the indictment nor proven independently. The First Circuit rejected this argument, since Apprendi explicitly exempted from its holding sentence-enhancement provisions based upon prior criminal convictions. U.S. v. Moore, 286 F.3d 47 (1st Cir. 2002).
1st Circuit holds that breaking and entering that did not require criminal intent was not a violent felony. (540) The district court sentenced defendant as an armed career criminal based in part on a Rhode Island conviction for breaking and entering under R.I. Gen. Laws § 11-8-2. Rhode Island law sets out a gradated series of statutory breaking and entering offense. Defendant was convicted under the least serious among them, which defines the offense as the “unlawful breaking and entering of dwelling house.” The First Circuit held that § 11-8-2 did not qualify as a violent felony under the ACCA because it does not include a requirement that the defendant break and enter with intent to commit a crime. More serious breaking and entering crimes in Rhode Island do require criminal intent. See R.I. Gen. Laws §§ 11-8-3 to –6, and the statutory crime of burglary, § 11-8-1. The lack of criminal intent placed § 11-8-2 outside the realm of a violent felony. The offense also did not fall within § 924(e)(2)(B)(ii)’s catchall clause, covering crime that “otherwise involves conduct that presents a serious risk of physical injury to another.” Congress made its own judgment about what subset of breaking and entering offenses “presents a serious risk of physical injury to another.” Congress chose to single out burglary, and it defined that term to include a criminal intent requirement. U.S. v. Peterson, 233 F.3d 101 (1st Cir. 2000).
1st Circuit says court used wrong analysis in rejecting police reports and complaints. (540) On five prior occasions, defendant pled guilty to breaking and entering under a Massachusetts law that defined the offense to include unauthorized entry into vehicles and vessels or buildings. Under Taylor v. United States, 495 U.S. 575 (1990), the generic definition of burglary under the Armed Career Criminal Act includes only an unlawful entry into a building or other structure, not into a vehicle or vessel. The government presented certified copies of police reports and complaint applications to show that defendant broke into buildings, but the district court ruled that consideration of such documents was inconsistent with the categorical approach announced in Taylor. The First Circuit held that the district court used the wrong analysis in rejecting these documents. The inquiry is this: did the defendant and the government both believe at the time defendant entered his pleas “that the generically violent crime … rather than the generically non-violent crime … was at issue.” See U.S. v. Harris, 964 F.2d 1234 (1st Cir. 1992). A court’s determination of the meaning of a guilty plea can be made on the basis of sufficiently reliable evidence independent of a fact-specific admission. The district court here did not attempt to evaluate the reliability of the police reports and complaints to determine whether the parties believed that defendant was entering guilty pleas to breaking and entering a building. On remand, if defendant offers plausible objections to these documents, and the government does not sufficiently respond, then the court may choose not to rely on these documents. U.S. v. Shepard, 231 F.3d 56 (1st Cir. 2000).
PSR for violent felony determination. (540) A First Circuit panel ruled that it was error for the district court to delve into the facts of defendant’s crime as described in the PSR to determine that his prior conviction for statutory rape was a violent felony. In an order denying the government’s petition for rehearing, the en banc court clarified circuit law on the enhancement provision in 18 U.S.C. § 924(e), as construed by the Supreme Court in Taylor v. U.S., 495 U.S. 575 (1990). First, Taylor’s categorical approach applies to determinations made under the “otherwise” clause. Nonetheless, the First Circuit has been willing to consider statutory rape statutes as if they encompassed different subordinate offenses depending on the ages of the participants, at least where the specific ages can be determined from readily available sources. However, this does not mean a court can consider the circumstances of the particular crime. Second, under Taylor’s categorical approach, facts about the predicate crime are pertinent only to identify the offense of which the defendant was convicted. First Circuit cases have approved resort to PSRs, but only to determine the character of the criminal offense for which the defendant was convicted, not to determine whether violence was used. The First Circuit has approved use of the PSR only when the issue is not settled by the indictment, and the conviction was by plea of guilty so no jury instructions are available. Whether resort is proper where the predicate offense was tried remains open for future resolution. U.S. v. Sacko, 178 F.3d 1 (1st Cir. 1999) (en banc).
1st Circuit directs court to take evidence on whether sex is dangerous to 14-year old. (540) The district court sentenced defendant as an armed career criminal based in part on his prior conviction for statutory rape. The Rhode Island statute defined third degree sexual assault as a person over the age of 18 engaging in sexual penetration with another person over the age of 14 and under the age of 16. Since this could cover both violent and non-violent crimes, the district court examined the PSR, which indicated that the crime involved violence. The First Circuit ruled that it was error for the district court to delve into the facts of defendant’s crime as described in the PSR. Other cases to address this issue have relied on medical literature and the chronological gap between the ages of the victim and the defendant to reach varying conclusions on whether statutory rape is a crime of violence. The court here was unprepared to say a priori that sex is not physically dangerous for a 14-year old girl. However, the court had no legal basis for the opposite conclusion, since no studies or medical journals were presented for its consideration. Therefore, the court remanded for the district court to take evidence on the issue of whether the crime of sexual penetration of a 14-year old by someone over the age of 18 involves conduct presenting a serious potential risk of physical injury. U.S. v. Sacko, 178 F.3d 1 (1st Cir. 1999) (en banc).
1st Circuit finds insufficient connection between guns and drugs. (540) Police found 65 marijuana plants in a secret compartment in defendant’s detached garage. They also found a shotgun and a handgun hidden in a bureau in defendant’s bedroom. The district court sentenced defendant as an armed career criminal. Section 4B1.4(b)(3)(A) provides for an enhanced offense level if the defendant possessed the firearms “in connection with” a controlled substance offense. The First Circuit found insufficient evidence to support the “in connection with” enhancement. The two charged weapons were located in a building separate from the marijuana. The guns were largely inaccessible, because they were under a bureau in a small room in which it was difficult to shift furniture. The factors cited by the government (80% of drug crimes in Maine involve firearms violations, defendant cultivated his crop hidden from plain view, and the marijuana’s street value) added nothing to the analysis. Although at oral argument the government suggested that two additional uncharged weapons found in the garage and kitchen could support an “in connection with” finding, the district court did not make any findings that would support this position. U.S. v. Ellis, 168 F.3d 558 (1st Cir. 1999).
1st Circuit says age of prior convictions irrelevant for armed career criminal purposes. (540) Defendant argued that his prior convictions were too old to trigger the armed career criminal status. However, he acknowledged that under U.S. v. Daniels, 3 F.3d 25 (1st Cir. 1993), the age of such convictions are irrelevant for this purpose. The First Circuit upheld defendant’s career criminal status, since absent circumstances not present here, it did not have the power to overturn Daniels. U.S. v. Ellis, 168 F.3d 558 (1st Cir. 1999).
1st Circuit, en banc, asks for clarification on whether court can depart for “small players.” (540) Defendant was convicted of drug charges. Because of two prior state drug offenses, she was sentenced as a career offender. At sentencing, she had requested a downward departure because she was a “small player,” i.e., the amount of drugs and her role in the past offenses had been small. On appeal, a First Circuit panel remanded for clarification of the court’s basis in light of a recent case holding that § 4A1.3 applies to career offenders. On remand, the court again refused to depart because it believed that defendant’s alleged “small player status” was a forbidden factor for departure. On appeal, the Tenth Circuit, en banc, affirmed the district court’s refusal to depart. However, it asked the Sentencing Commission to clarify whether the guidelines contain a categorical ban on downward departures for those career offenders whose past offenses involved a small quantity of drugs and who held small roles. Half the court believed that such departures are banned, while the other half believed that “smallness” may form the basis for a departure. U.S. v. Perez, 160 F.3d 87 (1st Cir. 1998) (en banc).
1st Circuit holds that possession of a sawed-off shotgun is a violent felony. (540) Defendant was convicted of several firearms counts. The district court sentenced him under the Armed Career Criminal Act, 18 U.S.C. § 924(e), based in part on a prior conviction for possession of a sawed-off shotgun. The First Circuit affirmed, holding that possession of a sawed-off shotgun is a violent felony under the ACCA. The offense presents a serious potential risk of physical injury to another, even though it does not have as an element the use, attempted use or threatened use of physical force. The court distinguished U.S. v. Doe, 960 F.2d 221 (1st Cir. 1992), which held that a felon’s possession of a firearm is not a crime of violence. There is a substantial difference between possession of a generic “firearm” and possession of one of the specialized weapons listed in 26 U.S.C. § 5845(a) and 5861(d). The weapons listed in § 5861(d), including sawed-off shotguns, are inherently dangerous and lacking in lawful purpose. Thus, possession of such a firearm involves a blatant disregard of the law and a substantial risk of improper physical force. U.S. v. Fortes, 141 F.3d 1 (1st Cir. 1998).
1st Circuit holds possession of a sawed-off shotgun is a violent felony under ACCA. (540) Defendant was convicted of several firearms counts. The district court sentenced him under the Armed Career Criminal Act, 18 U.S.C. §924(e), based in part on a prior conviction for possession of a sawed-off shotgun. The First Circuit affirmed, holding that possession of a sawed-off shotgun is a violent felony under the ACCA. The offense presents a serious potential risk of physical injury to another, even though it does not have as an element the use, attempted use or threatened use of physical force. The court distinguished U.S. v. Doe, 960 F.2d 221 (1st Cir. 1992), which held that a felon’s possession of a firearm is not a crime of violence. There is a substantial difference between possession of a generic “firearm” and possession of one of the specialized weapons listed in 26 U.S.C. §§ 5845(a) and 5861(d). The weapons listed in § 5861(d), including sawed-off shotguns, are inherently dangerous and lacking in lawful purpose. Thus, possession of such a firearm involves a blatant disregard of the law and a substantial risk of improper physical force. U.S. v. Fortes, 141 F.3d 1 (1st Cir. 1998).
1st Circuit holds conspiracy to commit armed robbery is a violent felony. (540) Defendant was sentenced as an armed career criminal based in part on his prior conviction for conspiracy to commit armed robbery. The First Circuit agreed that defendant’s conviction for conspiracy to commit armed robbery qualified as a predicate offense for armed career criminal status. The career offender guideline is persuasive in interpreting what constitutes a violent felony under the ACCA. Previous cases have held that under the guidelines, conspiracy to commit a crime of violence is itself a crime of violence. Because armed robbery is defined as a violent felony under the ACCA, the district court did not commit error in concluding that conspiracy to commit armed robbery is a violent felony. U.S. v. Hawkins, 139 F.3d 29 (1st Cir. 1998).
1st Circuit affirms Armed Career Criminal status. (540) The district court determined that defendant was an Armed Career Criminal under 18 U.S.C. § 924(e) because he had four state breaking-and-entering convictions and a conviction for conspiracy to violate another’s civil rights. The First Circuit found no error in this conclusion. In addition, the evidentiary allegations defendant raised were previously considered and rejected in defendant’s first appeal. Therefore, the matter was not open for further debate. U.S. v. Joost, 133 F.3d 125 (1st Cir. 1998).
1st Circuit rejects constitutional challenges to Armed Career Criminal Act sentence. (540) Defendant helped a 16-year old friend buy a handgun and nine rounds of ammunition. The juvenile loaded the gun with eight rounds and defendant took possession of the ninth round. Defendant was convicted of under the felon in possession statute. Based on his 3 previous violent felony convictions, defendant received a 235-month sentence under the ACCA. He argued that a 235-month sentence for possession of a single bullet was cruel and unusual punishment and violated due process. The First Circuit rejected the constitutional challenges. Defendant’s sentence was not based solely on his possession of a single bullet, but because it was a convicted felon with 3 prior violent felonies who possessed the bullet. U.S. v. Cardoza, 129 F.3d 6 (1st Cir. 1997).
1st Circuit holds Rhode Island second degree robbery and breaking and entering were violent felonies. (540) Defendant pled guilty to being a felon in possession of a firearm. He argued that he did not have the requisite predicate convictions to be sentenced as an armed career criminal. The First Circuit disagreed, holding that defendant’s Rhode Island crimes of second degree robbery and breaking and entering were violent felonies. The Rhode Island statute includes in the definition of second degree robbery the use of force or threat. One of defendant’s breaking and entering convictions was for breaking and entering a commercial or public building. Previous circuit cases have held that conspiracy to violate this breaking the entering statute is a violent felony. The prior offenses were committed on occasions different from one another since they took place on different dates and at different locations. U.S. v. Schofield, 114 F.3d 350 (1st Cir. 1997).
1st Circuit grants § 2255 relief for armed career criminal where predicate convictions were later vacated. (540) Defendant was convicted of being a felon in possession of a firearm and sentenced as an armed career criminal. In 1994, all but one of his prior convictions were vacated by the Massachusetts state courts. In 1995, the district court granted federal habeas corpus relief under 28 U.S.C. § 2255 and reduced his sentence, on the ground that the ACCA was no longer applicable to him. The First Circuit affirmed. Section 2255 was an appropriate vehicle for defendant to use to attack his sentence, since his sentence was either “in violation of the Constitution” or “otherwise subject to collateral attack.” Section 921(a)(20) does not count convictions that have been expunged or set aside; this includes convictions which have been expunged or set aside after federal sentencing. Although the government criticized the state’s procedure for vacating the convictions, a federal court cannot conclude that the state courts wrongly decided the state issue. U.S. v. Pettiford, 101 F.3d 199 (1st Cir. 1996).
1st Circuit finds burglaries consolidated for sentencing were separate ACCA predicate crimes. (540) Defendant was convicted of firearms counts and sentenced under the ACCA. Defendant argued that the list of his prior state convictions contained in the indictment did not contain three valid predicate convictions under the ACCA. He acknowledged that his 1983 burglary and 1992 arson convictions were violent felonies, but argued that none of the remaining convictions qualified as predicate offenses. The First Circuit upheld the ACCA sentence since defendant actually had four burglary convictions rather than one, as the indictment suggested. The four convictions were consolidated for sentencing in the state court in which defendant was tried. However, the burglaries took place on different dates, and involved four different victims and four distinct sentences. Crimes committed on different dates, involving different locations, and targeting different victims are to be treated as distinct under § 924(e). The fact that the indictment did not allege the four burglary convictions did not matter. The government need not allege in the indictment the three prior felonies that it will use to enhance a defendant’s sentence under § 924(e). U.S. v. Sullivan, 98 F.3d 686 (1st Cir. 1996).
1st Circuit counts convictions where law restricted felon’s ability to possess firearm. (540) Under 18 U.S.C. § 921(a)(20), any conviction for which a person has had civil rights restored cannot be considered a conviction under the ACCA, unless the restoration of civil rights expressly provides that the person may not ship, transport, possess or receive firearms. Under a 1975 Maine law, felons are permitted to vote, hold office and serve on a jury. Defendant argued that his civil rights were “restored” because under Maine law they were never forfeited. The First Circuit did not resolve this issue, since other statutes in Maine restricted a felon’s ability to possess a firearm. U.S. v. Sullivan, 98 F.3d 686 (1st Cir. 1996).
1st Circuit counts conviction for ACCA purposes even though “non‑qualifying” conviction came from same incident. (540) Defendant challenged the district court’s use of his seven prior state attempted murder convictions as a single predicate ACCA offense because they arose out of the same incident that gave rise to a “non‑qualifying” bank larceny conviction. The First Circuit held that the attempted murder convictions were properly considered as a predicate ACCA conviction. The sentencing court did not count the larceny conviction as a separate predicate offense. The fact that the same conduct gave rise to both qualifying and non‑qualifying convictions did not mean the court could not consider the qualifying convictions. U.S. v. McCarthy, 77 F.3d 522 (1st Cir. 1996).
1st Circuit, en banc, holds civil rights may be restored by laws of general operation. (540) Defendant was convicted of being a felon in possession of a firearm. He contended that his three prior Massachusetts felonies did not count as predicate Armed Career Criminal crimes under 18 U.S.C. § 921(a)(20), because he had his civil rights restored. In Massachusetts, a convicted felon does not lose the right to vote. He does, however, lose the right to hold public office while serving his sentence. A previous panel, relying on U.S. v. Ramos, 961 F.2d 1003 (1st Cir. 1992), held that civil rights under § 921(a)(20) can be restored only by “focused, individualized, affirmative action,” not by laws of general or automatic application. The First Circuit, en banc, overruled Ramos and held that civil rights may be restored by laws of general operation. In addition, where some civil rights are restored, the fact that one civil right was never lost does not prevent an individual from having “had civil rights restored.” U.S. v. Caron, 77 F.3d 1 (1st Cir. 1996).
1st Circuit rules firearms were possessed in connection with breaking and entering. (540) Police discovered defendant and an associate attempting to break into a store. Both criminals were carrying guns when they were arrested. Defendant qualified as an armed career criminal under § 4B1.4. Section 4B1.4(b)(3) provides for the highest offense level of 34 if the defendant used or possessed the firearm in connection with a crime of violence. The First Circuit applied § 4B1.4(b)(3), agreeing that defendant possessed the gun in connection with the breaking and entering, and that breaking and entering was a crime of violence. The phrase “in connection with” should be interpreted broadly. The requisite link is present where a defendant’s possession aids or facilitates the commission of another offense. Here, defendants armed themselves for the purpose of facilitating the crime. U.S. v. Gary, 74 F.3d 304 (1st Cir. 1996).
1st Circuit upholds validity of armed career criminal guideline. (540) Defendant argued that § 4B1.4, the armed career criminal guideline, violated due process and equal protection because a defendant who already is in an elevated criminal history category will not receive any further enhancement, while a person with a lesser record will be catapulted upward. The First Circuit upheld the validity of § 4B1.4. Fixed ceilings necessarily involved increasing diminution of enhancement as one approaches the ceiling, and increasing disparity among those subject to the ceiling. The guidelines allow a court in a proper case to depart upward if a criminal history category proves inadequate. U.S. v. Caron, 64 F.3d 713 (1st Cir. 1995), reinstated on reh. en banc, 77 F.3d 1 (1st Cir. 1996) (en banc).
1st Circuit holds “relatedness” concept does not apply to armed career criminals. (540) Defendant pled guilty to being a felon in possession of a firearm. The district court sentenced him as an armed career criminal under § 4B1.4 and 18 U.S.C. § 924(e) based on five prior burglaries committed on four different days. Defendant argued that his prior offenses were “related,” and thus he did not have the requisite three prior violent felonies. The Second Circuit held that the guidelines’ “relatedness requirement” does not apply to armed career criminals. The armed career criminal provision results from precise statutory language, which the Sentencing Commission simply adopted in § 4B1.4. Defendant’s five burglaries were “committed on occasions different from one another.” They were five different incidents on four different dates involving five different locations and five different victims. The fact that all five crimes occurred in “a couple of spurts” within a year of defendant’s 18th birthday was not relevant. U.S. v. Riddle, 47 F.3d 460 (1st Cir. 1995).
1st Circuit holds that three robberies over five months were not part of a single crime spree. (540) Defendant robbed a gas station in March, a cafe in July, and a motel in August. The 1st Circuit held that the three prior crimes were separate offenses under the Armed Career Criminal Act, 18 U.S.C. § 924(e). Defendant robbed these places over a five-month period and used different weapons in each robbery. They were not part of a single crime spree, and therefore defendant was properly found to be an armed career criminal. U.S. v. Lewis, 40 F.3d 1325 (1st Cir. 1994).
1st Circuit holds that New Hampshire burglaries were violent felonies under ACCA. (540) The 1st Circuit held that defendant’s three prior New Hampshire burglaries were violent felonies under the Armed Career Criminal Act. The New Hampshire statutory definition substantially corresponded to the Supreme Court’s generic definition of burglary outlined in Taylor v. U.S., 495 U.S.C. 575 (1990). Thus, the crimes constituted “burglaries” for purposes of a § 924(e) sentence enhancement. U.S. v. Field, 39 F.3d 15 (1st Cir. 1994).
1st Circuit holds Custis precludes collateral attack on state conviction used to apply ACCA. (540) Defendant argued that one of the three predicate convictions used to classify him as an armed career criminal was constitutionally invalid because of ineffective assistance of counsel. The 1st Circuit held that Custis v. U.S., 511 U.S. 485 (1994) precluded a collateral attack on the state conviction. Although defendant could no longer attack the conviction in state court or by federal habeas since he was no longer in custody, this did not surmount the prohibition in Custis. U.S. v. Field, 39 F.3d 15 (1st Cir. 1994).
1st Circuit finds no improper triple counting in sentencing for felon in possession and carrying a firearm during drug crime. (540) Defendant was convicted of being a felon in possession of a firearm, 18 U.S.C. section 922(g)(1), and carrying a firearm in relation to a drug trafficking crime, 18 U.S.C. section 924(c)(1). The 1st Circuit rejected defendant’s argument that it was improper to count the conduct underlying the section 924(c)(1) charge three times in computing his sentence. His guilty plea to section 924(c)(1) had three effects on his sentence: First, it required five years to be added to his felon in possession sentence. Second, under guideline section 4B1.4(b)(3)(A) it raised the base offense level from 33 to 34 for the felon in possession charge. Third, under section 4B1.4(c)(2) it raised the criminal history category from IV to VI for the felon in possession charge. Effects number two and three were plainly mandated by guideline section 4B1.4 and did not constitute impermissible double counting. The additional consecutive five year sentence was not prohibited by application note 2 to section 2K2.4, since defendant was not sentenced for the drug offense underlying the section 924(c)(1) charge. U.S. v. Sanders, 982 F.2d 4 (1st Cir. 1992).
1st Circuit adopts categorical approach to determine that felon’s possession of a firearm is not a crime of violence. (540) In Taylor v. U.S., 495 U.S. 575 (1990), the Supreme Court held that in determining whether a crime constitutes a violent felony under 18 U.S.C. section 924(e), a sentencing court should look at the crime categorically and not at the circumstances surrounding the offense. The 1st Circuit, applying Taylor, held that for purposes of applying the career offender guideline and the armed career criminal guideline, the district court is similarly limited to a categorical examination of the offense of conviction. Under this approach, defendant’s instant offense of being a felon in possession of a firearm did not constitute a crime of violence for career offender purposes. As the Circuit had previously found for purposes of 18 U.S.C. section 924(e), many if not most of the ways in which a felon can possess a firearm do not involve the likely accompanying violence required by the literal language of the enhancement statute. U.S. v. Bell, 966 F.2d 703 (1st Cir. 1992).
2nd Circuit limits court to Shepard documents in deciding whether crimes are separate under ACCA. (540) The district court sentenced defendant under the Armed Career Criminal Act based in part on convictions for three prior robberies committed by defendant over a two-day period. In holding that the crimes were commit¬ted “on occasions different from one another” for pur¬poses of the ACCA, the district court relied on sources not allowable under Shepard v. U.S., 544 U.S. 13, 16 (2005). The Second Circuit reversed, holding that in determining whether crimes are separate under the ACCA, the court is limited to documents approved in Shepard v. U.S., 544 U.S. 13, 16 (2005), and Taylor v. U.S., 495 U.S. 575 (1990). Although Taylor and Shepard involved the question of whether predicate offenses under the ACCA were “violent felonies,” the reasoning underlying those decisions applied with equal force to the analysis of whether the offenses were committed “on occasions different from one another.” U.S. v. Dantzler, __ F.3d __ (2d Cir. Nov. 14, 2014) No. 13-2930-cr.
2nd Circuit reverses where court improperly relied on PSR in finding crimes were separate under ACCA. (540) The district court sentenced defendant under the Armed Career Criminal Act based in part on convictions for three prior robberies committed by defendant over a two-day period. In holding that the crimes were committed “on occasions different from one another” for purposes of applying the ACCA, the district court relied on the PSR, which, when discussing defendant’s previous offenses, explicitly drew upon court records, parole records, local presentence reports, and arrest reports. The district court also clearly relied upon defendant’s sentencing submission, which both discussed and attached the New York criminal complaints sworn to by attesting police officers. In determining whether crimes were separate under the ACCA, the court is limited to documents approved in Shepard v. U.S., 544 U.S. 13, 16 (2005), and Taylor v. U.S., 495 U.S. 575 (1990). Because these materials were not authorized by Shepard and Taylor, the Second Circuit reversed. U.S. v. Dantzler, __ F.3d __ (2d Cir. Nov. 14, 2014) No. 13-2930-cr.
2nd Circuit holds that New York’s drug reforms did not apply retroactively to defendant’s status under ACCA. (540) Defendant pled being a felon in possession of a firearm, and was sentenced to 15 years under the Armed Career Criminal Act, 18 U.S.C. § 924(e). He later filed a motion under 28 U.S.C. § 2255, arguing recent laws which lowered the maximum sentence for his prior New York drug conviction rendered him no longer subject to sentencing under ACCA. The Second Circuit held that New York’s drug reform laws did not apply retroactively to defendant to preclude his sentence under the ACCA. Whether a prior conviction qualifies as a predicate felony for the ACCA sentencing enhancement is determined by looking to state law existing at the time of that conviction. McNeill v. U.S., 131 S.Ct. 2218 (2011). As in McNeill, the relevant New York laws applied prospectively, and thus did not affect defendant’s career offender status. Rivera v. U.S., 716 F.3d 685 (2d Cir. 2013).
2nd Circuit rejects ineffective assistance claim despite failure to challenge first-degree unlawful restraint as violent felony. (540) Defendant filed a 28 U.S.C. § 2255 motion to vacate his sentence under the Armed Career Criminal Act, arguing that his counsel was ineffective in failing to challenge the use of his first-degree unlawful restraint conviction as a violent felony. The Second Circuit disagreed. When defendant was sentenced in 2005, the Supreme Court had not yet decided Begay v. U.S., 553 U.S. 137 (2008), and there was no requirement that an offense be “similar in kind” to the offenses enumerated in the ACCA as violent felonies. Moreover, defendant’s conviction under Connecticut’s first-degree unlawful restraint statute was a violent felony under the ACCA’s residual clause. That statute has as an element that the defendant must have intentionally restrained another person in a way that created a substantial risk of physical injury. The statutory language effectively tracked the language of the ACCA’s residual clause, which defines any crimes involving conduct that “presents a serious potential risk of physical injury to another.” Harrington v. U.S., 689 F.3d 124 (2d Cir. 2012).
2nd Circuit says separateness of prior offenses under ACCA is unaffected by career offender guideline (540) Defendant argued that he was improperly sentenced as an armed career criminal because his two prior attempted robbery convictions should have been treated as a single conviction. He pointed to the career offender guideline, § 4A1.2(a)(2), which says that when prior offenses are not separated by an intervening arrest, the prior sentences should be counted separately unless “the sentences were imposed on the same day.” The Second Circuit held that defendant’s reliance on § 4A1.2 was misplaced, since it speaks only to the calculation of criminal history points and did not bear on the calculation of defendant’s ACCA sentence. Section 924(e)(1) provides that the ACCA’s mandatory minimum is triggered by defendant’s commission of three previous convictions for a violent felony or serious drug offense “committed on occasions different from one another.” Considerations relevant to whether two convictions arise from conduct committed on different occasions include “whether the victims of the two crimes were different, whether the crimes were committed at different locations, and whether the crimes were separated by the passage of time.” Section 4A1.2 has no bearing on this question. Brown v. U.S., 636 F.3d 674 (2d Cir. 2011).
2nd Circuit rules drug offenses committed months apart were separate for ACCA purposes. (540) Defendant’s criminal history included two drug convictions. One was based on drugs found in his possession when he was arrested on May 3, 2000 for a motor vehicle violation. The second drug conviction was based on drugs found in his apartment when officers executed a warrant in November 2000. The Second Circuit held that the two offenses were properly counted as separate ACCA convictions. Although defendant was sentenced for the two drug offenses on the same day, the conduct underlying these offenses was separated by several months, involved distinct arrests, and took place at different locations. Thus, the offenses were clearly “committed on occasions different from one another.” U.S. v. Brown, 629 F.3d 290 (2d Cir. 2011).
2nd Circuit finds second-degree assault on corrections officer was violent felony. (540) The district court sentenced defendant under the Armed Career Criminal Act, (ACCA), based in part on defendant’s conviction for assaulting a corrections officer, in violation of Connecticut General Statutes § 53a-167c(a). The Second Circuit agreed that that the conviction qualified as a violent felony under the ACCA. The district court properly looked to defendant’s record of conviction, including the plea transcript, to determine that defendant was convicted under the subsection of the statute that applies to assaults on employees of the department of corrections, § 53a-167c(a)(1). The offense was similar “in kind” to the enumerated felonies, in that it typically involved purposeful, violent, and aggressive conduct. The statute likely applied primarily to assaults taking place in prisons, where the act of injuring an employee to prevent her from performing her official duties tends to have violent consequences. Moreover, the statute requires that the victims suffer physical injury. Because the offense involved the certainty of “injury to another,” it followed that a violation of this subsection of the statute involved conduct that “presents a serious potential risk of injury to another.” U.S. v. Brown, 629 F.3d 290 (2d Cir. 2011).
2nd Circuit rules Connecticut prison riot offense was violent felony under ACCA. (540) Defendant was sentenced under the Armed Career Criminal Act based in part on the district court’s finding that his Connecticut conviction for rioting at a correction institution, in violation of Conn. Gen. Stat. § 53a-179b, was a violent felony. The Second Circuit affirmed, holding that the offense was similar “in kind” to the offenses of burglary, arson, extortion, and the use of explosives, in that it “typically involve[s] purposeful, violent, and aggressive conduct.” Moreover, the panel ruled that rioting at a correctional facility was similar “in degree or risk posed” to those enumerated offenses. U.S. v. Johnson, 616 F.3d 85 (2d Cir. 2010).
2nd Circuit says sexual contact with teen under 15 is violent felony. (540) Defendant was sentenced under the Armed Career Criminal Act, based in part on the court’s finding that his prior convictions for sexually assaulting children, in violation of Vt. Stat. Ann. Tit 13, § 3525, were violent felonies. Some circuits have suggested that where, as here, a statute covers both forcible assault and “consensual” sexual contact, the crime only creates a serious risk of physical injury when the victim is very young. Vermont’s statute applies to those 15 and younger. The Second Circuit held that the offense qualified as a violent felony. Young teens protected by Vermont’s statute face the risk of injury from even purportedly consensual contact. The Supreme Court’s decision in Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008) does not require that every instance of a particular crime involve purposeful, violent and aggressive conduct. All that is required is that a crime typically involve such conduct. Crimes involving sexual contact between adults and children create a substantial likelihood of forceful, violent, and aggressive behavior on the part of the perpetrator, because a child has essentially no ability to deter an adult from using such force to coerce the child into a sexual act. U.S. v. Daye, 571 F.3d 225 (2d Cir. 2009).
2nd Circuit holds that defendant’s escape conviction was not a violent felony. (540) Defendant was sentenced under the Armed Career Criminal Act in part based on the district court’s finding that his prior conviction for first-degree escape, in violation of Conn. Gen. State. § 53a-169, was a violent felony. Defendant argued, and the government conceded, that under the Supreme Court’s recent decision in Chambers v. U.S., 555 U.S. 122, 129 S.Ct. 687 (2009), the matter should be remanded for resentencing without reference to the ACCA. The Connecticut Supreme Court has made clear that a violation of § 53a-169 is consistent with both an affirmative escape from custody and a mere failure to return. Under Chambers, a failure to return is not a violent felony. The Second Circuit remanded for resentencing. U.S. v. Mills, 570 F.3d 508 (2d Cir. 2009).
2nd Circuit holds that prior burglary and attempted burglary were crimes of violence. (540) In three separate cases, the district court held that a prior conviction for burglary in the third degree under New York law, or a prior conviction for attempted burglary in the third degree under New York law, were not convictions for “crimes of violence” as defined in USSG §4B1.2(a). After briefs were filed in this case, the Second Circuit held that New York’s offense of burglary in the third degree is a crime of violence. See U.S. v. Brown, 514 F.3d 256 (2d Cir. 2008). The only difference between Brown and these cases is that these cases also involved attempted burglary in the third degree. The Second Circuit ruled that this distinction did not help defendants, and the district court erred in finding that defendants’ convictions for burglary and attempted burglary were not convictions for crimes of violence. The Guidelines explicitly state that the term “crime of violence” includes the offense of “attempting to commit” a crime of violence. U.S. v. Hurell, 555 F.3d 122 (2d Cir. 2009).
2nd Circuit holds that reckless endangerment is not crime of violence. (540) Defendant was convicted of being a felon in possession of a firearm. The district court found that defendant’s prior New York conviction for reckless endangerment in the first degree was a crime of violence under § 4B1.2(a)(2). After defendant was sentenced however, the Supreme Court decided Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), so the Second Circuit reversed. Reckless endangerment does not fall within the definition of “crime of violence” because it does not involve purposeful conduct as required by § 4B1.2(a)(2). U.S. v. Gray, 535 F.3d 128 (2d Cir. 2008).
2nd Circuit rejects consecutive 10-year sentence for defendant subject to 15-year minimum ACCA sentence. (540) Defendant was convicted of a Hobbs Act robbery, 18 U.S.C. § 1951 (Count 1), using, carrying and possessing a firearm that was discharged during a crime of violence, 18 U.S.C. § 924(c)(1)(A)(iii) (Count 2), and being an armed career criminal, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (Count 3). The district court sentenced defendant to concurrent terms of 262 months on Counts 1 and 3, plus 120 months consecutively on Count 2. The Second Circuit reversed, holding that the consecutive ten-year minimum sentence for discharge of a firearm did not apply to a defendant because he was also subject to a 15-year minimum sentence for being a felon in possession of a firearm. The mandatory minimums in § 924(c)(1)(A) apply “Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law.” The panel found that the “except” clause means what it literally says. Although the Fourth, Sixth and Eighth Circuits have declined to read the “except” clause literally, the panel disagreed with them. The preference is to give statutes their literal meaning unless it would yield an illogical result or one not intended by the legislature. That was not the case here. U.S. v. Whitley, 529 F.3d 150 (2d Cir. 2008), abrogated as to consecutive sentencing by Abbott v. U.S., 131 S.Ct. 18 (2010) as recognized by U.S. v. Tejada, 631 F.3d 614 (2d Cir. 2011).
2nd Circuit says youthful offender adjudication was prior felony for career offender purposes. (540) The district court sentenced defendant as a career offender based in part on an attempted second degree burglary defendant committed when he was 18 years old. He received an adjudication as a youthful offender under New York law. Defendant argued that he should not have been sentenced as a career offender because the youthful offender adjudication “set aside” his conviction. In U.S. v. Fernandez, 390 F.Supp.2d 277 (S.D.N.Y. 2005), a district court judge found that a youthful offender adjudication did not qualify as a violent felony under 18 U.S.C. § 924(e)(1) because the youthful offender adjudication “sets aside” the underlying conviction. The Second Circuit found Fernandez inapplicable. The definition applicable to the ACCA purposely exempts convictions that have been “set aside” from the calculation of a defendant’s previous convictions. 18 U.S.C. § 921(a)(20) In contrast § 4B1.1 does not exempt youthful offender adjudications that “set aside” a conviction. The Guidelines are clear that an offense committed at age 18 or older is a prior felony conviction for purposes of the career offender guideline if it is punishable by a term exceeding one year, regardless of whether such offense is designated as a felony and regardless of the actual sentence imposed. U.S. v. Parnell, 524 F.3d 166 (2d Cir. 2008).
2nd Circuit finds attempted burglary in third degree was violent felony. (540) Defendant received the statutory minimum of 15 years’ imprisonment under the Armed Career Criminal Act, 18 U.S.C. § 924(e), based on three prior violent felony convictions. The Second Circuit held that defendant’s New York offense of attempted burglary in the third degree qualified as a violent felony. In U.S. v. Andrello, 9 F.3d 247 (2d Cir. 1993), the court held that the crime of attempted burglary in the third degree under New York Law, the same crime at issue here, constituted a violent felony because it fell under the ACCA’s residual or “otherwise” clause. The Supreme Court’s recent decision in James v. U.S., 127 S. Ct. 1586 (2007), holding that attempted burglary under Florida law is a violent felony under the ACCA, confirmed that Andrello was correctly decided. U.S. v. Lynch, 518 F.3d 164 (2d Cir. 2008).
2nd Circuit says criminal possession of a weapon in second degree was a violent felony. (540) Defendant received the statutory minimum of 15 years’ imprisonment under the Armed Career Criminal Act, 18 U.S.C. § 924(e), based on three prior violent felony convictions. The Second Circuit held that defendant’s New York offense of criminal possession of a weapon in the second degree qualified as a violent felony. Defendant claimed that he never admitted to having “intent to use the weapon unlawfully against another,” and that his conviction was based on “mere possession.” However, the essential elements of the crime of conviction are “knowing and unlawful possession” of a loaded weapon and “the intent to use it unlawfully against another.” It is beyond questions that possessing a weapon with intent to use it unlawfully against another involves conduct “that presents a serious potential risk of physical injury to another.” U.S. v. Lynch, 518 F.3d 164 (2d Cir. 2008).
2nd Circuit holds that burglary in the third degree was crime of violence. (540) Defendant received an enhanced offense level under § 2K2.1 based on the court’s finding that his prior New York conviction for burglary in the third degree was a crime of violence. Defendant argued that the offense was for burglary of a “building” rather than a dwelling, and thus did not qualify as a crime of violence. The Fifth Circuit ruled that the district court did not err, finding that the residual “otherwise involves” clause at the end of § 4B1.2(a)’s definition of a crime of violence includes burglary of a building that is not a dwelling. The panel examined (a) the residual clause at the end of § 4B1.2(a)(2); (b) the identically worded residual clause in 18 U.S.C. § 924(e)’s definition of “violent felony”; (c) the interpretation of § 924(e) by the Supreme Court in Taylor v. U. S., 495 U.S. 575 (1990) and its own opinion in U.S. v. Andrello, 9 F.3d 247 (5th Cir. 1993), with respect to the nature of burglaries; (d) the court’s parallel constructions of § 4B1.2(a)’s concept of “crime of violence” and § 924(e)’s concept of “violent felony” in analyzing non-burglary felonies; and (e) the absence of a relevant statement by the Sentencing Commission interpreting § 4B1.2(a)’s residual clause. U.S. v. Brown, 514 F.3d 256 (2d Cir. 2008).
2nd Circuit upholds constitutionality of armed career criminal sentence. (540) Defendant, convicted of drug charges and possession of ammunition, was subject to an enhanced sentencing guideline range based on his status as an armed career criminal. See 18 U.S.C. § 924(e)(1). He argued that the 216-month sentence imposed was unconstitutionally harsh, and that absent application of the ACCA, his sentence range would have been 70-87 months. The Second Circuit found the argument foreclosed by U.S. v. Mitchell, 932 F.3d 1027 (2d Cir. 1991), which held that § 924(e) was not unconstitutional as applied to a defendant with three prior burglary convictions. Defendant’s own criminal record, which also featured three burglary convictions, rivaled that of the defendant in Mitchell, and the Supreme Court has long recognized the propriety under the Eighth Amendment of subjecting recidivists to enhanced penalties. See Rummell vs. Estelle, 445 U.S. 263 (1980). U.S. v. Gamble, 388 F.3d 74 (2d Cir. 2004).
2nd Circuit refuses to depart where defendant fell within category VI regardless of ACCA status. (540) Defendant argued that the district court erred when it found that it lacked the authority to depart downward based on defendant’s young age (14 to 15 years old) when he committed the three armed robberies that served as the predicate for his sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). However, the district court found that defendant fell into criminal history category VI, the highest possible level, on the basis of six other prior convictions, committed when defendant was between age 20 and 31. The three predicate armed robberies were not even included as part of defendant’s criminal history because, under § 4A1.2(e), they occurred too long ago to be included in the calculation of criminal history. The Court’s conclusion that the young age at which defendant committed his three predicate crimes under § 924(e) was not a proper basis for departure was not material because it was offered merely as an alternative holding. The court independently, and primarily, refused to depart because it concluded that the three predicate armed robberies were entirely “irrelevant to … the suitability of the defendant’s criminal history category,” as part of a horizontal departure analysis. The Second Circuit held that the district court did not err in refusing to grant a horizontal downward departure on that basis. U.S. v. Belk, 346 F.3d 305 (2d Cir. 2003).
2nd Circuit holds that escape is categorically violent felony. (540) Defendant was sentenced as an armed career criminal pursuant to § 924(e) and USSG § 4B1.4 based on three previous violent felony convictions. He argued that an escape is not a violent felony because the Florida escape statute under which he was convicted punishes the escapee who peaceably walks way from a work site as well as the inmate who violently busts out of confinement. The Second Circuit agreed with every other circuit to consider this issue that escape, from whatever location by whatever means, is a violent felony because it constitutes “conduct that presents a serious risk of injury to another.” “An inmate who escapes by peacefully walking away from a work site will (if he can) be inconspicuous and discreet, and will (if he can) avoid confrontation and force. But escape invites pursuit; and the pursuit, confrontation, and recapture of the escapee entail serious risks of physical injury to law enforcement officers and the public. This makes escape a violent felony under § 924(e).” U.S. v. Jackson, 301 F.3d 59 (2d Cir. 2002), abrogation recognized by U.S. v. Daye, 571 F.3d 225 (2d Cir. 2009).
2nd Circuit holds that fact of prior conviction is sentencing factor, not separate element of offense. (540) In Almendarez-Torres v. U.S., 523 U.S. 224 (1998), the Supreme Court held that 8 U.S.C. § 1326(b), which increases the maximum sentence for an alien who illegally reentered the country after deportation following conviction for an aggravated felony, does not set out a separate offense, but rather a sentencing factor. In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court expressly declined to overrule Almendarez-Torres. Nonetheless, defendant argued that § 924(c)(1)’s provision for a sentencing enhancement for a prior conviction for using or carrying a firearm during a crime of violence or a drug-trafficking crime falls outside the scope of Almendarez-Torres. The Second Circuit found this argument foreclosed by circuit precedent. See e.g., U.S. v. Santiago, 268 F.3d 151 (2d Cir. 2001). The determination of the fact of “a conviction for commission of an aggravated felony” under § 1326 or the fact that a defendant “has three previous convictions … for a violent felony or a serious drug offense” under § 924(e), is no different from the fact of a conviction “under this subsection” under § 924(c)(1). U.S. v. Anglin, 284 F.3d 407 (2d Cir. 2002).
2nd Circuit says Apprendi does not apply to question of whether convictions were committed on separate occasions. (540) Defendant was convicted of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). Based on his three prior serious convictions, each arising from offenses committed on different occasions, the district court imposed a 15-year sentence under 18 U.S.C. § 924(e). Defendant argued that under Apprendi v. New Jersey, 530 U.S. 466 (2000), the predicate facts supporting a § 924(e) sentencing enhancement are elements of a separate, aggravated offense that must be charged in the indictment and found by a jury beyond a reasonable doubt. He argued that the exception left open in Apprendi for the “fact of a prior conviction” as in the Supreme Court’s decision in Almendarez-Torres v. U.S., 523 U.S. 224 (1998), does not cover the separate requirement in § 924(e) that convictions be “committed on occasions different from one another.” The Second Circuit disagreed. First, the determination of “the fact of a prior conviction” implicitly entails many subsidiary findings, not the least of which is that the defendant being sentenced is the same defendant who previously was convicted of those prior offenses. The separateness of the convictions is not a fact which is different in kind from the types of facts already left to the sentencing judge by Almendarez-Torres and Apprendi. Recidivism has traditionally been an issue for judges, not juries. U.S. v. Santiago, 268 F.3d 151 (2d Cir. 2001).
2nd Circuit says defendant not entitled to pre-trial notice of ACCA enhancement. (540) Defendant argued that he was unaware before trial that, if convicted, he would be subject to sentencing under the Armed Career Criminal Act, 18 U.S.C. § 924(e), and USSG § 4B1.4(b) (3)(B). Prior to trial, the government provided defendant with a copy of a computer-generated criminal history that listed a drug felony conviction and an assault conviction, but omitted a second assault conviction. The assault conviction did not come to light until the PSR was prepared. The Second Circuit held that there is no constitutional requirement that a defendant be given notice before trial that a sentencing enhancement under the ACCA may be sought after conviction. See U.S. v. O’Neal, 180 F.3d 115 (4th Cir. 1999); U.S. v. Craveiro, 907 F.2d 260 (1st Cir. 1990). Due process requires that a defendant have notice and an opportunity to contest the validity or applicability of the prior convictions upon which a statutory sentencing enhancement is based. However, there is no requirement that a defendant be notified before trial that such an enhancement may be sought, because “the determination of whether one is an habitual criminal is ‘essentially independent’ of the underlying substantive offense.” U.S. v. Moore, 208 F.3d 411 (2d Cir. 2000).
2nd Circuit finds no temporal restriction on prior convictions used for armed career criminal purposes. (540) Defendant was convicted of possession of ammunition by a convicted felon. The district court sentenced him as an armed career criminal under 18 U.S.C. § 924(e) based on convictions in 1978, 1982, 1985 and 1991. Defendant argued that some of his previous convictions were too remote in time to serve as predicate convictions for § 924(e) sentencing purposes. The Second Circuit held that there is no temporal restriction on prior convictions that may be considered for § 924(e) purposes. The text of § 924(e) itself does not impose a time limit. There is no reason to adopt the time limit contained in § 4A1.2 of the guidelines. Note 1 specifically says that that the time periods for counting prior sentences under § 4A1.2 are inapplicable in deciding whether a defendant is subject to an enhanced sentence under § 924(e). U.S. v. Paul, 156 F.3d 403 (2d Cir. 1998).
2nd Circuit reaffirms that drug conspiracy can be predicate career offender crime. (540) Defendant argued that the Sentencing Commission lacked authority to make drug conspiracies predicate career offender crimes. The Second Circuit rejected the claim based on its recent opinion in U.S. v. Jackson, 60 F.3d 128 (2d Cir. 1995). That case held that the Sentencing Commission’s authority to promulgate § 4B1.1 was not confined to 28 U.S.C. § 994(h), but could also be found in § 994(a). Therefore, a narcotics conspiracy conviction can be a predicate career offender crime. U.S. v. Nutter, 61 F.3d 10 (2d Cir. 1995).
2nd Circuit upholds validity of armed career criminal guideline. (540) Defendant was classified as an armed career criminal under 18 U.S.C. § 924(e), which provides for a minimum sentence of 15 years. Under § 4B1.4, the guidelines’ implementation of § 924(e), defendant had a minimum guideline sentence of 188 months. The Second Circuit, relying on its recent decision in U.S. v. McCarthy, 54 F.3d 51 (2d Cir. 1995), affirmed the validity of § 4B1.4. The Sentencing Commission had the authority to promulgate § 4B1.4. Moreover, the guideline range under § 4B1.4 is lawful, notwithstanding the lower statutory minimum set by § 924(e). The Sentencing Commission was not obligated to set minimum guideline ranges that coincided with the minimum punishments prescribed by the statute for such offense. U.S. v. Muniz, 60 F.3d 65 (2d Cir. 1995).
2nd Circuit upholds statutory authority for armed career criminal guideline. (540) The Second Circuit held that the Sentencing Commission acted within its statutory authority in promulgating § 4B1.4, the armed career criminal guideline. The minimum sentence under § 4B1.4 does not exceed the statutory minimum of 180 months. If an armed career criminal receives a three level acceptance of responsibility reduction, the minimum sentencing range would be 135-168 months. Moreover, a district court has the discretion to depart downward to the statutory minimum, or even below the statutory minimum in the event of a § 5K1.1 motion. U.S. v. McCarthy, 54 F.3d 51 (2d Cir. 1995).
2nd Circuit relies on state presentence report for another offense to prove prior offense. (540) The district court sentenced defendant as an armed career criminal based on three prior violent felonies, including a 1970 attempted robbery in New York. The government did not have a certified copy of the 1970 conviction, but used a 1982 presentence report prepared by the New York City probation department in connection with another of defendant’s criminal convictions. The Second Circuit held that the district court properly relied on the 1982 New York presentence report to prove the existence of the 1970 New York offense. The report had sufficient indicia of reliability to consider at sentencing. The fact that a certified copy of the 1970 conviction might have been preferable did not detract from the report’s reliability. U.S. v. Brown, 52 F.3d 415 (2d Cir. 1995).
2nd Circuit says two convictions for crimes committed within a short time were separate offenses. (540) Defendant had two convictions for burglarizing two residences on the same day. The 2nd Circuit affirmed that these offenses were separate convictions for purposes of triggering the sentencing provisions of the Armed Career Criminal Act, 18 U.S.C. §924(e). The crimes involved separate victims and were separated by at least 20-30 minutes and 12-13 miles. Defendant traveled a significant distance between the two offenses during which he could have chosen to end his criminal activity. U.S. v. Rideout, 3 F.3d 32 (2nd Cir. 1993).
2nd Circuit declines challenge to armed career criminal status that did not affect guideline range. (540) The 2nd Circuit refused to consider defendant’s claim that he was improperly classified as an armed career criminal under guideline section 4B1.4, since it did not affect his guideline range. Defendant also qualified as a career offender under section 4B1.1, which would have resulted in his receiving the same offense level and criminal history category as he received under section 4B1.4. U.S. v. Howard, 998 F.2d 42 (2nd Cir. 1993).
3rd Circuit says Alleyne did not apply to prior ACCA convictions. (120) Defendant argued that the dis¬trict court violated Alleyne v. U.S., __ U.S. __, 133 S. Ct. 2151 (2013), when it determined that he was an armed career criminal under 18 U.S.C. §924(e). His predicate criminal convictions were not set forth in his indictment and the question of whether he had been convicted of the offenses was not submitted to the jury. The Third Circuit held that Alleyne’s rule did not apply to the recidivist enhancement of §924(e). In Almendarez–Torres v. U.S., 523 U.S. 224 (1998), the Supreme Court held that prior convictions that increase a statutory maximum were not elements of an offense, and could be proved by a prepon¬derance-of-the-evidence standard. Later, in Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court held that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Alleyne extended the Apprendi rule to facts that increase a mandatory minimum sentence. Alleyne did not extend the rule to proof of prior convictions, specifically articulating that the issue was not before it. U.S. v. Burnett, __ F.3d __ (3d Cir. Dec. 2, 2014) No. 14-1288.
3rd Circuit affirms use of modified categorical approach to find conviction was violent felony. (540) Defendant was sentenced under the Armed Career Criminal Act based in part on four 1991 Pennsylvania felony robbery convictions. On appeal, he argued that under the Supreme Court’s recent decision in Descamps v. U.S., 133 S.Ct. 2276 (2013), the district court erred in using the modified categorical approach to determine that the robbery convictions were violent felonies. Descamps ruled that the modified categorical approach can be used only where the relevant statute is “divisible.” The Third Circuit ruled that given the alternative elements of the Pennsylvania robbery statute, it was obviously divisible and, therefore, a sentencing court could properly look to additional documents to determine which subsection was the basis for defendant’s prior convictions. Although the first-degree felony portion of Pennsylvania’s divisible robbery statute was itself divisible into subsections, the panel rejected defendant’s claim that the court was then required to choose the least culpable one with no more reference to the charging documents or guilty pleas. U.S. v. Blair, 734 F.3d 218 (3d Cir. 2013).
3rd Circuit holds that separateness of prior convictions is not a jury question. (540) Defendant was sentenced under the Armed Career Criminal Act based in part on four 1991 Pennsylvania robbery convictions. He argued that the 1991 convictions amounted to only one predicate offense, noting that he did not admit that the robberies occurred on different occasions when he pled guilty to the charges. The Third Circuit found no error, ruling that the recent opinion in Alleyne v. U.S., __ U.S. __, 133 S.Ct. 2151 (2013) did not affect the holding in Almendarez–Torres v. U.S., 523 U.S. 224 (1998), that a judge, rather than a jury, may determine the fact of a prior conviction. When the pertinent documents show, as they did here, that the prior convictions were for separate crimes against separate victims at separate times, Alleyne did not somehow muddy the record and convert the separateness issue into a jury question. U.S. v. Blair, 734 F.3d 218 (3d Cir. 2013).
3rd Circuit holds that counsel was deficient in failing to object to classification of simple assault as crime of violence. (540) Defendant pled guilty to illegal reentry after deportation, and received a 16-level crime of violence enhancement under § 2L1.2(b)(1)(A)(ii) based on a prior Pennsylvania conviction for simple assault. In a pro se motion under 28 U.S.C. § 2255, defendant argued that simple assault is not a crime of violence, and that his trial counsel was ineffective for failing to raise the issue or to object to the PSR. In Popal v. Gonzales, 416 F.3d 249 (3d Cir. 2005), the Third Circuit held that an alien’s conviction under Pennsylvania’s simple assault statute did not constitute a crime of violence under 18 U.S.C. § 16(a). Because a Pennsylvania simple assault violation requires a minimum mens rea of recklessness, it is not a crime of violence. Popal limits categorical crimes of violence to offenses committed through intentional use of force against another than reckless or grossly negligent conduct. Section 16(a)’s definition of “crime of violence” is identical to the definition in § 2L1.2. Therefore, the Third Circuit found that Popal applies to the relevant crime of violence definition in § 2L1.2. Defendant’s attorney performed unreasonably in failing to object to the 16-level enhancement. On its face, the state statute did not require the “use of force” when “causing bodily injury.” Moreover, several decisions were readily available to counsel that endorsed a categorical approach. There was no sound strategy in counsel’s failure to object to the 16-level enhancement. U.S. v. Otero, 502 F.3d 331 (3d Cir. 2007).
3rd Circuit says court must use categorical approach to determine whether juvenile offense was predicate ACCA offense. (540) At issue was whether, when a juvenile adjudication is invoked to enhance a sentence under the Armed Career Criminal Act, the sentencing court is required to look only to the fact of conviction and the statutory elements, the “categorical approach,” or whether it may look to the conduct in which the juvenile engaged. Here, the district court found that defendant’s 1994 juvenile adjudication for numerous offenses (including robbery) constituted a violent felony under the ACCA. However, for the juvenile offense to count as a predicate offense, the statute requires that a firearm, knife or destructive device have been used or carried, and it was unclear from the juvenile records whether this had occurred. The Third Circuit held that a sentencing court must follow the categorical approach to determine whether a juvenile offense is a predicate ACCA offense, and the court did not do so here. Under Taylor v. U.S., 495 U.S. 575 (1990), the Supreme Court held that a sentencing court must use a categorical approach in determining whether adult convictions qualify as a violent felony under the ACCA. Although this approach is more difficult to apply when examining juvenile adjudications, there is no basis for not applying the Taylor approach to juvenile convictions. U.S. v. Richardson, 313 F.3d 121 (3d Cir. 2002).
3rd Circuit holds increase in sentence under ACCA did not require heightened standard of proof. (540) The application of the ACCA increased defendant’s offense level from 33 to 34, his criminal history category from IV to V, and his guideline range from 188-235 months to a range of 262-327 months. Relying on U.S. v. Kikumura, 918 F.2d 1084 (3d Cir. 1990), defendant argued that the ACCA enhancement was so substantial that it required the district court to find by clear and convincing evidence (rather than by a mere preponderance) that he used the gun in a shooting. The Third Circuit disagreed. The application of § 4B1.4 on account of defendant’s firearm use resulted in an 83 month, or about 39%, increase in the median sentence of the guideline range. Defendant’s actual sentence of 262 months was just 27 months, or about 12%, longer than the maximum guideline sentence absent the enhancement. Even assuming Kikumura applied in contexts other than upward departures, the increase in defendant’s sentence did not approach the 300-month, 12-fold increase in Kikumura. U.S. v. Mack, 229 F.3d 226 (3d Cir. 2000).
3rd Circuit holds that defendant received adequate notice of intent to seek ACCA sentence. (540) The district court sentenced defendant pursuant to the enhanced penalties under the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. § 924(e)(1). He argued that his due process rights were violated because he did not received formal, pretrial notice of the government’s intent to seek an enhanced sentence. The Third Circuit held that due process does not require that a defendant receive formal, pretrial notice of the government’s intent to seek an ACCA sentence. Every circuit to have addressed this issue has reached the same conclusion. See, e.g., U.S. v. O’Neal, 180 F.3d 115 (4th Cir. 1999); U.S. v. Bates, 77 F.3d 1101 (8th Cir. 1996). The notice defendant received here was constitutionally adequate. First, the government provided him with actual notice prior to trial, including certified copies of the relevant, prior convictions. Second, months before sentencing, defendant received the PSR, which stated that defendant was subject to sentencing under the ACCA and specified the convictions that qualified him. Third, the government filed an additional notice ten days before sentencing formally notifying defendant that he could be sentenced as an armed career criminal. Thus, defendant had ample opportunity to contest the earlier convictions and their applicability to his sentence. U.S. v. Mack, 229 F.3d 226 (3d Cir. 2000).
3rd Circuit holds that Pennsylvania third degree robbery is a violent felony. (540) Defendant was convicted of being a felon in possession of a firearm. The district court refused to sentence him as an armed career criminal, finding his prior third degree robbery conviction was not a “violent felony.” The Third Circuit reversed, holding that any conviction for robbery under the Pennsylvania robbery statute is a violent felony because it has as an element the use of force against the person of another. The statute requires that in the course of committing a theft, a person physically take or remove property from the person of another by force, however slight. The Supreme Court of Pennsylvania has held that any amount of force applied to a person while committing a theft brings that act within the scope of the robbery statute. Third Circuit cases are consistent with this interpretation. U.S. v. Cornish, 103 F.3d 302 (3d Cir. 1997).
3rd Circuit holds that Pennsylvania’s burglary statute is broader than generic burglary. (540) Defendant was sentenced as an armed career criminal based on three prior burglary convictions in Pennsylvania. Defendant argued that Pennsylvania’s burglary statute is broader than generic burglary incorporated into § 924(c), thus requiring the government to prove that for each conviction the trier of fact necessarily found all of the elements of generic burglary. The Third Circuit held that Pennsylvania’s burglary statute was broader than generic burglary, notwithstanding dicta to the contrary in U.S. v. Watkins, 54 F.3d 163 (3d Cir. 1995). First, it includes within its definition of occupied structure any vehicle adapted for overnight accommodations or for business. Second, it includes as burglary unlawful entry of any place adapted for “carrying on business.” However, defendant was still properly sentenced under the ACCA. Defense counsel volunteered sufficient information concerning the conduct leading to the convictions for the trier of fact to find all of the elements of generic burglary for each conviction. Nothing prevents a court from relying on information having its source in the defense rather than in the prosecution. U.S. v. Bennett, 100 F.3d 1105 (3d Cir. 1996).
3rd Circuit relies on state law to find that prior adjudication was prior conviction. (540) Defendant was sentenced as an armed career criminal based on three prior Pennsylvania convictions. He argued that one conviction could not be counted because he never was sentenced due to his failure to appear. The Third Circuit held that the adjudication was a conviction since Pennsylvania law provides that an adjudication of guilt, even though unaccompanied by sentencing, is a conviction for sentencing enhancement purposes. Under U.S. v. Jefferson, 88 F.3d 240 (3d Cir. 1996), the law of the jurisdiction in which the prior proceeding was held determines whether a prior offense constitutes a conviction. U.S. v. Bennett, 100 F.3d 1105 (3d Cir. 1996).
3rd Circuit rejects per se rule requiring certified copies of convictions to prove violent felonies. (540) Defendant’s presentence report identified five prior felony convictions by court, file number, date of arrest and sentencing, offense charged, and sentence imposed. In addition, it described the conduct leading to each conviction. Defendant argued that the information in the presentence report was inadequate to prove that the convictions were for “violent felonies” under the Armed Career Criminal Act. The Third Circuit rejected a per se rule requiring certified copies of convictions to prove that prior convictions were violent felonies. The case relied on by defendant involved a statute of conviction that broadly covered some offenses that did not constitute violent felonies. Here, the information provided in defendant’s presentence report enabled the district court to determine with certainty the statutes of convictions. These statutes only encompassed violent felonies. U.S. v. Watkins, 54 F.3d 163 (3d Cir. 1995).
3rd Circuit upholds Commission’s authority to promulgate Armed Career Criminal guideline. (540) Defendant argued that the Sentencing Commission was only authorized to promulgate guidelines for categories of offenses, and could not issue guidelines for sentencing enhancement statutes such as the Armed Career Criminal Act. The Third Circuit upheld the Commission’s authority to promulgate § 4B1.4, the Armed Career Criminal guideline. Section 4B1.4 defines a particular category of defendants, armed career offenders, and sets out special rules for calculating their offense levels and criminal history categories. Thus, in every case in which it applies, this guideline, together with other applicable guidelines, establishes a sentencing range for the relevant offense and the relevant category of defendants. Thus, it falls squarely within the Commission’s authority. U.S. v. Jacobs, 44 F.3d 1219 (3d Cir. 1995).
3rd Circuit rules defendant has burden of proving prior convictions were invalid. (540) The district court refused to sentence defendant under the Armed Career Criminal Act, finding that five of defendant’s seven prior felony convictions were constitutionally invalid. The 3rd Circuit vacated because the district court failed to provide a sufficient basis for its decision. The 3rd Circuit said the initial burden is on the government. Once the government submits a certified copy of the defendant’s prior convictions into evidence or otherwise demonstrates that the defendant has a prior conviction, the burden shifts to the defendant to rebut the presumption of regularity which attaches to that prior conviction. Defendant asserted that he overcame the presumption with evidence that his guilty pleas were not voluntary or knowing. However, there was little in the record to show what the court thought of these claims. In deciding whether defendant met his burden, the district court must remember that the state court’s failure to specifically articulate the Boykin rights is not fatal if the circumstances otherwise establish the plea was constitutionally acceptable. Defendant presented some evidence that it was the court’s custom and practice, in cases such as his, to accord the defendant no plea colloquy. Only if the “practice and custom” testimony is clear and convincing should the district court find that it is sufficient to rebut the presumption of regularity that attaches to final judgments. U.S. v. Gilbert, 20 F.3d 94 (3d Cir. 1994).
3rd Circuit permits challenge to prior convictions even absent claim of fundamental error. (540) The district court refused to sentence defendant under the Armed Career Criminal Act, finding that five of defendant’s seven prior felony convictions were constitutionally invalid. The government asserted that it was improper to allow defendant to collaterally attack his prior state convictions, since no “fundamental error” was alleged. The 3rd Circuit rejected this assertion. The question is not whether a district court is required to consider collateral attacks which are based on fundamental errors, but whether the district courts have the discretionary authority to do so. Two recent 3rd Circuit cases reviewed district court decisions involving collateral attacks on prior convictions. Neither case involved a fundamental error, and in neither case was the district court’s authority to review the prior convictions rejected. Therefore, the court’s authority to review the prior sentences must be upheld here. U.S. v. Gilbert, 20 F.3d 94 (3d Cir. 1994).
4th Circuit says documents adequately supported finding of prior robbery conviction. (540) Defendant was sentenced under the Armed Career Criminal Act based in part on his prior state conviction for third-degree robbery. He did not dispute that the offense was a violent felony, but argued that the government presented insuf¬ficient evidence that the third-degree robbery conviction in fact existed. Three of the four documents presented to the district court provided consistent accounts of defen¬dant’s conviction for third-degree robbery, whereas the fourth document, a Report of Investigation from the Bureau of Alcohol, Tobacco, Firearms and Explosives, provided a conflicting conviction date. The Fourth Cir¬cuit found no error. When faced with records that contain inconsistencies, certain discrepancies, such as different dates of the same offense, “do not upend the trial court’s sound conclusion” when there is additional evidence to “indicate the … erroneous date” was likely “a scrivener’s error.” U.S. v. Archie, __ F.3d __ (4th Cir. Nov. 17, 2014) No. 13-4159.
4th Circuit rules North Carolina breaking and entering convictions were violent felonies. (540) Defendant was sentenced under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), based on three prior North Carolina conviction for breaking or entering, in violation of N.C. Gen. Stat. § 14–54(a). The Fourth Circuit held that the offense qualified as a burglary, and thus agreed that it was a violent felony under the ACCA. The North Carolina statute was unusual because of the conjunction in its name—it applies to any person who breaks or enters any building with intent to commit any felony or larceny. While it could be interpreted broadly to apply when a person enters with the building owner’s consent, the North Carolina Supreme Court has narrowed it, holding that it merely codified preexisting North Carolina law that criminalized breaking or entering without the consent of the owner. This brought the elements of 14-54(a) within the generic definition of burglary. U.S. v. Mungo, __ F.3d __ (4th Cir. June 11, 2014) No. 13-4503.
4th Circuit upholds use of general court martial convictions to sentence defendant under ACCA. (540) Defendant was convicted of being a felon in possession of ammunition. The district court classified defendant as an armed career criminal, 18 U.S.C. § 924(e), in part due to two 1980 general court-martial convictions for violent crimes. Defendant argued that a general court martial was not “any court” under the ACCA, citing Small v. U.S., 544 U.S. 385 (2005), which held that a conviction in a Japanese court could not serve as the felony underlying a conviction pursuant to 18 U.S.C. § 922(g)(1). The Fourth Circuit disagreed. Defendant did not show any way in which using violent felony convictions by general courts-martial to classify individuals as armed career criminals would conflict with the ACCA’s provisions. Although defendant correctly identified several dissimilarities between courts-martial and civilian courts, these differences did not rise to the level of the contrasts between domestic and foreign courts that Small highlighted. U.S. v. Grant, __ F.3d __ (4th Cir. June 3, 2014) No. 13-4302.
4th Circuit upholds reliance on NCIC database to determine fact of prior conviction. (540) Defendant was sentenced as an armed career criminal based in part on a 1971 conviction in the Bronx for second degree assault. The government was unable to locate a formal judgment documenting this conviction. Instead, it relied on a criminal record check obtained from the National Crime Information Center (“NCIC”) database, which listed the 1971 assault among defendant’s convictions. Defendant objected to the use of the NCIC report, noting that the alleged assault took place more than 40 years earlier, that the record check referred to him as “Michael McDowell” rather than by his real name, Ernest James McDowell, Jr., and listed four different and inaccurate birthdays. The Fourth Circuit upheld the court’s reliance on the NCIC report to establish the 1971 conviction. NCIC reports are not categorically unreliable. Defendant answered to the street name “Iron Mike,” and occasionally used the alias “Michael.” The NCIC report included all names and birthdays provided by a defendant upon arrest. An FBI agent confirmed that the NCIC report linked defendant to the 1971 assault through fingerprint analysis. In addition, the defendant had been convicted of other crimes in the Bronx under the alias “Michael” shortly before 1971. U.S. v. McDowell, 745 F.3d 115 (4th Cir. 2014).
4th Circuit rules offense with potential sentence of more than a year was predicate ACCA offense. (540) Defendant was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e) to 268 months. He contended that his prior North Carolina convictions did not qualify as predicate felonies under the ACCA because he was sentenced in the mitigated range, as opposed to the presumptive range, of punishment under North Carolina’s Structured Sentencing Act. The Fourth Circuit rejected the argument. Although the state court judge imposed a mitigated range sentence of 8-10 months., she remained free to sentence defendant to a presumptive prison term of up to 14 months. Because the maximum possible prison sentence that defendant faced for his prior state conviction exceeded one year, it qualified as a predicate felony under the ACCA. Judge Davis dissented. U.S. v. Kerr, 737 F.3d 33 (4th Cir. 2013).
4th Circuit bars application of modified categorical approach to indivisible common law offense. (540) Defendant was sentenced as an Armed Career Criminal based in part on the district court’s finding that his 2002 South Carolina conviction for the common law crime of assault and battery of a high and aggravated nature (ABHAN) was a violent felony. The Fourth Circuit reversed, holding (a) ABHAN was not categorically a predicate violent felony under the ACCA, and (b) the modified categorical approach could not be applied because, under Descamps v. U.S., 133 S.Ct. 2276 (2013), the modified categorical approach is applicable only when a defendant is convicted of violating a “divisible” statute. The panel ruled that this divisibility analysis was also applicable to the question of whether a common law offense constitutes an ACCA predicate crime. The modified categorical approach does not apply to an indivisible common law offense. That was the case here – the elements of ABHAN are violent injury to another, accompanied by circumstances of aggravation. The “circumstances of aggravation” are not elements of ABHAN, but are simply specific ways the second element of ABHAN can be satisfied. U.S. v. Hemingway, 734 F.3d 323 (4th Cir. 2013).
4th Circuit says attempted breaking and entering was violent felony, even if not generic burglary. (540) The district court found that defendant’s 2000 West Virginia conviction for attempted breaking and entering was generic burglary, and therefore was a violent felony under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1). The Fourth Circuit rejected the court’s finding that attempted breaking and entering qualified as generic burglary, noting that West Virginia courts have held that attempted breaking and entering requires an element in addition to generic burglary, i.e., the unlawful entry or the breaking and entering must have failed or been prevented. However, the error was harmless, because the conviction still satisfied the ACCA definition of a violent felony under the residual provision for crimes that “otherwise involve[] a serious potential risk of physical injury to another.” The crime required an intentional, substantial, and overt act toward perpetration of a breaking and entering with intent to commit a felony. In addition, the offense posed basically the same risks as completed burglary: the possibility of a face-to-face confrontation between the criminal and a third party. U.S. v. Davis, 689 F.3d 349 (4th Cir. 2012).
4th Circuit finds burglaries committed in different states a month apart were separate offenses. (540) Defendant argued that his two 1993 convictions for burglary should be viewed as one offense under the Armed Career Criminal Act because the sentences ran concurrently and the burglaries were both related to his substance abuse. The Fourth Circuit held that the two burglary convictions were clearly separate offenses under the ACCA. The ACCA requires that predicate offenses must have been “committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). Defendant’s 1993 burglary convictions in Ohio and West Virginia occurred on occasions different from one another. Whatever the impetus for the two offenses, they were committed in different states almost a month apart and involved different victims. There was no doubt that defendant had ample opportunity “to make a conscious and knowing decision to engage in another [crime]” after the completion of the first burglary. U.S. v. Davis, 689 F.3d 349 (4th Cir. 2012).
4th Circuit rejects ACCA resentencing despite incorrect advice about mandatory minimum. (540) Defendant pled guilty to being a felon in possession of a firearm, and was sentenced to a mandatory minimum 15-year sentence under the Armed Career Criminal Act. Both in his plea agreement and at his plea hearing, defendant was incorrectly advised that he faced a maximum sentence of only ten years. He contended that this error constituted a breach of his plea agreement and on appeal asked for a ten-year sentence. The Fourth Circuit refused. Although the plea agreement admittedly misstated the applicable statutory maximum sentence, the government never guaranteed defendant a ten-year sentence. Moreover, even if the government had breached a promise for a particular sentence, defendant would not have been entitled to the specific performance he sought. The ACCA mandates a 15-year sentence for any defendant who qualifies as an Armed Career Criminal. Because defendant was subject to the ACCA enhancement, the district court could not have imposed a ten-year sentence. U.S. v. Davis, 689 F.3d 349 (4th Cir. 2012).
4th Circuit finds plain error in using PSR to decide that prior offenses occurred separately. (540) In defendant’s PSR, the probation officer determined that defendant qualified as an armed career criminal under 18 U.S.C. § 924(e) based in part on two 1980 violent felony convictions, one for second-degree murder and the other for assault. The district court relied on factual details in the PSR to conclude that the offenses leading to his two 1980 convictions, although arising out of the same altercation, were committed on “occasions different from one another” for ACCA purposes. The Fourth Circuit held that it was plain error for the district court to use the PSR to determine that these offenses occurred on separate occasions. In U.S. v. Thompson, 421 F. 3d 278 (4th Cir. 2005), the court held that a PSR can be used in ACCA determinations when it “bears the earmarks of derivation from Shepard-approved sources such as the indictments and state-court judgments from [a defendant’s] prior convictions.” Here, there was no indication that the PSR’s information came from Shepard-approved sources. Defendant was convicted by a jury; therefore, there was no plea colloquy, or judicial factfinding that could have conceivably revealed the level of detail of the confrontation as recounted in the PSR and accepted by the district court. The error was plain and affected defendant’s substantial rights. U.S. v. Boykin, 669 F. 3d 467 (4th Cir. 2012).
4th Circuit approves reliance on plea colloquy to find that assault was violent felony. (540) Defendant was sentenced under the Armed Career Criminal Act, (ACCA), 18 U.S.C. § 924(e)(1), based on the district court’s finding that his Maryland second-degree assault constituted a violent felony. The Fourth Circuit affirmed, finding that the district court properly applied a modified categorical approach to the case. The court considered only Shepard-approved documents in reaching its conclusion, namely, the transcript of defendant’s plea colloquy. The transcript clearly portrayed a “violent felony.” Facing arrest for a drug deal, defendant struck an officer in the chest with a cup of liquid, punched another one in the mouth, and attempted to escape. Three police officers had to wrestle him to the ground to gain control of his hand while he was flailing his arms and legs. He continued to reach for his handgun during the struggle, raising the likelihood of serious injury or death. U.S. v. Taylor, 659 F.3d 339 (4th Cir. 2011).
4th Circuit, en banc, says guilty pleas to conjunctively drawn charges did not mean guilty plea to violent felony. (540) Defendant was sentenced as an armed career criminal, 18 U.S.C. § 924(e)(1) based on three previous convictions for violating North Carolina’s indecent liberties with a child statute, § 14-202. A divided Fourth Circuit panel affirmed defendant’s sentence. The en banc court vacated the panel opinion, holding that the North Carolina convictions did not qualify as violent felonies. The North Carolina statute prohibited a wide range of objectionable acts, and only the acts described in subsection (a)(2) constituted violent felonies. Defendant’s convictions arose from guilty pleas to conjunctively drawn indictments tracking the language of both subsection (a)(1) and (a)(2) of the statute. This did not mean that defendant necessarily pled guilty to violating both of those subsections. The en banc court rejected the position that when a defendant pleads guilty, he necessarily admits all allegations charged conjunctively. Here, the charging documents simply recited the language of the indecent liberties statute, provided the date of the alleged offenses, and identifies of defendant and the minor, and averred the age requirements were satisfied. The judgment had similar information. This evidence did not mean that defendant necessarily violation subsection (a)(2). U.S. v. Vann, 660 F.3d 771 (4th Cir. 2011) (en banc).
4th Circuit applies preponderance standard in deciding if prior offense qualified as ACCA prior. (540) Defendant was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 922(g), based on the district court’s finding that his 1999 Maryland conviction for possession with intent to distribute a controlled substance counted as a predicate ACCA offense. Maryland’s possession with intent to distribute statute is ambiguous for ACCA purposes – some underlying controlled substances trigger a sufficiently high maximum sentence to qualify as ACCA predicates, but others do not. The Fourth Circuit held that the court properly used the preponderance of the evidence standard to determine that defendant’s offense involved cocaine, a drug triggering the ACCA. The panel rejected defendant’s claim that Shepard v. U.S., 544 U.S. 13 (2005), required a higher standard of proof. The district court properly relied on sources approved in Shepard to find that defendant’s drug conviction qualified as an ACCA predicate conviction. U.S. v. Washington, 629 F.3d 403 (4th Cir. 2011).
4th Circuit holds that Alford plea to second-degree assault did not establish violent felony. (540) In sentencing defendant under the Armed Career Criminal Act, 18 U.S.C. § 924(e), the district court relied on a prior conviction resulting from defendant’s Alford plea to a Maryland charge of second-degree assault. Under Maryland law, second-degree assault encompasses several distinct crimes, only some of which qualify as violent felonies. The transcript of defendant’s Alford plea proceeding showed that the state prosecutor’s proffer of facts that the State would have presented at trial indicated that defendant committed a violent felony, but defendant never admitted to those facts. The Fourth Circuit held that the district court improperly counted the Alford plea conviction as a violent felony. Shepard v. U.S., 544 U.S. 13 (2005) prevents a court from assessing whether a prior conviction counts as an ACCA predicate conviction by relying on facts neither inherent in the conviction nor admitted by the defendant. In entering an Alford plea, the defendant waives trial and accepts punishment, but he does not admit guilt. The prosecutor’s proffer of what the State would have proved at trial did not amount to an admission or acceptance of facts by the defendant. U.S. v. Alston, 611 F.3d 219 (4th Cir. 2010).
4th Circuit says defendant’s ACCA sentence was lawful despite vacatur of two of five predicate convictions. (540) Defendant pled guilty to being a felon in possession of a firearm, and received an enhanced sentence of 188 months, in part because he had five prior convictions which qualified him for sentencing under the Armed Career Criminal Act, 18 U.S.C. § 924(e). Two of the five state court convictions were subsequently vacated, and defendant brought a petition under 28 U.S.C. § 2255 for post-conviction relief from the enhanced sentence. The district court granted defendant’s petition and resentenced him to 100 months. The Fourth Circuit reversed, holding that defendant’s ACCA sentence was not rendered unlawful as a result of the vacatur of two of the five predicate convictions. Even without the two vacated state convictions, defendant’s record retained three convictions that supported the enhanced sentence under § 924(e). U.S. v. Pettiford, 612 F.3d 270 (4th Cir. 2010).
4th Circuit upholds consideration of non-Shepard materials to find prior crimes were separated by intervening arrest. (540) The PSR found that defendant qualified as a career offender because he had two prior North Carolina cocaine convictions. The two offenses had been sentenced on the same day. Under the Guidelines, they were to be counted as a single offense unless it could be shown that the sentences “were imposed for offenses that were separated by an intervening arrest.” U.S.S.G. § 4A1.2(a)(2). To prove an intervening arrest, the government produced copies of two bond orders from state magistrate judges, as well as certain records from the state clerk’s office, which showed that defendant had been arrested for the first offense several months before he committed the second offense. Defendant argued that the district court erred by relying on materials other than the sort permitted under Shepard v. U.S., 544 U.S. 13 (2005). The Fourth Circuit disagreed. Defendant’s contention ran afoul of the teachings of Booker and its progeny. Under Rita v. U.S., 551 U.S.338 (2007) and Gall v. U.S., 552 U.S. 38 (2007), sentencing courts are licensed to find a host of facts and to assign weight and relevance to those findings as seems reasonable. U.S. v. Dean, 604 F.3d 169 (4th Cir. 2010).
4th Circuit rules South Carolina’s blue light statute is not a “violent felony.” (540) The district court sentenced defendant under the Armed Career Criminal Act, based in part its finding that his prior conviction under South Carolina law for failure to stop for a blue light, S.C.Code Ann. § 56-5-750(A), was a violent felony. Based on the Supreme Court’s decision in Chambers v. U.S., 555 U.S. 122, 129 S.Ct. 687 (2009), the Fourth Circuit held that under no circumstances was a violation of South Carolina’s blue light statute a violent felony. In U.S. v. Roseboro, 551 F.3d 226 (4th Cir. 2009), the Fourth Circuit held that only a conviction predicated on intentionally failing to stop when signaled qualified as a violent felony. However, under Chambers, the Roseboro panel erred in dividing South Carolina’s blue light law into separate criminal offenses. The statute only contains one category of behavior: failing to stop for a blue light. The blue light statute does not contain the requisite intent to bring it within the scope of crimes that that fall under the ACCA. The statute criminalizes “a broad swath of unintentional conduct.” Thus, it differs from a prior record of violent and aggressive crimes committed intentionally such as arson, burglary, extortion, or crimes involving the use of explosives.” U.S. v. Rivers, 595 F.3d 558 (4th Cir. 2010).
4th Circuit holds that South Carolina juvenile convictions count as predicate ACCA felonies. (540) Defendant was convicted of being a felon in possession of a firearm. Based in part on three juvenile burglary adjudications in which he stole firearms, the district court sentenced defendant under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1). Defendant argued that juvenile adjudications cannot be counted as predicate convictions under the ACCA because South Carolina family courts do not use juries. The Fourth Circuit found that defendant’s argument was foreclosed by the Supreme Court’s decision in McKeiver v. Pennsylvania, 403 U.S. 528 (1971). The case rejected 6th Amendment challenges to several juvenile delinquency proceedings, holding that trial by jury in State court is not a constitutional requirement. Based on this, a clear majority of the circuits that have considered the issue agree that juvenile offenses may be treated as predicate convictions at ACCA sentencings. Since the ACCA expressly provides for qualifying juvenile adjudications to be used as predicate offenses and the Constitution does not forbid it, the district court correctly counted the three juvenile burglaries. U.S. v. Wright, 594 F.3d 259 (4th Cir. 2010).
4th Circuit holds that defendant who stole firearm in burglary “carried” the firearm. (540) Based on three separate burglaries in which defendant stole a firearm, the district court sentenced defendant as an armed career criminal. Defendant argued that the offenses were not prior offenses under the ACCA because he did not “carry” a firearm while committing a crime of violence. He contended that the act of burglary is complete at the moment a dwelling is entered without consent. The Fourth Circuit held that the burglaries were properly classified as predicate ACCA offenses. Burglary is a violent felony under the ACCA provided it meets the general requirements of generic burglary set out in Taylor v. U.S., 495 U.S. 575 (1990): unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime. The South Carolina burglary statute tracks this generic definition of burglary. Defendant’s claim that he did not “carry” firearms fell short. Section 924(e) merely requires that a prior offense be one “involving the use or carrying of a firearm.” A burglary that results in the theft of firearms necessarily involves carrying them, else the burglary would be forced to leave his spoils at the scene of the crime. U.S. v. Wright, 594 F.3d 259 (4th Cir. 2010).
4th Circuit holds breaking and entering multiple storage units in single building occurred on different occasions under ACCA. (540) The district court sentenced defendant under the Armed Career Criminal Act because he had four prior state convictions encompassing 13 counts of felony breaking or entering. Each count was the subject of a separate indictment, each alleging that on the same day, defendant broke into the same building used as a storage facility, and each indictment identified a different storage unit. Defendant argued that he was not an Armed Career Criminal because the breaking or entering crimes were committed on the same occasion. The Fourth Circuit disagreed, finding that the crimes were separate and distinct criminal episodes because (1) the crimes were committed in 13 different locations (i.e. the separate storage units); (2) the crimes had 10 different victims; and (3) as defendant committed each of the 13 crimes, he “had the opportunity to make a conscious and knowing decision to cease and desist his criminal behavior or engage in yet another crime.” The combination of these factors established that defendant’s prior felonies were separate and distinct criminal episodes for purposes of the ACCA. U.S. v. Carr, 592 F.3d 636 (4th Cir. 2010).
4th Circuit holds that breaking and entering convictions were violent felonies under ACCA. (540) The district court ruled that defendant’s six prior convictions for “breaking and entering” in violation of North Carolina law were not violent felonies under the Armed Career Criminal Act, 18 U.S.C. § 924(e). Previous Fourth Circuit cases have held that a violation of the North Carolina breaking and entering statute was a violent felony, but the district court found that these precedents were, in effect, overruled by the Supreme Court’s decision in Begay v. U.S., 553 U.S. 137 (2008). The panel accepted defendant’s argument that under Begay, all violent felonies must have “an element that demonstrates the likelihood that an assailant would come in contact with another person.” The Fourth Circuit held that Begay did not alter its analysis of what listed crimes qualify as violent felonies. Begay required that for a crime other than the example crimes to qualify as a violent felony, the other crime must be “similar” to the example crimes. As to the listed crimes, Begay recognized the continuing viability of the generic definition of “burglary” in Taylor v. U.S., 495 U.S. 599 (1990), as that term is used in § 924(e)(2)(B)(ii) by explicitly and approvingly restating Taylor’s definition. U.S. v. Thompson, 588 F.3d 197 (4th Cir. 2009).
4th Circuit rules North Carolina robbery conspiracy with dangerous weapon was violent felony. (540) Defendant was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 922(g), based in part on the court’s finding that his prior North Carolina conviction for conspiracy to commit robbery with a dangerous weapon constituted a violent felony. Defendant argued that the conspiracy offense did not qualify as a violent felony because it did not have an overt-act element, and a mere agreement to commit an armed robbery did not carry an inherent risk of confrontation or serious risk of physical injury to another. The Fourth Circuit rejected this argument, finding that the offense was a violent felony. North Carolina mandates that a conspiratorial agreement be directed to the accomplishment of a criminal act, in this case, robbery with a dangerous weapon. A successful conspiracy prosecution in North Carolina requires proof that the conspirators intended that the agreement be carried out. The conspiracy offense was similar “in kind” to the enumerated offenses of § 924(e)(2)(B)(ii), because its completion required conduct that was “purposeful, violent, and aggressive.” U.S. v. White, 571 F.3d 365 (4th Cir. 2009).
4th Circuit finds defendant failed to show he did not threaten to use gun during robbery. (540) The federal “three-strikes” law requires the court to impose a mandatory life sentence upon the conviction of a third “serious violent felony.” See 18 U.S.C. § 3559(c)(1). The statute’s “safety valve” provides that a robbery shall not qualify as a strike “if the defendant establishes by clear and convincing evidence” that he did not threaten the use of a firearm or other dangerous weapon. The Fourth Circuit upheld the application of the mandatory life sentence, ruling that defendant failed to show that he did not threaten to use a firearm during the instant bank robbery. Two bank employees testified that they heard defendant threaten to shoot people. Defendant presented two witnesses who testified that they did not hear any threats. However, one witness admitted he might not have heard the threats because he was focused elsewhere, and the court found defendant’s second witness not credible. A police detective who testified that only one witness had given a written statement that defendant had threatened to use a gun admitted on cross-examination that others had verbally told him that defendant made these threats. U.S. v. Thompson, 554 F.3d 450 (4th Cir. 2009).
4th Circuit holds that mandatory life sentence under three-strikes law did not violate Apprendi. (540) Defendant pled guilty to bank robbery, and received a mandatory life sentence under the federal three-strikes law, 18 U.S.C. § 3559(c). He argued for the first time on appeal that the mandatory life sentence violated the rule in Apprendi v. New Jersey, 530 U.S. 466 (2000). The statute’s safety valve provides that robbery shall not qualify as a “strike” if the defendant establishes by clear and convincing evidence that he did not threaten to use a gun during the robbery. Defendant argued that the court’s finding that he did not meet this burden increased his sentence beyond the otherwise applicable statutory maximum. The Fourth Circuit found no Apprendi violation. There was no fact-finding that increased defendant’s sentence. Rather, there was only fact-finding to determine whether to reduce defendant’s sentence. Defendant conceded that § 3559(c) was constitutional without a safety valve. U.S. v. Thompson, 554 F.3d 450 (4th Cir. 2009).
4th Circuit holds that Virginia statutory rape was not violent felony under ACCA. (540) The district court classified defendant as an armed career criminal, 18 U.S.C. § 924(e)(2)(B), based in part on its finding that his 1986 statutory rape conviction was a violent felony. The Virginia statute makes it a crime to “carnally know … without the use of force,” a child between 13 and 15 years of age. The Fourth Circuit, relying on the Supreme Court’s interpretation of a violent felony under Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), held that Virginia’s carnal knowledge offense is not a violent felony under the ACCA. Begay held that violent felonies under the so-called “otherwise” clause are limited to crimes “that are roughly similar, in kind as well as in degree or risk posed, to the examples” of arson, burglary, extortion, and crimes involving explosives. A violent felony must “involve purposeful, violent, and aggressive conduct.” Although non-forcible adult-minor sexual activity can present grave physical risks to minors, such risks are not sufficiently “similar, in kind as well as in degree or risk posed to the examples” of burglary, arson, extortion and crimes involving explosives. U.S. v. Thornton, 554 F.3d 443 (4th Cir. 2009).
4th Circuit rules that felony stalking conviction was crime of violence. (540) Defendant pled guilty to being a felon in possession of a firearm, and received an enhanced offense under §2K2.1 based on the district court’s finding that his prior North Carolina felony stalking conviction was a crime of violence. The Fourth Circuit affirmed. To be guilty under the North Carolina statute, (1) defendant’s conduct had to be willful, (2) defendant had to be guilty of willfully stalking “on more than one occasion,” (3) defendant had to be found following or being in the presence of his victim, placing his victim in fear of bodily injury, (4) his conduct had to be sufficiently egregious to have placed a “reasonable” person in such fear, and (5) defendant had to place his victim in fear of bodily injury “with the intent to cause emotional distress.” The panel found it “difficult, if not impossible, to conceive how this conduct could have been carried out without threatening by word or action the use of physical force.” Further, the offense would qualify as a violent felony under the ACCA—it was purposeful, violent and aggressive, and posed a risk similar to if not greater than the enumerated offense of burglary or extortion. U.S. v. Seay, 553 F.3d 732 (4th Cir. 2009).
4th Circuit holds that nonconsensual sex is “forcible sex offense” even without physical force. (540) Defendant was convicted of illegally reentering the country after deportation. The district court applied a 16-level crime of violence enhancement based on his Maryland conviction for second-degree rape. The information charging defendant with the rape offense failed to specify which of the three subparts defendant had violated. Two of the subparts clearly qualified as crimes of violence (statutory rape and rape by force or threat of force). A third subpart applies if the victim is mentally defective, mentally capacitated, or physically helpless, and the defendant knew or should have been aware of that. The Fourth Circuit held that Maryland offense of second-degree rape, which criminalize nonconsensual sex absent the element of physical force, is nonetheless a “forcible sex offense,” and thus a crime of violence under the Guidelines. Although the use of force necessarily involves a degree of compulsion, it can be affected through “power” or “pressure,” which do not necessary have physical components. U.S. v. Chacon, 533 F.3d 250 (4th Cir. 2008).
4th Circuit holds Georgia child molestation conviction was sexual abuse of minor. (540) Defendant pled guilty to illegal reentry following deportation. The district court found that his prior conviction under Georgia law for felony attempted child molestation (Ga. Code Ann. 16-6-4), was a crime of violence, and increased his sentence by 16 levels under §2L1.2. The Fourth Circuit affirmed, holding that the offense categorically constituted “sexual abuse of a minor,” and therefore qualified as a crime of violence. “Sexual abuse of a minor” involves the misuse or mistreatment of a minor for a purpose associated with sexual gratification; it does not require the use of physical force, and it does not require physical or psychological injury to the child. The Georgia child molestation statute applies when a defendant “does any immoral or indecent act to or in the presence of or with any child under the age of 14 years with the intent to arouse of satisfy the sexual desires of either the child or the person.” A violation of this statute clearly constitutes “sexual abuse of a minor” because every violation of the statute necessarily involves the defendant’s commission of an immoral or indecent act in a child’s presence with the intent to arouse either the defendant or the child. U.S. v. Diaz-Ibarra, 522 F.3d 343 (4th Cir. 2008).
4th Circuit vacates for failure to advise defendant of 15-year mandatory minimum sentence. (540) Defendant pled guilty to a variety of drug and firearms charges. His plea agreement spelled out that he faced a minimum sentence of 30 years, but the probation officer also recommended an armed career criminal sentence under 18 U.S.C. § 924(c). This meant that defendant actually faced a minimum sentence of 45 years. When he sought to withdraw his plea, the district court refused. The Fourth Circuit held that it was error to accept defendant’s plea to felon-in-possession charges, without warning him that he faced a mandatory minimum sentence of 15 years if he qualified as an armed career criminal. Defendant made it clear he would not have pled guilty if he had known he faced a minimum of 45 years. The government argued that the court should vacate the felon-in-possession counts only, but the Fourth Circuit found that the proper remedy was to vacate all guilty pleas and convictions. Given the interplay between the charges, defendant could not make an informed decision about whether to plead guilty to the § 924(c) charges without knowing his likely sentence on the § 922(g) charges. U.S. v. Hairston, 522 F.3d 336 (4th Cir. 2008).
4th Circuit holds that crack offense sentenced under Youthful Offender Act qualified as a serious drug offense. (540) The district court sentenced defendant under the Armed Career Criminal Act, 18 U.S.C. § 924(e), which mandates a 15-year sentence if a defendant has three prior convictions for serious drug offenses or violent felonies. To qualify as a “serious drug offense” a prior conviction must carry a maximum term of imprisonment of ten years or more. Defendant argued that his South Carolina crack conviction did not qualify as a serious drug offense because he had been sentenced under South Carolina’s Youthful Offender Act (YOA) which, he contended, capped the maximum penalty for certain offenders at six years’ imprisonment. The Fourth Circuit disagreed. Although the YOA does contain a provision permitting sentencing courts to commit youthful offenders to an indefinite period of treatment not to exceed six years, the YOA also provides that the court may sentence the youthful offender under “any other applicable penalty provision” if it finds that the offender will not derive benefit from treatment. Moreover, the language of the YOA is permissive, not mandatory. Because the statutory penalty for defendant’s conviction exceeded 10 years’ imprisonment, it qualified as a “serious drug offense.” U.S. v. Williams, 508 F.3d 724 (4th Cir. 2007).
4th Circuit finds Virginia escape not involving force or violence constituted a violent felony. (540) Defendant had a prior conviction for walking away from a work release program, in violation of Virginia Code § 18.2-479(B). He argued that the offense was not a “violent felony” under the ACCA because (a) of the particular circumstances of his escape, and (b) the Virginia Code § 18.2-479(B) defines escape as a “nonviolent” offense. The Fourth Circuit held that the escape was properly classified as a violent felony. First, courts use a categorical approach and consider the nature of the offense as defined by statute, not the conduct underlying a specific conviction. The plain text of the Virginia statute punishes those who unlawfully and feloniously escape from confinement. Such an offense involves conduct “that presents a serious potential risk of physical injury to another.” Second, the fact that Virginia labels the offense as “nonviolent” was beside the point. The definition of “violent felony” speaks in terms of risk, not result. There is no doubt that a serious potential risk of physical injury is part of defendant’s escape conviction. Even if the escape itself could somehow sidestep any potential risk of injury, the circumstances of recapture necessarily encompass just such a risk. U.S. v. Mathias, 482 F.3d 743 (4th Cir. 2007).
4th Circuit holds that finding that offenses were committed on different occasions did not need to be made by jury. (540) When a defendant has at least three prior convictions for “violent felonies” that were “committed on occasion different from one another,” the Armed Career Criminal Act imposes a minimum sentence of 15 years. 18 U.S.C. § 924(e)(1). Defendant argued that the Blakely/Booker cases prohibited sentencing him under the ACCA unless a jury found (or he admitted) the facts required by the statute. The Fourth Circuit disagreed. The Supreme Court has expressly excluded “the fact of a prior conviction” from those facts that must be found by a jury under the Sixth Amendment. Whether the prior conviction meets the statutory definition of a “violent felony” is a question of law, not fact, and thus does not trigger the Sixth Amendment concerns addressed in Booker. Under U.S. v. Bowden, 975 F.2d 1080 (4th Cir. 1992), burglary under the North Caroline statute in question is a violent felony under the ACCA. In the addition, the issue of whether crimes were committed on occasions different from one another is also a question of law. The date necessary to determine the “separateness” of the occasions is inherent in the fact of the prior convictions. No finding of fact by a jury was necessary here. Defendant’s burglaries were committed on distinct days in separate towns in different homes, and thus, were committed on separate occasions. U.S. v. Thompson, 421 F.3d 278 (4th Cir. 2005).
4th Circuit defends prior conviction exception in Almendarez-Torres. (540) Defendant was sentenced to 190 months’ under the Armed Career Criminal Act, 18 U.S.C. § 924(e), based on the court’s finding that he had been convicted of at least three prior qualifying felonies. The Fourth Circuit held the court’s use of the prior convictions did not violate the Sixth Amendment. See Almendarez-Torres v. U.S., 523 F.3d 224 (1998) (Constitution does not require the government to plead the fact of a prior conviction in the indictment). Almendarez-Torres is still good law, and even if, as defendant contended, it was “only a matter of time” before the Supreme Court overrules Almendarez-Torres, an appellate court is not free to overrule or ignore the precedent. Moreover, the panel cited four reasons why Almendarez-Torres exception has not been overruled: (a) recidivism involves the status of a defendant as a repeat offender based on past convictions, and not the offense being tried before the court; (2) a prior conviction has already been determined in accordance with the safeguards of due process and the Sixth Amendment; (3) the introduction of a prior conviction at trial could unfairly prejudice the defendant; and (4) it has been a longstanding custom for over 200 years to treat recidivism as a sentencing factor and not as an element of the current offense. U.S. v. Cheek, 415 F.3d 349 (4th Cir. 2005).
4th Circuit rejects downward departure that resulted in sentence below mandatory minimum sentence. (540) The government argued that the court erred by granting defendant a downward departure for diminished capacity because it led the district court to impose defendant’s sentences for violations of § 924(c) concurrently instead of consecutively, as statutorily required. The Fourth Circuit agreed and remanded for resentencing. Booker did nothing to alter the rule that judges cannot depart below a statutorily provided minimum sentence. U.S. v. Robinson, 404 F.3d 850 (4th Cir. 2005).
4th Circuit says conviction that occurred after instant offense was not a “previous conviction” under ACCA. (540) In determining that defendant had three “previous convictions” under the Armed Career Criminal Act, the district court relied in part on a March 2001 breach of peace conviction, arising from acts occurring on August 26, 1999. Defendant argued, and the Fourth Circuit agreed, that the breach of peace conviction did not qualify as a predicate “previous conviction” because it occurred after the § 922(g) offense for which he was being sentenced. Every other circuit to consider this question has reached the same conclusion. Defendant was not convicted of breaching the peace until March 22, 2001, one year and 10 months after he violated § 922(g). Thus, the breach of peace conviction was not a “previous conviction” and thus could not count as defendant’s third predicate conviction under the ACCA. U.S. v. Pressley, 359 F.3d 347 (4th Cir. 2004).
4th Circuit holds that defendant was an armed career criminal. (540) The district court found that defendant had five violent felonies, and thus was an armed career criminal under the ACCA. The Fourth Circuit agreed that at least three of the prior convictions were violent felonies. Defendant’s 1983 assault conviction was a violent felony. The jury instructions defined assault, under state law, as “a threat by words or acts or both to do bodily harm, coupled with the apparent present ability to carry out the threat.” In light of that instruction, the jury, in finding defendant guilty of common-law assault, convicted him of a violent felony, i.e. the guilty verdict had “as an element the … threatened use of physical force against the person of another.” The district court also properly characterized defendant’s 1984 conviction for escape as a violent felony. Felony escape and attempted escape constitute violent felonies under the ACCA, even if accomplished by stealth. Finally, the court accurately characterized defendant’s 1988 conviction for resisting arrest as a violent felony. The act of resisting arrest poses a threat of direct confrontation between a police officer and the subject of the arrest, creating the potential for serious physical injury to the officer and others. U.S. v. Wardrick, 350 F.3d 446 (4th Cir. 2003).
4th Circuit says state drug convictions were not “serious drug offenses” under ACCA. (540) A “serious drug offense,” as defined under the Armed Career Criminal Act, 18 U.S.C. § 924(e), includes state and federal drug offenses “for which a maximum term of imprisonment of ten years or more is prescribed by law.” Defendant’s two prior New Jersey convictions were third degree crimes ordinarily punishable by a maximum imprisonment of five years. However, persons with certain previous drug convictions “shall upon application of the prosecuting attorney be sentenced by the court to an extended term” of ten years. N.J.S. § 2C:43-6f. Defendant’s other drug conviction could serve as a predicate offense to his New Jersey offenses. The Fourth Circuit held that the fact that defendant could have had his second sentence extended under New Jersey law did not means defendant’s conviction was for an offense “for which a maximum term of imprisonment of ten years or more is prescribed by law.” The New Jersey sentencing statute included several procedural safeguards that must be exercised before an enhanced term can be imposed, including the prosecutor’s application for the extended term, the establishment of the prior conviction by a preponderance of the evidence, and the trial court’s finding that the prosecutor’s application was not an abuse of prosecutorial discretion. To subject defendant to an enhancement now, based upon a sentence that he could have received only after the exercise of prosecutorial safeguards, would compromise his statutory and due process rights. The New Jersey offenses were not “serious drug offenses” under the ACCA. U.S. v. Williams, 326 F.3d 535 (4th Cir. 2003).
4th Circuit holds that change of maximum punishment did not change violent felony status. (540) Defendant claimed that his prior assault convictions should not be treated as “violent felonies” under § 4B1.1 because, after he committed the assaults, North Carolina law changed the maximum punishment from two years to 150 days. The Fourth Circuit found this argument foreclosed by U.S. v. Johnson, 114 F.3d 435 (4th Cir. 1997). Johnson held that the sentencing guidelines “do not provide any support for … [the] notion that the nature of the conviction at the time of sentencing rather than at the time of conviction, controls the career offender analysis.” U.S. v. Carter, 300 F.3d 415 (4th Cir. 2002).
4th Circuit holds that intent to manufacture or possess need not be formal element of “serious drug felony.” (540) The district court found that defendant was an armed career criminal under 18 U.S.C. § 924(e)(1) based in part on his 1994 North Carolina conviction for possessing between 28 and 200 grams of cocaine. Defendant argued that because he was charged with and pled guilty only to possession of cocaine, the 1994 conviction was not a serious drug offense as defined in § 924(e). The Fourth Circuit held that a prior conviction constitutes a serious drug felony if the underlying crime involves possession with intent to manufacture or distribute, even if that intent is not a formal element of the crime under state law. The court should examine whether intent to manufacture or distribute is an inherent part of the generic crime of conviction. While intent to distribute might be inherent in the possession of 200 grams of cocaine, defendant’s conviction involved between 28 and 200 grams. Quantities at the lower end of this range are not so large that the only reasonable inference is that the defendant had an intent to distribute. Because the court could not say that intent to manufacture or distribute was inherent in the generic conduct proscribed by the statute and alleged in the indictment, defendant’s 1994 conviction did not qualify as a serious drug offense under § 924(e)(20(A)(ii). U.S. v. Brandon, 247 F.3d 186 (4th Cir. 2001).
4th Circuit holds that § 924(c) amendments did not narrow scope of mandatory consecutive sentencing scheme. (540) The district court sentenced defendant to two 180-month concurrent terms for robbery and firearms violations, and a consecutive mandatory minimum 84-month term for being a felon in possession of a firearm, in violation of § 924(c). He argued that his sentence constituted improper double counting because the district court both enhanced his offense level under the armed career criminal guideline, § 4B1.4, and imposed the statutory mandatory minimum under § 924(c). The Fourth Circuit found no double counting problem. The district court did not violate § 2K2.4’s prohibition against double counting because it did not consider defendant’s firearm use in calculating the offense level for his robbery offense. The 1998 amendments to § 924(c), which provides for the mandatory consecutive sentences “except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law,” do not preclude consecutive sentences whenever another provision of law carries a greater mandatory minimum sentence than that imposed under § 924(c). Rather, the “except to the extent” language is designed to “link the remaining prefatory language in (c)(1)(A) to” the other subdivisions. The 1998 amendments to § 924 were not intended to narrow the scope of § 924(c)’s mandatory consecutive sentencing scheme. U.S. v. Studifin, 240 F.3d 415 (4th Cir. 2001).
4th Circuit holds that Maryland conviction for “Deadly Weapon—Int/Inj” was a violent felony. (540) Defendant argued that his 1984 Maryland conviction for “Deadly Weapon—Int/Inj” was not a violent felony under the Armed Career Criminal Act, 18 U.S.C. § 924(e). The state statute creates a single offense that may be committed two ways: with the weapon carried (1) concealed, or (2) openly with the intent to injure. The district court found defendant’s conviction was for violating the second prong, i.e. carrying a weapon openly with intent to injure. Defendant argued that the reference in Maryland court records to the conviction as “Deadly Weapon—Int/Injure” could refer to either a concealed weapon violation or an open possession with intent to injure violation. The Fourth Circuit ruled that defendant was convicted of carrying the weapon with intent to injure. If concealment were the basis of his offense, then the entry would not include the “intent to injure” qualifier. Thus, the conviction was a violent felony and defendant was properly sentenced as an armed career criminal. U.S. v. Frazier-El, 204 F.3d 553 (4th Cir. 2000).
4th Circuit holds that assaults while fleeing police were separate for ACCA purposes. (540) Defendant fired several shots at a state trooper who was pursuing him. About ten minutes later, a citizen informed local police that defendant had boarded a bus. A police officer pursued the bus and stopped it. Defendant leapt from the bus and fled again on foot. During the subsequent chase, defendant pointed his gun at two officers. As a result of this incident, defendant pled guilty to assault with a firearm on a government officer (for firing on the state trooper) and two counts of assault with a deadly weapon (for pointing his weapon at the two local police officers). The Fourth Circuit held that two of defendant’s assault convictions were “committed on occasions different from one another” and thus could serve as predicate offenses under the ACCA. The fact that the events occurred within a short period of time did not mean that the offenses occurred on one occasion. The interval between defendant’s contact with the trooper and his subsequent confrontation with the local police, part of which defendant spent riding by himself on a bus, provided him with the opportunity to desist. There also were different victims. This fact “decisively tip[ped] the scale in favor of concluding that each [assault] was a ‘separate and distinct criminal episode.’” U.S. v. Williams, 187 F.3d 429 (4th Cir. 1999).
4th Circuit holds that PSR gave defendant adequate notice of predicate ACCA conviction. (540) Defendant was sentenced as an armed career criminal under 18 U.S.C. § 924(e) based in part on a 1977 North Carolina conviction. Defendant argued that the conviction should not count because the government did not include it in the notice that it filed of its intent to seek an enhanced sentence. The Fourth Circuit found that the PSR gave defendant adequate notice that the 1977 conviction was a possible predicate conviction. There is no requirement that the government list, either in the indictment or in some formal notice, the predicate convictions on which it will rely for a § 924(e) enhancement. Although a defendant does have a right to adequate notice of the government’s plan to seek such an enhancement, the listing of those convictions in the PSR is more than adequate to provide such notice. The PSR explicitly relied on the 1977 conviction as a possible predicate ACCA conviction, and also gave a full description of the offense. Defendant had every reason to object to its use, and in fact did so, both in his written objections to the PSR and at sentencing. U.S. v. O’Neal, 180 F.3d 115 (4th Cir. 1999).
4th Circuit says state applied law in effect when it discharged convictions. (540) The district court sentenced defendant as an armed career criminal under 18 U.S.C. § 924(e) based in part on 1975 and 1977 North Carolina convictions. A previous conviction may not serve as a predicate for application of § 924(e) if the jurisdiction of conviction has restored to the defendant the civil rights, including the right to posses firearms, that it stripped from him upon conviction. Defendant claimed that when North Carolina discharged his 1975 and 1977 convictions in 1983 (by ending his parole), it applied the law in effect when he committed those offense. Under this law, the state immediately restored his right to possess firearms, which meant that the 1975 and 1977 convictions could not be used as predicate convictions. The Fourth Circuit found that North Carolina applied the law in effect in 1983 when it discharged the convictions. Under this later law, defendant could not possess firearms for five years after the discharge of his sentences. Since defendant committed another offense in 1988, defendant’s right to possess firearms was never restored and the 1975 and 1977 convictions were valid predicate convictions. North Carolina’s use of the law in effect when it discharged his convictions did not violate the ex post facto clause because the law did not impose “punishment.” U.S. v. O’Neal, 180 F.3d 115 (4th Cir. 1999).
4th Circuit finds three burglaries in an hour were separate for ACCA purposes. (540) A jury convicted defendant of being a felon in possession of a firearm. He had four prior burglary convictions. The district court credited defendant’s testimony that three of these burglaries occurred within one hour of each other, and hence found that they should be deemed a single offense for sentencing purposes. Thus, it refused to sentence him under the Armed Career Criminal Act, 18 U.S.C. § 924(e). The Fourth Circuit held that the three burglaries arose out of separate and distinct criminal episodes and thus defendant should have been sentenced under the ACCA. The three burglaries occurred at least a mile apart from each other in two different towns. Defendant had to drive from one store to the next. Although the crimes were similar, they involved multiple victims. Each store was under separate ownership. Defendant could have ceased his string of burglaries at any time. As he drove his car from store to store, there was ample time to reflect and plan each crime. The fact that the crimes were committed in quick succession did not alter this conclusion. U.S. v. Hobbs, 136 F.3d 384 (4th Cir. 1998).
4th Circuit rules North Carolina escape was violent felony. (540) Defendant was sentenced as an armed career criminal. One of the predicate convictions was a 1979 North Carolina felony conviction for escape from custody. The Fourth Circuit agreed that the escape was a violent felony since it involved “conduct that presents a serious potential risk of physical injury to another.” Felony escape from custody in North Carolina does not have as an element the use, attempted use, or threatened use of physical force. However, it satisfies the “otherwise” clause of § 924(e)(2)(B)(ii). An overt escape from a maximum security prison inherently presents a serious potential risk of physical injury to another. This is true even if the vast majority of escapes in North Carolina are undertaken by stealth from minimum security prisons. In an escape by stealth, there is always the risk that the escapee will be interrupted by another, and this encounter inherently presents the serious potential risk of injury to another. U.S. v. Hairston, 71 F.3d 115 (4th Cir. 1995).
4th Circuit holds that involuntary manslaughter is a violent felony. (540) Defendant argued that his involuntary manslaughter conviction was not a violent felony because it was not a specific intent crime. The Fourth Circuit held that under the plain language of 18 U.S.C. § 924(e)(2)(B), involuntary manslaughter is a violent felony. Section 924(e)(2) (B) does not contain a specific intent requirement. Involuntary manslaughter is “conduct that presents a serious potential risk of physical injury to another” under § 924(e)(2)(B)(ii). U.S. v. Williams, 67 F.3d 527 (4th Cir. 1995).
4th Circuit says drug sales two hours apart were “separate criminal episodes.” (540) Defendant was sentenced as an armed career criminal based on three prior drug convictions. Two of the convictions were for selling a single dose of crack to the same undercover police officer on the same day in the same location less than two hours apart. The Fourth Circuit adopted the “separate and distinct criminal episode” test for determining whether prior convictions took place “on occasions different from one another” under the ACCA. Defendant’s two drug sales, although perhaps part of a master plan to sell crack, did not take place on a single occasion as part of a “continuous drug transaction.” Each transaction was a complete and final transaction, and therefore, an independent offense. The time separating the offenses was ample to give defendant an opportunity to make a conscious and knowing decision to engage in another drug sale. U.S. v. Letterlough, 63 F.3d 332 (4th Cir. 1995).
4th Circuit says civil rights were not restored where state statute disqualified felons from jury service. (540) Defendant was sentenced as an armed career criminal based on three previous convictions for violent felonies. Defendant argued that his 1980 West Virginia conviction fell within an exception in § 921(a)(20) because his civil rights had been automatically restored when he completed his sentence. He conceded that he never received a certificate of discharge restoring his civil rights. The Fourth Circuit held that defendant’s civil rights were not automatically restored because a state statute disqualified convicted felons from jury service. The two opinions of the West Virginia Attorney General submitted by defendant were not dispositive. The 1972 opinion discussed only the right to vote. The 1965 opinion did not take into account a 1945 amendment to a state statute that disqualified convicted felons from jury service. Because the opinion did not consider this amendment, the opinion was discredited. U.S. v. Morrell, 61 F.3d 279 (4th Cir. 1995).
4th Circuit holds that Virginia robberies were violent felonies under the ACCA. (540) Defendant argued that his Virginia robberies should not be considered violent felonies under the ACCA. In one robbery, he was named as an accessory, and there was no evidence that he personally committed or threatened to commit violence. His second conviction was for robbery as a principal in the second degree, and he was acquitted of using a firearm. The Fourth Circuit held that the Virginia robberies were violent felonies since they had as an element the use or threatened use of force. Virginia has adopted the common-law definition of robbery, which is defined as taking the personal property of another, from his person or in his presence, against his will, by violence or intimidation. The court must assume that all of the elements of robbery in Virginia were met, including “violence or intimidation.” U.S. v. Presley, 52 F.3d 64 (4th Cir. 1995).
4th Circuit rejects temporal restrictions on prior felonies under ACCA. (540) Defendant argued that his 1973 convictions were too old to be considered predicate convictions under the Armed Career Criminal Act, since guideline § 4A1.2(e)(3) would have excluded the consideration of these convictions. The Fourth Circuit held that there is no temporal restriction on prior felonies under the ACCA. The 1973 convictions were properly counted as predicate offenses under the ACCA. U.S. v. Presley, 52 F.3d 64 (4th Cir. 1995).
4th Circuit upholds constitutionality of Armed Career Criminal Act. (540) Defendant pled guilty to being a felon in possession of 79 firearms. Because he had three prior violent felonies, his sentenced was enhanced to the mandatory minimum term of 15 years under the Armed Career Criminal Act. The Fourth Circuit rejected defendant’s claims that the ACCA violated the Commerce Clause, the Equal Protection Clause, the Due Process Clause, the Double Jeopardy Clause, the Ex Post Facto Clause or the Eighth Amendment. U.S. v. Presley, 52 F.3d 64 (4th Cir. 1995).
4th Circuit holds conviction for crime of violence not required for firearm to be used “in connection with” crime of violence. (540) Defendant was convicted of being a felon in possession of a firearm and was sentenced as an armed career criminal. Section 4B1.4 provides that if an armed career criminal used the firearm “in connection with a crime of violence,” his offense level is 34 and his criminal history category is VI. The 4th Circuit held that a defendant need not be convicted of a crime of violence in order to find that the firearm was used “in connection with” a crime of violence. A conviction is not required if, in fact, a crime of violence was committed. Defendant’s firing of a shot in the direction of a co-worker was at least reckless, and placed the co-worker in imminent danger of serious injury. His actions constituted reckless endangerment and aggravated assault under Tennessee law. Thus, he used his firearm “in connection with” a crime of violence. U.S. v. Rutledge, 33 F.3d 671 (4th Cir. 1994).
4th Circuit examines indictment to find that obstruction offense is a violent felony under the ACCA. (540) Defendant was convicted under Maryland law of obstruction of justice. The Maryland statute applied to obstruction by both violent and nonviolent means. The 4th Circuit examined the indictment to find that defendant’s obstruction offense was by violent means, and thus was a violent felony under the ACCA. The indictment showed that defendant was charged with using a handgun to threaten a state witness into remaining silent about defendant’s possible involvement in a robbery. The court rejected defendant’s argument that Taylor v. U.S., 495 U.S. 575 (1990) allows the court to examine the charging papers and jury instructions only in cases involving prior convictions for burglary. U.S. v. Cook, 26 F.3d 507 (4th Cir. 1994).
4th Circuit uses offense for which 17-year old was tried as an adult as predicate for armed career criminal status. (540) Defendant argued that he did not have three prior convictions for violent felonies, as required for the Armed Career Criminal Act, because his 1982 breaking and entering conviction was a juvenile offense under 18 U.S.C. section 924(e). The 4th Circuit affirmed that the 1982 conviction was not a juvenile offense but a violent felony, since defendant was prosecuted as an adult under North Carolina law. The Act expressly incorporates state law into what constitutes a crime punishable by more than a year’s imprisonment. In North Carolina the delinquent juvenile age is 16. Because North Carolina law has been incorporated on this point, defendant’s 1982 conviction was not for a juvenile offense, but for an adult crime punishable by imprisonment for more than a year — a violent felony under section 924(e)(2)(B). U.S. v. Lender, 985 F.2d 151 (4th Cir. 1993).
4th Circuit says convictions for “breaking or entering” were violent felonies. (540) Defendant received an enhanced sentence as an armed career criminal under 18 U.S.C. section 924(e) and guideline section 4B1.4. The 4th Circuit held that defendant’s prior North Carolina “breaking or entering” convictions were generic burglaries, and thus qualified as violent felonies. The Supreme Court held in Taylor v. U.S., 495 U.S. 575 (1990) that a person has been convicted of burglary for section 924(e) enhancement purposes if the crime has the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime. The North Carolina statute allows conviction on a showing of breaking or entering, not breaking and entering. However, even if defendant gained entry into the buildings without breaking, the entry was still unlawful because defendant had the intent to commit a felony. U.S. v. Bowden, 975 F.2d 1080 (4th Cir. 1992).
4th Circuit refuses to review criminal history calculation for armed career criminal. (540) Defendant, an armed career criminal, argued that two of his prior convictions should not have been included in his sentencing calculation because they were obtained in violation of his constitutional rights. The 4th Circuit refused to review this issue, since the effect of the armed career criminal enhancement of 18 U.S.C. section 924(e) and guideline section 4B1.4 was to make irrelevant for sentencing purposes all of defendant’s prior convictions save those predicate offenses that triggered the enhancement. U.S. v. Bowden, 975 F.2d 1080 (4th Cir. 1992).
4th Circuit finds that offenses need not be tried separately to serve as predicate offenses for armed career criminal status. (540) Defendant argued that his two drug convictions should be treated as one for armed career criminal purposes because they were consolidated and a concurrent sentence was imposed. The 4th Circuit rejected this argument, since nothing in the guidelines or 18 U.S.C. section 924(e) suggests that offenses must be tried or sentenced separately in order to be counted as separate predicate offenses. The only requirement is that the predicate offenses be committed on different occasions, and defendant’s offenses clearly met that standard. Defendant’s offense level under section 4B1.4 was 34, because defendant used or possessed the firearm in connection with a crime of violence. The fact that the court previously held that a felon’s possession of a firearm was not a crime of violence did not bar application of the offense level of 34. The trigger to the application of the base offense level of 34 is not a finding that possession of a firearm is a crime of violence, but a finding that the firearm was used in connection with a crime of violence. U.S. v. Samuels, 970 F.2d 1312 (4th Cir. 1992).
5th Circuit holds Texas conviction for reckless assault was violent felony. (540) Defendant was sentenced under the Armed Career Criminal Act based in part on the district court’s finding that his prior conviction under Texas Penal Code § 22.01, felony assault involving family violence, constituted a violent felony. Defendant argued that the offense was not a violent felony because the record did not establish that he committed the offense with a mens rea greater than recklessness. The Fifth Circuit held that violating Tex. Penal Code § 22.01 with a culpable mens rea of recklessness qualified as a violent felony under the residual clause of the ACCA. Under Sykes v. U.S., 131 S.Ct. 2267 (2011), the ACCA applies to crimes that are “similar in degree of danger” to one of the enumerated offenses. Reckless assault creates, at a minimum, a similar degree of danger as burglary, an enumerated offense. A violation under § 22.01, whether committed intentionally or recklessly, requires proof that the defendant caused bodily injury to another person. In comparison, the enumerated offense of burglary does not always result in a physical confrontation between two people, nor does it always result in physical injury. U.S. v. Espinoza, 733 F.3d 568 (5th Cir. 2013).
5th Circuit holds that Texas offense of conspiracy to commit aggravated robbery was violent felony. (540) The district court sentenced defendant under the Armed Career Criminal Act based in part on his prior Texas conviction for conspiracy to commit aggravated robbery. The Fifth Circuit held that the offense fell within the so-called residual clause, and thus qualified as a violent felony under the ACCA. An agreement to commit aggravated robbery presents a serious potential risk of injury even if a conspirator other than the defendant would actually carry out the aggravated robbery. The existence of the agreement itself presents a serious potential risk that the agreement will be carried forward. Moreover, the crime was similar in kind as well as degree of risk posed by burglary, arson, extortion and the other enumerated offenses. The risk typically posed by the least culpable means of committing conspiracy to commit aggravated robbery under Texas law is that a victim will be confronted by the assaulter in an attempt to take property from the victim by means of bodily injury. The crime is purposeful because it is made with intent that the crime be committed. It is violent because it contemplates a physical assault or threatened assault against another person. U.S. v. Gore, 636 F.3d 728 (5th Cir. 2011).
5th Circuit holds that theft of firearms from licensed dealer was violent felony. (540) The district court sentenced defendant under the Armed Career Criminal Act based in part on its finding that his prior conviction for theft of a firearm from a licensed gun dealer, in violation of 18 U.S.C. § 922(u), was a violent felony. The Fifth Circuit affirmed. The offense was not a violent offense under the first prong of the ACCA. Defendant was convicted under the “premises” prong of § 922(u) – the indictment and his factual basis alleged that he broke the front window of a gun shop, entered it, and stole 11 handguns. Stealing from such a premises does not necessarily involve the use of physical force. Section 922(u) also was not a violent felony under the enumerated crimes prong of the ACCA. The closest enumerated offense was burglary, but § 922(u) lacked the element of unlawful or unprivileged entry. However, the panel concluded that the offense qualified as a violent felony under the residual clause, because it constituted a potential risk of serious harm to others, and was similar in risk and kind to one of the enumerated offenses. U.S. v. Schmidt, 623 F.3d 257 (5th Cir. 2010).
5th Circuit holds that violation of federal escape statute is violent felony. (540) Defendant was convicted of being a felon in possession of a firearm, and sentenced to 293 months under the Armed Career Criminal Act based on three violent felony convictions. The Fifth Circuit held that defendant’s conviction for violating the federal escape statute, 18 U.S.C. § 751(a), was a violent felony, which qualified him for enhanced sentencing under the ACCA. This circuit had previously held that federal escape is a crime of violence under U.S.S.G. § 4B1.2. Recent Supreme Court decisions did not change this conclusion. Escape from an institution in which one is confined not only involves conduct “that presents a serious potential risk of physical harm to another,” it is a crime whose typical commission is “purposeful, violent, and aggressive.” Unlike failure to report, escape is typically committed in a purposeful manner. The crime includes behavior that is significantly more dangerous behavior than failure to report. Finally, the act is typically aggressive insofar as one who escapes prison is no doubt aware that armed law enforcement will seek him out, potentially ending in a violent confrontation. U.S. v. Hughes, 602 F.3d 669 (5th Cir. 2010).
5th Circuit holds that stalking was crime of violence. (540) Defendant pled guilty to being a felon in possession of a firearm, and received an enhanced offense level under §2K2.1(a)(4)(A) based on his prior South Carolina convictions for stalking. The Fifth Circuit agreed that the stalking offense was a crime of violence under the so-called residual clause of §4B1.2. The Supreme Court’s recent decision in Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008) did not preclude this finding. Begay interpreted the residual clause as covering only those crimes that are “roughly similar, in kind as well as in degree of risk posed” to the enumerated offenses of burglary, arson, extortion, or the use of explosives. Stalking meets this standard—criminal intent is clearly required by the statute. Although the statute could be violated by non-violent as well as violent methods, the district court examined the indictment and the judgment to find that defendant was charged with and convicted of “willfully, maliciously and repeatedly following or harassing the victims and making repeated threats to place the victims in reasonable fear of great bodily harm or bodily injury.” U.S. v. Mohr, __ F.3d __ (5th Cir. Jan. 6, 2009) No. 08-60075.
5th Circuit rejects enhancement based on mere possession of drugs. (540) A defendant is subject to enhancements in §§ 4B1.4(b)(3) and(c)(2) if he possesses any firearms in connection with a “controlled substance offense,” which the Guidelines define as a crime involving “the manufacture, import, export, distribution, or dispensing of a controlled substance … or the possession of a controlled substance …. with the intent to manufacture, import, export, distribute, or dispense.” USSG § 4B1.2(b). Mere possession of illegal drugs, without more, is not a “controlled substance offense” for these purposes. Here, defendant was found with “undetermined” amounts of illegal drugs in his home. The district court did not make a finding that defendant possessed the drugs with intent to manufacture, import, export, distribute, or dispense, and the government conceded that there was no evidence in the record to support such a finding. Accordingly, the Fifth Circuit held that the application of the enhancements in § 4B1.4(b)(3) & (c)(2) was erroneous. U.S. v. Neal, 578 F.3d 270 (5th Cir. 2009).
5th Circuit holds that rape committed using constructive force was crime of violence. (540) Defendant received a 16-level enhancement based on the district court’s finding that his prior California rape conviction was a crime of violence. A Fifth Circuit panel found that the rape was not a forcible sex offense because the use of physical force was not a required element under California’s rape statute. However, on rehearing en banc, the Fifth Circuit upheld the sentence, holding that a sex offense committed using constructive force, i.e. non-physical force, can qualify as a “forcible sex offense” and therefore be a crime of violence. Such offenses, by definition, involve victims who have not consented in fact, even if the victim has nominally consented. Consent that is given under duress, whether through physical or nonphysical means, indicates nothing about whether the victim in fact wishes to engage in sex. A perpetrator who has applied physical or constructive force to make the victim submit cannot reasonably interpret such a word or action as indicating that the victim actually wishes to manifest consent. U.S. v. Gomez-Gomez, __ F.3d __ (5th Cir. Oct. 21, 2008) No. 05-41461 (en banc).
5th Circuit reaffirms that Texas burglary of a habitation is crime of violence. (540) Defendant argued that the district court erred by imposing a 16-level enhancement under §2L1.2 based on its finding that his prior Texas conviction for burglary of a habitation constituted a crime of violence. However, a Fifth Circuit panel previously held that a violation of Tex. Penal Code Ann. §30.02(a)(1), the statute pertaining to defendant’s burglary conviction, was a crime of violence under §2L1.2 because it was equivalent to the enumerated offense of burglary of a dwelling. U.S. v. Garcia-Mendez, 420 F.3d 454 (5th Cir.2005). Defendant argued that the Supreme Court’s recent decision in James v. U.S., 550 U.S. 192 (2007) overruled this precedent. The Fifth Circuit disagreed, and found that defendant’s argument was foreclosed by Garcia-Mendez. Although James contained dicta suggesting that the Florida statute criminalized conduct beyond generic burglary, this was not James’ holding. U.S. v. Cardenas-Cardenas, __ F.3d __ (5th Cir. Sept. 25, 2008) No. 08-40210.
5th Circuit says California sexual intercourse with a minor is a crime of violence. (540) Defendant’s illegal reentry sentence was enhanced under § 2L1.2(b)(1)(A)(ii) for a prior crime of violence, i.e., a California conviction for sexual intercourse with a minor. The Fifth Circuit affirmed, noting that the violation of California Penal Code § 261.5(c) constituted an enumerated crime of violence, namely statutory rape. The court found that § 261.5(c)’s definition is overbroad under § 2L1.2(b)(1)(A)(ii), because it sets the age of consent at 18 for purposes of statutory rape, while the Model Penal Code and a majority of state jurisdiction set the age of consent at 16. However, defendant also pled no contest to an accompanying charge of lewd acts with a child under the age of 14. The elements of that charge necessarily required a victim to be under the age of 14. The factual basis underlying both offenses was the same. Thus, the charging document, which was orally amended at the plea colloquy to include a charge under § 261.5(c), established that the victim was under the age of 14. U.S. v. Lopez-DeLeon, __ F.3d __ (5th Cir. Jan. 9, 2008) No. 06-41553.
5th Circuit holds that burglary under Texas statute that did not require intent was not generic burglary. (540) Defendant was sentenced as an armed career criminal based in part on the district court’s finding that his prior burglary convictions under Texas Penal Code §30.02(a)(3) were violent felonies. Section 30.02(a)(3) applies to one who “enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.” The generic definition of burglary for §924(e) purposes involves “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” Taylor v. U.S., 495 U.S. 575 (1990). The Fifth Circuit held that burglary under Texas Penal Code §30.02(a)(3) did not qualify as generic burglary under the Taylor definition because it did not include the element of intent. Although the government argued that it was unclear whether defendant was convicted of burglary under §30.02(a)(1) or (3), the government had the burden of proving that defendant was convicted under a statute that satisfied the Taylor definition of generic burglary. U.S. v. Constante, 544 F.3d 584 (5th Cir. 2008).
5th Circuit holds that Texas conviction for indecency with a child constituted sexual abuse of a minor. (540) Prior to being deported, defendant was convicted of indecency with a child under Texas Penal Code §211.11(a)(1). The district court equated indecency with a child under Texas law with sexual abuse of a minor for purposes of §2L1.2 and applied a 16-level enhancement. Defendant argued that the definition of “child” under §21.11(a)—a person less than 17 years old—is inconsistent with the contemporary meaning of “minor” because, for purposes of many states’ statutory rape laws, a person’s “age of consent” is deemed to be 16. The Fifth Circuit found that defendant’s argument was foreclosed by U.S. v. Zavala-Sustaita, 214 F.3d 601 (5th Cir. 2001). A child less than 17 years old is clearly a minor. U.S. v. Ayala, 542 F.3d 494 (5th Cir. 2008).
5th Circuit holds that California kidnapping was not crime of violence. (540) Defendant received a 16-level enhancement under §2L1.2(a) because he was deported after his 2004 California conviction for kidnapping, which the district court found was a crime of violence. The Fifth Circuit held that the California kidnapping offense was not a crime of violence, and reversed. First, the use of force was not a necessary element of the California kidnapping offense. Section 207(a) of the California Penal Code makes it unlawful for an offender to act “forcibly, or by any other means of instilling fear.” Second, the California kidnapping offense did not qualify as the enumerated offense of “kidnapping.” Generic kidnapping involves (1) knowing removal or confinement, (2) substantial interference with the victim’s liberty, (3) force, threat, or lack of consent, and (4) substantial risk of bodily injury or involuntary servitude. The least culpable act constituting a violation of §207(a) does not require substantial interference with the victim’s liberty or substantial risk of bodily injury or involuntary servitude. U.S. v. Moreno-Florean, 542 F.3d 445 (5th Cir. 2008).
5th Circuit holds that Ohio conviction for shipping drug was “drug trafficking offense.” (540) Defendant received a 12-level enhancement under §2L1.2(b)(1)(B) based on his 2005 Ohio drug conviction, which the district court found was a “drug trafficking offense.” Defendant argued that the state statute criminalizes behavior that does not fall within the Guidelines’ definition of a drug trafficking offense. The Ohio statute applies to a person who prepares for shipment or ships or prepares for distribution or distributes a controlled substance “when the offender knows or has reasonable cause to believe that the controlled substance is intended for sale or resale …” The Fifth Circuit upheld the enhancement, agreeing that a person who prepares for shipments, ships, transports, delivers, prepares for distribution or distributes a controlled substance, while he knows or should know that the substance is intended for sale, has committed an act of distribution under the Guidelines. The Ohio statute does not criminalize mere personal use or possession; it requires a level of understanding that the drugs are for sale or resale. U.S. v. Fuentes-Oyevides, 541 F.3d 286 (5th Cir. 2008).
5th Circuit holds that Texas conviction for delivery of controlled substance was serious drug offense under ACCA. (540) The district court found that defendant’s Texas conviction for delivery of a controlled substance constituted a “serious drug offense” under the Armed Career Criminal Act, 18 U.S.C. §924(e). The Texas statute could be violated by a range of conduct between an offer to sell to the actual delivery of a controlled substance. The charging document and state court judgment did not disclose what defendant was accused of doing. The Fifth Circuit held that the district court did not err in ruling that defendant’s Texas conviction for delivery of a controlled substance was a serious drug offense under the ACCA. There was nothing illogical or unfair about interpreting the ACCA in its most straightforward way. The offenses specified by the Texas statute – from the offer to sell, to attempted delivery, to actual delivery – are all offenses which are “related to or connected with” the distribution of drugs. U.S. v. Vickers, 540 F.3d 356 (7th Cir. 2008).
5th Circuit says California residential burglary is not a “crime of violence.” (540) Defendant was convicted of unlawful reentry in violation of 8 U.S.C. § 1326. His sentence was increased by 16 levels under § 2L1.2(b)(1)(A)(ii), on the ground that his prior California residential burglary conviction was a “crime of violence.” The Fifth Circuit reversed. Under its decision in U.S. v. Ortega-Gonzaga, 490 F.3d 393 (5th Cir. 2007), a conviction under California Penal Code § 459 for residential burglary is not a crime of violence for purposes of § 2L1.2(b)(1)(A). The offense is not the equivalent of the enumerated crime of burglary of a dwelling under § 2L1.2 because it does not require an unprivileged or unlawful entry, but simply an entry, even a lawful one. Thus, the offense does not have as an element “the use, attempted use, or threatened use of physical force.” The error was plain, even though Ortega-Gonzaga was decided after defendant was sentenced. The error need only be plain at the time of appellate consideration. U.S. v. Gonzalez-Terrazas, 529 F.3d 293 (5th Cir. 2008), superseding and replacing 516 F.3d 357 (2008).
5th Circuit says error in crime of violence increase did not warrant reversal. (540) The district court applied a 16-level crime of violence enhancement under § 2L1.2(a) based on defendant’s conviction under New York Penal Law § 125.15 for attempted manslaughter. The New York statute contains three separate subsections, two which criminalize a broader range of conduct than encompassed by the generic offense of voluntary manslaughter. To determine which subpart formed the basis of defendant’s conviction, the district court relied on the Certificate of Disposition and the original criminal information charging defendant with second degree manslaughter. The Fifth Circuit held that this was error because the COD stated only that defendant pleaded guilty to attempted manslaughter in the second degree—it did not provide the specific subsection under which he was convicted. The criminal information charged a crime other than the one for which defendant was convicted. However, the error did not warrant reversal, because the judge said that even if he were wrong about the Guidelines, he would still impose a 41-month sentence. Thus, defendant’s sentence did not result from an incorrect application of the Guidelines. Judge Garza dissented, arguing that a properly calculated guideline range is a prerequisite to a reasonable sentence. U.S. v. Bonilla, 524 F.3d 647 (5th Cir. 2008).
5th Circuit rules Virginia distribution offense was drug trafficking offense. (540) Defendant argued that the district court erred in treating his prior Virginia conviction for distribution of cocaine as a “drug trafficking offense” under § 2L1.2(b)(1)(A)(ii). The Virginia statute, VA. CODE ANN. § 18.2-248(D) provides that if a defendant proves that he distributed the drugs only as an accommodation to another, the offense is a Class 5 felony. Defendant argued that the offense was not a drug trafficking offense because he could be guilty of only an accommodation (a form of distribution neither engaged in for profit nor to further a drug dealer’s efforts), yet be convicted for distribution. Using the categorical approach to analyze the conviction, the Fifth Circuit held that the district court did not err in classifying the prior Virginia distribution offense as a drug trafficking offense. The felony indictment charged defendant with distributing cocaine, and he pled guilty to distributing of cocaine—conduct expressly prohibited by the statute. U.S. v. Rodriguez, 523 F.3d 519 (5th Cir. 2008).
5th Circuit upholds variance where prior offense almost qualified as drug trafficking offense. (540) Defendant pled guilty to illegal reentry after deportation. The PSR recommended a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) for a prior drug trafficking offense. The district court found that the state offense did not qualify for the enhancement because the state statute included activity that fell outside § 2L1.2’s definition of a drug trafficking offense. The effect of removing the enhancement was to reduce defendant’s advisory sentencing range from 70-87 months to a range of 21-27 months. The district court imposed a sentence of 60 months, because defendant’s “prior crimes were not used to properly enhance his offense level.” The Fifth Circuit held that the variance was substantively reasonable, and affirmed. First, defendant’s argument that a disagreement with the Guidelines is not a sufficient reason to impose a non-Guidelines has lost most of its force in light of Kimbrough v. U.S., 128 S. Ct. 558 (2007) and Rita v. U.S., 127 S. Ct. 2456 (2007). Second, a defendant’s criminal history is one of the factors that a court may consider in imposing a non-Guidelines sentence. The sentence was substantively reasonable. The district court found that the guideline range did not account for the fact that defendant had in fact been convicted of drug trafficking conduct (he had 400 grams of heroin and $2500 in cash when he was arrested). U.S. v. Herrera-Garduno, 519 F.3d 526 (5th Cir. 2008).
5th Circuit says Texas offense of indecency with a child was sexual abuse of minor. (540) Defendant was convicted of illegally reentering the country after deportation. Prior to deportation, defendant had pled guilty to indecency with a child, in violation of Texas Penal Code § 21.11(a)(1). The Fifth Circuit held that a violation of § 21.11 amounted to “sexual abuse of a minor” and thus was a crime of violence for purposes of § 2L1.2(b)(1)(A)(ii). The offense is defined as making “sexual contact” as defined in § 21.11(c) with an individual 16 years old or younger. In U.S. v. Zavala-Sustaita, 214 F.3d 601 (5th Cir. 2000), the court held that a violation of the indecent exposure subsection of the Texas statute was a crime of violence, since a child subjected to such exposure might suffer psychological harm, thus making the conduct “abusive.” Zavala-Sustaita was dispositive – if indecent exposure absent physical contact constitutes “sexual abuse of a minor,” then an adult’s sexual contact with a child also constitutes “sexual abuse of a minor.” U.S. v. Najera-Najera, 519 F.3d 509 (5th Cir. 2008).
5th Circuit holds California robbery is a crime of violence. (540) The district court found that defendant’s prior California robbery conviction was a crime of violence and increased his offense level under § 2L1.2(b)(1)(A)(ii) by 16 levels. Although robbery is an enumerated crime of violence under the Guideline, defendant argued that robbery under Cal. Penal Code § 211 does not meet the generic, contemporary definition of robbery because the California statute may be violated not only by the use of force but also by threats to property. The Fifth Circuit disagreed, and upheld the enhancement. The California robbery statute involves the misappropriation of property under circumstances involving danger to the person. Regardless of how the robbery occurs, that danger is inherent in the criminal act. Thus, even when the statute is violated by placing the victim in fear of injury to property, the property has been misappropriated in circumstances “involving [immediate] danger to the person.” U.S. v. Tellez-Martinez, 517 F.3d 813 (5th Cir. 2008).
5th Circuit holds California burglary conviction was not crime of violence. (540) Defendant unlawfully reentered the country following deportation. He received a 16-level enhancement under § 2L1.2(b)(1) for a prior crime of violence, based on his prior conviction under California law for residential burglary, in violation of Cal. Penal Code § 459. However, in U.S. v. Ortega-Gonzaga, 490 F.3d 393 (5th Cir. 2007), the Fifth Circuit held that a conviction under § 459 did not constitute a crime of violence for purposes of § 2L1.2(b)(1)(A). Burglary of a dwelling, as defined in the Guidelines, requires an unprivileged or unlawful entry, while the California offense simply requires proof of an entry, even a lawful entry. In light of Ortega-Gonzaga, the Fifth Circuit held that the district court erred in applying the crime of violence enhancement. The panel rejected the government’s claim that the complaint against defendant modified the “entry” element of § 459 by including an allegation that defendant willfully and unlawfully entered the dwelling. The government did not demonstrate that this fell within that “narrow range of cases” in which a court may look beyond the elements of an offense to classify that offense for sentence enhancement purposes. U.S. v. Gonzales-Terrazas, 516 F.3d 357 (5th Cir. 2008).
5th Circuit rules California grand theft from a person is a violent felony under ACCA. (540) Defendant was sentenced as an armed career criminal based in part on his 1984 conviction for grand theft from a person, in violation of § 487(2) of the California Penal Code. The offense is defined as “theft committed … when the property is taken from the person of another.” California courts have interpreted the statute to require that the property shall at the time be actually upon or attached to the person, or carried or held in actual physical possession. So every conviction for grand theft from a person involves direct physical contact between the perpetrator and the victim. Thus, the Ninth Circuit has held that grand theft from a person is a violent felony under § 924(e). See U.S. v. Wofford, 122 F.3d 787 (9th Cir. 1997). Moreover, in U.S. v. Hawkins, 69 F.3d 11 (5th Cir. 1995) the Fifth Circuit held that felony theft from a person under Texas law constitutes a “crime of violence” under U.S.S.G. § 4B1.2. The Fifth Circuit found no reason to depart from the reasoning of Wofford or Hawkins, and agreed that defendant’s grand theft conviction constituted a violent felony under the ACCA. U.S. v. Hawley, 516 F.3d 264 (5th Cir. 2008).
5th Circuit holds that California assault with intent to commit certain listed felonies is a crime of violence. (540) Defendant pled guilty to illegal reentry after deportation. The district court applied a 16-level enhancement after finding that defendant’s prior conviction under California Penal Code § 220(a) qualified as a crime of violence under § 2L1.2. The California statute criminalizes assault with intent to commit certain listed felonies, including mayhem, rape, sodomy, and oral copulation. The Fifth Circuit found no error, holding that every offense defined by the California statute qualifies as a crime of violence because the statutory subsection is the common sense equivalent to the enumerated offense of aggravated assault. The ordinary, contemporary, and common meaning of aggravated assault includes “assault with intent to commit a felony.” That is exactly what California Penal Code § 220(a) criminalizes. U.S. v. Roja-Gutierrez, 510 F.3d 545 (5th Cir. 2007).
5th Circuit upholds reliance on New York Certificate of Disposition to establish offense was crime of violence. (540) Defendant received an enhancement under § 2L1.2 based on the district court’s finding that his prior New York conviction for attempted assault was a crime of violence. One or more prongs of the state statute did not qualify as a crime of violence under a categorical approach. The district court relied on both the Certificate of Disposition and the indictment to find that defendant was convicted under one of the violent prongs of the statute, and thus the conviction was a crime of violence. Because defendant pled guilty to a different offense than that for which he was indicted, the Fifth Circuit found that the court erred in using the indictment to determine under which subsection defendant pled guilty. However, the Certificate of Disposition had sufficient indicia of reliability to support its probable accuracy so that it could be used as evidence of defendant’s prior conviction. Under New York law, a Certificate of Disposition is a judicial record of the offense of which the defendant was convicted and “constitutes presumptive evidence of the facts stated in such certificate.” Although the Certificate is not conclusive, defendant produced no evidence calling into question the reliability of the Certificate. U.S. v. Neri-Hernandez, 504 F.3d 587 (5th Cir. 2007).
5th Circuit holds Colorado state conviction for attempted second-degree kidnapping was not a crime of violence. (540) Defendant received a 16-level crime of violence enhancement based on his prior Colorado conviction for attempted second-degree kidnapping. The sole ground for doing so was that the offense qualified as the enumerated offense of “kidnapping” under note 1(B)(iii) to § 2L1.2. The Fifth Circuit reversed. The Colorado second-degree kidnapping statute is broader than the offense contemplated in the guidelines. The generic definition of kidnapping contains three requirements: (1) knowing removal or confinement, (2) substantial interference with the victim’s liberty, and (3) force, threat, or fraud. Based on its review of Colorado caselaw, the panel concluded that the state statute did not require a substantial interference with the victim’s liberty. U.S. v. Cervantes-Blanco, 504 F.3d 576 (5th Cir. 2007).
5th Circuit rejects drug trafficking enhancement where unclear whether defendant transferred cocaine or merely offered to sell it. (540) Defendant had previously pleaded guilty to a Texas charge for delivery of cocaine. Defendant argued that the offense was not a “drug trafficking offense” for purposes of a 16-level enhancement under § 2L1.2(b)(1)(A)(i). The statutory definition of delivery of a controlled substance in Texas included activity that does not fall within § 2L1.2’s definition of a drug trafficking offense, namely “offering to sell a controlled substance.” The allegations in the charging document indicated that defendant was being charged with actually transferring, constructively transferring, and offering to sell cocaine. Although defendant pled guilty to the indictment, under Texas law, this is only an admission of those facts needed to support the conviction, rather than an admission of all the facts in the charging document. Having nothing more than the fact of conviction and the charging document, the Fifth Circuit held that it could not determine whether the conviction was a drug trafficking offense. It was unclear whether defendant transferred cocaine or merely offered to sell cocaine. Thus, the district court erred in applying the enhancement. U.S. v. Morales-Martinez, 496 F.3d 356 (5th Cir. 2007).
5th Circuit holds that forcible rape under 1991 California law was not crime of violence. (540) Defendant was convicted of illegal reentry into the U.S. after deportation, and received a 16-level crime of violence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on his 1991 rape conviction in California. The Fifth Circuit reversed, holding that forcible rape, as it existed in California in 1991, was not a crime of violence. The offense did not have as an element the use, attempted use, or threatened use of force. It was possible for a defendant to be convicted where the rape was committed by “duress,” which was defined to include a threat of hardship, or retribution. Threats of hardship or retribution both fall short of threats of force or injury. For example, a defendant could have violated the 1991 statute by threatening to reveal an embarrassing secret about his victim or threatening to fire a subordinate. For the same reasons, the offense did not qualify as a “forcible sex offense,” which is one of the crimes enumerated as a crime of violence. For a crime to qualify as a forcible sex offense, all of the conduct criminalized by the statute must so qualify. Hence, the “forcible sex offense” inquiry usually mimics the “elements” inquiry. U.S. v. Gomez-Gomez, 493 F.3d 562 (5th Cir. 2007).
5th Circuit finds federal bank robbery was not a crime of violence. (540) Defendant was indicted for federal bank robbery in violation of 18 U.S.C. § 2113(a). That statute imposes a maximum 20-year sentence on anyone who by force and violence takes from the person of another any property or money belonging to any bank, or who “enters or attempts to enter any bank … with intent to commit in such bank … any felony affecting such bank, credit union, or such savings and loan association ….” In U.S. v. Jones, 993 F.2d 58 (5th Cir. 1993), the court held that the second paragraph of § 2113(a) (under which defendant was convicted) does not constitute a crime of violence under 18 U.S.C. § 924(c). That provision contains a definition for crime of violence very similar to that used in the guidelines. The government conceded that Jones governed this case, but argued that because the district court made numerous comments at sentencing suggesting that it sought to impose the highest sentence possible on defendant, there was “a reasonable probability that the court would not impose a lesser sentence on remand” and therefore defendant could not show plain error. The Fifth Circuit rejected this argument. If a sentence is imposed as a result of an incorrect application of the guidelines, the sentence must be vacated and the case remanded for further proceedings. U.S. v. Dentler, 492 F.3d 306 (5th Cir. 2007).
5th Circuit holds that sexually molesting juvenile “by use of influence by virtue of control or supervision” is a crime of violence. (540) Defendant was caught hunting in a wildlife refuge, and was convicted of being a felon in possession of a firearm. He had twice previously been convicted in Louisiana for sexually molesting a juvenile. The district court applied a recidivist enhancement for two prior crimes of violence. He claimed that the second molestation conviction was not a crime of violence because the indictment did not say whether sexual contact had occurred during this offense. The Fifth Circuit held that the Louisiana molestation statute was a crime of violence because it was a “forcible sex offense,” and affirmed. The Louisiana statute covered molestation by use of force, violence, intimidation “or by the use of influence by virtue of a position of control or supervision over the juvenile.” The panel concluded that the least amount of force required by the statute, “use of influence by virtue of control or supervision,” constituted a form of psychological intimidation that carries an implicit threat of force. The court did not err in concluding this was a “forcible sex offense” under the guidelines. U.S. v. Beliew, 492 F.3d 314 (5th Cir. 2007).
5th Circuit rules that “burglary of a dwelling” requires showing of unlawful entry into building with intent to commit a crime. (540) Defendant pled guilty to illegal reentry following deportation, and received a 16-level increase based on the court’s finding that his previous California conviction for burglary, in violation of Cal. Penal Code § 459, was a crime of violence under U.S.S.G. § 2L1.2. The parties contested whether defendant’s prior conviction was the enumerated felony of “burglary of a dwelling” under the categorical approach. The California statute criminalized entry into a building with the intent to commit larceny or any felony. However, the generic, contemporary meaning of burglary contains the following elements: “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” See Taylor v. United States, 495 U.S. 575 (1990). Since the California statute did not require an unlawful or unprivileged entry into a building, the Fifth Circuit held that the statute does not proscribe “burglary of a dwelling.” For example, a shoplifter who lawfully enters a store with the intent to steal may later commit theft, but not burglary. Therefore, the 16-level increase was improper. U.S. v. Ortega-Gonzaga, 490 F.3d 393 (5th Cir. 2007).
5th Circuit says burglary conviction that did not require intent to commit crime at time of illegal entry was not a “crime of violence.” (540) Defendant pled guilty to illegal reentry following deportation, and received a 16-level increase based on the court’s finding that his previous Tennessee conviction for aggravated burglary, in violation of Tenn. Code Ann. § 39-14-403, was a crime of violence under U.S.S.G. § 2L1.2. The parties contested whether defendant’s prior conviction was the enumerated felony of “burglary of a dwelling” under the categorical approach. The indictment tracked subsection (a)(3) of the statute, which applies even if, at the time of unlawful entry, the defendant had no intent to commit a crime. Such an intent is required under the generic definition of burglary, as outlined in Taylor v. United States, 495 U.S. 575 (1990). Because such intent was lacking, the Fifth Circuit ruled that under the categorical approach, defendant’s prior conviction was not “burglary of a dwelling,” and thus was not a crime of violence. U.S. v. Herrera-Montes, 490 F.3d 390 (5th Cir. 2007).
5th Circuit holds Texas aggravated assault was a crime of violence. (540) Defendant challenged the district court’s finding that his prior conviction for aggravated assault qualified as a crime of violence. In U.S. v. Mungia-Portillo, 484 F.3d 813 (5th Cir. 2007), the court held that conviction under the Tennessee aggravated assault statute qualified as a conviction for the enumerated offense of aggravated assault. The court found that the differences between Tennessee’s definition of aggravated assault and the Model Penal Code’s definition were “sufficiently minor” that they did not remove the Tennessee statute from the family of offenses commonly known as “aggravated assault.” Tennessee’s aggravated assault statute included the two most common aggravated factors found in other aggravated assault statutes, that is “the causation of serious bodily injury and the use of a deadly weapon.” Since the provision of the Texas aggravated assault statute under which defendant was convicted was identical in all material respects to the Tennessee assault statute involved in Mungia-Portillo, the Fifth Circuit held that the Texas conviction qualified as a crime of violence. U.S. v. Guillen-Alvarez, 489 F.3d 197 (5th Cir. 2007).
5th Circuit holds that unarmed Texas robbery was a violent felony under ACCA. (540) The ACCA defines a violent felony as a crime punishable by a term of prison exceeding one year that either (i) has as an element the use, attempted use, or threatened use of physical force (the “force clause”); or (ii) is burglary, arson, extortion, involves explosives or otherwise involves conduct that presents a serious potential risk of physical injury to another (the “residual clause”). § 924(e) (2)(B). The test for determining whether an offense falls within the residual clause is whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another. The Fifth Circuit held defendant’s prior Texas robbery convictions were violent felonies under the ACCA. Although the Texas statute did not require the use of a weapon, even when the robber has no weapon, there is a very real possibility of confrontation between the robber and victim. In a robbery, there is always a substantial risk that force will be used to ensure the victim’s compliance with the robber’s demands. U.S. v. Davis, 487 F.3d 282 (5th Cir. 2007).
5th Circuit holds Florida burglary conviction was not a crime of violence. (540) The district court found that defendant’s 1997 Florida conviction for burglary, under Florida Statute § 810.02(3), constituted a crime of violence, for purposes of a 16-level enhancement under § 2L1.2(b)(1)(A)(ii). Burglary of a dwelling is an offense enumerated in the notes to § 2L1.2 as a crime of violence. However, the Florida statute included entry into a dwelling’s curtilage, which under Florida law includes the ground and buildings immediately surrounding a dwelling. Because defendant may have been convicted of merely entering in the dwelling’s curtilage, the Fifth Circuit held the conviction was not a crime of violence. Curtilage is the grounds around the dwelling and not the dwelling itself. U.S. v. Gomez-Guerra, 485 F.3d 301 (5th Cir. 2007).
5th Circuit holds that New York kidnapping was a crime of violence. (540) At issue was whether defendant’s prior New York conviction for second-degree kidnapping constituted a crime of violence for purposes of a § 2L1.2 enhancement. The New York statute says that a person is guilty of kidnapping in the second degree when he abducts another person. NY Penal Law § 135.20. The term “abduct” means to restrain a person with intent to prevent his liberation by either holding him in a place where he is not likely to be found or using or threatening to use deadly physical force. The Fifth Circuit held that the New York statute proscribed the generic crime of “kidnapping,” and thus it qualified as a crime of violence. Generic kidnapping does not require circumstances exposing the victim to substantial risk of physical injury or confinement as a condition of involuntary solitude. U.S. v. Iniguez-Barba, 485 F.3d 790 (5th Cir. 2007).
5th Circuit holds that Tennessee conviction for reckless aggravated assault was crime of violence. (540) Defendant pled guilty to illegal reentry after deportation and received a 16-level increase under § 2L1.2 based on the court’s finding that his 1992 Tennessee conviction for aggravated assault qualified as a crime of violence. The Fifth Circuit affirmed. The court applied a “common sense approach” to determine if the Tennessee offense constituted the enumerated offense of aggravated assault. Although the mental state required by Tennessee’s aggravated assault statute (recklessness) did not correlate perfectly with the one required by the Model Penal Code (“depraved heart” recklessness), the differences between the statutes were minor. Criminal law treatises make no special note of the degree of mental culpability typical of an aggravated battery. What was more significant was that Tennessee’s aggravated assault statute included the two most common aggravating factors, the causation of serious bodily injury and the use of a deadly weapon. U.S. v. Mungia-Portillo, 484 F.3d 813 (5th Cir. 2007).
5th Circuit holds that soliciting minor to perform sex act was “sexual abuse of a minor.” (540) In 2003, defendant pled no contest to indecent solicitation of a child, in violation of Kan. Stat. Ann. § 21-3510(a)(1). The Fifth Circuit held that the offense constituted “sexual abuse of a minor” for purposes of the crime of violence enhancement under U.S.S.G. § 2L1.2. Since a violation of the statute required that the minor be solicited or enticed to “commit or to submit to an unlawful sexual act,” it was clear that a violation of the statute was “sexual” in nature. Soliciting or enticing a minor to perform an illegal sex act is also abusive because of the psychological harm it can cause, even if any resulting sex is consensual. Defendant argued that the statute did not require that the perpetrator be an adult, and thus could punish a 15-year old boy for sending a suggestive e-mail to his 15-year-old girlfriend. However, defendant failed to show a realistic probability that Kansas would in fact punish conduct of this type. He did not point to any example in which both the perpetrator and the victim were below the age of consent at the time of the offense. U.S. v. Ramos-Sanchez, 483 F.3d 400 (5th Cir., 2007).
5th Circuit holds that Florida aggravated battery was crime of violence. (540) Defendant illegally reentered the country after deportation. He received a 16-level enhancement under § 2L1.2(b)(1)(A) based on the court’s finding that his earlier Florida conviction for aggravated battery was a crime of violence. The Fifth Circuit affirmed. The indictment alleged that defendant intentionally touched or struck the victim against his will with a deadly weapon. Although the Florida offense does not require the use or attempted use of force, the touching of an individual with a deadly weapon creates a sufficient threat of force to qualify as a crime of violence. See U.S. v. Treto-Martinez, 421 F.3d 1156 (10th Cir. 2005) (touching police officer in a rude, insulting or angry manner was threatened use of physical force). U.S. v. Dominguez, 479 F.3d 345 (5th Cir. 2007).
5th Circuit holds that state law label does not control whether offense is enumerated crime of violence. (540) Defendant illegally reentered the country after deportation, and received a 16-level crime of violence enhancement under § 2L1.2(b) (1)(A)(ii) based on a prior Tennessee conviction for attempted kidnapping. Kidnapping is one of the offenses enumerated in the guidelines as a crime of violence; the government argued that if the state statute of conviction is labeled “kidnapping” or “attempted kidnapping,” the conviction automatically qualifies as kidnapping under the guideline commentary. The Fifth Circuit ruled that state-law labels do not control – when a sentencing enhancement is based on an enumerated but undefined offense, and when the states’ definitions of that offense vary significantly, the offense “must have some uniform definition independent of the labels employed by the various States’ criminal codes.” The panel concluded that Tennessee’s kidnapping statute did not sweep more broadly than the generic contemporary meaning of the term kidnapping. Tennessee requires the use of force, threat or fraud along with the additional aggravating elements of substantial risk of injury or confinement as a condition of involuntary servitude. The district court did not err in ruling that defendant’s conviction for attempted kidnapping was a crime of violence. U.S. v. Gonzalez-Ramirez, 477 F.3d 310 (5th Cir. 2007).
5th Circuit holds that third-degree assault did not have as an element use, attempted use, or threatened use of physical force. (540) Defendant was sentenced as a career offender based on the court’s finding that his prior Colorado conviction for third-degree assault was a crime of violence. U.S.S.G. § 4B1.1. The Colorado statute defined the offense as knowingly or recklessly causing bodily injury to another or with criminal negligence causing bodily injury to another person by means of a deadly weapon. The Fifth Circuit vacated the sentence and remanded for development of the record. The offense of conviction was not a crime of violence under § 4A1.2(a)(1) because the statute did not require as an element the use, attempted use, or threatened use of physical force. There were several ways in which the statute could be violated that would not involve the use of physical force (for example, exposing someone to hazardous chemicals, placing a barrier in front of a car to cause an accident). In order to determine whether the conviction was a crime of violence under § 4B1.2(a)(2), a court had to examine the face of the indictment to determine if the charged conduct presented a serious potential risk of injury to a person. The court here did not have the Colorado state indictment in the record before it; therefore it could not determine whether the career offender increase was sustainable under § 4B1.2(a)(2). The panel remanded for supplementation of the record to include the charging instrument, and resentencing. U.S. v. Garcia, 470 F.3d 1143 (5th Cir. 2006).
5th Circuit holds that defendant was not entitled to formal notice of enhanced sentence under ACCA. (540) Defendant argued that the government incorrectly failed to give notice that it intended to seek an enhanced sentence under the Armed Career Criminal Act, 18 U.S.C. §924(e) and U.S.S.G. §4B1.4. However, defendant was not entitled to any formal notice of the possibility of an enhanced sentence under the ACCA other than that required by due process. Defendant received notice of the government’s intent to seek an enhanced sentence under the ACCA through the presentence report, to which he objected in writing and at sentencing. The Fifth Circuit rejected defendant’s claim that he received inadequate notice. U.S. v. Howard, 444 F.3d 326 (5th Cir. 2006).
5th Circuit holds that simple robbery qualified as “violent felony” under ACCA. (540) Defendant was sentenced under the Armed Career Criminal Act (ACCA) based in part on the court’s finding that his prior conviction for simple robbery under Louisiana law qualified as a violent felony. The Louisiana statute defined simple robbery as “the taking of anything of value belonging to another from the person or another … by use of force or intimidation, but not armed with a dangerous weapon.” Although the offense can be committed by intimidation rather than force, Louisiana defines the offense as a crime of violence under state law. The state law definition of a crime of violence necessarily entails the use or threatened use of force. Therefore, simple robbery entails the use or threatened use of force. The Fifth Circuit affirmed the district court’s finding. U.S. v. Brown, 437 F.3d 450 (5th Cir. 2006).
5th Circuit holds that Texas retaliation offense was not a “violent felony” under ACCA. (540) The district court found that defendant had three prior violent felony convictions, and sentenced him as an armed career criminal under 18 U.S.C. § 924(e). The Fifth Circuit reversed, holding that defendant’s conviction under the Texas retaliation statute did not qualify as a violent felony. The Texas statute applies when someone “intentionally or knowingly harms or threatens to harm another by an unlawful act … in retaliation for or on account of the service or status of another as a … public servant.” The offense did not have as an element the use, attempted use or threatened us of physical force against the person of another, and therefore did not qualify under subsection (i) of the violent felony definition. U.S. v. Acuna-Caudros, 385 F.3d 875 (5th Cir. 2004). Under subsection (ii), a violent felony is any crime that is one of the several listed offenses “or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Retaliation did not qualify under this subsection either. A mere verbal threat, while sufficient for a retaliation conviction, does not necessarily carry with it a risk of physical harm. U.S. v. Montgomery, 402 F.3d 482 (5th Cir. 2005).
5th Circuit holds that drug conviction “serious drug offense” even though state law was later revised. (540) In 1993, defendant was convicted in state court for delivery of .84 grams of cocaine. At that time, the maximum sentence under Texas law for this crime was 99 years. Tex. Health & Safety Code § 481.106(a). After defendant’s conviction, the law was amended, and it now provides for a maximum sentence of two years imprisonment for delivery of less than one gram of cocaine. Tex. Penal Code § 12.35. Citing U.S. v. Morton, 17 F.3d 911 (6th Cir. 1994), defendant argued that the 1993 conviction was not a “serious drug offense” under the Armed Career Criminal Act (ACCA) because at the time of his federal sentencing, the maximum state sentence for his offense was not at least 10 years, as required by 18 U.S.C. § 924(e)(2)(A)(ii). The Fifth Circuit found this distinguishable, because unlike the state law at issue in Morton, Texas’ revised sentencing scheme provides that the revised sentences do not apply to crimes committed before the effective date of the revision. Thus, even under Morton, defendant’s previous conviction was a “serious drug offense” because if he were sentenced by Texas for those crimes today, he would still be subject to a maximum term of at least 10 years. U.S. v. Hinojosa, 349 F.3d 200 (5th Cir. 2003).
5th Circuit says fact that two convictions stemmed from single arrest not dispositive on whether they are separate under ACCA. (540) Defendant had two prior burglary convictions and a conviction for aggravated battery. The former convictions were based on burglaries of two different buildings, occurring a month apart. Because the two burglaries convictions stemmed from a single arrest, the district court concluded that they should be treated as a single “violent felony” for purposes of § 924(c). Thus, it found that defendant had only two prior violent felonies in her criminal history, and declined to sentence her as an armed career criminal under § 924(c). The Fifth Circuit remanded for further consideration of this issue. The fact that multiple convictions stem from a single arrest can be relevant to the determination of whether the underlying felonies were “committed on occasions different from one another.” That fact is not, however, dispositive. U.S. v. Stone, 306 F.3d 241 (5th Cir. 2002).
5th Circuit holds that § 924(c) enhancement does not require jury finding. (540) Defendant was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). The district court found that Apprendi v. New Jersey, 530 U.S. 466 (2000) barred an enhancement under § 924(c) because the jury was not asked to find that defendant had committed three previous violent felonies or serious drug crimes. The Fifth Circuit held that the armed career criminal enhancement in § 924(c) does not require a jury finding. Because §924(c)(1) does not create a separate offense, but is merely a sentence enhancement provision, neither the statute nor the Constitution requires a jury finding on the existence of the three previous felony convictions required for enhancement. U.S. v. Affleck, 861 F.2d 97 (5th Cir. 1988). Apprendi does not mandate a different approach, since it explicitly excepted enhancements based upon prior convictions. U.S. v. Stone, 306 F.3d 241 (5th Cir. 2002).
5th Circuit holds that court could not re-classify conviction based on police report’s evidence of drug quantity. (540) In 1989, defendant pled guilty in Texas to delivering less than 28 grams of cocaine. The police report attached to the indictment revealed that defendant had only delivered 1/4 gram of crack. At the current federal sentencing hearing, the government argued that defendant was an armed career criminal under 18 U.S.C. § 924(e) based in part on the Texas drug conviction. Defendant argued that, under current state law, his conviction for delivering less than one gram of cocaine no longer qualified as a “serious drug offense.” The district court sustained defendant’s objection to the enhancement, following U.S. v. Morton, 17 F.3d 911 (6th Cir. 1994). Morton held that the determination of whether a state conviction is a serious drug offense must be based on the maximum term of imprisonment under state law at the time of sentencing in federal court rather than at the time of state conviction, if it would result in a lesser sentence. The Fifth Circuit found it unnecessary to address this issue, ruling that the district court improperly looked beyond the facts included in the indictment and judgment of conviction to determine whether the Texas conviction was a serious drug offense. See Taylor v. U.S., 495 U.S. 575 (1990) (mandating formal categorical approach to examining prior convictions). Here, the indictment did not contain the actual quantity of drugs involved in the offense. That information was contained only in the police report. The court’s examination of the police report was beyond the bounds set forth in Taylor. U.S. v. Allen, 282 F.3d 339 (5th Cir. 2002).
5th Circuit upholds placing Armed Career Criminal in category VI. (540) Defendant was convicted of being a felon in possession of a firearm, and an Armed Career Criminal under 18 U.S.C. § 924(e). He argued that he should not have been assigned a criminal history category of VI because his felon in possession conviction was not a crime of violence and therefore he was not a career offender under 4B1.2. The Fifth Circuit held that defendant was properly placed in criminal history category VI because he was an Armed Career Criminal under 18 U.S.C. § 924(e), not because he was a career offender. Section 4B1.4(c) requires an Armed Career Criminal to be placed in category VI if he used the gun in connection with a crime of violence or it was the type of gun described in 26 U.S.C. § 5845(a), such as a shotgun having a barrel less than 18 inches in length. Defendant’s sawed-off shotgun with a 17 3/4-inch barrel qualified. U.S. v. Munoz, 150 F.3d 401 (5th Cir. 1998).
5th Circuit holds state felony of enticing a child for sodomy purposes was a violent felony. (540) Defendant was sentenced as an armed career criminal based in part on a prior Texas felony conviction for enticing a child for the purposes of sodomy. Defendant argued that it was not a violent felony because it did not involve conduct that presented a serious potential risk of physical injury to another. The Fifth Circuit disagreed, holding that the state felony conviction for enticing a child for sodomy purposes was a violent felony. The offense inherently involved conduct that presented a serious potential risk of physical injury, regardless of whether defendant actually had contact with the child or was actually alone with the child. There is always a substantial risk that physical force will be used to ensure the child’s compliance. The statute under which defendant was convicted concerns potential, if not immediate, risk of physical injury to children as a direct result of attempts to entice them to sexual acts. U.S. v. Williams, 120 F.3d 575 (5th Cir. 1997).
5th Circuit finds prior state convictions used to enhance sentence under ACCA were valid. (540) Defendant argued that his four prior state felony convictions were invalid, and therefore his sentence was improperly enhanced as an Armed Career Criminal under §4B1.4. The 5th Circuit affirmed that defendant’s state court guilty pleas were properly accepted. The record reflected that defendant voluntarily and intelligently pled guilty and had an understanding of the right that he waived and the consequences of his pleas. U.S. v. Williams, 22 F.3d 580 (5th Cir. 1994).
5th Circuit upholds 288-month sentence mandated by armed career criminal status. (540) Defendant was convicted of being a felon in possession of a firearm. He challenged his 288-month sentence, contending that he should have been given a downward departure. The 5th Circuit affirmed. A district court’s refusal to depart is reviewed only for an error of law or a constitutional defect, and there was none here. The severity of defendant’s sentence was a result of his three prior violent felonies. They required a 15-year mandatory minimum sentence under 18 U.S.C. Section 924(e) and placed him at offense level 33 under section 4B1.4. Sentence enhancement passes equal protection and due process scrutiny. U.S. v. Prudhome, 13 F.3d 147 (5th Cir. 1994).
5th Circuit holds that armed career criminal used firearms in connection with violent felony. (540) Defendant and his co-defendant burglarized a house and stole several firearms. As an armed career criminal, defendant’s offense level was increased under § 4B1.4(b)(3) for possessing a firearm in connection with a violent felony. Defendant contended for the first time on appeal that he did not possess the stolen firearms in connection with the burglary because he remained outside the house as a lookout. The 5th Circuit upheld the enhancement. First, the co-defendant testified that defendant did not wait in the car but participated by prying open the back door and breaking into the gun cabinet. Questions of fact capable of resolution by the district court at sentencing can never constitute plain error. Second, even if defendant remained outside the residence, he could still be held liable for the criminal acts of his confederate. U.S. v. Guerrero, 5 F.3d 868 (5th Cir. 1993).
5th Circuit affirms upward departure based on victim’s death and under representative criminal history score. (540) Defendant was convicted of being a felon in possession of a firearm based on an incident in which he fatally shot a victim. The district court departed upward by 33 months from the guideline sentence of 327 months under 4B1.4, relying on the death, the failure of defendant’s criminal history score to reflect offenses committed as a youth, defendant’s tendency toward recidivism, and defendant’s criminal history score of 20. The 5th Circuit affirmed. U.S. v. Ford, 996 F.2d 83 (5th Cir. 1993).
5th Circuit concludes “crime of violence” under 4B1.4(b)(3) looks beyond crime of conviction. (540) Defendant pled guilty to possession of a firearm by a convicted felon in violation of 18 U.S.C. §924(e). The district court assigned defendant a base offense level of 34 under the armed career criminal guideline, 4B1.4(b)(3)(A), because he possessed the weapon in connection with a “crime of violence” — a fatal shooting. The 5th Circuit affirmed. The question under 4B1.4 is whether the gun was possessed in connection with a crime of violence, not whether the offense of conviction constitutes a crime of violence as required by 4B1.1. Thus, defendant’s sentence was properly enhanced under 4B1.4 even though possession of a firearm by a felon would not constitute a crime of violence under 4B1.1. U.S. v. Ford, 996 F.2d 83 (5th Cir. 1993).
5th Circuit affirms that two deliveries of drugs on separate days at separate locations were separate transactions for armed career criminal purposes. (540) The 5th Circuit affirmed that defendant was an armed career criminal under section 4B1.4 because he had three prior convictions for serious drug offenses committed on separate occasions. Defendant’s 1979 state drug convictions involved two separate deliveries of drugs on separate days at separate locations. Thus, these two instances were separate criminal transactions. Therefore, even if his 1983 convictions were treated as one conviction, defendant had the requisite number of convictions. U.S. v. Kelley, 981 F.2d 1464 (5th Cir. 1993).
5th Circuit rejects use of 4A1.2 commentary to determine predicate felonies under 4B1.4. (540) Defendant was sentenced as an armed career criminal under 18 U.S.C. section 924(e) and guideline section 4B1.4 based on three prior burglary convictions. He argued that the burglary convictions should be treated as one violent felony for armed career criminal purposes because the commentary to section 4A1.2 states that cases are “related” if they are part of a common plan, or are consolidated for trial or sentencing. Defendant’s three burglaries were committed within weeks of one another and he was sentenced for all on the same day. The 5th Circuit rejected the argument, holding that the commentary to section 4A1.2 did not apply to a sentence under section 4B1.4. First, note 1 to section 4B1.4 states that the time periods for counting prior sentences under section 4A1.2 do not apply in determining whether a defendant is subject to an enhanced sentence under section 924(e). Second, section 924(e) explicitly applies to defendants who commit three violent felonies on occasions different from one another. U.S. v. Medina-Gutierrez, 980 F.2d 980 (5th Cir. 1992).
6th Circuit rules Kentucky conviction for fleeing in a motor vehicle from police was violent felony. (540) The district court sentenced defendant under the Armed Career Criminal Act (ACCA) based in part on its finding that his prior Kentucky conviction for firstt degree fleeing or evading police qualified as a violent felony under the ACCA. The Sixth Circuit affirmed. First, this circuit had previously indicated that the act of fleeing police in a motor vehicle is so inherently risky that felony convic¬tions for this behavior will always qualify as “violent” under the ACCA’s residual clause. See, e.g., U.S. v. Mar¬tin, 378 F.3d 578 (6th Cir. 2004). Second, even if this were not the case, one element of defendant’s convic¬tion was that his vehicle flight created “a substantial risk of serious physical injury to another person.” This ele¬ment tracked the language of the residual clause, and ren¬dered his conviction a violent felony. U.S. v. Ball, __ F.3d __ (6th Cir. Nov. 17, 2014) No. 14-5048.
6th Circuit finds Kentucky facilitation to commit robbery, first degree, was violent felony. (540) Defendant was sentenced as an armed career criminal based in part on the district court’s finding that his Kentucky conviction for facilitation to robbery, first degree, was a violent felony under the Armed Career Criminal Act, 18 U.S.C. § 924(e). Defendant acknowledged that robbery, first degree, was a violent felony under the ACCA, but argued that the facilitation offense did not have as one of its elements the required use, attempted use, or threatened use of physical force against another. The Sixth Circuit held that facilitation to commit robbery, first degree, was a violent felony. Independent of the underlying crime that was being facilitated, Kentucky’s facilitation statute was broad and did not meet the definition of a violent felony. However, defendant was not convicted of facilitation in the abstract; he was convicted of facilitation to commit robbery, first degree. While Descamps v. U.S., 133 S.Ct. 2276 (2013), barred the court from looking at the facts of the underlying offense, it did not bar the court from looking at the elements of the underlying offense. U.S. v. Elliott, __ F.3d __ (6th Cir. May 23, 2014) No. 13-5427.
6th Circuit says government failed to show that first robbery ended before second robbery began. (540) Over a decade before the instant case, defendant and three accomplices stopped at a Gas-N-Go Market to rob it. On the way inside, defendant and the others robbed a motorist sitting in his vehicle in front of the store and then robbed the clerk inside the store. Defendant was convicted of both aggravated robberies in a single court proceeding. About 10 years later, defendant pled guilty to a federal firearms offense. The district court sentenced defendant as an armed career criminal, finding that the robbery of the motorist and the robbery of the store constituted two offenses “committed on occasions different from one another” under 18 U.S.C. § 924(e). The Sixth Circuit held that the burden to show that the offenses were qualifying violent felonies rested with the government. Here, the record did not make clear whether the robbery of the motorist outside the store concluded before the robbery of the clerk inside the store began. It was possible that the commission of the two robberies overlapped, with the first continuing even after the second commenced. The record was devoid of any details concerning what the co-defendants were doing during the robberies. Because the government did not show that the robbery of the motorist ended before the robbery of the convenience store clerk began, it failed to establish that the two aggravated robberies were committed on occasions different from one another. U.S. v. Barbour, 750 F.3d 535 (6th Cir. 2014).
6th Circuit rules Tennessee robbery convictions were violent felonies under ACCA. (540) The district court sentenced defendant under the Armed Career Criminal Act based on its findings that his 1988 and 2003 Tennessee robbery convictions were violent felonies. The Sixth Circuit affirmed. Robbery in Tennessee involves the “felonious” (under the 1988 version of the statute) or “intentional” (under the 2003 version) taking of property from the person of another “by violence or putting the person in fear.” The Tennessee Supreme Court has applied the plain meaning of “violence,” as expressed in both versions of the statute, as “physical force unlawfully exercised so as to injure, damage or abuse.” The Sixth Circuit ruled that the element of violence in the Tennessee robbery statute satisfied § 924(e)(2)(B)(i)’s requirement of the “use, attempted use, or threatened use of physical force.” There was no doubt that a taking of property carried out through fear, for purposes of Tenn. Code Ann. §§ 39–2–501(a) and 39–13–401, qualified as a “violent felony” under the ACCA. Moreover, the robbery convictions categorically qualified as violent felonies under the residual clause of the ACCA. U.S. v. Mitchell, 743 F.3d 1054 (6th Cir. 2014).
6th Circuit holds misdemeanor fleeing offense with two year penalty was not violent felony. (540) Defendant was sentenced as an armed career criminal based on the district court’s finding that his prior Pennsylvania conviction for misdemeanor fleeing from a police officer was a violent felony under the ACCA, 18 U.S.C. § 924(e). Defendant argued for the first time on appeal that that the fleeing offense was not a violent felony because it was not punishable by more than one year’s imprisonment. The Sixth Circuit agreed. To be considered a violent felony, a crime must be “punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 924(e) (2)(B). Under 18 U.S.C. § 921(a)(20)(B), this term does not include “any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.” The maximum penalty for a misdemeanor of the second degree is “not more than two years.” 18 Pa. Const. Stat. § 106(b) (7). In light of 18 U.S.C. § 921(a)(20)(B), defendant’s conviction for fleeing or attempting to elude was not a felony. The court’s error was plain, and affected defendant’s substantial rights. U.S. v. Hockenberry, 730 F.3d 645 (6th Cir. 2013).
6th Circuit finds sufficient basis for existence of three predicate ACCA offenses. (540) The district court found defendant was an armed career criminal based on two prior burglary convictions under Pennsylvania law and a conviction for failure to comply under Ohio law. The Sixth Circuit held that the court did not plainly err in finding sufficient proof of defendant’s prior convictions. Although defendant objected to the PSR’s classification of him as an armed career criminal, he did not challenge the existence of any of the three prior convictions. Rather, within his sentencing memorandum, defendant conceded, at least implicitly, that he had been convicted of the prior offenses. Moreover, the government produced a certified charging document, along with file-stamped copies of defendant’s pleas, to prove the nature of defendant’s prior burglary convictions. Thus, the district court had a sufficient basis to find the existence of the three predicate convictions. U.S. v. Hockenberry, 730 F.3d 645 (6th Cir. 2013).
6th Circuit rules Pennsylvania burglary statute was divisible for modified categorical approach. (540) The district court sentenced defendant as an armed career criminal based in part on two prior burglary convictions. Defendant argued the burglaries did not qualify as violent felonies, noting that the Pennsylvania burglary statute covered conduct broader than generic burglary. Because the statute listed alternative elements in the statutory text, criminalizing entering “a building or occupied structure,” the Sixth Circuit ruled that the statute was divisible, as the Supreme Court used that term in Descamps v. U.S., 133 S.Ct. 2276 (2013). Therefore, the sentencing court was permitted to apply the modified categorical approach and look to Shepard documents to determine “which statutory phrase was the basis for the conviction.” Here, the district court had sufficient evidence to conclude that defendant pled guilty to generic burglaries. The informations stated that defendant was charged with, and thus pled guilty to, unlawfully entering two businesses with intent to commit thefts. The court did not err in finding that defendant’s 2002 convictions were for generic burglary. U.S. v. Hockenberry, 730 F.3d 645 (6th Cir. 2013).
6th Circuit finds failure to comply offense was violent felony under ACCA’s residual clause. (540) The district court sentenced defendant as an armed career criminal based in part on his Ohio conviction for failure to comply. Defendant argued on appeal that the offense did not qualify as a violent felony. The Sixth Circuit disagreed, holding that the Ohio conviction for fourth-degree felony failure to comply, i.e. operating a motor vehicle so as willfully to elude or flee a police officer after receiving a signal to stop, was a violent felony under the ACCA’s residual clause. In Sykes v. U.S., 131 S.Ct. 2267 (2011), the Supreme Court held that violation of a similar Indiana statute prohibiting vehicle flight, was a violent felony under the residual clause. The Court reasoned that “[s]erious and substantial risks are an inherent part of vehicle flight.” In U.S. v. Doyle, 678 F.3d 429 (6th Cir. 2012), this court held, in light of Sykes, that a Tennessee law prohibiting vehicle flight was a violent felony under the ACCA. See also U.S. v. Yates, 501 Fed.Appx. 505 (6th Cir. 2012) (unpublished case holding that fourth-degree felony for failure to comply was categorically violent felony). U.S. v. Hockenberry, 730 F.3d 645 (6th Cir. 2013).
6th Circuit finds burglaries sentenced on the same date were separate offenses under ACCA. (540) The district court sentenced defendant as an armed career criminal based in part on two prior burglary convictions. Defendant argued that because he was sentenced for the burglaries on the same dates, they were not separate offenses. The ACCA requires three previous convictions committed “on occasions different from one another.” 18 U.S.C. § 924(e)(1). The Sixth Circuit ruled that the district court correctly counted defendant’s 2002 burglary convictions as separate offenses. Crimes that a defendant commits against different victims, in different places, and at different times, will generally be separate offenses. Here, the government submitted certified charging documents which indicated the burglaries took place on different dates and that defendant committed the burglaries against different victims. This was sufficient to establish that the burglaries were separate offenses under the ACCA. U.S. v. Hockenberry, 730 F.3d 645 (6th Cir. 2013).
6th Circuit says aggravated-riot convictions were violent felonies under ACCA. (540) Defendant was convicted of firearms charges. He was sentenced under the Armed Career Criminal Act based on the district court’s finding that his prior convictions under Ohio’s aggravated riot statute, Ohio Revised Code § 2917.02(A)(2), were violent felonies. The Sixth Circuit agreed that the offenses were violent felonies. The indictments specifically charged defendant with violating § 2917.02(A)(2), which bars a person from participating with four or more others, in a course of disorderly conduct “with purpose to commit or facilitate the commission of any offense of violence.” By its terms, this presents a risk of injury. Multiplying that by four people, there is a “serious potential risk of physical injury to others.” Moreover, the offense involves “purposeful conduct” since it requires a specific intent to commit an offense of violence. U.S. v. Stafford, 721 F.3d 380 (6th Cir. 2013).
6th Circuit holds that Kentucky stalking conviction was categorically violent felony under ACCA. (540) Defendant was sentenced as an Armed Career Criminal based in part on the district court’s finding that his Kentucky stalking conviction was a violent felony. Because the statute did not necessarily require a threat to use violent force, the offense was not categorically a violent felony under the force prong of the ACCA. However, the Sixth Circuit held that the stalking conviction was a violent felony under the residual clause of the ACCA. First, the offense involved a serious potential risk of physical injury to another. When a defendant commits first-degree stalking, the likelihood of injurious confrontation is high. Placing someone in reasonable fear of death, serious physical injury or even the most innocuous sexual contact could elicit an intensified response that might result in violent confrontation. Even if one could imagine a hypothetical scenario of first-degree stalking where the risk of injury was not present, the combination of acts necessary for a conviction was not only purposeful and violent conduct, but also conduct of escalating aggression. This made it more likely that the individual, if in possession of a gun, would use that gun deliberately to harm a victim. U.S. v. Johnson, 707 F.3d 655 (6th Cir. 2013).
6th Circuit rules Ohio conviction for aggravated assault was violent felony under ACCA. (540) Defendant pled guilty to being a felon in possession of a firearm, and was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e). She challenged the district court’s finding that her 2001 conviction for aggravated assault under Ohio Revised Code § 2903.12 was a violent felony under § 924(e). The Sixth Circuit upheld the district court’s finding. Ohio’s aggravated-assault statute provides that “[n]o person … shall knowingly … cause serious physical harm to another” or “cause or attempt to cause physical harm … by means of a deadly weapon.” By its plain terms, therefore, this statute proscribes conduct that “presents a serious potential risk of physical injury to another.” Moreover, in U.S. v. Rodriguez, 664 F.3d 1032 (6th Cir. 2011), the court held that aggravated assault as defined by Ohio Revised Code § 2903.12 was a “crime of violence” under U.S.S.G. § 4B1.2(a). Whether a conviction is a “violent felony” under § 924(e) is analyzed the same way as whether a conviction is a “crime of violence” under U.S.S.G. § 4B1.2. U.S. v. Perry, 703 F.3d 906 (6th Cir. 2013).
6th Circuit holds Tennessee conviction for attempted rape was violent felony under ACCA. (540) Defendant was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e). In a motion under 28 U.S.C. § 2255, he argued that a 1993 Tennessee conviction for attempted rape did not qualify as a violent felony. The Sixth Circuit disagreed, holding that the attempted rape conviction was categorically a violent felony. Even though the crime could be achieved through fraud, the offense clearly fell within the ACCA’s residual clause as a crime that presented a serious potential risk of physical injury to another. Under Tennessee law, attempted rape requires that “the defendant acted with intent to rape and that his conduct constituted a substantial step toward the commission of a rape.” The purposeful and aggressive nature of the crime, even when perpetrated by fraud, created an inherently high degree of risk of physical injury. The panel distinguished U.S. v. Arnold, 58 F.3d 1117 (6th Cir.1995), which held that assault with intent to commit sexual battery was not categorically violent under the ACCA. Dawson v. U.S., 702 F.3d 347 (6th Cir. 2012).
6th Circuit says Michigan attempted larceny from person was violent felony. (540) Defendant challenged the court’s decision to sentence him under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), contending that his Michigan conviction for attempted larceny from the person was not a violent felony. The Sixth Circuit disagreed. In U.S. v. Payne, 163 F.3d 371 (6th Cir. 1998), the court held that the completed offense of larceny from the person was a crime of violence under the sentencing guidelines, which also made it a violent felony under the ACCA. Defendant argued that Begay v. U.S., 553 U.S. 137 (2008), added a second layer of inquiry, i.e., courts must also consider whether the offense is “roughly similar, in kind as well as in degree of risk posed,” to the enumerated offenses. However, the Sixth Circuit held that attempted larceny from the person meets the Begay test because it is similar “in kind” or in the “way or manner” it produces the risk of injury to the enumerated offense, in that it does not involve strict liability, negligence or recklessness. U.S. v. Taylor, 696 F.3d 1257 (6th Cir. 2012).
6th Circuit requires additional mandatory minimum light of Abbott. (540) Defendant was convicted of drug and firearms charges. He was subject to a mandatory minimum sentence of ten years on each of the two drug-conspiracy counts. 21 U.S.C. § 841(b)(1)(A)(viii). The government asserted that he was also subject to a mandatory minimum of five years for his firearms conviction, consecutive to the ten-year sentences. See 18 U.S.C. § 924(c)(1)(A)(i), (D)(ii). At the time of sentencing, this mandatory minimum was prohibited by U.S. v. Almany, 598 F.3d 238 (6th Cir. 2010), vacated, U.S. v. Almany, 131 S.Ct. 637 (2010) (rejecting mandatory minimum under § 924(c) where defendant was already subject to a greater mandatory minimum). But while defendant’s appeal was pending, the Supreme Court decided Abbott v. U.S., 131 S.Ct. 18 (2010), which held, contrary to Almany, that the mandatory minimum under § 924(c) must be imposed even if a greater mandatory minimum also applies. The Sixth Circuit reversed the sentence and remanded for resentencing U.S. v. Beals, 698 F.3d 248 (6th Cir. 2012).
6th Circuit says prior convictions are not element of the offense under ACCA. (540) Defendant was convicted of being a felon in possession of a firearm, and was sentenced under 18 U.S.C. § 924(e) and guideline § 4B1.4 (a) as an armed career criminal. He argued that his previous convictions should be treated as an element of the current felon in possession offense, rather than a sentencing enhancement, and thus had to be proven beyond a reasonable doubt. The Sixth Circuit found this claim foreclosed by precedent. While judge-found sentencing factors cannot increase the maximum sentence a defendant might otherwise receive based purely on the facts found by the jury, a judge is permitted to find, based on the preponderance of the evidence, the fact of a prior conviction. U.S. v. Anderson, 695 F.3d 390 (6th Cir. 2012).
6th Circuit holds that Ohio aggravated assault conviction qualified as violent felony. (540) Defendant was convicted of being a felon in possession of a firearm, and was sentenced under 18 U.S.C. § 924(e) and guideline § 4B1.4 (a) as an armed career criminal. The Sixth Circuit affirmed, holding that defendant’s Ohio aggravated assault conviction qualified as a violent felony. Aggravated assault in Ohio was a violent felony because it had as an element “the use, attempted use, or threatened use of physical force against the person of another.” The statute requires proof of “serious physical harm” or “physical harm … by means of a deadly weapon or dangerous ordnance,” so it necessarily requires proof that the defendant used “force capable of causing physical pain or injury.” Ohio Rev.Code § 2903.12(A)(1)-(2). One can “knowingly … [c]ause serious physical harm to another,” Ohio Rev.Code § 2903.12(A)(1), only by knowingly using force capable of causing physical pain or injury, i.e., violent physical force. Therefore, under § 924(e)(2)(B)(i), the conviction constituted a violent felony. U.S. v. Anderson, 695 F.3d 390 (6th Cir. 2012).
6th Circuit affirms 293-month felon-in-possession sentence as reasonable. (540) Defendant was convicted of being a felon in possession of a firearm, and was sentenced as an armed career criminal to 293 months. The Sixth Circuit held that defendant failed to rebut the presumption that his guideline sentence was substantively reasonable. Although defendant claimed he only possessed the firearm out of necessity, the jury rejected this defense at trial. Given this, and defendant’s lengthy criminal history, it was not unreasonable for the court to sentence defendant to the top of his guideline range. The court considered multiple § 3553(a) factors, including the nature of the offense, defendant’s extensive criminal history, the fact that he committed the offense shortly after his release from prison, and the need to protect the public. U.S. v. Anderson, 695 F.3d 390 (6th Cir. 2012).
6th Circuit says Begay is new substantive rule that applies retroactively. (540) Defendant was sentenced under the Armed Career Criminal Act, 18 U.S.C. §924(e). He later brought a motion under 18 U.S.C. § 2255, arguing that under Begay v. U.S., 553 U.S. 137 (2008), his Kentucky conviction for reckless homicide was not a violent felony. Begay held that the “otherwise” clause in the ACCA includes only convictions resembling the enumerated offenses, i.e., only convictions involving purposeful, violent and aggressive conduct. The Sixth Circuit agreed that defendant was entitled to relief, holding that Begay announced a new substantive rule that applied retroactively. Under Kentucky law, reckless homicide occurs when a person causes the death of another “with recklessness.” But a mens rea of recklessness does not qualify under the “use of physical force” subsection of the ACCA. Nor did defendant’s conviction qualify under the second subsection of §924(e)(2)(B) in light of Begay, because it involved only reckless conduct. Jones v. U.S., 689 F.3d 621 (6th Cir. 2012).
6th Circuit reaffirms that Tennessee conviction for evading arrest was a violent felony. (540) Based on U.S. v. Rogers, 594 F.3d 517 (6th Cir. 2010), vacated, Rogers v. U.S., 131 S.Ct. 3018 (2011), the district court held that defendant’s prior Tennessee conviction for Class E felony evading arrest was a “violent felony” under the Armed Career Criminal Act. Defendant appealed, and while the appeal was pending, the Supreme Court vacated Rogers, and remanded for further consideration in light of its recent decision in Sykes v. U.S., 131 S.Ct. 2267 (2011). At the time the Sixth Circuit decided defendant’s appeal, the Rogers panel had not issued a decision on remand. After a thorough review of the Sykes decision, the Sixth Circuit concluded that nothing in it cast doubt upon its holding in Rogers that Class E felony evading arrest under Tennessee law was a crime of violence. In fact, Sykes further supported this conclusion. Sykes held that a Class D felony flight under Indiana law was a violent felony, regardless of which subsection the defendant was convicted under, since serious and substantial risks are an inherent part of any vehicle flight. None of the cases cited by the dissent showed that conduct giving rise to a Class E felony conviction categorically does not present a serious potential risk of physical injury to another. U.S. v. Doyle, 678 F.3d 429 (6th Cir. 2012).
6th Circuit holds that third-degree assault was violent felony. (540) The government argued that defendant should be sentenced as an armed career criminal, asserting that his Missouri conviction for third-degree assault was his third “violent felony” under 18 U.S.C. §924(e)(2)(B). The district court rejected this argument, since Missouri’s third-degree assault statue punishes reckless as well as intentional conduct. The Sixth Circuit ruled that the court erred in failing to sentence defendant as an armed career criminal. Defendant was indicted under subsection 1.1 of Missouri’s third-degree assault statute, which applies if the defendant “attempts to cause or recklessly causes physical injury to another person[.]” Although this subsection punishes both reckless and intentional conduct, the criminal information made clear that defendant was charged and convicted of the intentional attempt to cause physical injury to another. Defendant’s third-degree assault conviction posed a serious potential risk of physical injury to others. It was also similar in kind to the enumerated offenses because it involved purposeful, violent and aggressive conduct. U.S. v. Johnson, 675 F.3d 1013 (6th Cir. 2012).
6th Circuit holds that conviction enhanced under state recidivism provision can qualify as violent felony. (540) Defendant argued that he was not an armed career criminal because his two prior convictions for domestic violence were misdemeanors under Michigan law, with each carrying a possible maximum sentence of 93 days. However, the Michigan courts had enhanced both convictions pursuant to a state recidivism provision. As a result, defendant actually faced a two-year maximum sentence on each charge. The Sixth Circuit held that a prior conviction can qualify as a violent felony under the Armed Career Criminal Act if the offense was enhanced pursuant to a state recidivism provision. This case was controlled by U.S. v. Rodriquez, 553 U.S. 377, 128 S.Ct. 1783 (2008), where the Supreme Court addressed this issue in the context of the ACCA’s serious drug offense provision. The structure of the ACCA’s violent felony provision closely tracks that of its provision for serious drug offenses. Congress’ intent to define a predicate offense with reference to underlying enhancements was clear. Judge Merritt dissented, believing Johnson v.U.S., 130 S.Ct. 1265 (2010) required a contrary result. U.S. v. Kearney, 675 F.3d 571 (6th Cir. 2012).
6th Circuit holds that prior burglary and assault on resident were committed on separate occasions. (540) Defendant challenged the district court’s application of the Armed Career Criminal Act to him, contending that the court erred in treating his two 1986 Tennessee convictions for burglary and assault as committed “on occasions different from one another.” The district court did not address this issue at sentencing because defendant did not challenge his sentence under the ACCA. The Sixth Circuit found no plain error. The factual summaries of defendant’s 1986 burglary and assault convictions readily demonstrated they were separate offenses. First, defendant completed the burglary offense when he entered the residence, while the assault did not begin until an hour later, when he pointed a pistol at one of the residents in a threatening manner. Second, defendant easily could have withdrawn after the first offense. He could have ceased his criminal conduct after the burglary and not committed the assault by simply not returning to the residence. Finally, the fact that the offenses occurred in the same residence did not mean they were committed on the same occasion. U.S. v. Jones, 673 F.3d 497 (6th Cir. 2012).
6th Circuit holds that prior version of Tennessee second-degree burglary was violent felony. (540) The district court sentenced defendant under the Armed Career Criminal Act based in part on its finding that his 1986 Tennessee conviction for second-degree burglary was a violent felony. In 1986, the Tennessee second-degree burglary statute defined the offense as “the breaking and entering into a dwelling house or any other house, building, room or rooms therein used and occupied by any person or persons as a dwelling place or lodging … with the intent to commit a felony.” The Sixth Circuit ruled that defendant’s burglary conviction counted as a violent felony. Unlike Tennessee’s current burglary statute, the 1986 statute did not apply to motor vehicles and boats. The pre-1989 statute was at least as narrow as the definition of generic burglary in Taylor v. U.S., 495 U.S. 575 (1990), because it applied only to dwellings and occupied buildings. Because Tennessee’s second-degree burglary statute fit within the enumerated offenses in § 924(e)(2)(B)(ii), defendant’s burglary conviction counted as a violent felony. U.S. v. Jones, 673 F.3d 497 (6th Cir. 2012).
6th Circuit holds that assault with intent to commit murder was violent felony. (540) The district court sentenced defendant under the Armed Career Criminal Act based in part on its finding that his 1986 Tennessee conviction for assault with intent to commit first-degree murder was a violent felony. The Sixth Circuit held that the offense constituted a violent felony under the so-called residual clause of § 924(e)(2)(B)(ii), because it “otherwise involve[d] conduct that presents a serious potential risk of physical injury to another.” This provision applies only to crimes “that are roughly similar, in kind as well as in degree of risk posed” to the enumerated examples – burglary, arson, extortion, and crimes involving explosives. See Begay v. U.S., 553 U.S. 137 (2008). However, the crime here had a stringent mens rea requirement, so the court did not need to apply Begay’s “purposeful, violent and aggressive” test. Instead, it compared the relative risks posed by the offense and the enumerated crimes. Here, assault with intent to murder had as its purpose causing harm to a person. Serious harm was not a “collateral consequence,” but the crime’s very object. U.S. v. Jones, 673 F.3d 497 (6th Cir. 2012).
6th Circuit finds Ohio third-degree burglary convictions were violent felonies. (540) Defendant pled guilty to being a felon in possession of a firearm. He received an enhanced sentence under the Armed Career Criminal Act based on three prior convictions under Ohio’s third-degree burglary statute. The Sixth Circuit affirmed, agreeing that the burglary offenses qualified as violent felonies. Although burglary is an enumerated example of a “violent felony” under § 924(e)(2)(B)(ii), Ohio’s third-degree burglary statute proscribes conduct broader than the Supreme Court’s definition of “generic burglary.” Nevertheless, a violation or attempted violation of the Ohio statute is a violent felony under the residual clause of § 924(e)(2)(B)(ii) because it “otherwise” creates a risk of physical injury that is similar to the risk posed by generic burglary. The risk of injury is also “roughly similar, in kind as well as in degree” to the risk posed by the enumerated examples. The only difference between third-degree burglary in Ohio and generic burglary is the substitution of “occupied structure” in place of “building.” The risk posed by the burglary of an “occupied structure” is similar “in degree” to the risk posed by a generic burglary. U.S. v. Coleman, 655 F.3d 480 (6th Cir. 2011).
6th Circuit holds Tennessee conviction for aggravated assault was not violent felony. (540) Defendant was sentenced under the Armed Career Criminal Act to fifteen years, based on the district court’s finding that his prior Tennessee conviction for aggravated assault was a violent felony. The Sixth Circuit reversed, ruling that the offense was not a violent felony under either (a) the ACCA’s “use of physical force” clause, or (b) the ACCA’s “otherwise” clause. The Tennessee statute applies to where a defendant causes serious bodily injury to another, or uses or displays a deadly weapon. A person can commit assault in Tennessee by knowingly or recklessly causing bodily injury to another. Recklessly causing serious bodily injury to another does not require the use of physical force, and therefore the offense did not qualify under the ACCA’s “use of physical force” clause. To qualify under the “otherwise” clause of the violent felony definition, the crime must “involve purposeful, violent and aggressive conduct.” Begay v. U.S., 553 U.S. 137 (2008). Reckless aggravated assaults do not qualify as violent felonies under the “otherwise” clause of § 924(e)(2)(B)(ii). U.S. v. McMurray, 653 F.3d 367 (6th Cir. 2011).
6th Circuit rejects constitutional challenge to violent felony enhancement under ACCA. (540) Defendant was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Based on three prior violent felony convictions, the district court sentenced him under the Armed Career Criminal Act, 18 U.S.C. § 924(e). Defendant argued that violating the ACCA is “a separate criminal offense,” and therefore, under the due process clause, the predicate felony convictions must be included in the indictment and proven beyond a reasonable double. The Sixth Circuit disagreed. It is well-established that the ACCA is a sentencing enhancement rather than a separate offense. See, e.g. Custis v. U.S., 511 U.S. 485 (1994). The Supreme Court, in Almendarez-Torres v. U.S., 523 U.S. 224 (1998), held that when a statute constitutes a penalty provision, rather than a separate crime, the government need not include the provision in the indictment. The Supreme Court has uniformly excepted “the fact of a prior conviction” from its general rule that sentence-enhancing facts must be found by a jury and proved beyond a reasonable doubt. U.S. v. McMurray, 653 F.3d 367 (6th Cir. 2011).
6th Circuit remands for resentencing in light of Pepper. (540) After the district court sentenced defendant to 120 months, the Sixth Circuit remanded for resentencing under the Armed Career Criminal Act. Defendant then persuaded a Michigan court to amend a 2002 judgment against him to indicate that the maximum sentence was five years, which meant that the Michigan offense no longer qualified as a serious drug offense. At resentencing, the district court resentenced defendant to the same 120-month sentence. Defendant argued that the district court erred by not considering amendments to the Guidelines adopted after his original sentencing. The Sixth Circuit ruled that the district court properly applied the May 2007 Guidelines in effect at the time of defendant’s original sentencing. However, the panel vacated defendant’s sentence and remanded for resentencing in light of the Supreme Court’s recent decision in Pepper v. U.S., 131 S.Ct. 1229 (2011). Although Pepper did not affect which version of the Guidelines to apply at resentencing, it was relevant to whether the district court had discretion under § 3553(a) to consider post-sentencing amendments to the guidelines. U.S. v. Taylor, 648 F.3d 417 (6th Cir. 2011).
6th Circuit holds that Tennessee solicitation to commit aggravated assault was crime of violence. (540) The district court sentenced defendant under the Armed Career Criminal Act based in part on its finding that his prior Tennessee conviction for solicitation to commit aggravated assault qualified as a violent felony. The Sixth Circuit affirmed. Although aggravated assault qualifies as a violent felony because it has as an element the use or threat of force, the panel rejected the government’s contention that solicitation to commit aggravated assault has such an element of force. Solicitation is distinct from criminal responsibility under state law, and is at least one step removed from the levels of force contemplated in § 924(c)(2)(B)(i). However, the offense nonetheless constituted a violent felony under the ACCA since it involved conduct that presented a serious potential risk of physical injury to another, and involved the same kind of purposeful, violent, and aggressive conduct as the enumerated offenses. U.S. v. Benton, 639 F.3d 723 (6th Cir. 2011).
6th Circuit says 15 years was not cruel and unusual despite defendant’s mild mental retardation. (540) Defendant, a four-time convicted felon, was convicted of being a felon in possession of a firearm. The district court sentenced him as an Armed Career Criminal to a mandatory minimum penalty of 180 months. Government doctors diagnosed defendant with mild mental retardation. The Sixth Circuit rejected defendant’s argument that the mandatory minimum sentence, as applied to him, constituted cruel and unusual punishment. Defendant’s prior qualifying sentences included two violent felonies involving aggravated burglary and two involving the distribution of crack cocaine. On the night of his arrest, witnesses reported seeing defendant beat his girlfriend. Despite this, defendant actually received the minimum sentence under the statute. His sentence did account for his mental retardation—the guidelines authorized a sentence up to 188 months, and the statute imposed no cap. The fact that mentally retarded defendants are “categorically” less culpable than average criminal defendants, see Atkins v. Virginia, 536 U.S. 304 (2002), did not make this statutory penalty unconstitutional. U.S. v. Moore, 643 F.3d 451 (6th Cir. 2011).
6th Circuit holds that facilitation of burglary offense was not a violent felony. (540) The district court sentenced defendant under the Armed Career Criminal Act based in part on its finding that his prior Tennessee conviction for facilitation of the burglary of a building constituted a violent felony. The Sixth Circuit initially affirmed, U.S. v. Vanhook, 510 F.3d 569 (6th Cir. 2007), but the Supreme Court remanded for reconsideration in light of U.S. v. Begay, 553 U.S. 137 (2008) and U.S. v. Chambers, 555 U.S. 122 (2009). The Sixth Circuit then held that the facilitation of burglary offense was not sufficiently purposeful, violent and aggressive to constitute a violent felony. The act of facilitating the burglary of a building creates a serious risk of violence, even after Begay. However, to be guilty of facilitation of a burglary, an individual must have acted “without the intent required for criminal responsibility” for the ultimate criminal act. In addition, facilitation of burglary is not necessarily the type of violent or aggressive crime generally characterized as a violent felony. Conduct falling under this statute has included providing directions to a third-party driver on the day of the crime. U.S. v. Vanhook, 640 F.3d 706 (6th Cir. 2011).
6th Circuit holds that five robberies involving distinct times, locations and victims were separate under the ACCA. (540) The district court sentenced defendant as an Armed Career Criminal because he had previously been convicted of one aggravated assault and five aggravated robberies. Although the five robberies occurred on the same day, were close in location, and defendant pled guilty to them at the same time, they involved distinct times, locations and victims. The Sixth Circuit held that the district court properly counted the offenses separately for ACCA purposes. Under U.S. v. Hill, 440 F.3d 292 (6th Cir. 2006), two offenses are committed on different occasions if (1) it is possible to discern the point at which the first offense is completed, and the subsequent point at which the second offense begins; (2) it would have been possible for the offender to cease his criminal conduct after the first offense, and withdraw without committing the second offense; or (3) the offenses are committed in different residences or business locations. Defendant conceded that his five robbery convictions counted separately under all three of the Hill tests. The Supreme Court’s opinion in Begay v. U.S., 553 U.S. 137 (2008) did not implicitly overrule the Hill decision. U.S. v. Paige, 634 F.3d 871 (6th Cir. 2011).
6th Circuit bars collateral attack on prior state convictions. (540) Defendant pled guilty to drug charges, and, based on two prior Ohio firearms convictions, was sentenced as a career offender. After sentencing, the Ohio Supreme Court held that sentences for offenders who did not receive a proper post-release control notice are void. From this, defendant argued that his prior Ohio convictions were void and could not be considered for career offender purposes. The Sixth Circuit held that defendant was raising an impermissible collateral attack. He could not challenge the validity of his prior convictions during sentencing for unrelated crimes in federal court. Although a he might be able to challenge his prior convictions through state channels for seeking post-conviction relief, he could not do that here. U.S. v. Ruvalcaba, 627 F.3d 218 (6th Cir. 2010).
6th Circuit remands to determine nature of prior escape conviction. (540) At sentencing, the district court found that defendant was an armed career criminal under 18 U.S.C. § 924(e) based in part on his escape conviction under Ohio law. After he was sentenced, the Supreme Court held in Chambers v. U.S., 555 U.S. 122, 129 S.Ct. 687 (2009), that at least one type of escape conviction under Illinois law, failure to report for penal confinement, is not a violent felony under the ACCA. The Sixth Circuit remanded for the district court to determine the nature of defendant’s escape conviction. The Ohio statute divides escape into two distinct categories, a purposeful break from a detention that had already commenced, and a purposeful failure to return to detention, either following a temporary leave or when serving a sentence of intermittent confinement. Here, it was not clear what type of escape defendant was convicted of committing. U.S. v. Gross, 626 F.3d 289 (6th Cir. 2010).
6th Circuit holds Michigan felony of fleeing and eluding officer was violent felony. (540) Defendant was sentenced under the Armed Career Criminal Act based in part on his prior conviction of fleeing and eluding, in violation of Michigan law. Under the categorical approach of Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), James v. U.S., 550 U.S. 192 (2007), and Chambers v. U.S., 555 U.S. 122, 129 S.Ct. 687 (2009), the Sixth Circuit held that defendant’s conviction qualified as a violent felony under the ACCA, thus overruling U.S. v. Foreman, 436 F.3d 638 (6th Cir. 2006). Defendant’s conviction clearly involved purposeful conduct, as Michigan’s fleeing-and-eluding statute applies only to those who willfully fail to obey an officer’s direction. Moreover, an ordinary violation of the statute involves aggressive conduct. A deliberate attempt to flee or elude a police officer in a motor vehicle constitutes a clear challenge to the officer’s authority. Finally, fleeing and eluding involves violent conduct that poses a serious potential risk of physical injury to others. The purpose of fleeing in a motor vehicle is to avoid detention or arrest by a police officer, by any means necessary, including speeding, extinguishing lights at night, and driving the wrong way. U.S. v. Young, 580 F.3d 373 (6th Cir. 2009).
6th Circuit holds that fleeing and eluding a police officer is violent felony. (540) The Sixth Circuit originally upheld the district court’s finding that defendant’s prior conviction for fleeing and eluding a police officer was a violent felony under the Armed Career Criminal Act. The Supreme Court remanded for reconsideration in light of Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008) and Chambers v. U.S., 555 U.S. 122, 129 S.Ct. 687 (2009). The Sixth Circuit held that these cases did not undermine its previous holding. Fleeing and eluding a police officer offense is critically different from driving under the influence, the offense involved in Begay. In Fleeing and eluding, the offender makes a conscious decision to flee rather than to stop his vehicle as requested by a police officer. Moreover, it involves aggressive conduct; the offender is attempting to outrun a police cruiser. Chambers concluded that “failure to report” was a separate crime from escape because the behavior that underlies a failure to report is more passive and less likely to involve a risk of physical harm than the behavior underlying an escape from custody. Fleeing and eluding involves aggressive conduct that presents a serious potential risk of physical injury to another. U.S. v. LaCasse, 567 F.3d 763 (6th Cir. 2009).
6th Circuit says Kentucky second-degree escape was not crime of violence. (540) The district court sentenced defendant as a career offender based in part on his previous Kentucky conviction for second-degree escape. The Kentucky second-degree escape statute covers everything from a felon who breaks out of a maximum-security prison to one who fails to report to a halfway house. At the time of defendant’s sentencing, a “walkaway” escape constituted a crime of violence. Since then, however, the Supreme Court decided Chambers v. U.S., 555 U.S. 122, 129 S.Ct. 687 (2009), which held that a failure to report conviction was not a violent felony under the Armed Career Criminal Act. The Sixth Circuit reversed. A conviction for second-degree escape does not show that defendant committed a crime of violence because the offense covers a variety of escapes, some of which are not crimes of violence. Reliable underlying documents here showed that defendant committed a “walkaway” escape. While a “walkaway” escape no doubt creates a greater risk of physical injury than a failure to report, it remains different from a jailbreak and other crimes of violence, both in kind and in its risk of physical injury to others. U.S. v. Ford, 560 F.3d 420 (6th Cir. 2009).
6th Circuit finds insufficient evidence that reckless endangerment was crime of violence. (540) The Sixth Circuit has previously held that a Tennessee felony reckless endangerment conviction was a violent felony under the ACCA because the offense creates a serious risk of harm to others. However, the Supreme Court’s recent decision in Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008) makes clear that the presence of a serious potential risk of physical injury alone is not sufficient to establish that the conviction is a violent felony. A violent felony must be similar to the enumerated crimes of burglary, arson, extortion, or crimes involving the use of explosives, and does not include every crime that presents a serious potential risk of injury to another. The Sixth Circuit held that there was insufficient evidence here to determine if defendant’s Tennessee reckless endangerment conviction qualified as a crime of violence. The offense does not clearly involve the same type of “purposeful, violent, and aggressive” conduct as burglary, arson, extortion or the use of explosives. U.S. v. Baker, 559 F.3d 443 (6th Cir. 2009).
6th Circuit holds that possession of sawed-off shotgun was crime of violence. (540) Defendant was sentenced as a career offender based in part on his conviction for possession of an unregistered firearm. Defendant objected based on the Sixth Circuit ruling in U.S. v. Amos, 501 F.3d 524 (6th Cir. 2007), that possession of a sawed-off shotgun under the Armed Career Criminal Act (ACCA) was not a violent felony. The Sixth Circuit held that defendant’s possession of a sawed-off shotgun qualified as a crime of violence for career offender purposes. Unlike the ACCA, the career offender enhancement, through its Application Notes, specifically defines the term “crime of violence” to include unlawful possession of a sawed-off shotgun. See Note 1 to § 4B1.2. Further, the Application Notes clearly evidence the Sentencing Commission’s intent to distinguish this provision from that of the ACCA. The Sentencing Commission’s interpretation of a crime of violence cannot be plainly erroneous in light of the fact that several sister circuits have read the language of the guidelines in the same way. U.S. v. Hawkins, 554 F.3d 615 (6th Cir. 2009).
6th Circuit holds that fourth-degree burglary constituted crime of violence. (540) Ohio law defines fourth-degree burglary as trespass by force, stealth, or deception in a permanent or temporary habitation of any person when any person other than an accomplice of the offender is present. The offense did not qualify as a crime of violence under §4A1.2(a)(1) because it lacked as an element the use or threatened use of force. The offense also did not qualify as “burglary of a dwelling” because it lacked the element of intent to commit a crime within the habitation. The Sixth Circuit ruled that fourth-degree burglary qualified as a crime of violence under §4B1.2(a)(2) because it “otherwise involves conduct that presents a serious potential risk of physical injury to another.” The Supreme Court, in James v. U.S, 550 U.S. 192 (2007), ruled that attempted burglary under Florida law presented a serious potential risk of injury to another because of the possibility of a face-to-face confrontation between the burglar and a third-party. The same risk is present with respect to Ohio’s fourth-degree burglary, even though the burglar in Ohio may not have had the intent to commit an offense within the dwelling. U.S. v. Skipper, 552 F.3d 489 (6th Cir. 2009).
6th Circuit holds that convictions sentenced on same day were not committed on same occasion. (540) Defendant was sentenced under the Armed Career Criminal Act based on (1) one count of aggravated robbery and one count of assault committed on October 18, 1976; (2) one count of aggravated robbery which was committed on February 6, 1987; and (3) one count of aggravated robbery which was committed on May 15, 1987. Defendant contended that his two 1987 convictions were not “committed on occasions different from one another” because they were consolidated for sentencing purposes. The Sixth Circuit disagreed. The word “committed” in §924(e) indicates that the criminal acts must have occurred on separate occasions, not that their resulting convictions must take place on separate dates. The fact that defendant was convicted and sentenced for two offenses during the same judicial proceeding did not prevent those offenses from constituting separate predicate offenses under the ACCA. U.S. v. McCauley, 548 F.3d 440 (6th Cir. 2008).
6th Circuit relies on state online tracking system to confirm statutory basis of prior conviction. (540) Defendant was sentenced as a career offender based on the court’s finding that his prior Michigan assault conviction was a crime of violence. However, the PSR did not clearly define the statutory basis for the conviction (describing the offense as “Police Officer-Assault, Resist, & Obstruct”). Defendant argued that this ambiguous description did not refer to a crime of violence. However, publicly viewable criminal history records, in the Michigan Department of Corrections Offender Tracking Information System (OTIS), indicated that defendant was convicted of violating Mich. Comp. Laws Ann. §750.81d(2). This offense unambiguously defines a crime of violence because it involves an assault that causes an actual physical injury. Defendant never questioned the accuracy or reliability of his OTIS profile. Moreover, defendant’s OTIS records were consistent with the criminal history records made available by the Michigan State Police. U.S. v. Alexander, 543 F.3d 819 (6th Cir. 2008).
6th Circuit holds Michigan attempted second-degree criminal sexual conduct was not a crime of violence. (540) Defendant pled guilty to being a felon in possession of a firearm. At issue was whether his prior Michigan conviction for attempted criminal sexual conduct was a crime of violence, which would warrant a higher offense level under § 2K2.1(a). A person is guilty of criminal sexual conduct in the second degree if “sexual contact [with another person] occurs under circumstances involving the commission of any other felony.” The government contended that the offense qualified as a crime of violence under the “otherwise” clause of § 4B1.2(a)(2) because it involved sexual contact with a minor. However, the Sixth Circuit found that the offense did not require proof that the sexual contact was with a minor. Although the amended information identified the “other felony” as solicitation of a minor for immoral purposes, it did not, as a categorical matter, necessarily require proof of sexual contact with a minor. Moreover, relying on the Supreme Court’s decision in Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008) (DUI conviction falls outside scope of ACCA’s “otherwise” clause because it was “too unlike” provision’s listed examples), the panel ruled that § 4B1.2(a)(2)’s “otherwise” clause (defining crime of violence) should also be limited to crimes that are similar in both kind and in degree of risk to the enumerated examples. U.S. v. Bartee, 529 F.3d 357 (6th Cir. 2008).
6th Circuit applies ACCA where state conviction was not overturned or expunged. (540) Defendant challenged the district court’s use of his 1993 Tennessee escape conviction to sentence him under the Armed Career Criminal Act, 18 U.S.C. §924(e). The conviction was based on a violation of house arrest, and defendant claimed that Tennessee no longer considered a violation of house arrest to be an escape. Three years after defendant was convicted, the highest Tennessee court held that a felon who walked away from his parole officer could not be charged with escape under the same law. Nevertheless, the Sixth Circuit ruled that even if defendant were correct, his escape conviction remained a violent felony until it was overturned or expunged. Sentencing under the ACCA is not the appropriate place to mount a collateral attack on a prior conviction. U.S. v. Goodman, 519 F.3d 310 (6th Cir. 2008).
6th Circuit rules conviction for facilitating burglary of a business was a violent felony. (540) Defendant was convicted of being a felon in possession of a firearm. The court found that defendant’s prior conviction for facilitating burglary of a business qualified as a violent felony under the “otherwise” clause of the Armed Career Criminal Act, 18 U.S.C. 924(e), and the Sixth Circuit affirmed. Although the elements of the general Tennessee facilitation offense would not qualify as a violent felony under the ACCA, under Tennessee law, the specific underlying felony that a defendant facilitates provides the substance of the criminal conviction. The statutory definition of facilitation of a burglary of a building is clear; therefore, the court need only examine the statutory elements to decide whether the prior conviction constitutes a violent felony. Because U.S. v. Sawyers, 409 F.3d 732 (6th Cir. 2005) held that facilitation of an aggravated burglary was a violent felony, the crime here was also a violent felony. The possible presence of people is what creates a serious potential risk of physical injury to another. U.S. v. Vanhook, 510 F.3d 569 (6th Cir. 2007).
6th Circuit holds that Kentucky second-degree escape was violent felony. (540) The district court sentenced defendant as an armed career criminal, 18 U.S.C. § 924(e), based in part on its finding that his prior Kentucky state conviction for second-degree escape was a violent felony. Defendant contended that because Kentucky’s statutes distinguish between escapes involving the use of force (first degree) and escapes not involving force (second degree), his conviction for second-degree escape should not qualify as a violent felony. Until recently, the Sixth Circuit had consistently regarded the crime of escape to be a violent felony because it involved conduct that presented a serious potential risk of physical injury to others. However, in U.S. v. Collier, 493 F.3d 731 (6th Cir. 2007), a Sixth Circuit panel ruled that a conviction under Michigan’s prison escape state was not a violent felony. The Sixth Circuit distinguished Collier on the ground that Michigan defines “escape” as a discrete act, completed when the prisoner first leaves state custody. Thus, any risk involved in apprehending the escapee is not part of the escape offense. Kentucky has no such rule, and thus the panel ruled that the district court properly treated the escape as a violent felony. U.S. v. Lancaster, 501 F.3d 673 (6th Cir. 2007).
6th Circuit, disagreeing with other circuits, rules that possession of a sawed-off shotgun is not a violent felony under the ACCA. (540) The district court refused to sentence defendant under the Armed Career Criminal Act (ACCA), ruling that his prior conviction for possession of a sawed-off shotgun was not a “violent felony.” Because possession of a sawed-off shotgun is not one of the specifically named offenses and does not involve the use of explosives or the threat of physical force against another person, it would only qualify as a predicate ACCA offense if it was deemed to be “conduct that presents a serious potential risk of physical injury to another.” The First, Fourth, Fifth, Seventh, Eighth and Ninth Circuits have all held that mere possession of a sawed-off shotgun is either a “crime of violence” under the Sentencing Guidelines or a “violent felony” under the ACCA. Disagreeing with the weight of this authority, the Sixth Circuit concluded that possession of a sawed-off shotgun is not a violent felony under the ACCA. A number of cases have held that a prior violation of the felon-in-possession statute itself is not a predicate offense under the ACCA. See, e.g., U.S. v. Doe, 960 F.3d 221 (1st Cir. 1992). The crime of possessing a sawed-off shotgun is similar to the prohibition on felons possessing firearms, as both prohibit mere possession. Further, while some instances of sawed-off shotgun possession create a greater risk of harm to others, precedent required the court to consider the “least objectionable” conduct that would violate the statute. The panel also relied on its recent opinion in U.S. v. Flores, 477 F.3d 431 (6th Cir. 2007), holding that carrying a concealed weapon did not present a serious potential risk of physical injury. Judge McKeague dissented. U.S. v. Amos, 501 F.3d 557 (6th Cir. 2007).
6th Circuit holds that Michigan “failure to report” escape was not a violent felony. (540) Defendant was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924, based in part on the district court’s finding that his prior Michigan conviction for escape was a “violent felony.” The Michigan law included a jail break, but also extended to defendant, even though his “escape” was simply stepping off a public Greyhound bus – where he was unaccompanied by any correctional officer – and failing to report to the facility to which he was being transferred. The Sixth Circuit held that the Michigan escape was not a violent felony, disagreeing with those circuits that have held that a “walk away” should be considered categorically violent. Those circuits have reasoned that the potential risk officers might encounter in attempting to re-apprehend the escapee is serious enough to justify characterizing the offense as violent. However, the same is true as to the capture of any lawbreaker, and under this logic, all crimes become crimes of violence. See U.S. v. Thomas, 333 F.3d 280 (D.C. Cir. 2003). In addition, Michigan law does not define escape as a continuing offense. It is complete when the defendant leaves custody without having been discharged. A federal sentencing court considering an ACCA enhancement under the categorical approach must take state law as it finds it, including state courts’ interpretation of state law. A failure to report escape in a jurisdiction that defines escape as complete upon leaving custody without having been discharged is not categorically a violent felony. U.S. v. Collier, 493 F.3d 731 (6th Cir. 2007).
6th Circuit upholds use of juvenile adjudication as predicate violent felony under ACCA. (540) The district court sentenced defendant under the Armed Career Criminal Act, 18 U.S.C. § 9224(e), based in part on its finding that his prior juvenile adjudication for aggravated robbery was a “violent felony.” The Sixth Circuit held that the use of the juvenile adjudication as a predicate offense under the ACCA did not violate due process or Apprendi. Congress has the power to treat prior convictions as sentencing factors subject to a lesser standard of proof because the defendant received all process that was due when convicted – for adults that includes the right to a jury trial; for juveniles, it does not. There was no indication that defendant was not given proper due process in his juvenile adjudication. U.S. v. Crowell, 493 F.3d 744 (6th Cir. 2007).
6th Circuit holds Tennessee aggravated burglary and facilitation of armed robbery are violent felonies. (540) Defendant, convicted of being a felon in possession of a firearm, received a sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e), based in part on the district court’s conclusion that his prior convictions under Tennessee law for aggravated burglary and facilitation of armed robbery qualified as violent felonies under the ACCA. The Sixth Circuit agreed, noting that in prior cases it had found that aggravated burglary had the elements of a generic burglary and that the facilitation of a violent felony also qualified as a violent felony. U.S. v. Nance, 481 F.3d 882 (6th Cir. 2007).
6th Circuit finds 235 months reasonable for armed career criminal. (540) Defendant, convicted of being a felon in possession of a firearm, had four prior convictions for “violent felonies” under the Armed Career Criminal Act (18 U.S.C. § 924(e)) and a total of 23 criminal history points. Under the ACCA, defendant had a sentencing range of 235-293 months. The district court imposed a sentence of 235 months, noting that neither the presentence report nor defendant had identified any positive information about the defendant. The Sixth Circuit held that in light of defendant’s extensive criminal history, the sentence was not unreasonable. U.S. v. Nance, 481 F.3d 882 (6th Cir. 2007).
6th Circuit holds that categorical approach applied to determine whether prior juvenile adjudications were predicate ACCA felonies. (540) The government argued that two of defendant’s prior adjudications of juvenile delinquency should be considered violent felonies under the Armed Career Criminal Act – a 1993 adjudication of delinquency based upon an attempted robbery and a 1997 adjudication based upon an aggravated assault. In denying the enhancement, the district court applied the “categorical approach” mandated in Taylor v. U.S., 495 U.S. 575 (1990) and Shepard v. U.S., 544 U.S. 13 (2005), and found that the adjudication did not necessarily involve the use or carrying of a firearm, knife or destructive device. The Sixth Circuit agreed that the categorical approach applies to determinations of whether a juvenile adjudication counts as a predicate crime under the ACCA. Neither of defendant’s juvenile delinquency adjudications constituted a violent felony under the categorical approach. Because the use of a firearm was not essential to the crime of attempted robbery, the 1993 juvenile adjudication could not be used as a qualifying conviction. Similarly, nothing in the aggravated assault statute, Tenn. Code Ann. § 39-13-102(a) (1)(B) indicated that an aggravated assault conviction requires proof of the use or display of a firearm, knife or destructive device. The petition stated simply that defendant attempted to strike a police officer with the vehicle he was driving during a robbery and shooting. The fact that defendant or his accomplice used a firearm in the prior robbery did not mean that such activity became part of the aggravated assault. U.S. v. Wells, 473 F.3d 640 (6th Cir. 2007).
6th Circuit holds that reckless drunk driving was not a crime of violence. (540) Under Tennessee law, a person commits “vehicular assault” when they, as the proximate result of the their intoxication, recklessly cause serious bodily injury to another person by operation of a motor vehicle. The Sixth Circuit held that reckless vehicular assault was not a crime of violence, and reversed a 16-level enhancement under § 2L1.2 (b)(1)(A)(ii). A crime requiring only recklessness does not qualify as a crime of violence. The language defining a crime of violence “most naturally suggests a higher degree of intent than negligence or merely accidental conduct.” See Leocal v. Ashcroft, 543 U.S. 1 (2004). U.S. v. Portela, 469 F.3d 496 (6th Cir. 2006).
6th Circuit upholds ACCA increase where defendant was convicted of generic burglary. (540) The district court sentenced defendant as an armed career criminal under 18 U.S.C. § 924(c) based on four prior felony convictions in Tennessee: two for third-degree burglary, one for second-degree burglary, and one for a serious drug offense. Defendant argued that § 924(c)’s definition of “violent felony” did not include either the second or third degree burglaries as they existed in Tennessee at the time of his convictions. Although the statute was non-generic in that it included convictions for illegal entry to places such as coin receptacles and the like, the Sixth Circuit examined the record and found that defendant actually committed a generic burglary. The indictments alleged that defendant unlawfully broke and entered a “business house” and a “dwelling house,” respectively, which meant that he was actually convicted of burglarizing buildings, even though the statute permitted convictions for burglary of non-buildings. Thus, the district court properly applied the ACCA enhancement. U.S. v. Caruthers, 458 F.3d 459 (6th Cir. 2006).
6th Circuit holds that mandatory application of guidelines was harmless error where court also made substantial upward departure. (540) Defendant was convicted of being a felon in possession of a firearm under 18 U.S.C. § 922(g) and for being an Armed Career Criminal under § 924(e). The district court, believing that the guidelines were mandatory, sentenced defendant to 280 months’ imprisonment. The Sixth Circuit held that any error in the district court’s following of applicable law in effect at the time of sentencing was harmless. The panel was ‘“certain” the error did not affect the district court’s selection of the sentence imposed. Any possible harm from the error was nullified when the court exercised its discretion to grant a substantial upward departure that increased the sentence considerably above the guideline recommended range. The departure itself did not raise Booker problems, since it was based on defendant’s criminal history and, in any event, was a discretionary decision by the district court. U.S. v. Brown, 444 F.3d 519 (6th Cir. 2006).
6th Circuit holds that court properly determined nature of prior conviction. (540) A state court judgment indicated that defendant was convicted of “CA:M2,” which the district court construed as criminal attempt, second degree murder. The government presented the indictment, which indicated that defendant had been charged with criminal attempt, first degree murder. The judgment of conviction listed the charged offense as “CA:M1,” and the offense of conviction as “CA:M2.” In addition, a probation officer opined that CA:M2 was an abbreviation for criminal attempt, second degree murder. The Sixth Circuit held that the district court did not violate the Sixth Amendment by construing the meaning of CA:M2. The judge’s inquiry was akin to construing a judgment that contained a misspelled word or was written in a foreign language. There is no prohibition against consulting reliable sources or applying common sense to interpret a judgment. U.S. v. Beasley, 442 F.3d 386 (6th Cir. 2006).
6th Circuit holds that burglaries of two businesses committed on same day were separate under ACCA. (540) The district court sentenced defendant under the Armed Career Criminal Act, 18 U.S.C. § 924(e), and guideline § 4B1.4 based in part on its finding that he had three prior convictions for violent felonies that had been committed on occasions different from one another. Defendant argued that two November 1993 burglaries were part of the same offense: he stole a pair of bolt cutters from an abandoned business, and then took the bolt cutters across the street where he used them to remove the motor from a boat so that he could steal the motor. He also stole other property belonging to the boat owner. The Sixth Circuit disagreed, finding three indicia of separate offenses under the ACCA were present. The burglary at the abandoned business was complete before he crossed the street to steal the motor; he could have chosen to cease his criminal activity at that point without committing the second robbery; and he entered the second property after committing the first robbery but before committing the second. Therefore, the two burglaries were committed “on occasions different from one another.” U.S. v. Hill, 440 F.3d 292 (6th Cir. 2006).
6th Circuit says facilitation of aggravated burglary was violent felony, but remands to determine if statutory rape qualifies. (540) Defendant was convicted of being a felon in possession of a firearm. He was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e), based on thee prior convictions that the district court found were “violent felonies.” The Sixth Circuit agreed that defendant’s conviction for facilitation of an aggravated burglary was a violent felony. Facilitation of an aggravated burglary falls within the otherwise clause: it presents a risk of physical injury sufficient to be classified as a violent felony. However, remand was necessary to determine whether defendant’s state-court conviction for statutory rape was a violent felony. The panel refused to hold that every crime involving sexual intercourse with a minor is per se a violent felony under the ACCA. The district court should consider, along with the statutory definition, the charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented. Finally, defendant’s conviction for retaliation for past action was properly classified as a violent felony. The prohibited conduct only involves threats or force made against a person. By threatening to harm a person, the perpetrator presents a serious potential risk of physical injury. U.S. v. Sawyers, 409 F.3d 732 (6th Cir. 2005).
6th Circuit holds that Armed Career Criminal sentencing did not violate Sixth Amendment. (540) Defendant argued that the application of the Armed Career Criminal Act, 18 U.S.C. § 924(e), violated the Sixth Amendment principles established in Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 124 S.Ct. 2531 (2004), and U.S. v. Booker, 543 U.S. 220 (2005) because the trial judge, rather than the jury, determined the nature of defendant’s previous convictions. The Sixth Circuit disagreed. Apprendi does not require the nature or character of prior conviction to be determined by a jury. Moreover, there is no language in Booker suggesting that the Supreme Court, as part of its remedial scheme adopted in that case, intended to alter the exception to Apprendi allowing district courts to consider the fact and nature of prior convictions without submitting those issues to the jury. U.S. v. Barnett, 398 F.3d 516 (6th Cir. 2005).
6th Circuit holds that type of firearm must be charged in indictment and proved beyond reasonable doubt. (540) Section 924(c)(1) provides for mandatory additional sentences for using or possessing any firearm during a crime of violence. If the firearm involved is a certain type of firearm, § 924(c)(1)(B) increases the mandatory minimum to 10 or 30 years, depending on the type of firearm involved. The Sixth Circuit held that the mandatory minimum in the firearm-type provision in § 924 is not binding on a sentencing court unless the type of firearm involved is charged in the indictment and proved to a jury beyond a reasonable doubt. The firearm types set out in § 924 are elements of separate crimes, rather than sentencing factors. Therefore, Booker requires § 924 firearm enhancements be charged in the indictment and proved to a jury beyond a reasonable doubt. The panel did not address the general constitutionality of mandatory minimum sentences imposed through judicial fact-finding, a practice explicitly approved by the Supreme Court prior to Booker, when traditional sentencing factors, rather than elements, are involved. U.S. v. Harris, 397 F.3d 404 (6th Cir. 2005).
6th Circuit says defendant’s admission of three violent felonies was not admission they were “committed on occasions different from one another.” (540) The government argued that defendant waived the right to challenge his status as an armed career criminal because, after pleading guilty, he admitted that he had committed three violent felonies, “as defined” by 18 U.S.C. § 924(e). The Sixth Circuit disagreed. The words “as defined” as used in this context appeared to modify the words “violent felony” as found in 18 U.S.C. § 924(e)(2)(B). The indictment did not specifically indicate that defendant’s three prior convictions were “committed on occasions different from one another.” A guilty plea should be construed as an admission to only those facts that have been properly charged in the indictment. The record did not support the government’s argument that defendant admitted that his prior convictions were committed on occasions different from one another. As such, defendant did not waive his right to appeal. U.S. v. Burgin, 388 F.3d 177 (6th Cir. 2004).
6th Circuit says whether crimes were committed “on occasions different from one another” is part of prior convictions exception. (540) In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court held that “[o]ther than the fact of a prior criminal conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Defendant argued that the requirement in the Armed Career Criminal Act, 18 U.S.C. § 924(e), that a defendant have three prior convictions “committed on occasions different from one another” constituted a fact subject to the protections outlined in Apprendi. The Sixth Circuit, however, ruled that the “committed on occasions different from one another” issue was so interrelated to the finding of whether such prior convictions existed that the issue fell within the exception in Apprendi for a prior conviction. Thus, this issue need not be pled in an indictment, submitted to a jury, and proved beyond a reasonable doubt. The “different occasions” language involves the issue of recidivism, and cannot be significantly distinguished from “the fact of a prior conviction.” U.S. v. Burgin, 388 F.3d 177 (6th Cir. 2004).
6th Circuit holds that pair of burglaries were separate under ACCA. (540) The Armed Career Criminal Act under 18 U.S.C. § 924(c)(1) imposes a 15-year mandatory minimum sentence for felons in possession of firearms who have “three previous convictions by any court … for a violent felony or a serious drug offense … committed on occasions different from one another.” Defendant was previously convicted for breaking and entering in connection with an incident in 1983 and for burglarizing two adjacent homes in 1991. Defendant argued that the burglaries were not “committed on occasions different from one another” and thus should not count as two prior convictions under the ACCA. The Sixth Circuit disagreed. The obvious way to distinguish between the two burglaries was that defendant had to leave one residence in order to burglarize the second. He was only caught because the resident of the first home discovered he had been burglarized and called out while defendant was still in the second home. Had defendant left after committing just one burglary, he would likely have gotten away. U.S. v. Carnes, 309 F.3d 950 (6th Cir. 2002).
6th Circuit holds that prior convictions under ACCA are sentencing factors. (540) Defendant was sentenced as an armed career offender under the ACCA, 18 U.S.C. § 924(c)(1), based on three prior violent felony convictions. He argued that the prior convictions constituted elements of the offense that, under Apprendi v. New Jersey, 530 U.S. 466 (2000), must be alleged and proven in an indictment. The Sixth Circuit rejected this argument because prior convictions are sentencing factors and need not be alleged in an indictment or proven beyond a reasonable doubt. Almendarez-Torres v. U.S., 523 U.S. 224 (1998), which held that prior convictions are sentencing factors, is still good law unless and until the Supreme Court chooses to overrule it. U.S. v. Carnes, 309 F.3d 950 (6th Cir. 2002).
6th Circuit holds that two breaking and entering convictions were “burglaries” under ACCA. (540) The term “burglary” under the Armed Career Criminal Act has been interpreted by the Supreme Court to mean any conviction, regardless of its label, “having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Taylor v. U.S., 495 U.S. 575, 599 (1990). The district court initially held that the government had not met its burden of showing that defendant’s two Ohio breaking and entering convictions were “burglaries,” as defined generically by Taylor, because the Ohio breaking and entering statute permitted conviction for the breaking and entering of places other than buildings, such as boats, autos, or railroad vehicles. On remand, the government presented the court with copies of the indictments for these two convictions. Because each indictment charged defendant with breaking and entering into only dwelling houses, the district court found that the convictions met the Taylor definition of burglary. The Sixth Circuit affirmed this reasoning and counted them as violent felonies for purposes of § 924(c). U.S. v. Cooper, 302 F.3d 592 (6th Cir. 2002).
6th Circuit relies on precedent to hold that attempted aggravated burglary was violent felony. (540) The district court found that defendant’s conviction for attempted aggravated burglary was not a violent felony because the Ohio statute did not necessarily require conduct that presented the serious potential for personal injury. An attempt conviction in Ohio requires only that defendant have the necessary mens rea and take a “substantial step” in a course of conduct planned to culminate in the commission of the crime, beyond mere planning. Thus, a defendant who merely intended to commit a burglary and posted accomplices in vehicles near the house to serve as lookouts, or engaged in similar conduct, could be convicted of attempted burglary, despite the fact that defendant’s conduct did not significantly increase the potential for personal injury. The Sixth Circuit found that it was bound by U.S. v. Lane, 909 F.2d 895 (6th Cir. 1990), which using a categorical approach, found that the crime of attempted burglary under Ohio law was a crime involving “conduct that presents a serious potential risk of physical injury to another” and therefore was a violent felony. The holding in Lane was twice reaffirmed by the Sixth Circuit. U.S. v. Bureau, 52 F.3d 584 (6th Cir. 1995); U.S. v. Fish, 928 F.3d 185 (6th Cir. 1991). The district court’s attempt to distinguish these cases by examining the specific substantial step that defendant was charged with and pled guilty to was error, because it strayed from the categorical approach. U.S. v. Cooper, 302 F.3d 592 (6th Cir. 2002).
6th Circuit holds that court could not make diminished capacity departure from mandatory minimum. (540) Defendant was convicted of armed bank robbery, 18 U.S.C. §§ 2113(a),(d) and carrying a firearm in relation to a crime of violence, 18 U.S.C. § 924(c). At sentencing, the lower court departed downward from the guidelines for armed robbery, based on a finding of diminished capacity. USSG § 5K2.13. However, it found itself without discretion to make a diminished capacity departure from the sentence for the § 924(c) offense, which carries a statutory minimum of 60 months. The Sixth Circuit agreed that the court could not make a diminished capacity departure from the minimum sentence mandated by § 924(c). Other than under the substantial assistance provisions, there is no authorization for a departure below a mandatory minimum sentence. See U.S. v. Smith, 966 F.2d 1045 (6th Cir. 1992). U.S. v. Burke, 237 F.3d 741 (6th Cir. 2001).
6th Circuit holds that rapes of two women were part of one predicate episode for ACCA purposes. (540) The Armed Career Criminal Act, 18 U.S.C. § 924(e), provides for a minimum 15-year sentence for a person who violates § 922(g) and has three previous convictions for a violent felony “committed on occasions different from one another.” The district court sentenced defendant under the ACCA based in part on two prior rape convictions that arose out of 1986 incident in which defendant and a companion both raped two women who stopped to ask for directions. The Sixth Circuit held that the 1986 rape convictions did not constitute two separate predicate convictions under the ACCA because they arose out of one criminal episode. Whether two prior offenses are separate crimes under the ACCA does not depend on the number of convictions or the number of victims. Instead, a court should consider whether the first crime has concluded. “[T]he ‘successful’ completion of one crime plus a subsequent conscious decision to commit another crime makes that second crime distinct from the first for the purposes of the ACCA.” In the present case, defendant and his companion asserted dominion and control over both women throughout the duration of the incident. There was no conclusion of defendant’s criminal activity against the first woman when he began raping the second woman. With the assistance of his accomplice, defendant carried out his aggressions against both women simultaneously. U.S. v. Thomas, 211 F.3d 316 (6th Cir. 2000).
6th Circuit upholds separate § 924(c) sentences for gun possessed during kidnapping and subsequent robbery. (540) Defendant and his partner entered the home of a bank manager, separated the manager from her husband and son and held the two hostage, demanding that the manager enter the bank the following morning and bring defendant money from the bank. Defendant was convicted of bank robbery, kidnapping, one § 924(c) count for using and carrying a firearm in relation to the bank robbery, and one § 924(c) count for using and carrying a firearm in relation to the kidnappings. The Sixth Circuit upheld consecutive sentences for the § 924(c) convictions, which resulted in a five-year sentence for the first conviction and a 20-year sentence for the second conviction. The imposition of separate consecutive sentences for multiple § 924(c) violations occurring during the same criminal episode are lawful. This was not like U.S. v. Johnson, 25 F.3d 1335 (6th Cir. 1994), where the en banc court held that possession of multiple firearms in conjunction with the simultaneous possession of different controlled substances counted as only one offense under § 924(c)(1). In this case, the kidnapping occurred significantly before, and independent of, the bank robbery. U.S. v. Burnette, 170 F.3d 567 (6th Cir. 1999).
6th Circuit applies enhanced offense level for using firearm during crime of violence. (540) While riding in a car on a congested portion of an interstate highway, defendant pointed a loaded handgun at motorists, and then jerked his arm upward as if he had just fired the gun. He also fired the weapon at a police officer following defendant in an unmarked car. He pled guilty to being a felon in possession of firearm and was sentenced as an armed career criminal. The district court applied § 4B1.4(b)(3)(B) for using or possessing a firearm in connection with a crime of violence. Defendant argued that this was improper because he was never convicted of any violent offense. The Sixth Circuit affirmed, because a defendant need not be charged with or convicted of an offense for § 4B1.4(b)(3)(A) to apply, so long as the defendant in fact committed the offense. The statement of facts in the plea agreement and the police officer’s testimony proved that defendant dry-fired a handgun at motorists and fired at the officer. U.S. v. Pluta, 144 F.3d 968 (6th Cir. 1998).
6th Circuit upholds armed career criminal status where information showed generic burglary. (540) Defendant pled guilty to gun charges. The district court sentenced him as an armed career criminal under 18 U.S.C. § 924(e) based on two prior Florida burglary convictions. Defendant argued that these burglaries were actually larcenies. The Florida statute defines burglary broadly to include stealing from any structure or conveyance, which includes any motor vehicle, ship, vessel, railroad car, trailer, aircraft or sleeping car. The Sixth Circuit upheld armed career criminal status because one of the offenses was clearly a generic burglary. The information charged defendant with entering a person’s home and stealing a VCR, jewelry and TVs. Defendant admitted that his previous convictions for robbery and aggravated assault counted as violent felonies under § 924(e). U.S. v. Pluta, 144 F.3d 968 (6th Cir. 1998).
6th Circuit says robberies were part of a single episode for armed career criminal purposes. (540) Defendant previously was convicted of two armed robberies of two residences in a duplex. Defendant and two accomplices entered the first residence and robbed the occupant. While defendant remained in the first residence to prevent the occupant from calling the police, his accomplices kicked in the door of the adjoining residence and robbed the second victim. The Sixth Circuit held that the two robberies should be treated as a single criminal episode for purposes of the Armed Career Criminal Act, despite the robbery of two separate residences. There was no principled way to distinguish between the end of the first burglary and the beginning of the second. Defendant was only guilty of the second burglary as an aider and abettor. Because he never left the first location, he did not “successfully complete” the first burglary until his accomplices completed the second. U.S. v. Murphy, 107 F.3d 1199 (6th Cir. 1997).
6th Circuit permits downward criminal history departure for armed career criminal. (540) Defendant fell within criminal history category IV based on his status as an armed career criminal. The district court rejected defendant’s request for a downward criminal history departure, ruling it did not have the authority to depart from the criminal history category mandated by § 4B1.4(c). The Sixth Circuit reversed, holding that a court may make a downward criminal history departure for an armed career criminal. Although the guidelines prescribe category IV as the “minimum” starting point for the criminal history of armed career criminals, there is nothing in the guidelines that would prohibit a departure below this level. In fact, the background to § 4B1.4 notes that in some cases the criminal history category prescribed may not adequately reflect the defendant’s criminal history and makes reference to § 4A1.3. Section 4A1.3 authorizes downward departures when a defendant’s criminal history overrepresents the seriousness of a defendant’s criminal history. U.S. v. Sanders, 97 F.3d 856 (6th Cir. 1996).
6th Circuit holds that involuntary manslaughter in Ohio is a violent felony. (540) Defendant was sentenced as an armed career criminal based on three prior violent felonies, including a 1986 conviction in Ohio for involuntary manslaughter. The Sixth Circuit held that involuntary manslaughter in Ohio is a violent felony under the ACCA. Only deaths that are the “proximate result” of the defendant’s unlawful conduct can result in a conviction under the Ohio statute. Accordingly, the defendant’s conduct must necessarily present a “serious potential risk of physical injury to another.” Ohio law does not appear to include “unintended, accidental killings” in its involuntary manslaughter statute. Judge Merritt dissented. U.S. v. Sanders, 97 F.3d 856 (6th Cir. 1996).
6th Circuit holds burglary and assault committed at same location minutes apart were part of single criminal episode. (540) Defendant had two prior convictions for burglary and assault arising out of the following circumstances: Police apprehended defendant’s associate walking down the driveway of a home that had just been burglarized. Within minutes of the associate’s arrest, the officers spotted defendant walking out of the woods near the home. When they pursued him, he pointed a gun at the officers and then fled. The officers subsequently found defendant in the woods, along with various items stolen from the home. The Sixth Circuit held that the burglary and assault, committed at the same location within minutes of each other, were part of a single criminal episode under the Armed Career Criminal Act. The court did not determine whether the burglary was successfully completed before defendant committed the assault. Defendant had not left the location of the burglary when he was confronted by the officers. Because they were committed at the same location moments apart, the burglary and the assault were not committed on “occasions different from one another” and could not be considered separate predicate offenses. U.S. v. Graves, 60 F.3d 1183 (6th Cir. 1995).
6th Circuit holds that attempted burglary of business under Tennessee law is violent felony. (540) The Sixth Circuit held that defendant’s Tennessee conviction for attempted burglary of a business was a violent felony under 18 U.S.C. § 924(e). Previous Circuit cases have held that attempted burglaries in Ohio and Michigan are violent felonies because they “otherwise involve conduct that presents a serious potential risk of physical injury to another.” Defendant’s attempted burglary under Tennessee law also fell within the “otherwise” clause of § 924(e). The possibility that Tennessee’s attempted burglary statute could encompass conduct which did not create a serious potential risk of injury to another did not prevent the court from finding that the conviction fell under the “otherwise” clause. The crime falls under § 924(e) because it generally encompasses conduct which creates a serious potential risk of injury to another. U.S. v. Bureau, 52 F.3d 584 (6th Cir. 1995).
6th Circuit holds that Tennessee grand larceny while in possession of firearm is a violent felony under ACCA. (540) Defendant was convicted of being a felon in possession of a firearm. The district court refused to sentence defendant as an Armed Career Criminal, finding that he had only two prior “violent felony” convictions. The Sixth Circuit disagreed, holding that defendant’s Tennessee conviction for grand larceny while in possession of a firearm was a violent felony under 18 U.S.C. § 924(e). When an offender possesses a firearm during a grand larceny, the firearm’s very presence creates a risk that the offender will use the firearm if he meets with resistance or is detected. Thus, the offense “involves conduct that presents a serious potential risk of physical injury.” U.S. v. Seaton, 45 F.3d 108 (6th Cir. 1995).
6th Circuit, en banc, relies on indictment to find that gross sexual imposition is violent felony. (540) The district court sentenced defendant as an armed career criminal after finding that his prior conviction for gross sexual imposition was a violent felony. The 6th Circuit, en banc, agreed, since the indictment to which defendant pled guilty stated that defendant had sexual contact with his victim “by compelling such person to submit by force or threat of force.” U.S. v. Kaplansky, 42 F.3d 320 (6th Cir. 1994) (en banc).
6th Circuit, en banc, holds attempted kidnapping is a violent felony under ACCA. (540) The district court sentenced defendant as an Armed Career Criminal under 18 U.S.C. § 924(e), finding defendant’s Ohio conviction for attempted kidnapping was a violent felony. A 6th Circuit panel reversed, holding that the statutory possibility of kidnapping by deception precluded the conviction from being a violent felony. The 6th Circuit, en banc, disagreed, holding that attempted kidnapping is a violent felony because it presents a serious risk of physical injury to another. Even if the kidnapper uses deception, there is always a possibility that the victim will figure out what is happening and decide to resist. Moreover, the court was entitled under Taylor v. U.S., 495 U.S. 575 (1990) to examine the indictment to determine whether the crime was a violent felony. The indictment alleged that defendant used actual physical force to restrain his victim. By pleading guilty, defendant admitted this fact. U.S. v. Kaplansky, 42 F.3d 320 (6th Cir. 1994) (en banc).
6th Circuit says offenses on same date against different victims in same building were separate. (540) Defendant was sentenced as an armed career criminal based on three prior convictions for criminal sexual conduct, second degree, under Michigan law. Defendant argued that two of the offenses should not have been considered separately because they occurred on the same date and in the same building. The 6th Circuit, relying on U.S. v. Brady, 988 F.2d 664 (6th Cir. 1993), held that the offenses were separate because they were committed against separate victims, and on different floors and locations within the house. Defendant could have halted his criminal rampage at any time. He chose to continue selecting different victims in separate places. There was no basis for distinguishing this case from Brady. U.S. v. Wilson, 27 F.3d 1126 (6th Cir. 1994).
6th Circuit says defendant did not make necessary showing to challenge prior convictions. (540) Defendant argued that three prior convictions used to sentence him as an armed career criminal were invalid. The 6th Circuit found that he did not make the necessary showing under U.S. v. McGlocklin, 8 F.3d 1037 (6th Cir. 1993) to require the district court to hold a hearing on the issue. Defendant argued that his state court convictions were invalid because he was denied effective assistance of counsel. He intended to prove this claim through the use of affidavits and witnesses. However, a defendant may not rely merely on assertions that he will prove his case through affidavits, but must state with some degree of particularity what the affidavits and witnesses will describe. U.S. v. Wilson, 27 F.3d 1126 (6th Cir. 1994).
6th Circuit upholds 15-year sentence for armed career criminal in possession of firearm. (540) Defendant argued that his 15-year mandatory minimum sentence as an armed career criminal was grossly disproportionate to the offense of being a felon in possession of a firearm and constituted cruel and unusual punishment. The 6th Circuit affirmed the sentence. Defendant’s claim that his prior convictions were unarmed, non-violent felonies was rejected. Breaking and entering constitutes burglary under § 924(e), and thus is a violent felony. The mere unavailability of transcripts of defendant’s plea hearing did not bar the use of the prior convictions for sentence enhancement purposes. Under the totality of the circumstances, the 15-year sentence was not cruel and unusual punishment. U.S. v. Johnson, 22 F.3d 674 (6th Cir. 1994).
6th Circuit finds guilty pleas to prior state convictions were knowing and voluntary. (540) Defendant challenged the validity of his prior state convictions, which were used as predicate offenses for armed career criminal status under 18 U.S.C. § 924(e). He argued that his guilty pleas were not knowing and voluntary, pointing to a letter he sent to the state court in which he stated that he did not understand the proceedings and was only educated through 10th grade. In response to the letter, the state judge asked the defendant if his lawyer had explained the proceeding and if he now understood what was happening. Defendant responded in the affirmative. The 6th Circuit found that this procedure was sufficient to ensure that the plea was knowing and voluntary, and upheld the use of the prior convictions. Although defendant’s letter raised a question of whether he understood the nature of the proceedings, the state court’s subsequent questioning was sufficient to establish that defendant knowingly and voluntarily pled guilty. U.S. v. Johnson, 22 F.3d 674 (6th Cir. 1994).
6th Circuit, en banc, rules that two robberies of different victims at different locations in half-hour were two offenses under ACCA. (540) Reversing a prior panel opinion, U.S. v. Brady, 960 F.2d 35 (6th Cir. 1992), the 6th Circuit, en banc, held that two robberies of two different victims at two locations committed by defendant with the same weapon were separate predicate offenses under the Armed Career Criminal Act. Distinctions in time, place and victim compelled the conclusion that the events were separate criminal episodes. Judge Jones, joined by Chief Judge Merritt and Judges Keith, Lively and Martin, dissented. U.S. v. Brady, 988 F.2d 664 (6th Cir. 1993) (en banc).
6th Circuit says consolidated cases were separate for Armed Career Criminal purposes. (540) Defendant argued that he did not have the requisite three prior violent felonies for purposes of the Armed Career Criminal Act because his three prior state felony offenses were consolidated for sentencing, and therefore should be counted as one under section 4A1.2. The 6th Circuit rejected this argument, since defendant’s sentence was not calculated under the guidelines, but under the Armed Career Criminal Act. Under 18 U.S.C. section 924(e)(1), the test for separate offenses is whether they were committed on occasions different from one another. It is immaterial that the offenses were consolidated for sentencing. All of defendant’s prior convictions were committed on separate occasions. U.S. v. Warren, 973 F.2d 1304 (6th Cir. 1992).
7th Circuit says jury is not required to determine criminal history. (540) Defendant was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e), based on three prior convictions for “violent felonies.” Defendant argued that that only a jury can determine whether a person’s criminal history justifies an enhanced penalty. The Seventh Circuit noted that the Supreme Court rejected that contention in Almendarez–Torres v. U.S., 523 U.S. 224 (1998). Nor was defendant’s 1997 conviction for resisting law enforcement too old to count under the ACCA. Passage of time matters for some purposes, such as criminal history under the guidelines. See § 4A1.2(e)(1) (limit after 15 years). However, the ACCA contains no parallel provision disregarding older convictions. The district court also properly ruled that defendant’s prior Indiana conviction for domestic battery in the presence of a child was a violent felony. U.S. v. Johnson, 743 F.3d 1110 (7th Cir. 2014).
7th Circuit remands where court failed to explain guideline sentence. (540) Defendant was convicted of being a felon in possession of a firearm, and was sentenced as an Armed Career Criminal to 210 months, which was at the bottom of his 210-262 month guideline range. Defendant argued on appeal that the district court erred in failing to adequately explain its sentence, and the Seventh Circuit agreed. Although less explanation is typically needed when a district court sentences within an advisory guideline range, a district court may not simply presume that a particular within-guidelines sentence is reasonable. Here, the record was “too thin to discern the considerations which motivated the district court’s sentencing decision.” U.S. v. Lyons, 733 F.3d 777 (7th Cir. 2013).
7th Circuit says Wisconsin possession of short-barreled shotgun was not a violent felony under ACCA. (540) Defendant pled guilty to being a felon in possession of a firearm. He was sentenced as an armed career criminal based in part on the court’s finding that his Wisconsin conviction for possession of a short-barreled shotgun was a violent felony. The Seventh Circuit reversed, ruling that under Sykes v. U.S., 131 S.Ct. 2267 (2011), the question is whether the risk posed by the possession of a short-barreled shotgun constituted a serious risk of injury to another, using the offenses enumerated in § 924 (e)(2)(B)(ii) as guides to evaluate the nature and degree of that risk. The Wisconsin conviction did not qualify because the risk of physical injury to another presented by the mere possession of a short-barreled shotgun was not in the same league as the risks presented by the offenses of burglary, arson, extortion, or crimes involving the use of explosives. The noted that U.S. v. Upton, 512 F.3d 394 (7th Cir. 2008), overruling recognized by U.S. v. Brock, 724 F.3d 817 (7th Cir. 2013), held that an indistinguishable Illinois statute was a violent felony, but ruled that in light of Sykes, Upton was no longer good law. U.S. v. Miller, 721 F.3d 435 (7th Cir. 2013).
7th Circuit allows judge to decide if defendant committed three burglaries under ACCA. (540) Defendant was sentenced as an armed career criminal based on the district court’s finding that a series of three robberies he perpetrated during a five-day period were “committed on occasions different from one another,” 18 U.S.C. § 924(e)(1). The Seventh Circuit rejected defendant’s argument that he had a right to have a jury, rather than the judge, assess the nature of his prior crimes. In Almendarez–Torres v. U.S., 523 U.S. 224 (1998), the Supreme Court held that a defendant’s recidivism is not an element of the offense which must be found by a jury beyond a reasonable doubt, but rather is a sentencing factor that may be found by the sentencing judge, even when recidivism increases the statutory maximum penalty. Almendarez–Torres has remained good law even though later decisions have recognized a defendant’s right to a jury finding on other factors that expose the defendant to a longer sentence. U.S. v. Elliott, 703 F.3d 378 (7th Cir. 2012).
7th Circuit finds three home burglaries were “committed on occasions different from one another.” (540) Defendant was sentenced as an armed career criminal based on the district court’s finding that a series of three burglaries he perpetrated during a five-day period were “committed on occasions different from one another,” 18 U.S.C. § 924(e)(1). He argued the three burglaries were indivisible components of a single, multi-day crime spree, and urged the court of appeals to overrule its en banc decision in U.S. v. Hudspeth, 42 F.3d 1015 (7th Cir. 1994) (en banc), abrogated on other grounds by Shepard v. U.S., 544 U.S. 13 (2005). Hudspeth says that when a defendant has committed a multi-crime spree over a short period of time, each offense comprising the spree will be considered to have occurred on a separate occasion so long as the defendant at each step had the opportunity to stop and proceed no further. Defendant’s three burglaries involved different victims and different homes, and took place sequentially. The Seventh Circuit upheld the court’s finding that the burglaries were separate under the ACCA. Even if the bright-line test in Hudspeth were overruled, the result would not change for defendant. U.S. v. Elliott, 703 F.3d 378 (7th Cir. 2012).
7th Circuit holds that compelling a person to become a prostitute is not a violent felony. (540) In 2000, defendant was sentenced as an armed career criminal to 264 months. In 2010, he filed a collateral attack on his sentence, arguing that his 1983 Illinois conviction for compelling a person to become a prostitute, Ill. Rev. Stat. 1983, ch. 38, § 11-16(a)(1), was not a violent felony. In light of Begay v. U.S., 553 U.S. 137 (2008), the Seventh Circuit overruled its previous ruling that the offense was a violent felony. Under Begay, a crime must typically involved purposeful, violent, and aggressive conduct to qualify as a violent felony. Compelling a person to become a prostitute does not necessarily create a risk of violence. Although there would be a risk if the compulsion were physical coercion, all the Illinois statute seemed to require was inducing a person to engage in prostitution by promising money or other things of value. That might be the only compulsion the statute reached, given that the maximum sentence was only three years. A panderer who uses physical coercion commits a more serious crime than one punishable by only three years. Brown v. Rios, 696 F.3d 638 (7th Cir. 2012).
7th Circuit rules armed violence was not violent felony where underlying offense was drug possession. (540) Defendant was sentenced as an armed career criminal based in part on a 1993 conviction for “armed violence” under Illinois law, defined as “committing any felony defined by Illinois law while armed,” Ill. Rev. Stat. 1978, ch. 38, § 33A-2. In defendant’s case the felony was possession of illegal drugs. The Seventh Circuit held that the armed violence conviction was not a violent felony. If defendant’s offense had involved the sale of drugs, it would have been a violent felony. However, the underlying offense involved mere drug possession. Mere possession of a gun by a drug user cannot be described as purposeful, violent, or aggressive conduct within Begay’s meaning. Brown v. Rios, 696 F.3d 638 (7th Cir. 2012).
7th Circuit says Armed Career Criminal Act’s residual clause is not unconstitutionally vague. (540) Defendant was convicted of being a felon in possession of a firearm, was sentenced as an armed career criminal, based in part on a prior Illinois conviction for vehicular fleeing, which the district judge counted as a third violent felony under the residual clause of the Armed Career Criminal Act. See 18 U.S.C. § 924(e)(2)(B)(ii). The Seventh Circuit affirmed, rejecting defendant’s argument that the residual clause was unconstitutionally vague. U.S. v. Jones, 689 F.3d 697 (7th Cir. 2012).
7th Circuit says government has burden to show prior offenses were committed on different occasions. (540) Defendant argued that his 1985 convictions for burglary and robbery were not “committed on occasions different from one another'” under the Armed Career Criminal Act, 18 U.S.C. § 924(e). As a preliminary matter, the Seventh Circuit held that courts may only consider Shepard-approved sources in determining whether prior offenses occurred on separate occasions. The “factually sparse” record here shed insufficient light on whether the 1985 offenses occurred on the same occasion. The district court had ruled that it was defendant’s burden to prove that the offenses occurred on the same occasion, and because he did not do that, he could be sentenced under the ACCA. The Seventh Circuit ruled that this burden-shifting scheme, as set forth in U.S. v. Hudspeth, 42 F.3d 1015 (7th Cir.1994) (en banc), was no longer tenable because it essentially required an ACCA enhancement even if the available Shepard-approved documents were inconclusive. The more appropriate burden allocation requires the government to establish, using Shepard-approved sources, that the prior convictions used for the ACCA enhancement were “committed on occasions different from one another.” If the Shepard-approved documents before a district court are equivocal as to whether the offenses occurred on the same occasion, the ACCA does not apply. U.S. v. Kirkland, 687 F.3d 878 (7th Cir. 2012).
7th Circuit says Illinois aggravated-battery of making provoking contact with peace officer was not violent felony. (540) The district court sentenced defendant under 18 U.S.C. § 924(e) based in part on its finding that his Illinois aggravated battery conviction for making insulting or provoking physical contact with a peace officer was a violent felony. The Seventh Circuit reversed. Defendant was convicted of the simple battery form of the offense, but the crime was elevated to felony aggravated battery because the victim was a peace officer. Previous cases have held that insulting or provoking contact, in the ordinary case, is not violent. Here, in finding that the presence of a peace officer elevated the risk of injury, the court relied on statistics regarding the incidence of injury to police officers during assaults. However, this report focused on serious physical assaults on officers, which would likely have been charged as a bodily injury battery under Illinois law. Thus the comparison was inapt. The insulting-or-provoking-contact offense, though it may require a certain bravado in the face of authority, does not entail resistance of the sort that ordinarily induces an escalated response from the officer. U.S. v. Hampton, 675 F.3d 720 (7th Cir. 2012).
7th Circuit rejects constitutional challenges to mandatory Armed Career Criminal sentence. (540) Defendant pled guilty to being a felon in possession of a firearm. Based on three prior felony armed convictions, all of which stemmed from a crime spree that occurred more than 35 years earlier, the district court sentenced defendant to a mandatory 15-year sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (1)(ACCA). The court expressed misgivings about the mandatory sentence, noting that defendant appeared to have led a substantially crime-free life since he was released from prison in 1990. Nonetheless, the judge recognized that his hands were tied by the ACCA. The Seventh Circuit rejected defendant’s arguments that his sentence violated the separation of powers doctrine, the due process clause of the Fifth Amendment, defendant’s Sixth Amendment right to a jury trial, and the Eighth Amendment’s protections against cruel and unusual punishment. U.S. v. Nigg, 667 F.3d 929 (7th Cir. 2012).
7th Circuit finds 35-year-old armed robberies committed over six days were not part of single crime spree. (540) The district court sentenced defendant as an armed career criminal, 18 U.S.C. § 924(e)(1), based on three prior armed robberies that took place within a six-day window over 35 years earlier. The Seventh Circuit rejected defendant’s argument that the convictions should be viewed as a single episode because they were part of a single crime spree. The ACCA requires the violent felonies to be “committed on occasions different from one another.” Defendant’s crimes were committed in a sequential fashion, not simultaneously, since it was physically impossible for one person to commit three armed robberies simultaneously at three different locations, against three different victims, on three different dates. The armed robberies, committed with a gun, constituted “violent felonies” under the ACCA. U.S. v. Nigg, 667 F.3d 929 (7th Cir. 2012).
7th Circuit rejects challenge to validity of prior conviction. (540) Defendant argued that his 1980 robbery conviction could not be considered a violent felony under the Armed Career Criminal Act, 18 U.S.C. § 924(e), because that conviction was invalid as a matter of Illinois law. Although he was a minor at the time of that offense, defendant claimed he was tried as an adult. This was problematic, he argued, because Illinois law allegedly allowed minors to be tried as adults only with an attorney’s consent, yet no record of any such consent appeared in the record. The Seventh Circuit termed this argument “a non-starter.” Under Custis v. U.S., 511 U.S. 485 (1994), unless the prior conviction used to enhance a defendant’s sentence under § 924(e) was obtained in violation of the defendant’s right to counsel, the validity of that conviction may not be challenged at sentencing. U.S. v. Foster, 652 F.3d 776 (7th Cir. 2011).
7th Circuit holds that defendant failed to prove his civil rights were restored. (540) Defendant argued that none of his prior Illinois convictions could be considered under § 924(e) because Illinois allegedly restored his right to bear arms following his most recent term of incarceration. If a state sends a document regarding a felony conviction that seems to restore all civil rights, “the conviction does not count for federal purposes unless the document warns the person about a lingering firearm disability.” The Seventh Circuit ruled that defendant failed to prove that Illinois restored his civil rights. Defendant’s evidence that he voted and served on a jury after his release from incarceration said nothing about whether he ever actually received a letter from the state restoring his civil rights. Illinois automatically restores a person’s right to vote when his sentence expires. All that remained was defendant’s vague recollection that he received a letter restoring his civil rights. However, defendant did not provide the letter to the court. Lacking any additional evidence that Illinois ever restored defendant’s right to carry a firearm, the district court correctly concluded that defendant was an armed career criminal. U.S. v. Foster, 652 F.3d 776 (7th Cir. 2011).
7th Circuit says Illinois burglary was violent felony. (540) Defendant was convicted of being a felon in possession of a firearm, and was sentenced under the Armed Career Criminal Act based in part on the district court’s finding that his prior burglary conviction was a violent felony. Defendant argued that the trial court erred by refusing to consider the charging instrument when analyzing whether any of defendant’s prior convictions constituted a violent felony under the ACCA. At a minimum, he contended that the sentencing court should have conducted a further analysis to determine whether the statute under which defendant was convicted was a divisible burglary statute. The Seventh Circuit disagreed. An assessment of the divisibility of the Illinois burglary statute had no effect on defendant’s career offender status. The record made clear that defendant’s particular conviction at issue – burglary by entering a Cub Foods building – was a generic burglary offense that on its face fell within the ACCA’s definition of a violent felony. Defendant pled guilty to burglary – that is, he admitted the intent to commit a crime within a building or enclosed space. Burglary is a violent felony for purposes of the ACCA if committed in a building or enclosed space. U.S. v. King, 643 F.3d 1003 (7th Cir. 2011).
7th Circuit holds that Indiana felony intimidation was not violent felony under ACCA. (540) Defendant was convicted of firearm charges by an Illinois district court, and other firearms charges by an Indiana district court. The Indiana district court ruled that defendant’s prior Indiana felony intimidation conviction was a violent felony under the Armed Career Criminal Act. The Illinois district court disagreed, and declined to apply the ACCA’s 15-year minimum sentence. The cases were consolidated for appeal. The Seventh Circuit affirmed in part and reversed in part, holding that the Indiana conviction for felony intimidation was not a violent felony because it did not have “as an element the … threatened use of physical force against the person of another.” A review of the charging documents and defendant’s plea colloquy showed that defendant was convicted of threatening to “unlawfully injure a law-enforcement officer.” However, under Indiana law, “an injury to the person” for purposes of defendant’s threat statute encompasses threats of physical and nonphysical injuries. U.S. v. Ellis, 622 F.3d 784 (7th Cir. 2010).
7th Circuit says Illinois conviction for aggravated fleeing required purposeful conduct that was violent and aggressive. (540) Defendant was sentenced under the armed career criminal act based in part on his prior Illinois conviction for attempting to elude a police officer. He brought a motion under 28 U.S.C. § 2255 to vacate the sentence, arguing that the offense was not a violent felony under the Supreme Court’s recent decision in Begay v. U.S., 553 U.S. 137 (2008). The Seventh Circuit held that the fleeing offense was a violent felony because it required purposeful conduct that was violent and aggressive. Although the Illinois offense does not contain an explicit intent term, it does contain an explicit requirement of intentional conduct. The statute does not punish a driver who fails to stop for an officer, but one who flees or attempts to elude an officer. “Fleeing” implies willfulness. The Illinois aggravated fleeing statute makes fleeing from a police officer an aggravated offense if one of four conditions are met. The panel concluded that all intentional flights against the order of a police officer are aggressive and violent – thus, the district court properly classified the offense as a violent felony. Welch v. U.S., 604 F.3d 408 (7th Cir. 2010).
7th Circuit holds that Begay applies retroactively to collateral review. (540) Defendant was sentenced under the Armed Career Criminal Act based in part on his prior Illinois conviction for aggravated fleeing or attempting to elude a police officer. He brought a motion under 28 U.S.C. § 2255 to vacate the sentence, arguing that the offense was not a violent felony. The district court denied the motion, but on appeal, the Seventh Circuit considered whether the Supreme Court’s decision in Begay v. U.S., 553 U.S. 137 (2008) applied retroactively. Begay held that in order to qualify as a violent felony under the ACCA, a crime must be similar in kind to the enumerated offenses. New substantive rules apply retroactively on collateral review, but procedural rules generally do not apply. Teague v. Lane, 489 U.S. 288 (1988). Here, the Seventh Circuit held that the Begay rule is retroactive on collateral review. That decision narrowed substantially defendant’s exposure to a sentence of imprisonment, and therefore was a substantive change, not a procedural device. Welch v. U.S., 604 F.3d 408 (7th Cir. 2010).
7th Circuit finds that fleeing from police officer in a vehicle is a crime of violence. (540) In U.S. v. Spells, 537 F.3d 743 (7th Cir. 2008), the Seventh Circuit held that the Indiana offense of fleeing a police officer in a vehicle, in violation of Indiana Code § 35-44-3-3(a)(3), is a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e). In U.S. v. Sykes, 598 F.3d 334 (7th Cir. 2010), the court declined to reconsider Spells in light of the Eleventh Circuit’s conclusion that fleeing from a police in a vehicle is not a “violent felony.” Here, the court held that its conclusion that fleeing a police officer in a vehicle is a “violent felony” requires the conclusion that the Indiana offense is also a “crime of violence” under § 2K2.1(a)(2). ). U.S. v. Dunson, 603 F.3d 1023 (7th Cir. 2010).
7th Circuit holds that Indiana conviction for fleeing law enforcement was violent felony. (540) Defendant was sentenced under the Armed Career Criminal Act based on the district court’s finding that his 2003 conviction for fleeing law enforcement in a vehicle was a violent felony. In U.S. v. Spells, 537 F.3d 743 (7th Cir. 2010), the court held that fleeing law enforcement under Ind.Code § 35-44-3-3(B)(1)(a) counts as a violent felony. Defendant urged the court to overrule Spells and follow the Eleventh Circuit’s decision in U.S. v. Harrison, 558 F.3d 1280 (11th Cir. 2009).The Seventh Circuit declined, and adhered to its approach in Spells, finding it neither unworkable nor unsound. U.S. v. Sykes, 598 F.3d 334 (7th Cir. 2008).
7th Circuit says California crime of lewd act with person under 14 was not violent felony. (540) Defendant was sentenced as an armed career criminal, 18 U.S.C. § 924(e)(1), based in part on the district court’s finding that his prior California conviction for a lewd and lascivious act involving a person under the age of 14, in violation of Cal. Penal Code § 288(a), was a violent felony. The Seventh Circuit reversed, holding that the government did not show that the § 288(a) offense, as generally committed, was a violent felony. The statute applies to a person who commits any lewd or lascivious act upon or with the body of a child under the age of 14. Physical force is not an element of the offense. Although a child in California cannot give a valid consent to sexual acts, the absence of consent does not turn a light touch into “physical force against the person of another.” Under Begay v. U.S., 553 U.S. 137 (2008), only “purposeful, violent and aggressive conduct” that creates a serious risk of physical injury comes within the statute. While sexual intercourse with a child may well create such a “serious potential risk of physical injury, “kissing and fondling” do not. U.S. v. Goodpasture, 595 F.3d 670 (7th Cir. 2010).
7th Circuit holds that residential entry qualified as violent felony. (540) Defendant argued that one of his prior convictions, an Indiana conviction for residential entry, did not qualify as a violent felony under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B). After defendant was sentenced, the Supreme Court decided Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), which held that to qualify as a violent felony under the so-called residual clause, the offense must be roughly similar, in kind as well as in degree of risk posed, to the enumerated offenses, and must involve “purposeful, violent and aggressive conduct.” The Seventh Circuit ruled that residential entry was similar in risk to the enumerated offense of burglary because both created a substantial risk that if the offender is confronted by someone inside the home, violence will ensue. Moreover, residential entry constitutes the type of intentional conduct that Begay requires. The statute requires “knowingly or intentionally” breaking and entering into someone’s home. U.S. v. Hampton, 585 F.3d 1033 (7th Cir. 2009).
7th Circuit reverses for plain error in finding that criminal recklessness was violent felony. (540) The district court sentenced defendant under the Armed Career Criminal Act based in part on its finding that his prior conviction for criminal recklessness constituted a violent felony. Neither party identified this conviction as an issue in the district court or on appeal. However, based on the Supreme Court’s’ decision in Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), the Seventh Circuit has held that an Indiana conviction for criminal recklessness was not a violent felony. See U.S. v. Smith, 544 F.3d 781 (7th Cir. 2008). The Seventh Circuit held that in light of Begay and its progeny, the district court committed plain error when it enhanced defendant’s sentence based on its belief that criminal recklessness in Indiana constituted a violent felony under the ACCA. U.S. v. Hampton, 585 F.3d 1033 (7th Cir. 2009).
7th Circuit reverses for plain error in finding that criminal recklessness was violent felony. (540) The district court sentenced defendant under the Armed Career Criminal Act based in part on its finding that his prior conviction for criminal recklessness constituted a violent felony. Neither party identified this conviction as an issue in the district court or on appeal. However, based on the Supreme Court’s’ decision in Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), the Seventh Circuit has held that an Indiana conviction for criminal recklessness was not a violent felony. See U.S. v. Smith, 544 F.3d 781 (7th Cir. 2008). The Seventh Circuit held that in light of Begay and its progeny, the district court committed plain error when it enhanced defendant’s sentence based on its belief that criminal recklessness in Indiana constituted a violent felony under the ACCA. U.S. v. Hampton, 585 F.3d 1033 (7th Cir. 2009).
7th Circuit rules reckless discharge of firearm was not crime of violence. (540) The district court sentenced defendant under § 2K2.1(a)(4), finding that defendant’s prior Illinois conviction for reckless discharge of a firearm was a crime of violence. The Seventh Circuit held that the classification of the reckless discharge offense as a crime of violence was plain error. The offense does not have as an element the use or attempted use of force against the person of another; therefore it must qualify under the so-called residual clause. However, under Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), the offense must be similar to burglary or arson in the sense of entailing “purposeful, violent and aggressive conduct.” The Illinois statute included at least two varieties of weapons offense. In one, the person discharges the gun recklessly. In the other, the person fires the gun deliberately but is reckless about the consequences. The second variety satisfies Begay; the first does not. The Illinois statute is not “divisible.” Since it only created one offense, the “recklessness” component applied to all of its elements, including the discharge of the gun. Thus, conviction under the state statute does not involve the sort of purposeful, aggressive and violent conduct that Begay requires for classification as a violent felony. U.S. v. Gear, 577 F.3d 810 (7th Cir. 2009).
7th Circuit holds that reckless endangering was not violent felony. (540) Defendant was sentenced as an armed career criminal based in part on his prior conviction for second-degree recklessly endangering safety, in violation of Wis. Stat. § 941.30(2). Under U.S. v. Woods, 576 F.3d 400 (7th Cir. 2009), in making the violent felony determination, courts must not look beyond the statutory ingredients of a crime, unless the offense is “divisible” into parts, some of which meet the standard of § 924(e), and some of which don’t. When an offense is divisible, a court may examine the charging papers and plea colloquy to classify the conviction. Wood also holds that an offense in which the mental state is recklessness does not meet the standards in Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008) for being a violent felony. The Wisconsin statute at issue here applies to one who recklessly endangers another’s safety, and was not “divisible.” Lack of divisibility means that a conviction does not necessarily signify any intentional, violent and aggressive act of the sort that Begay requires. The statute here could apply to one who deliberately shoots at a passing car and misses, and to one who twirls a gun and recklessly permits it to fire. Under Woods, the district court’s classification of the offense as a violent felony was plain error. U.S. v. High, 576 F.3d 429 (7th Cir. 2009).
7th Circuit holds that involuntary manslaughter with mens rea of recklessness is not crime of violence. (540) Defendant was sentenced as a career offender based on part on his prior Illinois conviction for involuntary manslaughter, which required only a finding of recklessness. Under U.S. v. Smith, 544 F.3d 781 (7th Cir. 2008), crimes with the mens rea of negligence or recklessness do not constitute violent felonies under the Armed Career Criminal Act. The government urged the court to apply the “modified categorical approach” and go beyond statutory definition of the crime to consult judicial records. However, this approach is only permitted when the crime is divisible, i.e. the statute creates several crimes or a single crime with several modes of commission. The Illinois involuntary manslaughter statute was not divisible in this way. Based on Smith and the Supreme Court’s decision in Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), the Seventh Circuit held that defendant’s involuntary manslaughter conviction, as defined by Illinois law, was not a crime of violence under the career offender guideline. U.S. v. Woods, 576 F.3d 400 (7th Cir. 2009).
7th Circuit holds that Indiana felony offense of resisting officer was crime of violence. (540) Defendant argued that the district court erred when it concluded that his Indiana conviction for resisting a law enforcement officer was a crime of violence qualifying him as a career offender. He argued that because the Indiana statute required proof of “a substantial risk of bodily injury to another person,” see IND. CODE §35-44-3-3, instead of a “serious potential risk of physical injury,” see U.S.S.G. §4B1.2(a), the Indiana offense did not constitute a crime of violence. The Seventh Circuit disagreed and held defendant was properly sentenced as a career offender. Defendant’s semantic quibble that an offense that creates a substantial risk of injury does not equate to one that creates a serious risk of injury was just that—a semantic quibble. Defendant’s offense involved fleeing from police in a vehicle, speeding, ignoring traffic control devices, and endangering other drivers. This conduct involved the sort of purposeful and aggressive conduct required by Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008) to be a crime of violence. U.S. v. Jennings, __ F.3d __ (7th Cir. Sept. 15, 2008) No. 07-1818.
7th Circuit says crimes committed with a mens rea of recklessness are not violent felonies. (540) Defendant was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e), based on the court’s finding that his prior convictions for criminal recklessness with a deadly weapon and a conviction for criminal recklessness qualified as violent felonies. Defendant argued that, after the Supreme Court’s decision in Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), a prior conviction committed with a mens rea of recklessness does not qualify as a violent felony under the ACCA. The Seventh Circuit agreed, holding that in light of Begay, the residual clause of the ACCA should be interpreted to encompass only “purposeful” crimes. Therefore, those crimes with a mens rea of negligence or recklessness do not trigger the enhanced penalties mandated by the ACCA. U.S. v. Smith, 544 F.3d 781 (7th Cir. 2008).
7th Circuit holds that discharging firearm into vehicle was crime of violence. (540) At issue was whether defendant’s prior Illinois felony conviction for aggravated discharge of a firearm was a “crime of violence.” The Seventh Circuit found that it was, noting previous cases that held that discharging a firearm into a building that the defendant knows or should know is occupied is a crime of violence. Substitute “vehicle” for “building” and the result was essentially the same issue here—defendant fired a gun into a vehicle he knew was occupied. Discharging a firearm in the direction of another person or a vehicle one reasonably should know to be occupied carries with it “a serious potential risk of physical injury to another,” which is all that is required to constitute a crime of violence under § 4B1.2(a). U.S. v. Rice, __ F.3d __ (7th Cir. Apr. 1, 2008) No. 06-3190.
7th Circuit remands to determine if defendant’s escape involved active and aggressive conduct. (540) Defendant was sentenced as a career offender based on four prior felonies—escape from prison (twice), failing to report to jail, and drunk driving. Under Seventh Circuit precedent, each of these offenses was a violent felony under 18 U.S.C. §924(e). However, in light of the Supreme Court’s recent decision in Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), the Seventh Circuit remanded for resentencing. Begay held that drunk driving was not a violent felony under §924(e)(2)(B)(ii), because it did not involve purposeful, violent, and aggressive conduct. Because the words of §924(e) are repeated verbatim in §4B1.2, Begay also meant that drunk driving was not a crime of violence. The panel noted that it was possible to violate the Wisconsin escape statute in a manner that constitutes a crime of violence and possible to do so in a way that was not. The record did not contain defendant’s charging records, and the panel remanded for the district court to find out whether the crimes of which defendant was convicted were jailbreaks or otherwise involved the sort of active and aggressive conduct that Begay requires. U.S. v. Templeton, 543 F.3d 378 (7th Cir. 2008).
7th Circuit holds that conviction for resisting law enforcement was violent felony. (540) Defendant argued for the first time on appeal that his Indiana conviction for resisting law enforcement was not a “violent felony” under the Armed Career Criminal Act. Two days before oral argument, the Supreme Court decided Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), which changed the standard for deciding what a violent felony under the ACCA is. When a new Supreme Court case affects a pending appeal, the sentence may be reviewed for plain error. Accordingly, the Seventh Circuit reviewed for plain error in light of Begay, and found none. Fleeing a law enforcement officer in a vehicle is a violent felony. The Indiana statute specifically provides that the flight must be done “knowingly or intentionally,” so the defendant must make a “purposeful” decision to flee from an officer. Such conduct, when committed with a vehicle, is inherently “aggressive,” even though the Indiana statute does not require that the conduct endanger others. U.S. v. Spells, 537 F.3d 743 (7th Cir. 2008).
7th Circuit holds Wisconsin false imprisonment was crime of violence. (540) Defendant was convicted of drug crimes and sentenced as a career offender based in part on a prior Wisconsin felony conviction for false imprisonment. The Seventh Circuit agreed that the Wisconsin false imprisonment qualified as a crime of violence under §4B1.2(a), and thus defendant was properly sentenced as a career offender. Under James v. U.S., 127 S.Ct. (2007), the proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another. Wisconsin’s false imprisonment offense, in the ordinary case, poses just such a risk. The statute can be violated four ways: (1) where the victim does not consent in fact to his confinement or restraint, (2) where the victim consents only because the perpetrator put the victim in fear by the use or threat of physical violence, (3) where the perpetrator obtains the victim’s consent by purporting to act under legal authority, and (4) the victim consents because he does not understand the nature of the thing to which he consents. The panel found that under all of these circumstances, the offense presented a serious potential risk of injury. U.S. v. Billups, 536 F.3d 574 (7th Cir. 2008) No. 07-2037.
7th Circuit says child abduction by putative father is not crime of violence or aggravated felony. (540) Convicted of illegally reentering the country after deportation, defendant, had a previous Illinois conviction for child abduction by a putative father, in violation of 720 Ill. Comp. Stat. 5/10-5(b)(3). The Seventh Circuit held that the offense was neither a crime of violence nor an aggravated felony under § 2L1.2(b). On the crime of violence issue, the panel rejected the government’s suggestion that child abduction by a putative father should be treated as a species of kidnapping, noting that the statute does not require confinement against the victim’s will, nor does it require force. Unlike the offense of unlawful restraint, child abduction by a putative father necessarily involves parties who stand in a familiar relationship to each other; the offense specifically targets non-forcible conduct by a putative father without regard to the victim’s resistance, consent or acquiescence. U.S. v. Franco-Fernandez, 511 F.3d 768 (7th Cir. 2008).
7th Circuit says using juvenile convictions to support ACCA enhancement was not cruel and unusual punishment. (540) Defendant argued that using his juvenile armed robbery offenses to increase his sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e), violated the Eighth Amendment. The Seventh Circuit disagreed. Although Roper v. Simmons, 43 U.S. 551 (2005) held that it was cruel and unusual punishment to execute a person for conduct that occurred before age 18, Roper permitted a life sentence for conduct committed while the offender was a juvenile, and did not address sentence enhancements based on juvenile crimes. Roper was based in large part on the “special force” with which the Eighth Amendment applies when the state imposes the ultimate punishment of death. U.S. v. Salahuddin, 509 F.3d 858 (7th Cir. 2007).
7th Circuit holds that Wisconsin robbery committed by defendant when he was 17 was a crime of violence. (540) Defendant argued that he should not have been sentenced as a career offender because his prior robbery did not constitute a “crime of violence.” Also, because he was a minor at the time of the robbery, it did not meet the definition of “prior felony conviction.” The Seventh Circuit held that the robbery was properly classified as a crime of violence and defendant was properly sentenced as a career offender. The Wisconsin statute had as a necessary element the use of force against a victim. Additionally, robbery is one of the offenses specifically enumerated as being a “crime of violence” for purposes of § 4B1.2(a). Further, while defendant was 17 when he committed the robbery, the offense may be counted for career offender purposes because the robbery conviction was classified as an adult conviction in Wisconsin. See § 4B1.2(a). U.S. v. Otero, 495 F.3d 393 (7th Cir. 2007).
7th Circuit holds that reckless discharge of a firearm is a crime of violence. (540) The district court sentenced defendant as a career offender based in part on its finding that his prior Illinois conviction for reckless discharge of a firearm constituted a crime of violence. A person commits the offense under Illinois law by discharging a firearm in a reckless manner which endangers the bodily safety of an individual. The Seventh Circuit held that the offense was a crime of violence, since it plainly required conduct that presents a “serious potential risk of physical injury to another” within the meaning of § 4B1.2 (a)(2). U.S. v. Newbern, 479 F.3d 506 (7th Cir. 2007).
7th Circuit holds that Indiana offense of criminal confinement was not a violent felony under ACCA. (540) Indiana defines the felony offense of criminal confinement as confining another person without the other person’s consent, or removing another person, by fraud enticement, force or threat of force, from one place to another. The Seventh Circuit held that defendant’s prior conviction under Indiana law of the offense of criminal confinement was not a violent felony under the ACCA. There was more than one way of committing criminal confinement, and not all variants required proof of force. The panel examined the charging documents to determine that defendant was convicted under the second prong of the statute – removing another person from one place to another by fraud, enticement, force, or threat of force. However, the charge did not reveal whether some type of force, either actual, attempted or threatened, was a prerequisite to defendant’s conviction. The case was controlled by its recent opinion in U.S. v. Hagenaw, 423 F.3d 638 (7th Cir. 2005), which held that criminal confinement under Indiana law does not necessarily involve conduct that presents a “serious risk of potential injury to another.” U.S. v. Gilbert, 464 F.3d 674 (7th Cir. 2006).
7th Circuit holds that court did not plainly err in making findings on defendant’s criminal history. (540) Defendant’s criminal history affected the calculation of his sentence range in two ways. First, the finding that his prior convictions were for crimes of violence resulted in a higher offense level under § 2K2.1(a)(2). Second, the nature and extent of his prior criminal history placed him in the highest criminal history category. Defendant argued that unless admitted by a defendant, the fact and nature of any prior convictions that expose him to a higher penalty must be determined by a jury rather than the sentencing judge. The Seventh Circuit disagreed, noting that the Supreme Court has so far excluded a defendant’s criminal history from the range of facts that must, if not admitted, be proven to a jury before the defendant is subject to increased penalties. See Almendarez-Torres v. U.S., 523 U.S. 224 (1998). The Court’s opinions in Apprendi, Blakely and Booker have left the holding of Almendarez-Torres undisturbed. The district court did not plainly err in making findings with respect to defendant’s criminal history. U.S. v. Williams, 410 F.3d 397 (7th Cir. 2005).
7th Circuit holds that fleeing from officer and theft from a person are violent felonies. (540) Defendant was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e), based on a finding that he had three prior violent felony convictions. The Seventh Circuit held that all flights to avoid arrest are crimes of violence under the ACCA. A flight to avoid apprehension is one means through which the risk of escape may be realized. If, as other courts have held, all escapes are violent crimes, then all flights to avoid arrest must be violent crimes. Therefore, defendant’s conviction for fleeing from an officer constituted a violent felony. Defendant’s robbery conviction was also properly classified as a violent felony. Defendant was charged with stealing a bicycle from its rider. Every other circuit that has addressed this subject has reached this result. See, e.g. U.S. v. Griffith, 301 F.3d 880 (8th Cir. 2002); U.S. v. Payne, 163 F.3d 371 (6th Cir. 1998). However, in U.S. v. Lee, 22 F.3d 736 (7th Cir. 1996), the Seventh Circuit held that theft from a person is not a crime of violence under the career offender guideline. In order to bring harmony both within and among the circuits, the panel overruled the portion of Lee dealing with the treatment of theft and held that theft from a person is a violent felony under the ACCA. U.S. v. Howze, 343 F.3d 919 (7th Cir. 2003).
7th Circuit holds that unlawful restraint constitutes violent felony. (540) The district court found that defendant was eligible for the armed career criminal enhancement in 18 U.S.C. § 924(e) based on three prior violent felony convictions, including a 1993 Illinois unlawful restraint conviction. Under Illinois law, “[a] person commit the offense of unlawful restraint (a class 4 felony) when he knowingly without legal authority detains another.” The Seventh Circuit held that unlawful restraint constitutes a violent felony. A situation where one person restrains another against his or her will presents a “serious potential risk of physical injury,” whether it be in the initial restraint or the possible resulting confrontation between assailant and victim if the victim attempts to leave. U.S. v. Wallace, 326 F.3d 881 (7th Cir. 2003).
7th Circuit says predicate career offender crimes need not be determined by jury. (540) Defendant, convicted of being a felon in possession of a firearm, was sentenced under 18 U.S.C. § 924(c), the Armed Career Criminal Act, based on prior convictions for three unrelated violent felonies. He argued that Apprendi v. New Jersey, 530 U.S. 466 (2000) required a jury, not the district court, to determine whether the maximum statutory penalty for his offense should be increased from 10 years to life imprisonment based on his criminal history. The Seventh Circuit found this argument foreclosed by case law holding that recidivism to enhance a sentence is a traditional sentencing factor and therefore determined by the court and not by the jury. See, e.g. U.S. v. Morris, 293 F.3d 1010 (7th Cir. 2002); U.S. v. Thomas, 280 F.3d 1149 (7th Cir. 2002); U.S. v. Skidmore, 254 F.3d 635 (7th Cir. 2001). See also U.S. v. Almendarez-Torres, 523 F.3d 224 (1998). U.S. v. Hendricks, 319 F.3d 993 (7th Cir. 2003).
7th Circuit holds that state court opinion sufficient to show conviction was violent felony. (540) The government contended that defendant’s 1975 Indiana conviction for Commission of a Felony While Armed constituted a violent felony under the Armed Career Criminal Act. Because none of the elements of the crime included the use or attempted use of force, and the crime was not a listed offense, it only constituted a violent felony if it qualified under the “otherwise” prong of § 924(e)(2)(B), i.e., it presented a serious potential risk of injury to another. Defendant’s PSR contained only proof that he had been convicted of a Felony While Armed; it did not disclose the nature of the underlying felony. The government presented the Indiana Supreme Court’s opinion in Lenoir v. State, 267 Ind. 212 (1977), which revealed that the underlying felony was armed robbery. Armed robbery always presents the potential for serious injury to another person. Defendant’s only argument was that the lack of information in the PSR prevented the court from considering the nature of the underlying felony as revealed in the Indiana court opinion. Had defendant specifically objected to the inclusion of this conviction, however, the district court could have taken notice of the Indiana Supreme Court’s opinion. Therefore, the Seventh Circuit found this information sufficient to qualify defendant’s 1975 conviction as a “violent felony” under the ACCA. U.S. v. Lenoir, 318 F.3d 725 (7th Cir. 2003).
7th Circuit holds that escape constitutes violent felony. (540) The district court found that defendant had three prior violent felony convictions, including a 1993 Mississippi conviction for escape from a county jail, which made defendant eligible for an armed career criminal enhancement under 18 U.S.C. § 924(e) and USSG § 4B1.4. The statute defines “violent felony” as any felony that either “has as an element the use, attempted use, or threatened use of physical force against the person of another,” or “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” The Seventh Circuit held that because escape involves a “serious potential risk of physical injury to another,” it constitutes a violent felony under § 924(e). This is true even if the underlying facts of conviction establish in hindsight that the risk never actually materialized. U.S. v. Franklin, 302 F.3d 722 (7th Cir. 2002).
7th Circuit holds that defendant committed at least three prior violent felonies. (540) Defendant was sentenced as an armed career criminal based on at least three prior convictions for violent felonies. He conceded that his Indiana conviction qualified as a violent felony, but argued that his Georgia conviction for three counts of robbery by intimidation should not be included because they were not “committed on occasions different from one another.” See 18 U.S.C. § 924(c)(1). In U.S. v. Hudspeth, 42 F.3d 1015 (7th Cir. 1994) (en banc), the court held that when a defendant has committed multiple crimes within a short period of time, the relevant inquiry is whether the crimes were simultaneous or sequential. Crimes committed sequentially, against different victims, at different times and different locations satisfy the requirement that they be “committed on occasions different from one another.” Under this standard, at least two of the three Georgia robberies were on different occasions because they occurred on different dates and involved different victims. When added to the Indiana conviction that defendant did not challenge, the Seventh Circuit ruled that the district court did not err in finding that defendant committed at least three violent felonies on occasions different from one another. U.S. v. Thomas, 280 F.3d 1149 (7th Cir. 2002).
7th Circuit holds that pandering conviction was violent felony under ACCA. (540) The district court refused to sentence defendant under the Armed Career Criminal Act, finding that his felony conviction for violating the Illinois pandering statute, 720 ILCS § 5/11-16, did not constitute a violent felony. The Illinois statute involved described two kinds of panderers, one being someone who merely “arranges” a situation in which a person may practice prostitution, and the other being someone who “compels” a person to become a prostitute. Defendant was charged and convicted under the “compelling” prong of the statute. The district court found that defendant’s pandering-by-compulsion conviction was not a violent felony because “the potential risk of physical injury to another is not always present in this type of offense.” The Seventh Circuit disagreed, and held that the pandering conviction qualified as a violent felony. Forced nonconsensual sex with strangers is “conduct that presents a serious potential risk of physical injury to another” as proscribed under the “otherwise” clause of the ACCA. Pandering by compulsion may not always involve actual force, but it is always a coerced sex offense, tantamount to a form of rape. U.S. v. Brown, 273 F.3d 747 (7th Cir. 2001).
7th Circuit holds that increase for use of a silencer did not violate Apprendi. (540) Defendant was convicted of being a felon in possession of a firearm and was sentenced as an armed career criminal under 18 U.S.C. § 924(e) and USSG § 4B1.4. The district court found that defendant had been in possession of a silencer. Because this silencer was a type of firearm described in 26 U.S.C. § 5845(a)(7), USSG § 4B1.4(b)(3)(A) and (c)(2) required defendant’s base offense level to be set at 34 and his criminal history category to be set at VI. Defendant argued that the increase in his sentence based on the silencer was unconstitutional under the Supreme Court’s decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000) and Castillo v. U.S., 530 U.S. 120 (2000). The Seventh Circuit disagreed. A district court may make various factual determinations under the guidelines so long as such determinations do not exceed the prescribed statutory maximum for that crime. The statutory maximum for defendant’s conviction was life imprisonment. “[W]hen the statutory maximum is life imprisonment, Apprendi is beside the point.” U.S. v. Skidmore, 254 F.3d 635 (7th Cir. 2001).
7th Circuit holds that sentencing as armed career criminal did not violate Apprendi. (540) Defendant argued that, although the crime for which the jury convicted him (being a felon in possession of firearms in violation of 18 U.S.C. § 922(g)(1)) only carried a sentence of up to 10 years, he was, based on three separate violent felony convictions, improperly sentenced under § 924(c)(1), the Armed Career Criminal Act, which carries a maximum penalty of life imprisonment. He asserted that under Apprendi v. New Jersey, 530 U.S. 466 (2000), whether he had been convicted of three separate violent felonies was a fact that should have been presented to the grand jury, tried before the jury, and found beyond a reasonable doubt. The Seventh Circuit disagreed. Under Almendarez-Torres v. U.S., 523 U.S. 224 (1998), recidivism used to enhance a defendant’s maximum penalty is not an element of a crime that must be charged in an indictment and found beyond a reasonable doubt, but a sentencing factor. While the majority opinion in Apprendi noted that “it is arguable that Almendarez-Torres was incorrectly decided,” the Court nonetheless specifically carved out and maintained the exception for “prior convictions” and refused to overrule Almendarez-Torres. U.S. v. Skidmore, 254 F.3d 635 (7th Cir. 2001).
7th Circuit holds that Illinois burglary was a violent felony. (540) Defendant argued that his 1991 Illinois burglary conviction did not qualify as a violent felony because it was the burglary “of a commercial building, after closing, while unoccupied. The Seventh Circuit held that defendant was properly sentenced as an armed career criminal. First, when determining whether a particular crime is a violent felony, the sentencing court’s inquiry is limited to the elements of the previous criminal convictions; the court is not free to look at the underlying facts of a particular case to see if the conduct was, in fact, violent. Second, this court has previously held that an Illinois burglary conviction meets the definition of a generic burglary set forth in Taylor v. United States, 495 U.S. 575 (1990). U.S. v. Simpson, 974 F.2d 845 (7th Cir. 1992). U.S. v. Woods, 233 F.3d 482 (7th Cir. 2000).
7th Circuit rejects ineffective assistance claim where defendant received minimum sentence under ACCA. (540) Defendant argued that he received ineffective assistance of counsel at sentencing. However, defendant received the absolute minimum sentence of 180 months under the Armed Career Criminal Act, 18 U.S.C. § 924(e). As a result, the Seventh Circuit ruled that defendant could not establish prejudice because no matter how well counsel performed, there was no lesser sentence available to defendant under § 924(e). U.S. v. Woods, 233 F.3d 482 (7th Cir. 2000).
7th Circuit says computation of ACCA sentence may include months served on related conviction. (540) Because defendant’s state burglary conviction was “fully taken into account” in the offense level calculation, USSG § 5G1.3(b) required his federal felon in possession sentence under the ACCA, 18 U.S.C. § 924(e), to run concurrently with the state burglary sentence. Further, Note 2 required the court to reduce his 188-month federal sentence by the 34 months he had already served on the undischarged state sentence. Although this appeared to leave defendant’s net 154-month sentence short of the statutorily required 15-year minimum, the Seventh Circuit found no problem. The panel held that the computation of the total term of imprisonment, for purposes of § 924(e), may, consistently with Note 2 to § 5G1.3, be accomplished by adding up the number of months the defendant has served on the related conviction and the number of months assessed in the federal judgment. The statute does not specify any particular way in which the imprisonment should be achieved. U.S. v. Ross, 219 F.3d 592 (7th Cir. 2000).
7th Circuit interprets ACCA’s “in connection with” language the same as firearm guideline. (540) Defendant gave his cousin a quarter pound of marijuana to sell, and told him to hold his gun for him. The cousin later told defendant that he had a friend who wanted to purchase more marijuana. Defendant went to the cousin’s house and demanded the return of his gun. Upon receipt, defendant began to handle the gun. With gun in hand, defendant set the terms for the sale of marijuana. The Seventh Circuit held that defendant possessed the gun “in connection with” a drug offense, warranting a higher offense level under § 4B1.4(b)(3). A weapon is used or possessed “in connection with” an offense under § 2K2.1(b)(5) if the weapon facilitated or served some purpose to the felonious conduct. Where the firearm’s presence was merely coincidental or accidental to the offense, the weapon is not used or possessed “in connection with” the offense. There was no reason to treat the “in connection with” language in § 4B1.4(b)(3) differently from that of § 2K2.1(b)(5). The gun here facilitated defendant’s transfer of marijuana to his cousin. Drug dealers do not bring guns to a deal unless they wish to instill fear in their business associates or they want protection. The accessibility and proximity of defendant’s gun to the two drug transactions showed that the gun was possessed in connection with defendant’s drug dealing. U.S. v. Haynes, 179 F.3d 1045 (7th Cir. 1999).
7th Circuit holds government did not prove statutory rape was a violent felony. (540) Defendant was sentenced as an armed career criminal based on a prior conviction for statutory rape under an Illinois statute that punishes a man who has sexual intercourse with a woman under the age of 17 who is more than five years younger than he. The Seventh Circuit reversed, holding that the government did not prove that statutory rape was a violent felony. Although U.S. v. Shannon, 110 F.3d 382 (7th Cir. 1997) ruled that a second-degree sexual assault of a 13-year old girl was a crime of violence, the opinion avoided holding that all forms of statutory rape are necessarily crimes of violence. Under Shannon, the charging document is (with exceptions immaterial here) the only source of information on which a court can rely in classifying a prior offense. The charging documents here did not specify the ages of victim and defendant– the only facts known were that the victim was older than 13 but not yet 17 and defendant was at least five years older. In addition, although there were indications that defendant was in fact guilty of forcible rape, which is indisputably a crime of violence, this did not appear in the charging documents. The government did not provide any information that would support a conclusion that sex between a 16-year old girl and a 22-year old man poses a potential risk of physical injury to the girl or a potential fetus. A 15-year sentence enhancement should not depend on conjecture. U.S. v. Thomas, 159 F.3d 296 (7th Cir. 1998).
7th Circuit holds Wisconsin attempted burglary is a crime of violence. (540) Defendant pled guilty to being a felon in possession of a firearm. The district court sentenced him as an Armed Career Criminal based on three prior felony convictions, one of which was a 1977 Wisconsin conviction for attempted burglary. The Seventh Circuit followed six other circuits in holding that attempted burglary qualifies as a predicate violent felony for ACCA purposes. In determining whether an offense “otherwise involves conduct that presents a serious potential risk of injury,” the benchmark is the possibility of violent confrontation. The Wisconsin statute requires a defendant to attempt to enter the premises without consent, with intent to take the owner’s property. Previous cases have recognized the inherently dangerous possibility of confrontation that is created when a burglar attempts to illegally enter a building or residence. Wisconsin’s requirement that a defendant attempt to enter a building before he can be convicted of attempted burglary was sufficient to make attempted burglary a violent felony. U.S. v. Collins, 150 F.3d 668 (7th Cir. 1998).
7th Circuit rules military conviction for housebreaking was “violent felony” under ACCA. (540) Defendant was sentenced as an armed career criminal based in part on an earlier military conviction for “housebreaking.” The military conviction was based on defendant’s unlawful nighttime entry into, and theft of items from, a Marine Corps Exchange. The Seventh Circuit held that the court martial conviction for housebreaking was the equivalent of a burglary conviction, and thus was a violent felony under the ACCA. The ACCA does not require an offense to be called “burglary” to be considered burglary. The elements of housebreaking are the same as the elements of generic burglary: (1) the unlawful entry of a building of another with (2) the intent to commit a criminal offense. A military court is a “court” within the meaning of the ACCA. The district court did not violate separation of powers principles when it found that defendant’s prior military conviction for housebreaking was a predicate ACCA conviction. U.S. v. Martinez, 122 F.3d 421 (7th Cir. 997).
7th Circuit examines underlying felony to decide that armed violence conviction was violent felony. (540) Defendant challenged his armed career criminal status, arguing that his Illinois conviction for “armed violence” was not a crime of violence. The Seventh Circuit examined the underlying drug felony and held that the armed violence conviction was a violent felony. A federal court may examine the underlying felony. If it presents a serious potential risk of injury, especially if the offender is armed, then the crime is a violent felony countable under § 924(e). Defendant either possessed cocaine with intent to deliver while armed or actually delivered cocaine while armed. An armed drug dealer “presents a serious potential risk of physical injury to another.” U.S. v. Fife, 81 F.3d 62 (7th Cir. 1996).
7th Circuit says only offense of conviction can be considered in determining crime of violence. (540) Defendant was convicted of being a felon in possession of ammunition. He met the statutory requirements of an armed career criminal under 18 U.S.C. § 924(e). Under § 4B1.4(b)(3), if the armed career criminal used or possessed the firearm or ammunition in connection with a crime of violence, the offense level is 34. Otherwise, the offense level is 33. Defendant argued that under § 4B1.2, being a felon in possession of guns or ammunition is not a crime of violence. The government contended that a court could consider all conduct related to the unlawful possession. The Seventh Circuit held that a court is bound by note 2 to § 4B1.2 to consider only “the conduct of which the defendant was convicted” to determine whether an offense is a crime of violence. Since crime of violence does not include the offense of unlawful possession of a firearm by a felon, defendant must be sentenced at level 33 rather than level 34. U.S. v. Talbott, 78 F.3d 1183 (7th Cir. 1996), abrogated on other grounds by Dixon v. U.S., 126 S.Ct. 2437 (2006).
7th Circuit holds that kidnappings and assault were separate offenses under ACCA. (540) In 1978, defendant abducted two girls at gunpoint, drove them several miles away, and forced them to commit various sexual acts. He pled guilty to two counts of kidnapping and one count of indecent liberties with a child. The Seventh Circuit held that the kidnappings and indecent liberties offense were separate for ACCA purposes. Although the two victims were taken from the same location at the same time, the kidnapping and the subsequent assault occurred at different locations. The kidnappings and sexual assault were not part of a continuing course of conduct. Kidnapping and rape do not inevitably occur together. The two felonies have different elements. There were two kidnap victims and only one assault victim. Moreover, defendant had the opportunity to cease his criminal activity after the kidnapping. The two cities where the kidnappings and assault took place were several miles apart, and defendant could have avoided further criminal activity after the kidnapping. U.S. v. Williams, 68 F.3d 168 (7th Cir. 1995).
7th Circuit rules that burglaries were violent felonies under ACCA. (540) Defendant argued that his three prior burglary convictions did not qualify as violent felonies because he stole very little of value and did not enter the home surreptitiously. Rather, he knocked on the front door to make sure no one was home before entering. The Seventh Circuit held that it was barred from reviewing the underlying facts when considering whether the burglaries were violent felonies. A court may examine the statutory definition of the crime, the charging papers, and the jury instructions to determine whether a crime fits the generic definition of burglary. Two of the three burglary convictions were for the offense of residential burglary, which under Illinois law met the elements of generic burglary. The third conviction was under an Illinois statute having a broader definition because it included entries into vehicles and buildings. The charging paper, however, states that defendant entered a building. Therefore, all of the elements of generic burglary were met. U.S. v. King, 62 F.3d 891 (7th Cir. 1995).
7th Circuit finds defendant had adequate notice of armed career criminal status. (540) Defendant argued that due process required that he receive formal notice before trial that he could be sentenced as an armed career criminal under § 4B1.4. The Seventh Circuit held that defendant received constitutionally adequate notice. First, he received actual notice long before trial, during plea negotiations. One of the reasons defendant refused to plead guilty was the substantially increased penalty he faced as an armed career criminal. Second, the PSR proposed a § 4B1.4 adjustment and specified the prior convictions on which it would be based. Finally, the government filed an additional notice just before actual sentencing formally notifying defendant that he could be sentenced as an armed career criminal. Defendant had ample opportunity to contest the earlier convictions and their applicability to his sentence. U.S. v. Hardy, 52 F.3d 147 (7th Cir. 1995).
7th Circuit says no time limit on prior felonies that can be used for ACCA purposes. (540) Defendant pled guilty to carrying a weapon during a drug trafficking offense, and was sentenced as an armed career criminal based on three prior violent felony convictions in 1968, 1971 and 1982. He challenged the use of the older convictions as predicate armed career criminal felonies. The Seventh Circuit held that there is no time limit on the prior convictions that can be used for ACCA purposes. The statute is clear and unambiguous, and there is no reference to any temporal restriction on the applicable felonies. U.S. v. Wright, 48 F.3d 254 (7th Cir. 1995).
7th Circuit holds that defendant possessed a gun in connection with a narcotic offense. (540) Section 4B1.4(b)(3)(A) provides for an increased offense level for an armed career criminal who uses or possesses a firearm or ammunition in connection with a crime of violence or controlled substance offense. The Seventh Circuit upheld the district court’s finding that defendant possessed a gun in connection with a narcotics offense. At the time of his arrest, defendant was traveling with a companion who possessed 13.2 grams of cocaine. Defendant explained to an investigator that he carried a gun because the cocaine trade was dangerous. He also told police that he made several trips a week to Chicago to purchase cocaine. The quantity of cocaine, 13.2 grams, suggested that the drugs were not for personal use. Finally, defendant’s roommate told an agent before the arrest that defendant and his companion would be leaving the house to purchase drugs. U.S. v. Gilbert, 45 F.3d 1163 (7th Cir. 1995).
7th Circuit holds that five burglaries over three-day period were separate offenses. (540) Defendant was convicted of burglary in 1978. In addition, in two separate trials in 1972, defendant was convicted of burglarizing five school buildings over a three-day period. The Seventh Circuit held that the 1972 burglaries were not one violent felony for purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(e) because they were committed on different occasions, involved different victims, and occurred at distinct locations. Defendant had the opportunity to cease and desist from his criminal activity at any time, but choose to commit additional crimes. U.S. v. Gilbert, 45 F.3d 1163 (7th Cir. 1995).
7th Circuit, en banc, finds three burglaries in 35 minutes of three stores in strip mall were separate crimes. (540) In one 35-minute period, defendant and others burglarized three stores in the same strip-mall. The 7th Circuit, en banc, held that the three burglaries were separates crimes under the Armed Career Criminal Act. This qualified defendant for a minimum 15-year sentence enhancement under 18 U.S.C. § 924(e)(1). Case law upholds the minimum 15-year sentence enhancement for criminals who commit separate crimes against different individuals while on a spree, within a short time period, provided that the perpetrator had the opportunity to cease and desist from his criminal actions at any time. Because defendant’s crimes were committed sequentially, against different victims, at different times, and at different locations, they were crimes “committed on occasions different from one another” as required under the ACCA. U.S. v. Hudspeth, 42 F.3d 1015 (7th Cir. 1994) (en banc).
7th Circuit finds robberies three months apart at different locations were separate crimes. (540) Defendant argued that his 1988 and 1989 armed robberies should be considered one predicate offense under the Armed Career Criminal Act (ACCA). The 7th Circuit held that the two armed robberies were separate offenses under the ACCA since they were committed three months apart at different locations. Separate crimes against separate victims in separate locations are counted as separate crimes under the statute. U.S. v. Patterson, 23 F.3d 1239 (7th Cir. 1994).
7th Circuit holds that Illinois attempted burglary is violent felony under ACCA. (540) Defendant argued that his prior Illinois conviction for attempted burglary was not a violent felony under the Armed Career Criminal Act. The 7th Circuit disagreed, concluding that the crime fell under the “otherwise” clause of § 924(e)(2)(B)(ii) because it involved conduct that presented a serious potential risk of physical injury. Most other circuits are in accord with this view. The two cases cited by defendant involved states where a defendant could be convicted of attempted burglary without being in the vicinity of any building. In Illinois, however, a defendant must come within “dangerous proximity to success” to be convicted under the attempt statute. Thus, under Illinois law, the fact that a defendant does not complete the burglary does not diminish the risk of a violent confrontation between the offender and a potential occupant. U.S. v. Davis, 16 F.3d 212 (7th Cir. 1994).
7th Circuit rejects separate-adjudication requirement for predicate offenses under Armed Career Criminal Act. (540) In a single proceeding, defendant pled guilty to five separate burglary counts. He argued that these convictions should be treated as a single prior conviction for purposes of the Armed Career Criminal Act, which enhances the sentence of defendants with three prior violent felonies. Disagreeing with the 3rd Circuit, the 7th Circuit rejected defendant’s contention that convictions must arise from separate adjudications to count as separate predicate offenses under the Act. Rather, separate convictions should be counted separately if they arise from separate and distinct criminal episodes. U.S. v. White, 997 F.2d 1213 (7th Cir. 1993).
7th Circuit says entry into room constitutes generic burglary under Armed Career Criminal Act. (540) Defendant argued that his prior conviction for burglary could not be considered a “generic burglary” countable as a predicate offense under the Armed Career Criminal Act, 18 U.S.C. §924(e), because he committed his crime in a place which was open to the public. After examining the transcript of the preliminary hearing, the 7th Circuit affirmed the reliance on the burglary. Defendant stole property from a private office in an office building, and he was charged with entering the office with the intent commit a felony. U.S. v. White, 997 F.2d 1213 (7th Cir. 1993).
8th Circuit holds Arkansas first-degree carnal abuse was violent felony. (540) Defendant was sentenced under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). Defendant conceded that had two prior violent felony convictions, but argued that he did not have a third violent felony conviction. The Eighth Circuit disagreed, ruling that his 1988 Arkansas conviction for first-degree carnal abuse qualified as a violent felony. The Arkansas statute, Arkansas Code § 5-14-104 (1988), applies to a defendant 18 or older, who “engages in sexual intercourse or deviate sexual activity” with another person under 14 years old. Under the residual clause of the ACCA, a crime is a violent felony if it “involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). As the court noted in U.S. v. Dawn, 685 F.3d 790 (8th Cir. 2012), “sexual contact between parties of differing physical and emotional maturity carries a substantial risk that physical force may be used in the course of committing the offense.” U.S. v. Howard, __ F.3d __ (8th Cir. June 11, 2014) No. 13-1585.
8th Circuit holds Minnesota conviction for fleeing a police officer in a motor vehicle was violent felony. (540) Defendant was convicted of being a felon in possession of a firearm, and was sentenced under the Armed Career Criminal Act (ACCA) based on a prior Minnesota conviction for fleeing a police officer in a motor vehicle. Based on the Supreme Court’s recent decision in Descamps v. U.S., 570 U.S. __, 133 S.Ct. 2276 (2013), defendant argued that his Minnesota motor vehicle flight convictions were no longer violent felonies under the ACCA. The Eighth Circuit concluded that Descamps did not alter its earlier holding, in U.S. v. Bartel, 698 F.3d 658 (8th Cir. 2012), that fleeing a police officer in a motor vehicle, in violation of Minn. Stat. § 609.487, subd. 3, qualified as a violent felony under the ACCA’s residual clause. Because the Minnesota statute, as relevant to this case, was indivisible and was not one of the enumerated offenses listed in § 924(e)(2)(B)(ii), the panel examined whether “the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another.” Bartel answered yes to this question, and nothing in Descamps changed this answer. Risk of violence is inherent to vehicle flight. See Sykes v. U.S., 564 U.S. __, 131 S.Ct. 2267 (2011). U.S. v. Pate, __ F.3d __ (8th Cir. June 6, 2014) No. 13-1207.
8th Circuit, en banc, says Nebraska escape was not a violent felony. (540) Defendant was sentenced under the Armed Career Criminal Act based on the district court’s finding that his prior Nebraska escape conviction was a violent felony. The Eighth Circuit, on rehearing en banc, reversed, ruling that the elements of the portion of the Nebraska statute under which defendant was convicted did not, in the ordinary case, encompass conduct that presented a serious potential risk of physical injury to another. Accordingly, the offense did not qualify as a violent felony. Under Descamps v. U.S., 133 S.Ct. 2276 (2013), the portion of the Nebraska statute under which defendant was convicted was textually indivisible as between escape from secure custody and escape from non-secure custody. Because this indivisible portion of the statute could be violated under diverse levels of security, some of which presented a serious potential risk of physical injury and others that did not, a conviction under that portion of the statute did not present a serious potential risk of injury. The en banc court overruled U.S. v. Pearson, 553 F.3d 1183 (8th Cir. 2009) and U.S. v. Williams, 664 F.3d 719 (8th Cir. 2011), to the extent they differed from this conclusion. U.S. v. Tucker, 740 F.3d 1177 (8th Cir. 2014) (en banc).
8th Circuit rules Minnesota illegal possession of short-barreled shotgun was violent felony. (540) Defendant pled guilty to being a felon in possession of a firearm, and was sentenced under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), based in part on the district court’s finding that his prior Minnesota conviction for illegal possession of a short-barreled shotgun was a violent felony. The Eighth Circuit affirmed, holding that the Minnesota conviction constituted a violent felony under the residual clause of the ACCA. To fall within the residual clause, the prior offense must present a serious potential risk of physical injury to another and be roughly similar, in kind as well as degree of risk posed, to the offenses listed in § 924(e)(2)(B)(ii). Possession of a short-barreled shotgun is categorically purposeful, violent, and aggressive. “Short shotguns are inherently dangerous because they are not useful ‘except for violent and criminal purposes.'” Possession of a short-barreled shotgun presents a serious potential risk of physical injury to others and is similar, in kind as well as degree of risk posed, to the offenses listed in § 924(e)(2)(B)(ii). U.S. v. Brown, 734 F.3d 824 (8th Cir. 2013).
8th Circuit says Armed Career Criminal can be sentenced to more than 15 years. (540) Defendant was convicted of being a felon in possession of a firearm. He argued that the district court erred in sentencing him to more than 15 years under the Armed Career Criminal Act, 18 U.S.C. § 924(e). Section 924(e) provides armed career criminals “shall be fined under this title and imprisoned not less than fifteen years.” Defendant argued that the italicized language set both the minimum and maximum sentences, and that the rule of lenity required this interpretation. The Eighth Circuit disagreed. Section 924(e) allowed the district court to sentence defendant to more than 15 years. Based on defendant’s advisory guideline range of 210-262 months, the court sentenced him to 210 months. The court did not plainly err. U.S. v. Walker, 720 F.3d 705 (8th Cir. 2013).
8th Circuit holds “wobbler” convictions qualified as felonies under the ACCA. (540) Defendant pled guilty to two separate felon-in-possession charges. He was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e), based on three offenses under California’s assault statutes. Two of the assault offenses could be classified as either misdemeanor or felony convictions, depending on the length of incarceration imposed, i.e., they were so-called “wobbler” offenses. For each wobbler conviction, defendant was sentenced to three years’ probation, with imposition of sentence suspended, on condition of 365 days in the county jail. Defendant argued that these offenses became misdemeanors under California law when the state court imposed a sentence other than incarceration in a state prison. The Eighth Circuit held that both wobbler offenses were in fact felonies, and thus defendant was properly sentenced under the ACCA. Under California law, where the offense is alternatively a felony or misdemeanor, it is regarded as a felony for every purpose until judgment. Neither conviction resulted in a judgment. An order granting probation is not a judgment. Additionally, neither court declared the assault convictions to be misdemeanors. U.S. v. Adams, 716 F.3d 1066 (8th Cir. 2013).
8th Circuit says second-degree domestic assault was violent felony under ACCA. (540) Defendant was convicted of being a felon in possession of a firearm, and was sentenced under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), to 188 months. He argued that his prior Missouri conviction for second-degree domestic assault was not a predicate offense under the ACCA. The Eighth Circuit disagreed. Defendant’s conviction arose under Mo.Rev.Stat. § 565.073.1(1) (“Attempts to cause or knowingly causes physical injury”), not Mo.Rev.Stat. § 565.073.1(2)-(3) (“Recklessly causes … physical injury”). Although the judgment from the domestic assault conviction did not indicate which subsection of 565.073 he violated, the PSR stated that according to the charging document “defendant knowingly caused physical injury.” The only subsection of the Missouri statute that criminalizes knowing conduct is subsection 565.073.1(1), a violent felony under the ACCA. Defendant did not object to the PSR’s description of the domestic assault conviction. Thus, the PSR’s description, based on the charging documents, was sufficient to classify the conviction as a violent felony. U.S. v. Montgomery, 701 F.3d 1218 (8th Cir. 2012).
8th Circuit rules Minnesota flight from police in a motor vehicle is a violent felony. (540) Defendant pled guilty to being a felon in possession of a firearm. Based on the district court’s ruling that defendant’s four prior Minnesota convictions for fleeing police in a motor vehicle constituted violent felonies, the court sentenced him to 15 years under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The Eighth Circuit upheld the district court’s finding that the Minnesota convictions were violent felonies. In Sykes v. U.S., 131 S.Ct. 2267 (2011), the Supreme Court held that a violation of a similar Indiana statute was categorically a violent felony under the ACCA. When a “perpetrator defies a law enforcement command by fleeing in a car, the determination to elude capture makes a lack of concern for the safety of property and persons of pedestrians and other drivers an inherent part of the offense.” This risk of violence is inherent to vehicle flight, even if the criminal does not drive at full speed or the wrong way. Only crimes akin to strict-liability, negligence, and recklessness require the “purposeful, violent, and aggressive formulation.” U.S. v. Bartel, 698 F.3d 658 (8th Cir. 2012).
8th Circuit finds defendant who dropped drugs before arrest possessed firearm in connection with drug offense. (540) Defendant was convicted of being a felon in possession of a firearm. He was sentenced as an Armed Career Criminal, and he argued that the district court erred in finding that he used or possessed the firearm in connection with a controlled substance offense under § 4B1.4(b)(3). The Eighth Circuit disagreed, finding the circumstances of his arrest provided ample evidence that he possessed the firearm in connection with a controlled substance offense. He had a firearm, a digital scale, and drugs. He also dropped 109.95 grams of marijuana when he fled from police—an amount sufficient to conclude that he possessed the marijuana with intent to distribute. U.S. v. Mabery, 686 F.3d 591 (8th Cir. July 26, 2012).
8th Circuit holds that prior conviction for unlawful possession of short shotgun qualified as violent felony. (540) Defendant moved under 18 U.S.C. § 2255 to vacate his sentence under the Armed Career Criminal Act, arguing that his conviction for unlawful possession of a short shotgun did not qualify as a violent felony. The district court denied the motion, finding that possession of a short shotgun was “roughly similar, in kind as well as degree of risk posed” to the listed offenses. The Eighth Circuit affirmed. The Nebraska offense was not a crime of strict liability. Nebraska law required “willful, intentional, and knowing” possession of a short shotgun. Possession of a short shotgun in Nebraska categorically presents a degree of risk roughly similar to the listed offenses. Short shotguns are inherently dangerous because they are not useful “except for violent and criminal purposes.” U.S. v. Lillard, 685 F.3d 773 (8th Cir. 2012).
8th Circuit upholds finding that defendant possessed gun in connection with meth offense. (540) Defendant pled guilty to attempted manufacture of methamphetamine, being a felon in possession of a firearm, and attempted escape. The district court applied an offense level of 34 under § 4B1.4(b)(3), which applies to armed career criminals who “used or possessed the firearm or ammunition in connection with … a controlled substance offense.” Defendant contended that he carried materials sufficient only to manufacture a “small personal use amount of methamphetamine,” and that the district court should therefore have held the government to a higher standard of proof for showing the gun was used in connection with the controlled substance offense. The Eighth Circuit upheld the application of a base offense level of 34. Even assuming that defendant possessed the meth manufacturing materials solely for his personal use, the district court did not err in determining the firearm was connected to the drug offense. Defendant chose to carry his illegal drugs into the public while possessing a firearm, and it was not clearly improbable that the weapon was connected with the offense. Further, the district court actually applied the higher evidentiary standard for which defendant argued, finding that the gun facilitated the controlled substance offense. U.S. v. Moore, 683 F.3d 927 (8th Cir. 2012).
8th Circuit holds prior conviction for offering to sell drugs was “serious drug offense” under ACCA. (540) Defendant was convicted of being a felon in possession of a firearm. The district court agreed with defendant that his prior Minnesota drug convictions did not qualify as predicate offenses under the ACCA, 18 U.S.C. § 924(e), since both drug convictions could have been based merely on an offer to sell a controlled substance. Thus, it found that he did not qualify as an armed career criminal. On appeal, the Eighth Circuit reversed, holding that knowingly offering to sell drugs categorically “involves” distribution of a controlled substance, and thus constitutes a “serious drug offense” under the ACCA. Unlike the sentencing guidelines, 18 U.S.C. § 924(e)(2)(A)(ii) uses the term “involving,” an expansive term that requires only that the conviction be “related to or connected with” drug manufacture, distribution, or possession, as opposed to including those acts as an element of the offense. Knowingly offering to sell drugs is sufficiently “related to or connected with” drug distribution within the meaning of the ACCA because those who knowingly offer to sell drugs “intentionally enter the highly dangerous drug distribution world.” U.S. v. Bynum, 669 F. 3d 880 (8th Cir. 2012).
8th Circuit says prior Missouri convictions for resisting arrest by fleeing from police were violent felonies. (540) The district court sentenced defendant as an armed career criminal based in part on his three prior convictions for resisting arrest, in violation of Mo.Rev.Stat. § 575.150(5). The Eighth Circuit found defendant’s challenge to the armed career criminal designation foreclosed by Sykes v. U.S., 131 S.Ct. 2267 (2011). Sykes held that a driver of a vehicle who knowingly flees from a law enforcement officer commits a violent felony, even if the statute, as here, does not have a mens rea requirement related to the risk of injury. In fact, the Missouri statute under which defendant was convicted required proof that defendant’s flight created a substantial risk of serious physical injury or death to any person, so it more easily qualified as a violent felony than did the statute in Sykes. U.S. v. Dunning, 666 F.3d 1158 (8th Cir. 2012).
8th Circuit rules Indiana felony child molestation convictions were violent felonies. (540) Defendant was sentenced as an Armed Career Criminal, under 18 U.S.C. § 924(e)(1), based in part on the district court’s finding that his Indiana felony child molestation convictions were violent felonies. The Eighth Circuit affirmed, ruling that the felony child molestation convictions were categorically violent felonies under the ACCA. The crimes did not have physical force as an element of the crime, and were not equivalent to the enumerated crimes in § 924(e)(2)(B)(ii). However, they did qualify as violent felonies under the residual clause, i.e. they “otherwise involved conduct that presents a serious potential risk of physical injury to another.” Child molestation under the Indiana statute involved sexual contact between parties of differing maturities, and it presented a serious potential risk that the molester will use physical force on the child. It was categorically similar in risk to the crimes listed in the ACCA’s residual clause. U.S. v. Scudder, 648 F.3d 630 (8th Cir. 2011).
8th Circuit holds that Missouri domestic assault conviction was violent felony under ACCA. (540) Defendant pled guilty to being a felon in possession of a firearm, and was sentenced as an armed career criminal under 18 U.S.C. § 924(e) to 180 months. The court found that defendant’s prior domestic assault conviction, under Mo.Rev.Stat. § 565.073, qualified as a violent felony and was a predicate offense under the ACCA. The Eighth Circuit affirmed, rejecting defendant’s argument that the domestic assault was not a predicate violent felony because defendant only served probation. As the word “punishable” makes clear, the focus of the ACCA definition is on the prison sentence that may be imposed under state law, regardless of the actual sentence imposed. U.S. v. Keith, 638 F.3d 851 (8th Cir. 2011).
8th Circuit finds drug sales on different days were separate offenses under ACCA. (540) Defendant pled guilty to being a felon in possession of a firearm, and was sentenced as an armed career criminal based in part on two state drug convictions. In 1999, defendant was found guilty and sentenced based on conduct involving controlled substances that occurred on two dates – on or about September 16, 1997, and on or about September 25, 1997. Defendant argued that these drug convictions were one predicate offense because they were similar in kind, occurred less than a week apart, and were charged in the same document. However, the similarity of the offenses and their temporal proximity were not legally relevant in determining whether they were separate convictions under the ACCA. The Eighth Circuit ruled that defendant’s drug convictions were two separate predicate offenses under the ACCA. Convictions for separate drug transactions on separate days are multiple ACCA predicate offenses, even if the transactions were sales to the same victim or informant. U.S. v. Keith, 638 F.3d 851 (8th Cir. 2011).
8th Circuit says Shepard did not bar court from considering prior PSR to prove prior conviction (540). To show that defendant had been convicted in 1988 of burglary in Maryland, for purposes of proving that defendant qualified as an armed career criminal, the government offered a PSR prepared after a 1999 drug conviction. The 1999 PSR stated that in 1988 defendant was found guilty of burglary in Maryland. Citing Shepard v. U.S., 544 U.S. 13 (2005), the district court held that the case history and 1999 PSR could not be considered to show defendant was convicted of burglary in 1988. The Eighth Circuit disagreed. Shepard’s limitation of evidence is addressed only to those situations where a later court is determining the character of the prior conviction. The limitation does not apply to antecedent factual questions such as whether the defendant was convicted of a crime at all, or of which crime the defendant was convicted. Moreover, it was unnecessary to decide which subsection of the statute defendant was convicted of violating, because all convictions under the statute were violent felonies. U.S. v. Webster, 636 F.3d 916 (8th Cir. 2011).
8th Circuit rules Minnesota extended juvenile adjudication for criminal sexual conduct was violent felony. (540) Defendant was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e), based in part on the district court’s finding that his prior adjudication for First Degree Criminal Sexual Conduct under Minnesota’s Extended Juvenile Jurisdiction (EJJ) was a violent felony. Under the EJJ, the court imposes an adult criminal sentence, the execution of which is stayed on the condition that the offender not violate the disposition order or commit a new offense. The Minnesota courts have ruled that an EJJ adjudication is a conviction. The Eighth Circuit held that defendant’s EJJ adjudication was an adult conviction of a violent felony, and thus was a predicate offense under the ACCA. U.S. v. Nash, 627 F.3d 693 (8th Cir. 2010).
8th Circuit finds three burglaries on different dates and locations were three separate convictions. (540) Defendant admitted that he had three or more burglary convictions, but contended that they were part of a criminal spree, and should not qualify as three separate violent felony convictions under the Armed Career Criminal Act. However, the burglaries spanned a one-year period, occurred on different dates, related to different victims, and were committed at different locations. Therefore, these offenses occurred on different occasions, and the Eighth Circuit ruled that the district court did not err in finding that defendant had been convicted of three prior violent felonies. He was correctly sentenced as an armed career criminal. U.S. v. Daniels, 625 F.3d 529 (8th Cir. 2010).
8th Circuit holds that Illinois conviction for felony escape was violent felony. (540) The district court sentenced defendant as an armed career criminal under § 4B1.4 and 18 U.S.C. § 924(e) based on its finding that his state felony escape conviction under 720 Ill. Comp. Stat. § 5/31-6 was a violent felony. The information and the judgment referred generally to the statute, which describes several types of escape. However, the Illinois escape statute separates the prohibited behavior into “discrete subparts,” making it easy for a court to distinguish between the statute’s covered offenses. Both the informaion and the relevant judgment identified defendant’s crime as a class 2 felony. Each of the class 2 felonies that appear in § 5/31-6 constitute an escape from custody. Because the court has held that all escapes from custody are violent felonies, the Eighth Circuit held that defendant’s escape offense was a violent felony. U.S. v. Lee, 625 F.3d 1030 (8th Cir. 2010).
8th Circuit holds Colorado robbery is violent felony. (540) Defendant argued that his 1988 Colorado robbery conviction was not a violent felony because “an infinite number of factual scenarios could be contemplated” that would violate this statute. The statute applies to a person who “knowingly takes anything of value from the person or presence of another by the use of force, threats, or intimidation.” The Eighth Circuit held that the conviction qualified as a violent felony. The Colorado Supreme Court has consistently held that “the gravamen of the offense of robbery is the violent nature of the taking.” Moreover, an unpublished Tenth Circuit case has held that this Colorado robbery offense is a crime of violence under the comparable Guidelines provision because the statute requires “the use of force, threat or intimidation, which all involve an element of violence. The panel agreed and concluded that the robbery offense was a violent felony under § 924(e)(2)(B)(i). Therefore, it did not consider whether the offense also qualified as a violent felon under the “otherwise involves” clause in 924(e)(2)(B)(ii). U.S. v. Forrest, 611F.3d 908 (8th Cir. 2010).
8th Circuit says documents showed Kansas attempted burglary conviction was violent felony. (540) Defendant argued that the district court erred in concluding that his 2004 Kansas conviction for attempted burglary was a violent felony conviction. The Kansas burglary statute includes unlawfully entering into a motor vehicle, and is therefore broader than generic burglary. Defendant argued that the government failed to prove the violent felony because his change of plea journal entry and the judgment did not specify which subsection of § 21-3715 he violated. The Eighth Circuit rejected the argument and upheld the court’s finding that the attempted burglary conviction was a violent felony. Count I of the Information charged defendant with burglary of a building. The change of plea journal entry recited that defendant pled guilty to the amended charge, attempted burglary, with full restitution to the victim identified in Count I. The judgment listed the offense and other pertinent information that corresponded to the Information and the change of plea journal entry. In these circumstances, the district court did not clearly err in finding that the description of the premises allegedly burgled in the Information described the premises defendant later pled guilty to attempting to burgle. Therefore, under the “otherwise involves” clause of § 924(e)(2)(B)(ii), this was a violent felony. U.S. v. Forrest, 611F.3d 908 (8th Cir. 2010).
8th Circuit holds says Colorado conviction for felony menacing was violent felony. (540) Defendant was sentenced under the Armed Career Criminal Act based in part on the district court’s classification of his prior Colorado conviction for felony menacing as a violent felony. At the time, the Colorado statute applied to a person who by threat or physical action, knowingly places another in fear of imminent serious bodily injury. If committed by use of a deadly weapon, the offense is a class 5 felony. Following the Tenth Circuit’s decision in U.S. v. Herron, 432 F.3d 1127 (10th Cir. 2005), the Eighth Circuit agreed that the elements of the Colorado felony offense “in the ordinary case” easily satisfied the requirements of “the threatened use of physical force against the person of another” in § 924(e)(2)(B)(i). U.S. v. Forrest, 611F.3d 908 (8th Cir. 2010).
8th Circuit says defendant may not collaterally challenge validity of predicate ACCA convictions. (540) Defendant was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He argued that the district court erred in sentencing him under the Armed Career Criminal Act, 18 U.S.C. § 924(e). He admitted that he sustained convictions for three prior violent felonies, but he collaterally attacked two of them, arguing that his guilty pleas did not comply with constitutional safeguards. However, a defendant may not collaterally attack prior convictions used to enhance a sentence under the ACCA unless he was denied the right to counsel. See Custis v. U.S., 511 U.S. 485 (1994). Certified documents concerning each of the prior convictions showed that defendant was represented by counsel in each case. Therefore, the Eighth Circuit ruled that the district court did not err in finding that defendant qualified for an enhanced sentence under the ACCA. The 188-month sentence was not unreasonable. It fell at the bottom of the advisory guideline range, and was presumptively reasonable. U.S. v. Greer, 607 F.3d 559 (8th Cir. 2010).
8th Circuit says defendant lacked standing to challenge statutory minimum where court sentenced him to higher sentence based on § 3553(a) factors. (540) Defendant was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He argued that he should not have been subject to the 15-year statutory minimum under the Armed Career Criminal Act, 18 U.S.C. § 924(e). The Eighth Circuit held that he lacked standing to challenge the applicability of the statutory minimum. The court elected to sentence defendant to a term of 188 months based on 18 U.S.C. § 3553(A). The court’s sentencing decision was not constrained by the 180-month statutory minimum. U.S. v. Greer, 607 F.3d 559 (8th Cir. 2010).
8th Circuit holds that Minnesota conviction for fleeing from police was not a violent felony. (540) Defendant argued that he should not have been sentenced under § 924(e), the Armed Career Criminal Act, because one of his prior convictions—fleeing a police officer in a motor vehicle—should not be considered a violent felony after Begay v. U.S., 553 U.S. 137 (2008). The Eighth Circuit agreed. During the pendency of defendant’s appeal, it decided U.S. v. Tyler, 580 F.3d 722 (8th Cir. 2010), which held that Minnesota’s crime of fleeing a peace officer in a motor vehicle does not constitute a crime of violence under the Sentencing Guidelines. Although Tyler involved U.S.S.G. § 4B1.1, and not the ACCA, it was dispositive. Defendant was convicted under the same Minnesota statute as the defendant in Tyler. Defendant’s conviction for fleeing a police officer in a motor vehicle was not a violent felony under the ACCA. U.S. v. Johnson, 601 F.3d 869 (8th Cir. 2010).
8th Circuit finds court impermissibly considered sentencing factors in substantial assistance departure. (540) Defendant was subject to a mandatory minimum sentence of 180 months as an armed career criminal under 18 U.S.C. § 924(e). At sentencing, the government moved for a 15 percent downward departure for substantial assistance. The district court granted the motion, but departed downward by 40 percent, and sentenced defendant to concurrent 108-month sentences. The government argued that the district court improperly considered the 18 U.S.C. § 3553(a) sentencing factors in departing below the statutory minimum. The Eighth Circuit agreed and reversed. The sentencing transcript showed that the district court impermissibly considered the 18 U.S.C. § 3553(a) factors, rather than relying exclusively on assistance-related factors, in arriving at a sentence 72 months below the statutory minimum. U.S. v. Madison, 584 F.3d 412 (8th Cir. 2009).
8th Circuit says assault on correctional officer was “categorically” a violent felony. (540) The district court sentenced defendant under the Armed Career Criminal Act based in part on his prior conviction for aiding and abetting assault in the fourth degree, in violation of Minnesota law. Defendant conceded that the conduct proscribed by the Minnesota statute fell squarely within the violent felony definition as an offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” However, he contended that the transcript of the 1995 hearing in which he entered an “Alford” guilty plea demonstrated that he did not admit to using or attempting to use physical force against a correctional officer, and therefore his conviction was not a violent felony. The Eighth Circuit disagreed. The Minnesota statute prohibited only one kind of behavior, an assault of a correctional officer engaged in the performance of his duties that inflicted demonstrable bodily harm. Since it was a single crime, the elements of which fall within the definition of a violent felony, all convictions for violating the statute are predicate violent felonies under the categorical approach. U.S. v. Salean, 583 F.3d 1059 (8th Cir. 2009).
8th Circuit says third-degree burglary was crime of violence under ACCA. (540) Defendant was sentenced as a career offender based in part on the court’s finding that his third-degree South Dakota burglary conviction was a crime of violence. The Eighth Circuit held that its prior decisions classifying generic burglaries of structures other than dwellings as crimes of violence under the “otherwise involves” provision of § 4B1.2(a)(2) were not implicitly overruled by Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008). Defendant’s third-degree burglary of an unoccupied structure was a generic burglary under Taylor v. U.S., 495 U.S. 575 (1990). The burglary offense was not only “roughly similar, in kind” to generic burglary, it was generic burglary, and therefore would be an enumerated offense under § 4B1.2(a) but for the Commission’s arbitrary requiring that the burglary be “of a dwelling.” Even if that limitation compelled analysis under the “otherwise involves” residual provision, nothing in Begay suggested that an offense this similar to an enumerated offense would be classified differently than attempted burglary, which the Supreme Court in James v. U.S., 550 U.S. 192 (2007) found to be a crime of violence. U.S. v. Stymiest, 581 F.3d 759 (8th Cir. 2009).
8th Circuit agrees that possession of sawed-off shotgun was violent felony. (540) The district court sentenced defendant under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), based in part on defendant’s 1994 conviction for possession of a sawed-off shotgun, under Ark. Code. Ann. § 5-71-104. The Eighth Circuit affirmed, holding that possession of a sawed off shotgun, in violation of Arkansas law, was a violent felony. Possession of a sawed-off shotgun clearly presents a serious potential risk of physical injury to another. The state statute only applies to a weapon that “will inflict serious injury to death.” Sawed-off shotguns “are inherently dangerous and lack usefulness except for violent and criminal purposes.” Second, possession of a sawed-off shotgun is roughly similar, in kind as well as degree of risk posed, to the offenses listed in § 924(e) – burglary, arson, extortion, and the use of explosives. Like the listed crimes, possession of a sawed-off shotgun is illegal precisely because it enables violence or the threat of violence. U.S. v. Vincent, 575 F.3d 820 (8th Cir. 2009).
8th Circuit takes judicial notice of indictment to find domestic assault was violent felony. (540) The district court sentenced defendant under the Armed Career Criminal Act based in part on its finding that his felony second-degree domestic assault convictions, in violation of Missouri law, qualified as violent felonies. He argued that after Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), crimes with a mens rea of recklessness cannot constitute a violent felony. The Eighth Circuit found it unnecessary to decide this issue. The government proffered the charging documents underlying defendant’s domestic assault convictions at sentencing, but the documents were not admitted because defendant conceded that his Missouri domestic assault second-degree conviction was a violent felony. The panel found it appropriate to take judicial notice of the indictment, on the unique facts of this case. The indictment demonstrated that defendant’s prior domestic assault convictions involved choking. Choking poses a substantial risk of injury and typically involves conduct that is purposeful, violent and aggressive. U.S. v. Jones, 574 F.3d 546 (8th Cir. 2009).
8th Circuit counts robberies committed when defendant was 15 for ACCA purposes. (540) Defendant challenged the use of his robbery convictions, committed when he was a juvenile and unarmed, to increase his sentence under the Armed Career Criminal Act. Citing Roper v. Simmons, 543 U.S. 551 (2005), he argued that applying the ACCA to his sentence violated the Eighth Amendment because it was based on crimes that he committed as a juvenile. Roper held that executing a person for conduct that occurred before the offender was 18 violated the Eighth Amendment, but it permitted imposing a sentence of life imprisonment based on conduct that occurred when the offender was a juvenile. The Eighth Circuit held that the Eighth Amendment does not prohibit using an adult conviction based on juvenile conduct to increase a sentence under the ACCA. Roper does not deal, even tangentially, with sentence enhancement. U.S. v. Jones, 574 F.3d 546 (8th Cir. 2009).
8th Circuit holds that prior drug offenses were separate convictions for ACCA purposes. (540) In 2001, defendant was convicted of two counts of drug-trafficking in Kentucky. The two counts were charged in the same indictment and arose out of sales of crack cocaine to the same police informant three days apart. He later pled guilty to being a felon in possession of a firearm. Based on the Kentucky drug convictions and an aggravated assault conviction, the district court found that defendant had three previous violent felony or serious drug offense convictions, and sentenced him under the Armed Career Criminal Act, 18 U.S.C. §924(e). The Eighth Circuit affirmed, agreeing that the Kentucky drug offenses constituted separate convictions under the ACCA. Convictions for separate drug transactions on separate days are multiple ACCA predicate offenses, even if the transactions were sales to the same victim or informant. U.S. v. Ross, 569 F.3d 821 (8th Cir. 2009).
8th Circuit affirms that child abuse is a violent felony. (540) Defendant was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e), based in part on the district court’s finding that his Missouri conviction for child abuse qualified as a violent felony. The Eighth Circuit affirmed. First, the crime of child abuse under Mo.Rev.Stat. § 568.060 ordinarily poses a similar degree or risk of physical injury as the enumerated crimes because the child abuse offender must inflict cruel and inhuman punishment upon a child. Although the “cruel and inhuman punishment” element in § 568.060 does not necessarily require physical injury, in the ordinary case the infliction of cruel and inhuman punishment results in physical injury. Second, child abuse under § 568.060 typically involves “purposeful, violent, and aggressive conduct.” The offense satisfied the purposeful conduct requirement in Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008) based on the offense’s mens rea of knowingly inflicting cruel and inhumane punishment. U.S. v. Wilson, 568 F.3d 670 (8th Cir. 2009).
8th Circuit holds that child endangerment was not crime of violence. (540) Defendant pled guilty to being a felon and domestic abuse misdemeanant in possession of a firearm. The district court found that his prior Missouri felony conviction for endangering the welfare of a child in the first degree qualified as a crime of violence under § 2K2.1(a)(4). The Eighth Circuit reversed. Another Eighth Circuit case recently held that endangering the welfare of a child in violation of Missouri law was not a “violent felony” under the Armed Career Criminal Act. U.S. v. Gordon, 557 F.3d 623 (8th Cir. 2009). The court has also held that the definition of crime of violence in § 4B1.2(a) is nearly identical to the definition of violent felony in 18 U.S.C. § 924(e)(2)(B), and therefore treats the two as interchangeable. U.S. v. Clinkscale, 559 F.3d 815 (8th Cir. 2009). Because Missouri’s felony offense of endangering the welfare of a child in the first degree did not qualify as a violent felony under the ACCA, it also did not constitute a crime of violence under the Sentencing Guidelines. U.S. v. Wilson, 562 F.3d 965 (8th Cir. 2009).
8th Circuit says motor vehicle theft was not a violent felony, but making terroristic threat was crime of violence. (540) The district court sentenced defendant under the ACCA based on his prior Minnesota convictions for motor vehicle theft and for making terroristic threats. At the time, existing caselaw established that motor vehicle theft was, categorically, a violent felony under § 924(e)(2)(B). However, that caselaw was no longer good law in light of the Supreme Court’s recent decision in Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008). Because defendant’s motor vehicle theft conviction was not a violent felony, the Eighth Circuit reversed. At resentencing, the issue will be whether defendant is subject to an enhanced offense level under § 2K2.1(a) for at least two prior felony convictions for a “crime of violence.” The panel held that defendant’s Minnesota convictions for terroristic threats qualified as violent felonies under the ACCA, and thus were crimes of violence. Although the offense can be a misdemeanor under state law in certain circumstances, the “violent felony” determination is based on the sentence that may be imposed under state law, not the state’s designation of the offense as a felony or a misdemeanor. U.S. v. Clinkscale, 559 F.3d 815 (8th Cir. 2009).
8th Circuit remands to decide if defendant had prior Arizona conviction for exhibiting deadly weapon. (540) In order for defendant to be sentenced as an armed career criminal, his 1974 Arizona conviction for exhibiting a deadly weapon other than in self-defense would have to count as a prior conviction for a violent felony. The Eighth Circuit agreed that if the government had adequately proven that the conviction involved defendant, it would clearly qualify as a violent felony. The offense included as an element the exhibition of a deadly weapon “in a threatening manner” or use of such a weapon “in a fight or quarrel.” However, the only documents connecting defendant to the 1974 conviction contained no identifying information other than a name. Prior cases have implied that a name alone may be insufficient to prove a prior conviction at sentencing. The panel remanded so that the district court could determine in the first instance whether defendant was the same person who had the prior Arizona conviction for exhibiting a deadly weapon. On remand, the government could present additional evidence to support its case. U.S. v. Boaz, 558 F.3d 800 (8th Cir. 2009).
8th Circuit holds ACCA increase not so extreme as to require higher evidentiary standard of proof. (540) Defendant was convicted of being a felon in possession of a firearm. The district court found that defendant had four prior convictions for violent felonies, and was subject to the enhanced sentencing provisions of the Armed Career Criminal Act, 18 U.S.C. § 924(e). His guideline range before applying the ACCA enhancements was 41-51 months; after applying the enhancements, his guideline range was 188-235 months. Defendant argued that because of the large sentence increase, due process required the three predicate violent felonies to be proven by an evidentiary standard higher than a preponderance of the evidence. The Eighth Circuit found that the case was not so “extreme” that due process required the higher standard of proof. U.S. v. Boaz, 558 F.3d 800 (8th Cir. 2009).
8th Circuit holds Arizona auto theft conspiracy was not a violent felony. (540) Defendant was sentenced under the Armed Career Criminal Act based in part on the district court’s finding that his prior Arizona conviction for conspiring to commit auto theft was a “violent felony.” The Eighth Circuit reversed, holding that the auto theft conspiracy was not a predicate violent felony. Here, the state statute encompassed a broad range of conduct, some of which was violent and similar in kind to the enumerated offenses in § 924(e)(2)(B)(ii), and some of which was not. The statute does not contain subdivisions or further delineations setting forth separate elements for proving different types of felony auto theft. As a result, this statute was not amenable to the modified categorical approach. The court found that the statute was analogous to the offense of “auto theft without consent,” which the court in U.S. v. Williams, 537 F.3d 969 (8th Cir. 2008) ruled was not a violent felony. U.S. v. Boaz, 558 F.3d 800 (8th Cir. 2009).
8th Circuit holds that endangering the welfare of a child is not violent felony. (540) The district court sentenced defendant under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), based in part on its finding that defendant’s Missouri conviction for endangering the welfare of a child was a violent felony. Based on Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), the Eighth Circuit reversed, holding that child endangerment did not qualify as a violent felony within the meaning of the ACCA’s so-called “otherwise clause.” Begay clarified that the “otherwise” clause does not cover every potentially dangerous prior offense, but only those crimes “roughly similar, in kind as well as in degree of risk posed, to the examples themselves.” Such crimes typically involve “purposeful, violent, and aggressive conduct.” Child endangerment was not similar in kind to burglary, arson, extortion or offenses involving the use of explosives because it does not typically involve violent and aggressive conduct. This subsection is routinely applied to very passive behavior, such as leaving a child alone in a dangerous situation. U.S. v. Gordon, 557 F.3d 623 (8th Cir. 2009).
8th Circuit requires modified categorical approach to determine if escape was crime of violence. (540) Defendant was sentenced as a career offender based on the district court’s finding that his conviction for escape, in violation of 18 U.S.C. § 751(a), was a crime of violence. Under circuit precedent, all escape convictions are “crimes of violence” under the “otherwise” clause of § 4B1.2. After oral argument the Supreme Court in Chambers v. U.S., 555 U.S. 122, 129 S.Ct. 687 (2009), held that crimes “characterized by a failure to present oneself for detention on a specified occasion” are not violent felonies under the ACCA. Chambers distinguished between escapes from custody and the failure to return or report to custody. Section 751(a) is over-inclusive because it includes conduct that does not trigger the career offender enhancement. The Eighth Circuit remanded for the district court to apply a modified categorical approach to determine whether the escape was a crime of violence. Under this approach, a court may refer to the charging document, the terms of a plea agreement, jury instructions, or comparable judicial records to determine whether the earlier offense was a crime of violence. U.S. v. Pearson, 553 F.3d 1183 (8th Cir. 2009).
8th Circuit rules “knowingly burning or exploding” is violent felony under ACCA. (540) Defendant was sentenced to the 15-year mandatory minimum sentence under the Armed Career Criminal Act, 18 U.S.C. §924(e), based on the district court’s finding that his Missouri conviction for “knowingly burning or exploding” was a violent felony. The Eighth Circuit affirmed. The panel agreed that the Missouri offense constitutes “arson” within the meaning of §924(e). The generic offense of arson, for purposes of the sentencing enhancement in §924(c), has as elements the malicious burning of real or personal property of another. Under Missouri law, a person commits the crime of knowingly burning or exploding when he knowingly damages property of another by starting a fire or causing an explosion. These elements of the Missouri offense substantially correspond to those of generic arson. U.S. v. Whaley, 552 F.3d 904 (8th Cir. 2009).
8th Circuit says auto theft was not violent felony under ACCA. (540) Defendant was sentenced under the Armed Career Criminal Act based on the district court’s finding that his prior Minnesota convictions for auto theft and temporary auto theft were violent felonies. The Eighth Circuit reversed. In U.S. v. Aleman, 548 F.3d 1158 (8th Cir. 2008), the court held that Minnesota’s auto theft statute was not a crime of violence under the Guidelines, so the panel was constrained to hold that it was not a violent felony under the ACCA. The panel further held that a conviction under Minnesota’s temporary auto theft statute was not a violent felony under the ACCA because it involves the same offense conduct as auto theft, but “does not require that the offender intend to permanently deprive the owner of the vehicle.” The error in sentencing defendant under the ACCA was not harmless. U.S. v. Walker, 555 F.3d 716 (8th Cir. 2009).
8th Circuit rules that aiding and abetting aggravated robbery is crime of violence. (540) Defendant pled guilty to being a felon in possession of a firearm. He received an enhanced offense level under §2K2.1(a)(4)(A) based on the court’s finding that his previous conviction for aiding and abetting a felon in the commission of an aggravated robbery was a crime of violence. An aider and abettor is guilty of the underlying offense, so the Eighth Circuit examined the conviction as if it were for aggravated robbery. The conviction had as an element the use, attempted use, or threatened use of physical force against the person of another. Therefore, the conviction qualified as a crime of violence under §4B1.2(a)(1), and the court found it unnecessary to consider the “otherwise” clause in §4B1.2(a)(2). The Supreme Court’s recent decision in Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), was inapplicable, since Begay dealt with the “otherwise” provision. U.S. v. Brown, 550 F.3d 724 (8th Cir. 2008).
8th Circuit rules taking and driving a vehicle without consent is not a violent felony. (540) Defendant was sentenced as an armed career criminal based on his prior Wisconsin felony conviction for taking and driving a vehicle without consent and several Virginia felony convictions for grant larceny auto. Based on U.S. v. Williams, 537 F.3d 969 (8th Cir. 2008), the Eighth Circuit held that defendant’s Wisconsin conviction for taking and driving a vehicle without consent was not a violent felony under the ACCA. In addition, there was insufficient evidence in the record to determine which offense defendant committed under the Virginia grand larceny statute. The panel vacated the sentence and remanded for resentencing. U.S. v. Rush, 551 F.3d 749 (8th Cir. 2008).
8th Circuit rules Minnesota auto theft was not crime of violence. (540) Defendant was sentenced as a career offender based on prior Minnesota convictions for motor vehicle theft and for aiding and abetting second-degree murder. The Eighth Circuit reversed, holding that defendant’s motor vehicle theft offense was not a crime of violence. The auto theft statute could only be violated one way—by taking a vehicle without the owner’s consent. Under U.S. v. Williams, 537 F.3d 969 (8th Cir. 2008), such an offense is not a crime of violence, and defendant should not have been sentenced as a career offender. The parties agreed that the error was not harmless despite the court’s significant variance from the advisory guideline range of 235-262 months to the statutory minimum of 120 months. The government had requested a downward variance under §5K1.1 based on defendant’s substantial assistance, and stated at oral argument that on remand it would consider moving under 18 U.S.C. §3553(e) for a sentence below the statutory minimum. U.S. v. Aleman, 548 F.3d 1158 (8th Cir. 2008).
8th Circuit finds defendant committed crime of violence while possessing firearm. (540) Defendant was convicted of unlawful possession of a firearm, and sentenced under the ACCA based on three prior convictions for violent felonies. Section 4B1.4(b)(3)(A) increases the offense level for an armed career criminal from 33 to 34 if the defendant possessed the firearm in connection with a crime of violence. The district court found that defendant possessed a firearm in connection with the Missouri offense of tampering with an automobile by operation, which the Eighth Circuit has found to be a crime of violence. Defendant argued that there was insufficient evidence to show that he was the driver of the stolen vehicle, but the Eighth Circuit disagreed. The circumstantial evidence of defendant’s whereabouts in relation to footprints leading from the stolen vehicle, together with his flight from law enforcement officers, was bolstered at trial by evidence that the footprints in the snow leading away from the vehicle matched the pattern on the soles of defendant’s boots. U.S. v. Davidson, 551 F.3d 807 (8th Cir. 2008).
8th Circuit holds that assault and flight from police were committed on separate occasions for ACCA purposes. (540) Defendant was sentenced under the ACCA based on three prior convictions for violent felonies. Defendant argued that his conviction for attempted domestic assault and resisting arrest by fleeing were committed on the same occasion, and thus he did not qualify as an armed career criminal. Defendant had assaulted his girlfriend in a bar. She entered defendant’s car, and he continued to assault her as he drove. A deputy effected a traffic stop on defendant’s vehicle. While the officer spoke to defendant, the girlfriend screamed that defendant had assaulted her. Defendant then sped away, with officers following in a chase that reached over 100 miles per hour. The Eighth Circuit ruled that defendant committed attempted domestic assault and resisting arrest offenses on occasions different from one another. When the deputy stopped defendant’s vehicle, defendant’s attempted assault on his girlfriend was completed. “The first criminal episode had concluded, and the traffic stop represented a discernible pause in activity during which [defendant] had an opportunity to cease and desist from further criminal activity.” U.S. v. Davidson, 551 F.3d 807 (8th Cir. 2008).
8th Circuit rules Missouri tampering by operation is not crime of violence. (540) Defendant pled guilty to being a felon in possession of a firearm and was sentenced to 262 months, which the Eighth Circuit upheld on appeal. The Supreme Court then decided Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), which held that the offense of driving under the influence in New Mexico was not a violent felony under 18 U.S.C. §924(e). Relying on Begay, an Eighth Circuit panel overruled circuit precedent and held that auto tampering by operation in Missouri is not a crime of violence under U.S.S.G. §4B1.1. In light of this intervening decision, the Eighth Circuit granted defendant’s petition for rehearing, and held that it was plain error for the district court to conclude that defendant’s commission of tampering by operation was a crime of violence. There was a reasonable probability that a reduced advisory range would have influenced the district court to impose a more lenient sentence. U.S. v. Davidson, 551 F.3d 807 (8th Cir. 2008).
8th Circuit relies on charging document to find that prior offense involved “abusive sexual contact” with minor. (540) Defendant was convicted of attempted production of child pornography, in violation of 18 U.S.C. §2251(a). Section 2251 carries a 25-year mandatory minimum if the defendant has a prior state conviction for “abusive sexual contact” involving a minor. Defendant had a 1987 Iowa state conviction for indecent contact with a child, in violation of Iowa Code §709.12. Although §709.12 is defined more broadly than the generic offense of abusive sexual contact, the Eighth Circuit ruled that the trial information (which included a complaint and judgment entry and qualified as a charging document) sufficiently showed that the prior conviction was abusive sexual contact. The trial information alleged that defendant “fondle[d] and/or touch[ed] the breast of a child for the purpose of arousing or satisfying his sexual desires.” Because the charging document narrowed an over-inclusive Iowa statute, the government was not required to produce further support to prove that he was convicted of the generic offense. U.S. v. Pierson, 544 F.3d 933 (8th Cir. 2008).
8th Circuit finds drug sales on separate days were separate even though part of same racketeering offense. (540) On August 15, defendant sold 0.4 grams of crack to a police informant. On August 22, defendant drove a car while his associate sold .67 grams of crack, and 30 minutes later, 1.24 grams of crack to the same police informant in a restaurant parking lot. He pled guilty in state court to three drug felony conviction and a felony racketeering count. Defendant argued that these three prior drug convictions were part of “one criminal episode” and therefore should only count as one predicate offense under the Armed Career Criminal Act. The Eighth Circuit held that the district court correctly found that defendant’s convictions for crack sales on August 15 and August 22 were distinct criminal episodes. Convictions for separate drug transactions on separate days are multiple ACCA predicate offenses, even if the transactions were sales to the same victim or informant. The fact that defendant also pled guilty to a charge of racketeering, which required proof that the drug transactions were part of a pattern of illegal activity, did not matter. U.S. v. Van, 543 F.3d 963 (8th Cir. 2008).
8th Circuit rejects crime of violence finding where record did not identify statute of conviction. (540) Defendant pled guilty to illegally reentering the country following deportation. The district court found that he had three prior misdemeanor convictions for crimes of violence, and imposed a four-level increase under §2L1.2(b)(1)(E). Defendant admitted that a 1998 Mississippi conviction for fourth degree domestic assault was based on an altercation in which he struck one of his roommates, and a 1999 assault conviction was for striking or attempting to strike a police officer. The Eighth Circuit held that the record was insufficient to support the court’s finding that the two Mississippi misdemeanor convictions were crimes of violence. The court could not obtain any court records of the Mississippi convictions, and therefore the record did not identify the state statutes or local ordinances that defendant violated. Since the elements of the offenses were unknown, the district court erred in finding they were crimes of violence. Defendant’s admission at sentencing was not sufficient proof that actual, attempted, or threatened use of force was an element of the offense. U.S. v. Reyes-Solano, 543 F.3d 474 (8th Cir. 2008).
8th Circuit holds that first-degree assault committed in heat of passion is crime of violence. (540) Defendant argued that his Colorado conviction for assault in the first degree was not a crime of violence under § 2K2.2(a)(2) because he acted in the heat of passion. The Eighth Circuit disagreed. The Guidelines only require conduct that poses a “serious potential risk of injury.” § 4B1.2(a)(2). An assault in the first degree, whether in the heat of passion or not, still requires that the victim suffer serious bodily injury or that a state official be threatened with a deadly weapon. The court also ruled that defendant’s second enhancing felony, a conviction for sexual assault on a child, was a crime of violence. Sexual contact between parties of “differing physical and emotional maturity carries a ‘substantial risk that physical force . . . may be used in the course of committing the offense.’ ” U.S. v. Banks, __ F.3d __ (8th Cir. Jan. 9, 2008) No. 06-3593.
8th Circuit relies on indictment and plea to find that indecency with a child was sexual abuse of a minor. (540) Defendant received a 16-level crime of violence enhancement under §2L1.2(b)(1)(A)(ii) based on his prior Texas conviction for indecency with a child. Under §2L1.2(b)(1)(A)(ii), a crime of violence includes “sexual abuse of a minor.” Defendant was convicted under a subsection of the Texas statute that included conduct that did not fit the ordinary, common meaning of a sexual abuse of a minor. Because the statute was over inclusive, the Eighth Circuit found that the district court did not err by looking to the indictment and plea papers to determine that defendant admitted facts that fit the generic definition of a sexual abuse of a minor. The charge that defendant pled guilty to stated that the victim was under 17 years old and a female, and that defendant was at least 25 at the time of the offense. The district court properly took judicial notice of these facts, because by pleading guilty, defendant admitted them. Given the eight-year age difference, the district court did not err in finding that his prior conviction was for sexual abuse of a minor. U.S. v. Medina-Valencia, 538 F.3d 831 (8th Cir. 2008).
8th Circuit says only limited kinds of auto thefts are crimes of violence. (540) Defendant received an enhanced sentence under §2K2.1(a)(2) based in part on the district court’s finding that his prior convictions for auto theft and auto tampering qualified as crimes of violence. This was in accord with circuit case law holding that auto theft is a crime of violence. See U.S. v. Sprouse, 394 F.3d 578 (8th Cir. 2008). While defendant’s appeal was pending, the Supreme Court decided Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), which concluded that drunk driving is not a violent felony under the ACCA. For a non-listed crime to qualify as a violent felony under the so-called “otherwise” clause, Begay held that the offense must pose a similar degree of risk of physical injury as the example crimes and be similar in kind to the examples crimes. Based on Begay, the Eighth Circuit held that auto theft by deception, auto theft without consent, and auto tampering are not crimes of violence for purposes of §2K2.1(a)(2). However, auto theft by coercion is closely analogous to extortion and does constitute a crime of violence. U.S. v. Williams, 537 F.3d 969 (8th Cir. 2008).
8th Circuit affirms ACCA sentence even though predicate felonies were committed when defendant was 18. (540) Defendant was convicted of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1) and 924(e). He challenged the application of the Armed Career Criminal Act, contending that drunk driving offenses do not count as violent felonies under the ACCA. In Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), decided after defendant was sentenced, the Supreme Court ruled that drunk driving offenses were not violent felonies. However, the Eighth Circuit noted that defendant qualified as an armed career criminal because his three robbery convictions still qualified as predicate violent felonies. Defendant claimed that he was entitled to a downward variance because the remaining predicate felonies were all committed when he was 18, making punishment under the ACCA and U.S.S.G. § 4B1.4 unreasonably harsh. The district court disagreed, concluding armed career criminal status did not overstate defendant’s criminal history, with numerous convictions coming after his predicate offenses. The district court expressly addressed each of the § 3553(a) factors. U.S. v. Dembry, 535 F.3d 798 (8th Cir. 2008).
8th Circuit says second-degree burglary of “inhabitable structure” is crime of violence. (540) The district court sentenced defendant as a career offender based on its finding that his 1988 Missouri conviction for second-degree burglary was a crime of violence under § 4B1.2. The Missouri statute applies to one who enters or remains unlawfully in a building or “inhabitable structure” for the purpose of committing a crime in there. The definition of an inhabitable structure is broad and includes a ship, trailer or airplane. Defendant’s Commitment Report did not specify what type of inhabitable structure involved in his offense. The Eighth Circuit held that the offense constituted a crime of violence because it “otherwise involved conduct that presents a serious potential risk of physical injury to another.” In James v. United States, 55 U.S. __ (2007), decided after defendant was sentenced, the Supreme Court held that attempted burglary, under Florida law, is a violent felony under the “otherwise involves” provision of the ACCA. It found that attempted burglary posed a “serious risk of potential injury to another,” given the possibility of a face-to-face confrontation between the burglar and a third party, whether an occupant, a police officer, or a bystander. The same reasoning applied here. Regardless of whether the inhabitable structure defendant unlawfully entered was a house, car, boat or airplane, there existed the risk of a violent confrontation between defendant and the occupant, the police, or another third party. U.S. v. Cantrell, 530 F.3d 684 (8th Cir. 2008).
8th Circuit finds defendant committed crime of violence while possessing firearm. (540) Defendant was convicted of unlawful possession of a firearm, and sentenced under the ACCA based on three prior convictions for violent felonies. Section 4B1.4(b)(3)(A) increases the offense level for an armed career criminal from 33 to 34 if the defendant possessed the firearm in connection with a crime of violence. The district court found that defendant possessed a firearm in connection with the Missouri offense of tampering with an automobile by operation, which the Eighth Circuit has found to be a crime of violence. Defendant argued that there was insufficient evidence to show that he was the driver of the stolen vehicle, but the Eighth Circuit disagreed. The circumstantial evidence of defendant’s whereabouts in relation to footprints leading from the stolen vehicle, together with his flight from law enforcement officers, was bolstered at trial by evidence that the footprints in the snow leading away from the vehicle matched the pattern on the soles of defendant’s boots. U.S. v. Davidson, 527 F.3d 703 (8th Cir. 2008).
8th Circuit holds that assault and flight from police were committed on separate occasions for ACCA purposes. (540) Defendant was sentenced under the ACCA based on three prior convictions for violent felonies. Defendant argued that his conviction for attempted domestic assault and resisting arrest by fleeing were committed on the same occasion, and thus he did not qualify as an armed career criminal. Defendant had assaulted his girlfriend in a bar. She entered defendant’s car, and he continued to assault her as he drove. A deputy effected a traffic stop on defendant’s vehicle. While the officer spoke to defendant, the girlfriend screamed that defendant had assaulted her. Defendant then sped away, with officers following in a chase that reached over 100 miles per hour. The Eighth Circuit ruled that defendant committed attempted domestic assault and resisting arrest offenses on occasions different from one another. When the deputy stopped defendant’s vehicle, defendant’s attempted assault on his girlfriend was completed. “The first criminal episode had concluded, and the traffic stop represented a discernible pause in activity during which [defendant] had an opportunity to cease and desist from further criminal activity.” U.S. v. Davidson, 527 F.3d 703 (8th Cir. 2008).
8th Circuit vacates ACCA sentence that was based on driving while intoxicated felonies. (540) Defendant was convicted of being a drug user in possession of a firearm. He received an enhanced 15-year sentence under the Armed Career Criminal Act based on three prior felony convictions for operating a motor vehicle while intoxicated, which under existing Eighth Circuit caselaw, was classified as a violent felony. While defendant’s appeal was pending, the Supreme Court decided Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), which held that that driving under the influence of alcohol is not a violent felony as defined in the ACCA. The Eighth Circuit held that the Supreme Court’s decision in Begay entitled defendant to plain error relief because his three DWI conviction did not qualify as violent felonies under the ACCA. Defendant was not subject to the penalties of § 924(e)(1) and the district court plainly erred by imposing such penalties upon him. U.S. v. Heikes, 525 F.3d 662 (8th Cir. 2008).
8th Circuit holds possession of sawed-off shotgun is a violent felony. (540) Defendant pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), and was sentenced as an Armed Career Criminal, 18 U.S.C. § 924(e). The Eighth Circuit affirmed, holding that his prior Arkansas conviction for criminal use of a prohibited weapon was a violent felony under the ACCA. The conviction involved his use of a sawed-off shotgun. Defendant contended that the ACCA was triggered only if a prior conviction involved a sawed-off shotgun meeting the federal definition of a sawed-off shotgun in 26 U.S.C. § 5845, which is based on the barrel length or overall length of the gun. The Eighth Circuit found this irrelevant. The ACCA applies when a prior conviction is for a crime that “otherwise involves conduct that presents a serious potential risk of physical injury.” At the time of the conviction, Arkansas law prohibited possession of any sawed-off shotgun, regardless of length. The Arkansas Supreme Court has held that a conviction for use of each prohibited weapons listed in the statute, including a sawed-off shotgun, has the element that the weapon “will inflict serious physical injury or death and serves no lawful purpose.” U.S. v. Vincent, 519 F.3d 732 (8th Cir. 2008).
8th Circuit says Missouri felony drunk driving is a crime of violence. (540) The district court found that defendant’s two prior Missouri felony driving while intoxicated convictions were crimes of violence under § 2K2.1(a)(2). In the first appeal, the Eighth Circuit vacated the sentence, because the statute allowed conviction through non-driving conduct, and the PSR did show that defendant was driving. At resentencing, the district court found was the driver. In this second appeal, defendant argued that the government proved only that he operated a motor vehicle. The Eighth Circuit held that the Missouri convictions constituted crimes of violence in light of James v. U.S., 127 S.Ct. 1586 (2007), which clarified that the question is whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another. The Eighth Circuit in U.S. v. McCall, 507 F.3d 670 (8th Cir. 2007), applied James to find that “a charging paper alleging the felony offense of driving while intoxicated should be construed as referring to the dominant offense of driving while intoxicated,” which is a violent felony. Because “crime of violence” is construed under the Guidelines the same as a “violent felony” under the ACCA, the analysis applied here. The over-inclusive nature of the Missouri statute did not preclude a finding that a conviction under the statute was a crime of violence under § 2K2.1(a)(2). U.S. v. Spudich, 510 F.3d 834 (8th Cir. 2008).
8th Circuit holds that court erred in reducing sentences for related violent crimes based on severity of mandatory consecutive sentences. (540) Defendants were convicted of a number of charges stemming from their involvement in a series of armed robberies, including two counts of using a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c). Section 924(c) provides a mandatory 25-year consecutive sentence for a second or subsequent conviction under the statute. The district court sentenced the first defendant to the mandated 300-months for the firearms convictions, but only 60 months’ imprisonment for his underlying offenses (conspiracy and armed robbery). The second defendant was also sentenced to 300-months for the firearm convictions, but only one day of imprisonment for his underlying offenses. The Eighth Circuit reversed. The district court apparently conflated the sentences for the § 924(c) offenses and the related violent crimes. The district court imposed unreasonable sentences for the underlying violent crimes. The court justified the extraordinary variance on the severity of the 300-month firearms sentence. Under the Sentencing Guidelines, a mandatory consecutive sentence under 18 U.S.C. § 924(c) is an improper factor to consider in making a departure, or fashioning the extent of a departure. U.S. v. Hatcher, 501 F.3d 931 (8th Cir. 2007).
8th Circuit finds supporting documents showed that California offense was a “drug trafficking offense.” (540) Defendant pled guilty to illegal reentry after deportation, and received a 16-level enhancement under § 2L1.2(b)(1)(A)(i) for a previous conviction for a “drug trafficking offense.” The offense was a violation of California Health and Safety Code § 11352(a), which applied to any person who “transports, imports into this state, sells, furnishes, administers or gives away … [a] controlled substance…” The Eighth Circuit found that the California statute was overinclusive because it included acts that did not meet § 2L1.2’s definition of drug trafficking. However, the government provided sufficient additional information to prove that the conviction qualified as a drug trafficking offense. When a statute is overinclusive, the court may consider additional information such as the terms of the charging documents, or the terms of the plea agreement or some other comparable judicial record in which the factual basis for the plea was confirmed by the defendant. At sentencing, the government offered the complaint and trial information, listing two counts and two special allegations, and indicating that defendant pled guilty to both counts. Defendant’s plea to counts one and two of the information was sufficient to satisfy the “drug trafficking” definition of § 2L1.2. U.S. v. Garcia-Medina, 497 F.3d 875 (8th Cir. 2007).
8th Circuit holds that auto theft is a violent felony under ACCA. (540) Defendant pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district court found that his previous convictions for auto theft and temporary auto theft were violent felonies and that defendant was subject to the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1). In U.S. v. Sun Bear, 307 F.3d 747 (8th Cir. 2002), abrogation recognized by U.S. v. Williams, 537 F.3d 969 (8th Cir. 2008), the Eighth Circuit held that auto theft was a violent felony under the identically worded U.S.S.G. § 4B1.2. Defendant argued that Sun Bear was at odds with the Supreme Court’s decision in Leocal v. Ashcroft, 543 U.S. 1 (2004), which held that a Florida drunk driving conviction was not a “crime of violence” under 18 U.S.C. § 16(b). However, 18 U.S.C. § 16(b) can be distinguished from the violent felony provision in § 924(e)(2)(b)(ii) because § 16(b) has a mens rea component, while § 924(e)(2)(b)(ii) does not. U.S. v. McCall, 439 F.3d 967 (8th Cir. 2006) (en banc). Thus, in U.S. v. Johnson, 448 F.3d 1017 (8th Cir. 2006), another panel held that a conviction for grand theft auto was a crime of violence under § 4B1.2. Since one panel cannot overturn another panel, the Eighth Circuit held that the court did not err in concluding that the two previous convictions for auto theft and temporary auto theft were violent felonies under the ACCA. U.S. v. Walker, 494 F.3d 688 (8th Cir. 2007).
8th Circuit holds conviction for tampering in the first degree was a crime of violence. (540) Defendant was sentenced as a career offender under U.S.S.G. § 4B1.2 based on the court’s finding that his 1991 Missouri state conviction for tampering in the first degree, which he acknowledged was based on his unlawful operation of a motor vehicle without the owner’s consent, was a crime of violence. The Eight Circuit affirmed, based on prior decisions that unlawful operation of a motor vehicle in violation of Missouri law constitutes a crime of violence under § 4B1.2. U.S. v. Clemmons, 461 F.3d 1057 (8th Cir. 2006). U.S. v. Thomas, 484 F.3d 542 (8th Cir. 2007).
8th Circuit holds that Illinois conviction for manufacture/distribution of “look-alike” substance was controlled substance offense. (540) At issue was whether defendant’s prior conviction for the manufacture/distribution of a “look-alike” substance under Illinois law qualified as a controlled substance offense for purposes of the career offender provision of the Sentencing Guidelines. The Eighth Circuit held that it was. It is clear under § 4B1.2(b) that a conviction of a counterfeit substance offense qualifies as a controlled substance offense. A counterfeit item has two components (1) made in imitation, and (2) intent to deceive. Illinois defines a “look-alike substance” as a substance, other than a controlled substance (1) which “by overall dosage unit appearance … would lead a reasonable person to believe that the substance is a controlled substance” or (2) is represented to be a controlled substance or is “distributed under circumstances which would lead a reasonable person to believe that the substance is a controlled substance. Both sections of the statute have the necessary made-in-imitation and intent-to-deceive elements. Therefore, they satisfied the plain meaning of counterfeit, and thus qualified as a controlled substance offense for purposes of § 4B1.2. U.S. v. Robertson, 474 F.3d 538 (8th Cir. 2007).
8th Circuit holds that threat to commit violence with intent to terrorize is violent felony. (540) Defendant’s PSR reported that he had been convicted in Kansas of unlawfully threatening to commit violence, and communicating that threat with intent to terrorize another person. At sentencing, defendant admitted that the conviction involved as an element “the making of a threat to commit violence.” The Eighth Circuit affirmed that a conviction for a threat to commit violence communicated with the intent to terrorize another person is a violent felony within the meaning of § 924(e)(2)(B)(i). The plain language of § 924(e)(2)(B)(i) defines a violent felony to include the “threatened use of physical force against the person of another.” U.S. v. Reliford, 471 F.3d 913 (8th Cir. 2006).
8th Circuit holds that court properly relied on PSR to determine that conviction involved tampering by operation. (540) The district court sentenced defendant as an armed career criminal based in part on its finding that defendant’s prior Missouri conviction for motor vehicle tampering was a violent felony. See 18 U.S.C. § 924(e). A violation of the Missouri statute is a violent felony under the “otherwise involves” provision in 18 U.S.C. § 924(e)(2)(B)(ii) if the defendant in fact operated the motor vehicle without the owner’s consent. The Eighth Circuit held that the district court properly relied on the PSR to conclude that the tampering conviction involved tampering by operation, and thus was a violent felony. Paragraph 33 of defendant’s PSR recited that defendant was arrested while “driving” a stolen vehicle and that he later admitted to “driving the stolen vehicles and knowing the vehicles were stolen.” Defendant did not object to paragraph 33. If a defendant fails to object to fact statements in the PSR establishing that a prior offense was a violent felony conviction, then the government need not introduce at sentencing the documentary evidence otherwise required. U.S. v. Reliford, 471 F.3d 913 (8th Cir. 2006).
8th Circuit holds that 188-month sentence for felon in possession was reasonable. (540) Defendant pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). He qualified as an armed career criminal, making him subject to a mandatory minimum 15-year prison sentence. Although defendant urged the court to impose the minimum 15-year sentence, the court instead sentenced defendant to 188 months, the bottom of his advisory guideline sentencing range. The Eighth Circuit held that the sentence was reasonable. Although defendant was only 28 years old, he had 14 juvenile and adult convictions, including multiple drug and firearm offenses as well as tampering by operating and making criminal threats. When arrested for this offense, defendant was driving a stolen motor scooter and carrying 23 small bags of crack cocaine. He committed the offense while on probation and less than two years after his release from custody for a prior drug convictions. U.S. v. Reliford, 471 F.3d 913 (8th Cir. 2006).
8th Circuit holds that armed career criminal guideline required court to choose offense level that took into account state conviction. (540) Defendant burglarized a home in Missouri and stole five firearms. He pled guilty to burglary and receipt of stolen property in Missouri state court and was sentenced to seven years in state custody. On the same day as the burglary, defendant pawned a stolen Mossberg shotgun, two of the firearms stolen in the burglary, and one other firearm. Based on his possession of the Mossberg shotgun, he pled guilty in federal court to being a felon in possession of a firearm. The district court sentenced him under the armed career criminal guideline, § 4B1.4, refused to take into account the Missouri offense as relevant conduct, and determined that defendant’s offense level was 30. Since it did not use the state conviction as relevant conduct, the court exercised its discretion under § 5G1.3(c) to run the federal sentence concurrently to defendant’s burglary state sentence and refused to give defendant credit for the time he already served on the state conviction. The Eighth Circuit found that the district court erred in its application of the armed criminal guideline. Section § 4B1.4 requires the district court to choose the greatest offense level among the listed options, which in this case was 31 under § 4B1.4(b)(1). This calculation included adjustments under § 2K2.1 based on the burglary conviction. Because the burglary conviction was required to be taken into account as relevant conduct to the instant offense and was the basis for an increase in his offense level under § 2K2.1(b), then § 5G1.3(b) applied to defendant. The panel remanded, because it could not say that the combined errors of miscalculating the sentencing range and failing to apply § 5G1.3(b) did not impact the ultimate sentence. U.S. v. Morris, 458 F.3d 757 (8th Cir. 2006).
8th Circuit holds that Missouri juvenile adjudication was violent felony under ACCA. (540) Defendant argued that his juvenile adjudications could not be characterized as a prior conviction for Armed Career Criminal Act purposes because there were insufficient due process safeguards in the Missouri juvenile system. The Eighth Circuit rejected this argument based on U.S. v. Smalley, 294 F.3d 1030 (8th Cir. 2002), which held that the Missouri juvenile system contains reliable due process safeguards. The panel further held that defendant’s prior act of juvenile delinquency constituted a violent felony under the ACCA. In the case of an act of juvenile delinquency, after the sentencing court determines whether the act involved the use or carrying of a firearm, knife or destructive device, the court should then determine whether the criminal statute underlying the prior offense (that would be a felony if committed by an adult) has as an element the use, attempted use, or threatened use of physical force against the person of another. The court failed to make this finding, but the error was harmless. One could easily infer from the Missouri criminal code that defendant’s conduct constituted first degree robbery. Defendant’s prior act of juvenile delinquency involved the use of a firearm which, in the case of an adult, would have been punishable as a first degree armed robbery for a term exceeding one year. Thus, it constituted a violent felony under the ACCA. U.S. v. Kirkland, 450 F.3d 804 (8th Cir. 2006).
8th Circuit holds that prior burglary conviction was not a “serious violent felony” under federal three strikes law. (540) The district court found that defendant had two prior convictions for “serious violent felonies’“ under 18 U.S.C. § 3559(c)(1A)(i), the federal three strikes law. One of the prior convictions was a 1998 Illinois burglary conviction under a statute that did not require proof that defendant used violence or possessed a weapon. The Eighth Circuit held that the burglary conviction did not qualify as a serious violent felony. Section 3559(c)(3)(A) expressly exempts from the definition of “serious violent felony” robberies that do not involve the use of a firearm or dangerous weapon. This exception demonstrated that Congress did not intend a burglary to be included within the definition of a serious violent felony. Under common law, robbery is more serious than burglary, because robbery necessary involves confrontation, whereas burglary can occur without confrontation. It would run counter to the plain text of § 3559 to hold that defendant’s prior conviction for burglary without a firearm could satisfy the definition of “serious violent felony,” when robbery without a dangerous weapon could not. U.S. v. Dobbs, 449 F.3d 904 (8th Cir. 2006).
8th Circuit requires resentencing to determine if operating a motor vehicle while intoxicated involved driving while intoxicated. (540) Defendant argued that the district court erred in concluding that an Iowa felony conviction for operating a car while intoxicated was a violent felony under the Armed Career Criminal Act., 18 U.S.C. §924(e). In U.S. v. McCall, 439 F.3d 967 (8th Cir. 2006), the en banc court held that driving while intoxicated is a violent felony under the “otherwise involves” provision in §924(e)(2)(B)(ii). The Eighth Circuit ruled that resentencing was required to determine if the offense involved driving while intoxicated. As in the statute involved in McCall, Iowa defines “operate” as both driving a vehicle and merely causing the vehicle to start. The record on appeal did not include the charging documents, written plea agreements, transcripts of the plea colloquies or comparable judicial records that would enable the court to determine if defendant pled guilty to driving a vehicle while intoxicated. U.S. v. Webster, 442 F.3d 1065 (8th Cir. 2006).
8th Circuit rules that convictions for tampering with car and failure to return to confinement were violent felonies. (540) Defendant was sentenced as an armed career criminal under the ACCA based on the district court’s finding that his prior Missouri convictions for tampering with a motor vehicle and for failure to return to confinement qualified as violent felonies. The Eighth Circuit affirmed. Although the Missouri tampering statute included conduct that might not present a serious risk of injury, the charging documents introduced at sentencing showed that defendant’s conduct involved tampering “by operation,” i.e. defendant operated an automobile “knowingly and without consent of the owner.” As for the failure to return to confinement, there is no material distinction between a “walkaway” escape and a failure to return to confinement. U.S. v. Adams, 442 F.3d 645 (8th Cir. 2006).
8th Circuit holds that Minnesota conviction for criminal sexual conduct was violent felony. (540) The district court sentenced defendant under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1) based in part on the court’s finding that his prior convictions for Criminal Sexual Conduct in the Second Degree qualified as violent felonies. The offense is defined as sexual contact with a complainant under the age of 13 by a defendant more than 36 months older than the complainant. The Eighth Circuit affirmed, noting that it had held that a conviction under an almost identical Nebraska statue qualified as a crime of violence within the meaning of another federal statute, 18 U.S.C. § 16. See U.S. v. Alas–, 438 F.3d 812 (8th Cir. 1999). The Nebraska statute was materially indistinguishable from the Minnesota statute at issue here, the only difference being that under the Nebraska law, the complainant’s age must be 14 years or younger and the actors age must be 19 years or older. Although 18 U.S.C. § 16 does not define the term crime of violence in the same manner that § 924(e) defines a violent felony, these differences did not matter in the context of felony sexual contact with children. U.S. v. Anderson, 438 F.3d 823 (8th Cir. 2006).
8th Circuit holds that Missouri conviction for tampering in the first degree is a violent felony. (540) Defendant challenged the district court’s finding that his prior Missouri conviction for tampering in the first degree, in violation of Mo.Rev.Stat. § 569.080.1(2), was a violent felony under the Armed Career Criminal Act, 18 U.S.C. § 924(c). The state information charged defendant with tampering in the first degree by knowingly and unlawfully operating a dump truck without the consent of the owner. The Eighth Circuit found that the offense was a violent offense, finding a “close connection” between tampering by operation and automobile theft. Previous cases have held that automobile theft is a crime of violence under § 4B1.1 because the attendant conduct and circumstances create a serious potential risk of physical injury to another. U.S. v. Sun Bear, 307 F.3d 747 (8th Cir. 2002), abrogation recognized by U.S. v. Williams, 537 F.3d 969 (8th Cir. 2008). The connection between auto theft and tampering is particular close where the tampering, here, is committed by operating the vehicle. The offense of tampering by operation carries the same serious potential risks of injury to others that are identified with auto theft. In addition to the risk of confrontation with the vehicle’s owner or with law enforcement officials, both offenses place the criminal in control of a potentially dangerous weapon and makes it likely that the thief may be pursued and drive recklessly. U.S. v. Johnson, 417 F.3d 990 (8th Cir. 2005), overruling recognized by U.S. v. Lee, 553 F.3d 598 (8th Cir. 2009).
8th Circuit holds that felony theft from a person was violent felony under ACCA. (540) Defendant was convicted of being a felon in possession of a firearm, and sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e). She challenged the district court’s finding that her prior conviction for felony theft from a person was a violent felony. The criminal complaint alleged that defendant had grabbed an elderly woman’s purse from her hand and fled the scene, only to be pursued by a male witness. While the male witness restrained defendant until police arrived, she bit the man’s thumb and caused it to bleed. The Eighth Circuit affirmed, noting that it has previously held that the crime of theft from a person constitutes a violent felony. See U.S. v. Griffith, 301 F.3d 880 (8th Cir. 2002). The Supreme Court’s decision in Leocal v. Ashcroft, 125 S.Ct. 377 (2004) did not require the court to reconsider Griffith. Leocal interpreted a different statutory term, crime of violence, with a different definition. U.S. v. Hudson, 414 F.3d 931 (8th Cir. 2005).
8th Circuit rules that stealing firearm during burglary was possession “in connection with” a crime of violence. (540) Section 4B1.4(b)(3) (A) provides for an enhanced offense level if the defendant “used or possessed the firearm … in connection with … a crime of violence.” Defendant argued that the court improperly found that stealing a firearm during a burglary is possession “in connection with” a crime of violence. The Eighth Circuit held that “in connection with” means the same in § 4B1.4(b) (3)(A) as in § 2K2.1(b)(5). Thus, “in connection with” means that the firearm “(1) must have some purpose or effect with respect to, and (2) must facilitate, or have the potential of facilitating another felony offense; its presence or involvement cannot be the result of accident or coincidence.” The evidence supported the court’s findings that the shotguns were the object of the burglary and that defendant purposely took them. In addition, the gun had the potential to facilitate the robbery, At any time during the burglary, defendant could brandish the gun or threaten injury or death, whether or not it was loaded. U.S. v. Howard, 413 F.3d 861 (8th Cir. 2005).
8th Circuit holds that possession of short-barreled shotgun was violent felony under ACCA. (540) The district court sentenced defendant as an armed career criminal based on its finding that he had three prior convictions for violent felonies under 18 U.S.C. § 924(e). The Eighth Circuit affirmed. Possession of a short-barreled shotgun is a violent felony as defined in § 924(e)(2) to include “any act of juvenile delinquency involving the use or carrying of a firearm … that … involves conduct that presents a serious potential risk of physical injury to another.” Defendant’s conviction occurred when he was 15 years old. Moreover, possession of a sawed-off shotgun is “inherently dangerous and lacks usefulness except for violent and criminal purposes.” Defendant’s “walkaway” escape also constituted a violent felony under §924(e). U.S. v. Childs, 403 F.3d 970 (8th Cir. 2005).
8th Circuit holds that California burglary was generic burglary that qualified as a violent felony under ACCA. (540) The district court found that defendant’s prior California burglary conviction was a violent felony as defined in 18 U.S.C. 924(e)(2)(B), and sentenced him as an Armed Career Criminal. Defendant had been convicted under § 459 of the California Penal Code, which has a definition of burglary that goes beyond generic burglary because it is not limited to unlawful or unprivileged entries into buildings. Thus, defendant’s charging paper and record of his guilty plea had to be reviewed to determine whether he was convicted of generic burglary. Defendant argued that the extrinsic evidence established that he lawfully entered a store with intent to commit fraud, which is not generic burglary. The Eighth Circuit, following the Ninth Circuit’s approach in evaluating California burglary convictions, found that when the charging paper charged generic burglary (unlawful entry into a building to commit a crime) the conviction is a violent felony for purposes of § 924(e) unless a plea agreement or plea colloquy establishes that the defendant pled guilty to an offense that was not generic burglary. Thus, to preserve this substantive issue, the defendant must lay the factual predicate in his guilty plea to the California court. Since defendant failed to do so, the district court properly applied the § 924(e) enhancement. U.S. v. Painter, 400 F.3d 1111 (8th Cir. 2005).
8th Circuit holds that Booker did not affect classification as armed career criminal. (540) Defendant pled guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1) and an armed career criminal under the ACCA, 18 U.S.C. § 924(e). The Eighth Circuit held that the district court did not err in classifying defendant’s burglary and escape convictions as violent felonies under the ACCA. The panel also rejected defendant’s argument that the question of his prior convictions should have been submitted to a jury and subject to proof beyond a reasonable doubt. Blakely v. Washington, 124 S.Ct. 2531 (2004); U.S. v. Booker, 543 U.S. 220 (2005). Defendant’s sentence was not determined based upon an application of the federal Sentencing Guidelines, but rather upon the mandatory minimum sentence set forth in the ACCA. As to the finding concerning the prior convictions which triggered the mandatory minimum sentence, the Supreme Court has consistently said that the fact of a prior conviction is for the court to determine, not a jury. U.S. v. Nolan, 397 F.3d 665 (8th Cir. 2005).
8th Circuit holds that motor vehicle theft was crime of violence and violent felony. (540) Defendant was convicted of being a felon in possession of a firearm. The district court ruled that his two prior felony convictions for theft of motor vehicles constituted crimes of violence under U.S.S.G. § 2K2.1(a)(2) and violent felonies for purposes of 18 U.S.C. § 924(e)(2)(B). Relying on U.S. v. Sun Bear, 307 F.3d 747 (8th Cir. 2002), abrogation recognized by U.S. v. Williams, 537 F.3d 969 (8th Cir. 2008), the Eighth Circuit affirmed. Theft of a vehicle presents a likelihood of confrontation as great, if not greater, than burglary of commercial property, and it adds any of the dangerous elements of escape. Thus, the crime presents a “serious potential risk of physical injury to another.” U.S. v. Sprouse, 394 F.3d 578 (8th Cir. 2005).
8th Circuit holds that Illinois burglary conviction fell within generic definition of burglary. (540) Defendant was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e) based in part on a prior Illinois burglary conviction. The Eighth Circuit held that the Illinois burglary conviction fell within the generic definition of burglary described in Taylor v. U.S., 495 U.S. 575 (1990). Both Illinois statutes defining burglary included all of the generic elements of burglary. Defendant’s PSR described defendant’s offense as entering an inn and stealing a television. The district court did not err in enhancing defendant’s sentence under § 924(e). U.S. v. Maxwell, 363 F.3d 815 (8th Cir. 2004).
8th Circuit upholds consideration of prior conviction added to PSR seven days before sentencing. (540) Defendant was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Under his first PSR, he did not qualify for a sentence enhancement under 18 U.S.C. § 924(e), and was subject to a maximum sentence of ten years under § 924(a)(2). However, seven days before sentencing, the probation office revised his PSR to add a 1993 aggravated-battery conviction. The added conviction increased his term of imprisonment to a minimum of 15 years up to a maximum of life. Although defendant objected, the government explained that it disclosed the conviction the same day it was discovered. The Eighth Circuit held that the district court did not abuse its discretion in admitting the aggravated battery conviction. It was not persuaded that the seven-day notice caused unfair surprise or prevented defendant from adequately addressing the validity of the added conviction. Defendant was put on notice of the added conviction immediately after the government discovered it. Most importantly, defendant’s counsel did not request a continuance after learning of the additional conviction. U.S. v. Maxwell, 363 F.3d 815 (8th Cir. 2004).
8th Circuit holds that drug sales made on separate dates and times to same officer were separate under ACCA. (540) Defendant’s criminal history included seven felony convictions in Missouri state court. Four of the charges arose from drug sales defendant made to a police informant within a one-month period. Defendant argued that because the county prosecutor who tried the charges agreed to a single consolidated sentence, the convictions should be considered as one offense for enhancement purposes under the Armed Career Criminal Act, 18 U.S.C. 924(e). However, the enhancement applies based upon the number of convictions, not on the number of trials. Defendant was convicted of seven separate felonies, and received seven separate sentences that ran concurrently. The Eighth Circuit found that defendant’s argument had no merit. “[I]t is the criminal episodes underlying the convictions, not the dates of conviction, that must be distinct to trigger the provisions of the ACCA.” The fact that defendant’s drug sales were made to the same undercover police officer did not make them part of the same criminal episode. Each sale occurred on different days and at different times. U.S. v. Speakman, 330 F.3d 1080 (8th Cir. 2003).
8th Circuit holds that prior offense was predicate ACCA crime despite restoration of civil rights. (540) Defendant was sentenced as an armed career criminal under 18 U.S.C. § 924(e) based on three prior Minnesota convictions. Section 921(a)(20) provides that “[a]ny conviction … for which a person … has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such … restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.” Under Minnesota law, the order of discharge restoring a person’s civil rights “must provide that a person who has been convicted of a crime of violence … is not entitled to ship, transport, posses, or receive a firearm until ten years have elapsed since the person was restored to civil rights.” In 1989, defendant was issued a certificate of discharge that did not contain such a restriction. Citing U.S. v. Wind, 986 F.2d 1248 (8th Cir. 1993), defendant argued that the conviction could not be used to enhance his sentence. However, Wind did not support defendant’s position because a special concurring opinion by two of the judges made it clear that its exclusion of the prior conviction was based on the fact that Minnesota law did not prohibit felons from possessing the rifle at issue. Moreover, in Caron v. U.S., 524 U.S. 308 (1998), the Supreme Court noted that while “state law is the source of law for restorations of other civil rights … it does not follow that state law also controls the unless clause.” Under Caron, the inquiry was not whether Minnesota prohibited defendant from possessing the ammunition at issue, but whether Minnesota prohibited him from possessing any type of firearm. Since 1975, Minnesota law has excluded the right to possess pistols from the civil rights restored to felons. Under Caron, this restriction activated the unless clause. Therefore, the Eighth Circuit found that defendant’s 1988 conviction counted for purposes of § 924(e)’s sentencing enhancement. U.S. v. Collins, 321 F.3d 691 (8th Cir. 2003).
8th Circuit holds that separate drug deliveries each constituted a prior conviction under ACCA. (540) The Armed Career Criminal Act enhancement applies to defendants with “three previous convictions … for a violent felony or a serious drug offense, or both, committed on occasions different from one another.” The district court found that defendant was convicted of only one serious drug offense – a 1996 conviction for three counts of delivery of a controlled substance, with each count based on a separate delivery. The court reasoned that defendant’s guilty plea to three delivery counts constitute a single conviction because he pleaded guilty to all three counts in a single proceeding because defendant’s judgment listed only one offense date, and because defendant received a single sentence for all three deliveries rather than one sentence for each delivery. The Eighth Circuit found the court’s conclusion contrary to the law that the ACCA is triggered by the criminal episodes that underlie a defendant’s conviction. See U.S. v. McDile, 914 F.2d 1059 (8th Cir. 1990). Defendant made three separate deliveries of a controlled substance on three separate days, so each delivery constituted a “conviction” of a serious drug offense for ACCA purposes. U.S. v. Long, 320 F.3d 795 (8th Cir. 2003).
8th Circuit holds that three burglaries of three different cabins were separate under ACCA. (540) Between May and June of 1989, defendant burglarized cabins at six different lakes. He pled guilty to third degree burglary under the first three counts against him. Each burglary involved a different cabin on a different lake, and different owners. The Eighth Circuit held that the district court did not err by finding that these burglary convictions were three separate felonies under the Armed Career Criminal Act. Even if defendant’s assertion that the three burglaries occurred within an hour of one another were correct, the burglaries involved breaking into three separate homes located on different lakes and unrelated victims who suffered individual losses of varying types of property. U.S. v. Deroo, 304 F.3d 824 (8th Cir. 2002).
8th Circuit holds that crime of theft from a person is a violent felony. (540) The district court found that defendant qualified as an armed career criminal under 18 U.S.C. § 924(e), in part, because he was convicted in an Iowa court for conspiring to take property valued in excess of $1000 from two individuals. In determining that this was a violent felony, the district court looked at the original criminal complaint, which charged defendant with both conspiracy to commit theft in the second degree, and robbery in the second degree, instead of relying solely on defendant’s conspiracy conviction and the statutory definition of that offense. Under § 924(e), a “violent felony” is defined, in part, as conduct “that presents a serious potential risk of physical injury to another….” The Eighth Circuit held that the crime of theft from a person involves conduct that presents a serious risk that a person may be physically injury. By its very nature, defendant’s crime involved a substantial risk that the victims of defendant’s conspiracy would be harmed when their property was taken from them. U.S. v. Griffith, 301 F.3d 880 (8th Cir. 2002).
8th Circuit holds that escape is violent felony. (540) Defendant argued that the district court erred in ruling that his prior escape conviction constituted a violent felony under 18 U.S.C. § 924(c) because he merely walked away from his place of incarceration. In U.S. v. Nation, 243 F.3d 467 (8th Cir. 2001), the Eighth Circuit held that escape is categorically a crime of violence under the career offender guideline, USSG § 4B1.2(a) (2). The language of § 4B1.2(a)(2) is identical to § 924(e)(2)(B)(ii)’s language, in that they define a crime of violence and a violent felony, respectively, as a crime that, among other things, “involves conduct that presents a serious potential risk of physical injury to another.” As a result, the Eighth Circuit held that defendant’s conviction for escape was a violent felony under § 924(e)(2)(B) (ii). It was irrelevant whether the escape actually involved any violence or whether defendant was convicted under a state statute that defines escape as a non-violent offense. U.S. v. Abernathy, 277 F.3d 1048 (8th Cir. 2002).
8th Circuit says defendant’s three prior violent felonies need not be submitted to jury. (540) Defendant was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Based on his prior convictions for assault, robbery and escape, the district court sentenced defendant as an armed career criminal under 18 U.S.C. § 924(e). The Eighth Circuit rejected defendant’s argument that Apprendi v. New Jersey, 530 U.S. 466 (2000) required the issue of his status as a recidivist with three previous violent felonies be submitted to the jury. The issue of defendant’s prior felonies was not an element of the offense, but instead was a sentencing factor under Almendarez-Torres v. U.S., 523 U.S. 224 (1998). U.S. v. Abernathy, 277 F.3d 1048 (8th Cir. 2002).
8th Circuit holds that Apprendi does not require predicate ACCA convictions be listed in indictment. (540) Defendant argued that because his status as an armed career criminal under 18 U.S.C. § 924(e)(1) increased his sentence beyond the statutory maximum, Apprendi v. New Jersey, 530 U.S. 466 (2000) required the nature of the predicate felonies to be pled in the indictment and proven to a jury. The Eighth Circuit ruled that this was a misreading of Apprendi. In Almendarez-Torres v. U.S., 523 U.S. 224 (1998), the Supreme Court found that recidivism that increases the maximum penalty for a crime need not be stated in the indictment and proven beyond a reasonable doubt. Apprendi itself recognized the continuing validity of Almendarez-Torres as a narrow exception to the broad rule it announced. Defendant contended that 18 U.S.C. § 924(e)(1) does not simply create an aggravated factor, but sets forth a “complex series of factual findings” to determine whether or not prior offenses constitute violent felonies or serious drug offenses, and that this “extensive fact finding function belongs to juries in criminal cases.” The panel did not agree. Section 924(e) “focuses on the fact of the conviction….” Custis v. U.S., 511 U.S. 485 (1994). Until the Supreme Court chooses to revisit the issue of recidivism statutes, Apprendi does not require the “fact” of prior convictions to be pled and proved to a jury. U.S. v. Campbell, 270 F.3d 702 (8th Cir. 2001).
8th Circuit holds that military drug offenses are not “serious drug offenses” under ACCA. (540) The district court sentenced defendant as an armed career criminal under 18 U.S.C. § 924(e) based on four predicate “serious drug offenses.” All four prior offenses stemmed from the same general court martial in a military court. However, Congress did not include a reference to military law within § 924(e)(2)(A)’s definition of “serious drug offense.” The statute refers to three specific federal acts, but not to the Uniform Code of Military Justice. The Eighth Circuit held that under the plain and unambiguous language of the ACCA, the military drug offenses were not “serious drug offenses,” and the district court erred in considering them. Congress chose to list the statutes that constituted serious drug felonies rather than define the term in a broad manner. The fact that Congress chose to list certain statues was an indication that it intended to exclude the unlisted statutes. Although military convictions can be violent felonies, see U.S. v. Martinez, 122 F.3d 421 (7th Cir. 1997), the panel found “no absurdity in the fact that Congress defined ‘violent felony’ in a manner that allowed the inclusion of military convictions while defining ‘serious drug offense’ in a manner that did not. Any claimed inconsistencies in the statute should be the subject of legislative, not judicial, action.” U.S. v. Stuckey, 220 F.3d 976 (8th Cir. 2000).
8th Circuit holds that court may not depart below statutory minimum for armed career criminal. (540) Defendant pled guilty to being a felon in possession of a firearm. Because he had at least three prior felony convictions, he was subject to a statutory minimum sentence of 15 years’ imprisonment under 18 U.S.C. § 924(e). The district court departed down under § 4A1.3 from a range of 188-235 months to the minimum 180-month sentence. The court stated that but for the required minimum sentence, it would have sentenced defendant to a shorter term of imprisonment. The Eighth Circuit agreed that the district court lacked authority to depart below the statutory minimum. The only authority for departing below a statutorily mandated minimum sentence is in 18 U.S.C. §§ 3553(e) and (f), which apply only when the government makes a substantial assistance motion or the defendant qualifies for safety valve protection. Neither condition existed here. U.S. v. Villar, 184 F.3d 801 (8th Cir. 1999).
8th Circuit rules resisting arrest crimes were misdemeanors, not violent felonies. (540) The district court sentenced defendant as an armed career criminal under § 4B1.4(b)(3)(A), finding that he had convictions for four qualifying “violent felonies”– two burglaries and two felony resisting arrests. The Eighth Circuit found that the two Missouri resisting arrest convictions were actually misdemeanors, and thus did not count as violent felonies. The crime of resisting arrest under Missouri law can be either a felony or a misdemeanor. A defendant may not be convicted of felony resisting arrest under Missouri law unless the offense of arrest is a felony. The first resisting arrest charge arose when officers attempted to arrest defendant for a parole violation. Because there was no indication in the information or Missouri law that a parole violation is a felony, the information did not state that defendant was being arrested for a felony. The second resisting arrest charge resulted when officers attempted to arrest defendant for the first resisting arrest charge. Although the information in this case did state that defendant was being arrested for a felony, this charge, which resulted from the first attempted arrest, was contrary to Missouri law and thus could not be the basis of a felony resisting arrest charge. U.S. v. McClain, 171 F.3d 1168 (8th Cir. 1999).
8th Circuit says civil rights not “restored” where never taken away. (540) Defendant was convicted of firearms charges and sentenced as an armed career criminal based on at least three prior convictions that qualified as violent felonies under 18 U.S.C. § 924(e). Defendant argued that none of his state burglary or attempted burglary convictions counted for § 924(e) purposes because his civil rights were restored for those convictions. Section 921(a)(20) provides that any conviction for which a person has had civil rights restored shall not be counted. At the time of his two 1975 Tennessee convictions for attempted burglary, Tennessee did not have a law limiting a convicted felon’s right to possess a firearm. Therefore, upon completion of his sentence, defendant had the same right as an individual not convicted of a felony to possess a firearm. The Eighth Circuit held that defendants rights were never restored, since what was never taken away cannot be “restored.” The district court properly sentenced defendant as an armed career criminal. U.S. v. Moore, 108 F.3d 878 (8th Cir. 1997).
8th Circuit says defendant used gun in crime of violence where he robbed victim and cut her hand with knife. (540) Defendant had a prior conviction for being a felon in possession of a firearm. The district court found that he possessed the gun in connection with a crime of violence under § 4B1.4(b)(3)(A). Defendant argued that unlawful possession of a firearm is not a crime of violence under the guidelines. But the Eighth Circuit pointed out that the requisite crime of violence under § 4B1.4(b)(3)(A) is not the unlawful possession of the firearm, but the associated criminal conduct. Here, defendant committed two crimes of violence while possessing the gun. He robbed a victim and cut her hand with a knife. U.S. v. Maddix, 96 F.3d 311 (8th Cir. 1996).
8th Circuit rules that manslaughter, arson, and second degree arson are violent felonies. (540) Defendant was sentenced as an armed career criminal based on four prior felony convictions. He argued that the government failed to show that the convictions involved violent felonies. The Eighth Circuit held that defendant’s prior convictions for manslaughter, arson, and arson in the second degree were violent felonies under the Armed Career Criminal Act, 18 U.S.C. § 924(e). Previous cases have held manslaughter is a violent felony, and arson is specifically mentioned in § 924(e)(2)(B)(ii). Missouri law defines arson in the second degree as knowingly damaging a building or inhabitable structure by starting a fire or causing an explosion. According to the information, defendant started a fire at a house when a person was then present. Thus, regardless of whether the focus is on the elements of the crime or the underlying facts in the information, arson in the second degree involves conduct that presents a serious potential risk of physical injury to another. U.S. v. Maddix, 96 F.3d 311 (8th Cir. 1996).
8th Circuit holds that two burglaries committed on same day were separate under ACCA. (540) Defendant argued that two burglaries he committed on the same day within 25 minutes of each other at two houses located very close to each other should have counted as one conviction for armed career criminal purposes. The Eighth Circuit, relying on U.S. v. Hamell, 3 F.3d 1187 (8th Cir. 1993), held that the multiple burglaries committed on the same day are separate offenses under the ACCA. U.S. v. Gray, 85 F.3d 380 (8th Cir. 1996).
8th Circuit holds that Florida attempted burglary falls under “otherwise” clause as violent felony. (540) Defendant argued that his 1979 Florida conviction for attempted burglary of a dwelling was not a violent felony because it was not “burglary” under § 924(e)(2)(B)(i). The Eighth Circuit held that the attempted burglary was a violent felony because it “otherwise involve[d] conduct that presents a serious potential risk of physical injury to another” under § 924(e)(2)(B)(ii). Attempted burglary in Florida requires a specific intent to commit burglary and any overt act reasonably calculated to accomplish the offense, going beyond mere preparation but falling short of accomplishing the crime intended. The essential elements of the crime of attempt in Florida are equivalent to those under the Minnesota law discussed in U.S. v. Solomon, 998 F.2d 587 (8th Cir. 1993). U.S. v. Demint, 74 F.3d 876 (8th Cir. 1996).
8th Circuit upholds examination of charging papers and plea to determine that defendant pled guilty to generic burglary. (540) Defendant argued that his 1980 Louisiana conviction for simple burglary did not fit the generic definition of burglary under 18 U.S.C. § 924(e) because it was for burglary of a camp. The Eighth Circuit found that the district court properly referred to the charging paper and the text of defendant’s guilty plea to determine that defendant’s plea was to a charge that met the generic definition of burglary. This review was permitted because the Louisiana statute under which defendant was convicted defines burglary more broadly that the generic definition. Under Louisiana law a camp is a structure. The documents showed that defendant committed simple burglary of a camp¾he entered a structure unauthorized with intent to commit a theft or a felony. Thus, the conviction constituted a violent felony under § 924(e). U.S. v. Demint, 74 F.3d 876 (8th Cir. 1996).
8th Circuit considers older felonies where new crimes continuously barred defendant’s right to possess firearms. (540) In North Dakota, a person convicted of a felony involving violence is prohibited from owning or possessing firearms for ten years. A person convicted of any other felony is under the same prohibition for five years. Defendant argued that two of his prior burglary convictions could not be used to enhance his sentence under 18 U.S.C. § 924(e)(1) because his civil rights had been restored under North Dakota law. The Eighth Circuit held that defendant’s right to possess firearms had not been restored in North Dakota since his first burglary conviction in 1978. Therefore the two disputed convictions qualified as predicate offenses under § 924(e)(1). For a person to have his civil rights restored, the state must actually have restored the felon’s right to possess firearms. Due to the overlap of the firearms prohibitions caused by defendant’s multiple convictions, defendant had continuously been prohibited from possessing a firearm since he was sentenced for his first burglary in 1978. Therefore, all of his convictions since 1978 could be considered for enhancement under § 924(e). U.S. v. Dockter, 58 F.3d 1284 (8th Cir. 1995).
8th Circuit finds defendant received adequate notice of prior felonies. (540) Defendant argued that his sentence violated due process because the government did not notify him before he pled guilty that it would seek an enhanced penalty under § 4B1.4 and 18 U.S.C. § 924(e)(1) based on his prior violent felony convictions. The 8th Circuit found that the government clearly informed defendant of its intent to seek the § 924(e)(1) enhancement. After his plea, defendant received notice in the PSR of his earlier convictions, and an addendum to the PSR advised defendant that they permitted an enhanced sentence under § 924(e)(1). On the day of sentencing, the government provided defendant with certified copies of the convictions. Moreover, any deficiency was harmless because defendant did not challenge any of his prior convictions. U.S. v. Adail, 30 F.3d 1046 (8th Cir. 1994).
8th Circuit holds time served under concurrent sentences may be considered time “imprisoned” under § 924(e)(1). (540) Defendant robbed a restaurant using a firearm. He was convicted in state court of robbery charges; and was convicted in federal court of firearms charges. Because of his three prior violent felonies, he was subject to a mandatory minimum 15-year sentence under 18 U.S.C. § 924(e)(1). It was agreed that defendant’s state and federal sentence should be concurrent under § 5G1.3(b). Defendant argued that he was entitled to a sentence reduction for the full 14 1/2 months he spent in state custody prior to his federal conviction under application note 2 to § 5G1.3. The district court agreed as to the time defendant had served in state prison but concluded that it was without authority to impose a sentence of less than the 15-year minimum. The 8th Circuit reversed, holding that time previously served under concurrent sentences may be considered time “imprisoned” under § 924(e)(1) if the guidelines so provide. Therefore, the district court erred in stating that it had no discretion under § 5G1.3(b) to reduce defendant’s mandatory minimum sentence for the time he served in state prison as a result of the same course of conduct. U.S. v. Kiefer, 20 F.3d 874 (8th Cir. 1994).
8th Circuit finds adequate notice that restoration of civil rights did not include right to possess gun. (540) Defendant was convicted of being a felon in possession of a firearm, and sentenced as an Armed Career Criminal based on three prior violent felony convictions. He argued that two of his prior convictions should not have been considered because he received insufficient notice upon restoration of his civil rights that he could not legally possess a firearm. After each conviction defendant received a Certificate of Discharge and Restoration of Civil Rights. The certificate for two of these convictions stated that the certificate did not relieve defendant of the disabilities imposed by the Federal Gun Control Act. The 8th Circuit, following circuit precedent, held that this constituted explicit notice that the restoration of civil rights did not include the right to possess firearms. U.S. v. Ford, 19 F.3d 1271 (8th Cir. 1994).
8th Circuit finds burglaries committed on different days and places were separate. (540) In a motion under 2255, petitioner claimed that his counsel was ineffective in failing to argue that his six state burglary convictions were related offenses for sentencing purposes. The 8th Circuit suggested that this third 2255 motion might constitute an abuse of the writ, but nonetheless addressed the merits of petitioner’s claim because the district court did. The claim was without merit. The offenses, which occurred on different days, at different locations, and within a span of several weeks, were separate and distinct criminal episodes. Section 924(e) does not require separate prosecutions; it is enough that the offenses occurred at different times. Rodriguez v. U.S., 17 F.3d 225 (8th Cir. 1994).
8th Circuit rules that defendant waived challenges to use of prior felonies. (540) The 8th Circuit ruled that defendant waived his challenge to the use of a 1964 juvenile conviction for enhancement purposes under 18 U.S.C. §924(e). His counsel stated at sentencing that they were challenging all of defendant’s prior convictions, except for his 1964 juvenile convictions. Defendant’s claim that two other convictions should not be considered because his sentence was commuted was not addressed below either. The district court’s reliance on these convictions was not plain error. U.S. v. Petty, 1 F.3d 695 (8th Cir. 1993).
8th Circuit precludes use of constitutionally deficient guilty plea as predicate offense under Armed Career Criminal Act. (540) The district court imposed the mandatory minimum 15-year term under the armed career criminal statute, 18 U.S.C. section 924(e)(1), for defendant’s conviction for being a felon in possession of a firearm. The 8th Circuit concluded that the district court erred in relying on a prior conviction to establish one of the predicate offenses. The transcript of the original plea did not disclose the express waiver of the rights against self-incrimination and the right to confront witnesses as required by Boykin v. Alabama, 395 U.S. 238 (1969). Though the government is permitted to introduce evidence at sentencing to cure this defect, it did not do so. U.S. v. Cornelius, 999 F.2d 1293 (8th Cir. 1993).
8th Circuit affirms that prior sentences were valid for 924(e) enhancement purposes. (540) Defendant argued that two of the convictions used to enhance his sentence under 18 U.S.C. section 924(e) were constitutionally invalid because they were based on guilty pleas given without an explicit waiver of constitutional rights. The 8th Circuit rejected the argument. No transcript from the 1974 plea hearing was available. In the transcript from the 1982 hearing, the court stated that the plea was freely and voluntarily given. Defendant’s attorneys from each case testified at sentencing. Although they did not recall representing defendant, they did testify regarding their customary practice in counseling clients making a guilty plea, and in the case of the 1974 conviction, the customary practice of the judge before whom defendant appeared. This testimony supported the district court’s finding that the guilty pleas were valid in accordance with Boykin v. Alabama, 395 U.S. 238 (1969). U.S. v. Young, 979 F.2d 1280 (8th Cir. 1992).
8th Circuit reaffirms that predicate convictions may be collaterally attacked for armed career offender enhancement. (540) Defendant received an enhanced sentence as an armed career criminal under 18 U.S.C. section 924(e) on the basis of three prior convictions. The district court refused to consider defendant’s claim that one of those convictions was invalid because it was based on an involuntary guilty plea. The 8th Circuit, following U.S. v. Day, 949 F.2d 973 (8th Cir. 1991), held that a defendant may collaterally attack the validity of a prior conviction used as a basis for enhancing his sentence under section 924(e). The court distinguished U.S. v. Hewitt, 942 F.2d 1270 (8th Cir. 1991), which held that a defendant could not collaterally attack a prior conviction used to calculate his criminal history under the sentencing guidelines. Hewitt is applicable only to the sentencing guidelines. U.S. v. Cornelius, 968 F.2d 703 (8th Cir. 1992).
9th Circuit reaffirms that Washington second-degree assault is a “violent felony.” (540) Under the Armed Career Criminal Act, 18 U.S.C. § 924(e), a person convicted of being a felon in possession of a firearm who has three prior convictions for a “violent felony or a serious drug offense” is subject to a mandatory 15-year sentence. “Violent felony” is defined in part to mean any felony that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” Defendant had a prior conviction for second-degree assault, in violation of Washington Revised Code § 9A.36.021(1)(a). That statute makes it a crime for a person to intentionally assault another and thereby recklessly inflict substantial bodily harm. The Ninth Circuit held that second-degree assault under Washington law categorically qualifies as a “violent felony.” The court rejected defendant’s argument that recent Supreme Court decisions interpreting the phrase “use of physical force” required it to reevaluate an earlier decision reaching the same conclusion. U.S. v. Lawrence, 627 F.3d 1281 (9th Cir. 2010).
9th Circuit says same analysis applies to residual clauses of “violent felony” and “crime of violence” definitions. (540) In Begay v. U.S., 553 U.S. 137 (2008), the Court interpreted the definition of “violent felony” in the Armed Career Criminal Act, 18 U.S.C. § 924(e). That definition includes a residual clause that encompasses an offense that “involves conduct that presents a serious potential risk of physical injury to another.” The definition of “crime of violence” in § 4B1.2(a) includes identical language. The Ninth Circuit held that the analysis announced in Begay for determining whether an offense constitutes a “violent felony” under the residual clause of § 924(e) also should be used in determining whether an offense is a “crime of violence” under § 4B1.2(a). U.S. v. Coronado, 603 F.3d 706 (9th Cir. 2010).
9th Circuit says Washington theft in the first degree is a crime of violence. (540) Under § 2K2.1, a defendant convicted of possession of a firearm by a convicted felon is subject to an increased offense level if he has a prior conviction for a “crime of violence.” In U.S. v. Jennings, 515 F.3d 980 (9th Cir. 2008), the court held that theft in the first degree, in violation of Washington Rev. Code § 9A.56.030, constitutes a “violent felony” under the Armed Career Criminal Act. Although the definition of “violent felony” and “crime of violence” are identical, defendant argued that the Supreme Court narrowed the definition of both terms in Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), which held that to qualify as a “violent felony” under the ACCA, an offense must be similar to the crimes listed in that statute. The Ninth Circuit rejected that analysis and held that theft in the first degree under Washington law was a “crime of violence.” U.S. v. Alderman, 601 F.3d 949 (9th Cir. 2010).
9th Circuit finds Arizona sexual assault to be a “violent felony.” (540) Under the Armed Career Criminal Act, 18 U.S.C. § 924(e), a defendant convicted of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g), is subject to a mandatory minimum 15-year sentence if he has three prior convictions for a “violent felony.” That term is defined in part to mean an offense that “involves conduct that presents a serious potential risk of physical injury to another.” Defendant, convicted of a § 922(g) violation, had a prior conviction under Arizona Rev. Stat. § 13-1406(A) for sexual assault without the consent of the victim or where the victim is incapable of consent. The Ninth Circuit held that this offense constituted a “violent felony.” U.S. v. Terrell, 593 F.3d 1084 (9th Cir. 2010).
9th Circuit says second-degree burglary under Arizona law is a “violent felony.” (540) The Armed Career Criminal Act, 18 U.S.C. § 924(e), provides that a defendant convicted of being a felon in possession of a firearm is subject to a mandatory minimum 15-year sentence if he has three prior convictions for a “violent felony.” “Violent felony” is defined to include “burglary” and offenses that involve conduct that presents a serious potential risk of physical injury to another. Defendant had a prior conviction under Arizona Rev. Stat. 13-1507(A) for second-degree burglary, which is defined to mean entering or remaining unlawfully in a residential structure with the intent to commit any theft or felony. The Ninth Circuit held that second-degree burglary under Arizona law does not categorically qualify as a “burglary” under the ACCA, but that defendant’s offense categorically involved a serious risk of physical injury to another. U.S. v. Terrell, 593 F.3d 1084 (9th Cir. 2010).
9th Circuit holds that second-degree burglary in Missouri is “violent felony.” (540) In the Armed Career Criminal Act, 18 U.S.C. § 924(e), Congress provided that a defendant convicted of possession of a firearm by a convicted felon is subject to a mandatory minimum 15-year sentence if he has three prior convictions for a “violent felony.” That term is defined to include “burglary” and offenses that involve conduct that presents a serious potential risk of physical injury to another. Defendant had a prior conviction under Missouri Rev. Stat. 569.170(1) for burglary. Because that statute includes moveable objects in the burglary definition, the Ninth Circuit held that it does not categorically define a “burglary.” The court held, however, that the offense categorically involved a serious risk of physical injury to another. U.S. v. Terrell, 593 F.3d 1084 (9th Cir. 2010).
9th Circuit says Shepard does not limit documents used to decide if prior conviction exists. (540) In Shepard v. U.S., 544 U.S. 13 (2005), the Supreme Court held that a court may only rely on certain official documents in determining whether a defendant’s prior conviction qualifies as a crime of violence under the so-called modified categorical approach. Here, defendant argued that Shepard also limited the documents a court could consider in determining the existence of a prior conviction, arguing that the court could rely only on “judicially created” documents to decide whether defendant had a prior conviction. The Ninth Circuit rejected that contention and held that Shepard does not limit the documents on which a court may rely in finding that defendant has a prior conviction. U.S. v. Felix, 561 F.3d 1036 (9th Cir. 2009).
9th Circuit says sentence under state guidelines does not determine whether crime triggers the ACCA. (540) Under the Armed Career Criminal Act, 18 U.S.C. § 924(e), a defendant convicted of being a felon in possession of a firearm who has three prior convictions for a “serious drug offense” or a violent felony must be sentenced to a mandatory 15-year term. The ACCA defines “serious drug offense” as an offense involving the manufacturing, distributing, or possessing with intent to manufacture or distribute a controlled substance for which a maximum term of at least ten years’ imprisonment “is prescribed by law.” Defendant had two Oregon convictions for manufacture and delivery of marijuana. The maximum sentence for that offense is more than ten years, but Oregon’s sentencing guidelines prescribe a sentence of 90 months. The Ninth Circuit reiterated its holding in prior cases that the term “prescribed by law” refers to the statutory maximum, not the sentence required by the state sentencing guidelines. U.S. v. Mayer, 560 F.3d 948 (9th Cir. 2009).
9th Circuit finds Oregon first-degree burglary is a violent felony under the ACCA. (540) The Armed Career Criminal Act, 18 U.S.C. § 924(e), imposes a mandatory 15-year sentence upon felons convicted of illegally possessing a firearm who have three or more prior convictions for certain drug-trafficking crimes or violent felonies. A state-law burglary is a violent felony under the ACCA if it has the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime. Under the ACCA’s residual clause, a burglary may also be a violent felony if it “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Under Oregon law, a person commits first-degree burglary by entering a “building that is a dwelling” while armed with a burglary tool or a deadly weapon, by injuring another person, or by threatening use of a deadly weapon. Oregon defines “building” to include “any booth, vehicle, boat, aircraft, or other structure adapted for overnight accommodation of persons.” The Ninth Circuit held that first-degree burglary does not categorically constitute a “burglary” as that term is used in the ACCA, but that it does categorically qualify as a “violent felony” under the ACCA’s residual clause. U.S. v. Mayer, 560 F.3d 948 (9th Cir. 2009).
9th Circuit says statutory rape is not a violent felony. (540) Under the Armed Career Criminal Act, 18 U.S.C. § 924(e), a defendant convicted of being a felon in possession of a firearm is subject to a mandatory 15-year sentence if he has three prior convictions for a “violent felony.” A “violent felony” is defined in part to mean any felony that “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” In U.S. v. Asberry, 394 F.3d 712 (9th Cir. 2005), the court held that statutory rape categorically qualified as a “crime of violence,” a term whose definition in Guideline § 4B1.2 is substantially similar to the definition of “violent felony.” Here, the Ninth Circuit concluded that Asberry was no longer good law in light of Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), which held that crimes covered by the “otherwise” clause of the definition of “violent felony” must involve conduct similar to the four enumerated crimes. Because statutory rape could involve consensual sexual intercourse, the court of appeals held that it did not qualify as a violent felony. U.S. v. Christensen, 559 F.3d 1092 (9th Cir. 2009).
9th Circuit says docket sheet and sex offender registration satisfy modified categorical approach. (540) A defendant convicted of receipt or possession of child pornography, in violation of 18 U.S.C. §2252A, is subject to an enhanced sentence if he has a prior conviction “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor.” Defendant, convicted under §2252A, had a prior conviction in Maryland for child abuse. The government submitted an uncertified docket sheet from the Maryland case showing that when defendant was charged with child abuse, he was also charged with sexual abuse and “perverted practice.” The judgment in that case required defendant to register as a sex offender, and at defendant’s sentencing on the §2252A charge, the government introduced documents showing that defendant had registered as a sex offender in two states. In registering as a sex offender, defendant admitted that the victim of his Maryland offense had been his 16-year-old stepson. The district court found that defendant’s Maryland conviction triggered the enhanced sentence under §2252A. The Ninth Circuit found that the Maryland statute did not categorically define an offense relating to sexual abuse, but, applying the modified categorical approach, held that the Maryland conviction related to sexual abuse. U.S. v. Strickland, __ F.3d __ (9th Cir. Mar. 2, 2009) No. 08-30091.
9th Circuit rules that Arizona aggravated assault is not a crime of violence. (540) The Guideline for illegal reentry after deportation, §2L1.2(b)(1)(A), requires a 16-level increase in offense level if the defendant’s deportation occurred after a “crime of violence,” a term defined to include “aggravated assault.” Defendant, convicted of illegal reentry after deportation, had a prior conviction under Arizona Revised Statute §13-1204(A)(11), for aggravated assault. That statute defines aggravated assault as, among other things, an assault by means of force that causes a temporary but substantial disfigurement. Arizona defines “assault” to mean intentionally, knowingly, or recklessly causing physical injury to another. The Ninth Circuit held that because Arizona allows a conviction for aggravated assault based on “ordinary recklessness,” its offense does not qualify as “aggravated assault” within the meaning of the Guideline. All three judges of the panel joined a concurring opinion disagreeing with the “esoteric sphere of legal analysis” required by circuit precedent. U.S. v. Esparza-Herrera, __ F.3d __ (9th Cir. Feb. 25, 2009) No. 07-30490.
9th Circuit, in amended opinion, rejects use of modified categorical approach for prior California burglary. (540) In a decision issued on April 28, 2008, the Ninth Circuit held that California Penal Code §459, which defines the offense of residential burglary, does not categorically define a “crime of violence” within the meaning of §2L1.2 because it does not require proof that the defendant’s entry into a dwelling was “unlawful and unprivileged.” Applying the modified categorical approach, however, the court found that defendant had admitted to facts showing that he committed a burglary of a dwelling that qualified as a crime of violence. In an amended opinion issued on January 20, 2009, the Ninth Circuit held that the modified categorical approach may not be used to show that a conviction under §459 constitutes a crime of violence because that offense does not require proof of unlawful entry. U.S. v. Aguula-Montes, 523 F.3d 1071 (9th Cir. 2008), amended, __ F.3d __ (9th Cir. Jan. 20, 2009).
9th Circuit relies on state appellate decision to find that state statute defines crime of violence. (540) Defendant argued that his prior conviction for attempted armed robbery under Arizona law did not constitute a felony crime of violence within the meaning of the career offender provision, § 4B1.1. Relying on an interpretation of Arizona’s attempt provision by the intermediate Arizona appellate court, the district court found that defendant’s prior conviction was a crime of violence. On appeal, defendant argued that a court may look only to decisions of a state’s highest court to determine the meaning of a state statute. The Ninth Circuit disagreed, and held that in determining whether a state statute defines a crime of violence, a federal court may look at state intermediate appellate court decisions that construe the state statute. U.S. v. Taylor, 529 F.3d 1232 (9th Cir. 2008).
9th Circuit says that modified categorical approach applies to “catchall” clause of ACCA. (540) The Armed Career Criminal Act, 18 U.S.C. § 924(e) provides that a defendant convicted of being a felon in possession of a firearm who has three prior convictions for a “violent felony or serious drug offense” is subject to a 15-year mandatory minimum. The ACCA defines “violent felony” to include several offenses and also contains a “catchall clause” that defines “violent felony” to mean conduct “that presents a serious potential risk of physical injury to another.” Clarifying an issue left in doubt by its prior cases, the Ninth Circuit held that the modified categorical approach applies to the catchall clause” and thus that a court is not limited to the elements of an offense in determining whether it falls within the catchall clause. U.S. v. Jennings, 515 F.3d 980 (9th Cir. 2008).
9th Circuit holds that attempting to elude a police vehicle is not a violent felony. (540) Under the Armed Career Criminal Act, 18 U.S.C. § 924(e), a defendant convicted of being a felon in possession of a firearm who has three prior convictions for a “violent felony or a serious drug offense” is subject to a 15-year mandatory minimum sentence. The definition of “violent felony” includes offenses involving conduct “that presents a serious potential risk of physical injury to another.” Defendant, convicted of being a felon in possession of a firearm, had a prior conviction for attempting to elude a pursuing police vehicle, in violation of Wash. Rev. Code § 46.61.024. The Ninth Circuit held that this offense is not categorically a violent felony. It also found that the modified categorical approach could not be applied to this offense because the statute does not require proof of any actual or potential risk of harm to others for a conviction. U.S. v. Jennings, 515 F.3d 980 (9th Cir. 2008).
9th Circuit says Washington first-degree theft is a violent felony. (540) A defendant convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), is subject to a 15-year mandatory minimum sentence under 18 U.S.C. § 924(e) if he has three prior convictions for a “violent felony or a serious drug offense.” “Violent felony” is defined in part to mean an offense involving conduct “that presents a serious potential risk of physical injury to another.” Defendant had a prior conviction under Wash. Rev. Code § 9A.56.030(1)(b), which defines theft in the first degree as theft of “property of any value” from the person of another. The Ninth Circuit held that first-degree theft under Washington law is categorically a violent felony under § 924(e). U.S. v. Jennings, 515 F.3d 980 (9th Cir. 2008).
9th Circuit holds that aiding and abetting attempted escape from custody is not an aggravated felony. (540) For purposes of the immigration laws, an “aggravated felony” is defined in part to mean any “offense relating to obstruction of justice” punishable by more than one year in prison. The Ninth Circuit held that aiding and abetting an attempted escape from justice, in violation of 18 U.S.C. §751, does not constitute an offense relating to obstruction of justice and thus is not categorically an aggravated felony. Salazar-Luviano v. Mukasey, __ F.3d __ (9th Cir. Dec. 23, 2008) No. 05-70505.
9th Circuit, en banc, holds California statutory rape is not sexual abuse of a minor. (540) Under 8 U.S.C. §1101(a)(43)(A), the term “aggravated felony” is defined to include “sexual abuse of a minor.” Defendant was convicted under four California statutory rape provisions, Cal. Penal Code §§261.5(c) (sex with a minor), 286(b)(1) (sodomy with a minor), 288a(b)(1) (oral copulation with a minor), and 289(h) (sexual penetration of a minor with a foreign object). Sitting en banc, the Ninth Circuit held that none of the California offenses categorically define an offense involving “sexual abuse of a minor” and therefore none of the offenses was an “aggravated felony.” Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008), overruled on other grounds by U.S. v. Aguila-Montes de Oca, 655 F.3d 915, 928 (9th Cir. 2011) (en banc).
9th Circuit uses modified categorical approach to find that prior offense was drug trafficking. (540) A defendant convicted of illegal reentry after deportation, in violation of 8 U.S.C. §1326, is subject to a 16-level increase if he was deported after committing a felony “drug-trafficking offense.” Defendant had a prior conviction under California Health & Safety Code 11379(a) for transporting, importing, or selling a controlled substance. The Ninth Circuit has previously held that §11379(a) does not categorically define a “drug-trafficking offense.” Applying the modified categorical approach, the Ninth Circuit examined the criminal complaint and the defendant’s plea agreement and determined that defendant’s violation of §11379(a) rested on a sale of drugs. Accordingly, the court found that defendant’s prior conviction was for a “drug-trafficking offense.” U.S. v. Gomez-Leon, __ F.3d __ (9th Cir. Sept. 24, 2008) No. 05-50138.
9th Circuit holds vehicular manslaughter while intoxicated without gross negligence is not a crime of violence. (540) Defendant, convicted of attempted illegal reentry after deportation, in violation of 8 U.S.C. §1326, had a prior conviction under California Penal Code 192(c)(3) for vehicular manslaughter while intoxicated without gross negligence. At sentencing, the district court found that this offense was a felony “crime of violence” and increased his offense level by 16. A “crime of violence” is defined in part by §2L1.2(b) as “manslaughter.” The Ninth Circuit held that the California offense of vehicular manslaughter while intoxicated without gross negligence was not “manslaughter” within the meaning of the Guideline and held that the California offense was not a crime of violence. U.S. v. Gomez-Leon, __ F.3d __ (9th Cir. Sept. 24, 2008) No. 05-50138.
9th Circuit says state records did not show that defendant received a 13-month sentence. (540) Under the Guideline for illegal reentry after deportation, §2L1.2, a defendant’s prior conviction for a crime of violence or drug-trafficking offense does not trigger a 16-level increase in offense level unless the sentence imposed exceeded 13 months. The sentence imposed includes any sentence of incarceration imposed as a result of a probation violation. After his prior state conviction for a drug-trafficking offense, defendant received a sentence of three years’ probation, on condition that he spend 127 days in custody. Defendant violated a condition of probation and received a 365-day custodial sentence. The Ninth Circuit held that the state conviction records appeared to show that the 365-day sentence included the 127 days that defendant had already spent in custody. For that reason, the court held that the government had not shown that defendant received a sentence of 13 months. U.S. v. Gomez-Leon, __ F.3d __ (9th Cir. Sept. 24, 2008) No. 05-50138.
9th Circuit finds police reports that established factual basis for plea may be basis for aggravated felony finding. (540) Defendant, charged with illegal reentry after deportation, in violation of 8 U.S.C. § 1326, had a prior conviction under California Health and Safety Code § 11360(a), which makes it a crime to transport, sell, or offer to sell a controlled substance. A violation of § 11360(a) is not categorically an “aggravated felony” that would trigger a 16-level increase in offense level under the Guideline for § 1326, § 2L1.2(b)(1)(A). Instead, a violation of § 11360(a) constitutes an aggravated felony only if judicially noticeable documents establish that the defendant sold or offered to sell a controlled substance. At sentencing, the district court determined that defendant’s prior offense constituted an aggravated felony because the complaint charging the offense alleged that defendant sold marijuana and because the police reports underlying the offense showed that defendant sold marijuana. Defendant stipulated when he pleaded guilty to the violation of § 11360(a) that the police reports provided a factual basis for the pleas. The Ninth Circuit held that the district court properly relied on the police reports because the defendant had stipulated that they provided a factual basis for his plea to violating § 11360(a). U.S. v. Almazan-Becerra, __ F.3d __ (9th Cir. Aug. 12, 2008) No. 07-10420.
9th Circuit says use of a communications facility is a drug-trafficking offense. (540) The Guideline for illegal entry after deportation, § 2L1.2(b)(1)(A), provides for a 16-level increase in offense level if the defendant has a prior conviction for felony “drug trafficking offense for which the sentence imposed exceeded 13 months.” A drug-trafficking offense is defined as a federal, state, local offense involving the manufacture, import, export, distribution, or dispensing of a controlled substance. The Ninth Circuit held that the offense of unlawful use of a communications facility to commit a narcotics offense constituted a “drug-trafficking offense” under § 2L1.2(b)(1)(A). U.S. v. Jimenez, __ F.3d __ (9th Cir. July 23, 2008) No. 07-10399.
9th Circuit says failure to appear is not categorically an aggravated felony. (540) Under 8 U.S.C. §§ 1101(a)(43)(S) and (T), the term “aggravated felony” is defined to include “an offense relating to obstruction of justice” and “an offense relating to failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years’ imprisonment may be imposed.” The federal failure-to-appear statute, 18 U.S.C. § 3146, states in part that it is an offense to fail to appear before a court as required by the conditions of release or to fail to surrender for service of sentence pursuant to a court order. The Ninth Circuit held that the offense defined by § 3146 is not categorically an aggravated felony under either § 1101(a)(43)(S) or (T). Renteria-Morales v. Mukasey, __ F.3d __ (9th Cir. July 10, 2008) No. 06-73283.
9th Circuit says “categorical approach” not required to determine if sex offender must register. (540) The Sex Offender Registration and Notification Act, 42 U.S.C. § 16912 (SORNA), requires that “sex offenders” must register with a state sex offender registry. A person is a “sex offender” if he or she committed a “sex offense,” a term defined to include, among other things, an offense involving “conduct that by its nature is a sex offense against a minor.” A sex offender who fails to register may be imprisoned up to ten years. Defendant pleaded guilty to importing an alien into the U.S. for the purpose of prostitution, in violation of 8 U.S.C. § 1328. In her plea agreement, defendant admitted that she induced a minor to come to Guam with the intent to have the minor engage in prostitution. The Ninth Circuit held that the determination whether an offense is a “sex offense” does not require a categorical approach; instead, a court may look to the facts of the defendant’s offense to determine whether a given statutory violation is a “sex offense.” Looking at the facts to which defendant admitted, the court found that defendant committed a “sex offense” and was subject to the registration requirement. U.S. v. Byun, __ F.3d __ (9th Cir. July 1, 2008) No. 07-10254.
9th Circuit finds Arizona attempted armed robbery is crime of violence. (540) Under the career offender guideline, an attempt to commit a crime of violence is itself a crime of violence. When a state offense defines a crime of violence, a federal court must determine whether the state attempt statute is coextensive with the federal attempt statute. Relying on state intermediate appellate decisions, the court found that Arizona’s attempt statute required a substantial step to commit the underlying crime. On that basis, the court held that defendant’s conviction for attempted armed robbery was a crime of violence. U.S. v. Taylor, __ F.3d __ (9th Cir. June 26, 2008) No. 06-30580.
9th Circuit says robbery under California law is a crime of violence. (540) Defendant, convicted of illegal reentry after deportation, had a prior conviction under California Penal Code § 211 for robbery. At defendant’s sentencing, the government claimed, and the district court found, that this conviction was a “crime of violence” and therefore an “aggravated felony” under § 2L1.2. In U.S. v. McDougherty, 920 F.2d 569 (9th Cir. 1990), the court held that a violation of § 211 was a crime of violence under the career offender provision, § 4B1.2, which at that time defined “crime of violence” in part to mean any felony involving a “substantial risk” that physical force may be used “against the person or property of another.” The Ninth Circuit held that McDougherty did not control the determination whether a § 211 violation was a “crime of violence” under § 2L1.2, because that section’s definition of “crime of violence” covered only those crimes that involve “the use, attempted use, or threatened use of physical force against the person of another.” Viewing the issue as one of first impression, the court held that § 211 did not define the generic offense of robbery but that “crime of violence” under § 2L1.2. U.S. v. Becerril-Lopez, __ F.3d __ (9th Cir. June 12, 2008) No. 05-50979.
9th Circuit holds that identity theft is not a “theft offense” (540) Under 8 USC 1101(a)(43)(G), the term “aggravated felony” is defined to include a “theft offense.” The Ninth Circuit has defined that term to include offenses involving the taking of property or the exercise of control over property without consent and with the intent to deprive the owner of the rights and benefits of ownership. Defendant was convicted under Oregon Rev. Stat. § 165.800, which makes it a crime to fraudulently obtain, create, or transfer the identity of a real or imaginary person. The Ninth Circuit held that Oregon’s identity theft statute does not define a “theft offense” because it reaches the creation of false identities and, even in cases involving the theft of a real person’s identity, it reaches conduct in which the defendant does not intend to deprive the owner of property. Mandujano-Real v. Mukasey, __ F.3d __ (9th Cir. May 22, 2008) No. 06-74186.
9th Circuit holds that California first-degree burglary is not a crime of violence. (540) Defendant, convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326, had a prior conviction under California Penal Code § 459 for first-degree residential burglary. At sentencing, the district court found that this conviction was for a “crime of violence” and increased defendant’s offense level by 16. The applicable Guideline, § 2L1.2, defines “crime of violence” to include “burglary of a dwelling.” A state statute that defines the “generic” offense of burglary defines a “crime of violence” within this definition. California Penal Code § 459 does not require that an entry into a dwelling be “unlawful or unprivileged.” The Ninth Circuit held that because the California statute lacks that element, it cannot categorically be considered a crime of violence. The court held, however, that defendant admitted to facts establishing that he committed a generic burglary of a dwelling and therefore that his prior offense constituted a crime of violence under the modified categorical approach. U.S. v. Aguila-Montes, __ F.3d __ (9th Cir. April 28, 2008) No. 05-50170.
9th Circuit holds that felony cultivation of marijuana in California is an aggravated felony. (540) Defendant, convicted of illegal reentry after deportation, claimed that his prior conviction for felony cultivation of marijuana, in violation of Cal. Health & Safety Code § 11358 did not constitute an “aggravated felony” triggering the increase in the statutory maximum under 8 U.S.C. § 1326 because it did not categorically qualify as a “drug-trafficking crime” under 8 U.S.C. § 1101(a)(43). Section 11358 makes it a crime to “plant, cultivate, harvest, dry, or process any marijuana.” The Ninth Circuit held that § 11358 categorically defined a “drug-trafficking crime” and thus constituted an “aggravated felony.” U.S. v. Reveles-Espinoza, __ F.3d __ (9th Cir. April 15, 2008) No. 05-50905.
9th Circuit applies categorical approach to find prior convictions were drug trafficking offenses. (540) Defendant’s prior convictions under California Health and Safety Code § 11352(a) and Washington Revised Code § 69.50.407 encompassed drug possession as well as drug trafficking crimes. Therefore, the Court of Appeals applied the “modified” categorical approach of Taylor v. U.S., 495 U.S. 575 (1990) and U.S. v. Kovac, 367 F.3d 1116, 1119 (9th Cir. 2004). In each of his prior convictions, defendant signed a handwritten plea form admitting that he distributed or sold cocaine. He did not dispute the accuracy of the plea forms. Accordingly, the Ninth Circuit held that the plea documents were sufficient to show that defendant’s prior convictions were for drug trafficking, and that he was a career offender under §4B21.2. U.S. v. Crawford, __ F.3d __ (9th Cir. March 14, 2008) No. 06-30205.
9th Circuit says maximum sentence for predicate offenses is statutory maximum, not guideline maximum. (540) Defendant argued that he was not a career offender under § 4B1.2 because the maximum sentence for his predicate offense under the Washington state sentencing guidelines, was only twelve months. The Ninth Circuit noted that an almost identical argument had been rejected in U.S. v. Murillo, 422 F.3d 1152 (9th Cir. 2005). Murillo noted that after Apprendi v. New Jersey, 530 U.S. 466, 471 (2000) and Blakely v. Washington, 542 U.S. 296 (2004), the maximum sentence that makes a prior conviction under state law a predicate offense is the maximum sentence defined by the applicable statute, not the maximum sentence under the state’s sentencing guidelines. U.S. v. Crawford, __ F.3d __ (9th Cir. March 14, 2008) No. 06-30205.
9th Circuit finds that California forgery statute does not define an offense relating to forgery. (540) Under 8 U.S.C. § 101(a)(43)(R), an “aggravated felony” includes an offense “relating…to forgery.” Defendant had a prior conviction under Cal. Penal Code § 475(c), which provides that any person who possesses “real or fictitious” checks or money orders with the intent to pass them in order to defraud any person “is guilty of forgery.” The Ninth Circuit held that § 475(c) did not define an offense “relating to forgery” because forgery requires the falsification of a document or instrument. Vizcarra-Ayala v. Mukasey, __ F.3d __ (9th Cir. Jan. 23, 2008) No. 06-73237.
9th Circuit says resisting arrest is a crime of violence. (540) A “crime of violence” as that term is defined in 18 U.S.C. § 16 constitutes an “aggravated felony” under the immigration laws. A “crime of violence” is defined in part to mean an offense that involves the use or threatened use of force against the person or property of another or an offense that involves the substantial risk of the use of force against another. Defendant had a prior conviction for resisting arrest under Arizona Rev. Stat. 13-2508. That statute makes it a crime to use or threaten to use physical force against a peace officer or use any other means creating a substantial risk of causing physical injury to the peace officer. The Ninth Circuit held that resisting arrest under Arizona law is categorically a crime of violence under § 16. Estrada-Rodriguez v. Mukasey, __ F.3d __ (9th Cir. Dec. 28, 2007) No. 06-75064.
9th Circuit says possession of short-barreled shotgun is violent felony. (540) The Armed Career Criminal Act, 18 U.S.C. § 924(e), provides for a mandatory minimum sentence for a defendant convicted of possession of a firearm by a convicted felon who has three prior convictions for a “violent felony.” Defendant had a prior conviction for possession of a short-barreled shotgun under Oregon law. The Ninth Circuit held that possession of a short-barreled shotgun is a violent felony under the ACCA. U.S. v. Crampton, 510 F.3d 1108 (9th Cir. 2007).
9th Circuit finds suspended sentence for driving with a suspended license does not count in criminal history. (540) Guideline § 4A1.1 requires calculation of the defendant’s offense level based on the “prior sentence of imprisonment” that the defendant received for a conviction. Section 4A1.2(b)(1) states that the term “sentence of imprisonment” refers to the actual sentence imposed, and a comment to that provision states that a sentence does not qualify as a “sentence of imprisonment” unless the defendant actually served a period of imprisonment. Guideline § 4A1.2(c) states that convictions for offenses such as driving with a suspended license are counted toward defendant’s criminal history only if the defendant received a sentence of “a term of imprisonment of at least thirty days.” Sitting en banc, the Ninth Circuit held that a totally suspended 30-day sentence imposed for driving with a suspended license is not a “prior sentence” that counts toward a defendant’s criminal history. U.S. v. Gonzales, 506 F.3d 940 (9th Cir. 2007) (en banc).
9th Circuit holds that California statutory rape is not categorically a crime of violence because it applies to minors over 16. (540) The guideline for illegal reentry after deportation, § 2L1.2(b)(1)(A)(ii), provides for a 16-level increase in offense level if the defendant has a prior conviction for a “crime of violence.” That term is defined in part to include “statutory rape.” Defendant had a prior conviction under California Penal Code § 261.5(c), which makes it a crime to have “unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator.” The Ninth Circuit held that a violation of § 261.5(c) is not categorically a “crime of violence” under § 2L1.2(b)(1)(A)(ii). The court found that § 261.5(c) defines the crime of statutory rape in California, but that “it is overly inclusive of the generic federal definition of statutory rape” because the generic crime of statutory rape protects only minors under the age of 16 and the California statute defines a minor as a person under the age of 18. Because the record in this case did not show that defendant’s conviction rested on sex with a minor under 16, the court held that it was not a crime of violence. U.S. v. Rodriguez-Guzman, 506 F.3d 738 (9th Cir. 2007).
9th Circuit, en banc, says Supreme Court’s “realistic” categorical approach does not apply when statute is overbroad. (540) In Gonzalez v. Duenas-Alvarez, 127 S. Ct. 815 (2007), the Supreme Court held that for a defendant to show that a prior conviction is not “categorically” an aggravated felony, he must show a “realistic probability, not a theoretical possibility” that the prior conviction was outside the “generic” definition. That is, he “must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.” The Supreme Court reiterated this “realistic” approach in James v. U.S., 127 S. Ct. 1586 (2007). Nevertheless, the Ninth Circuit, in U.S. v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc), held that the Duenas and James “realistic” approach does not apply when the statute explicitly defines a crime more broadly than the generic definition. In the present case, the Ninth Circuit relied on Grisel to hold that even after Duenas and James, a conviction under California Vehicle Code § 10851(a) for taking a vehicle without the consent of the owner with intent to either temporarily or permanently deprive the owner thereof, is not a “generic” theft offense because the statute permits conviction of an accessory after the fact. U.S. v. Vidal, 504 F.3d 1072 (9th Cir. 2007), abrogation recognized as to abstracts of judgment by Cardozo-Arias v. Holder, __ Fed.Appx. __. 2012 WL 5350911, No. 08-74870 (9th Cir. 2012) (unpublished).
9th Circuit, en banc, holds California auto-taking statute is not “categorically” an aggravated felony. (540) Defendants convicted of illegal reentry after removal are subject to an enhanced penalty if they were previously deported after committing an “aggravated felony.” The guideline for illegal reentry, § 2L1.2(b)(1) (C), defines the term “aggravated felony” to include “a theft offense.” California Vehicle Code § 10851 (a) makes “theft and unlawful driving or taking a vehicle” a crime. The Ninth Circuit, sitting en banc, held that the offense defined by § 10851(a) does not categorically define “a theft offense” because a person can be convicted of that offense as an accessory after the fact. For that reason, it does not categorically define an aggravated felony. U.S. v. Vidal, 504 F.3d 1072 (9th Cir. 2007), abrogation recognized as to abstracts of judgment by Cardozo-Arias v. Holder, __ Fed.Appx. __. 2012 WL 5350911, No. 08-74870 (9th Cir. 2012) (unpublished).
9th Circuit says Oregon second-degree robbery is a violent felony under the ACCA. (540) Under the Armed Career Criminal Act, 18 U.S.C. § 924(e), a defendant convicted of being a felon in possession of a firearm is subject to a mandatory minimum sentence if he has three prior convictions for a violent felony or a serious drug offense. The ACCA defines “violent felony” in part to mean an offense that has as an element the use, attempted use, or threatened use of physical force against another. Defendant had a prior conviction under Oregon law for second-degree burglary, an offense defined to include robbery offenses in which the defendant “uses or threatens the immediate use of physical force upon another person.” The Ninth Circuit held that Oregon second-degree burglary is a violent felony. U.S. v. Ankeny, 502 F.3d 829 (9th Cir. 2007).
9th Circuit holds that assault with intent to commit rape is a crime of violence. (540) Defendant, convicted of illegal reentry after deportation, was previously deported after his conviction under Cal. Penal Code §§ 220 and 261(a)(2) for assault with intent to commit rape. Under § 2L1.2, a defendant convicted of illegal reentry is subject to a 16-level enhancement if he was deported after being convicted of a “crime of violence.” The term “crime of violence” is defined to include “forcible sex offenses.” The Ninth Circuit held that assault with intent to commit rape under California law is a “forcible sex offense” and therefore a crime of violence. U.S. v. Bolanos-Hernandez, 492 F.3d 1140 (9th Cir. 2007).
9th Circuit says State offense is an aggravated felony only if it is punishable as a felony under federal law. (540) A defendant convicted of illegal reentry after deportation is subject to an enhanced sentence if his deportation occurred after he was convicted for an “aggravated felony.” “Aggravated felony” is defined in part to mean “illicit trafficking in controlled substances” including a “drug trafficking crime.” The term “drug trafficking crime” is defined as “any felony punishable under the [federal] Controlled Substances Act.” Simple possession of a controlled substance is punishable as a misdemeanor under the Controlled Substances Act. Defendant had a prior California felony conviction for possession of a controlled substance for personal use, in violation of Cal. H.S. Code § 11350(a). In U.S. v. Ibarra-Galindo, 206 F.3d 1337 (9th Cir. 2000), the court held that a defendant’s state felony conviction qualifies as an “aggravated felony” even if the offense would be a misdemeanor under federal law. The Ninth Circuit held that the Supreme Court’s recent decision in Lopez v. Gonzalez, 127 S. Ct. 625 (2006), effectively overruled Ibarra-Galindo and that a state offense constitutes a felony punishable under the Controlled Substances Act only if it proscribes conduct punishable as a felony under federal law. U.S. v. Figueroa-Ocampo, 494 F.3d 1211 (9th Cir. 2007).
9th Circuit, in amended opinion, says that abstract of judgment may not be used in modified categorical approach. (540) Under § 4B1.1, a defendant is a career offender if he has at least two prior convictions for a crime of violence or a controlled substance offense. In Shepard v. U.S., 544 U.S. 13 (2005), the Court held that in determining whether a defendant’s prior convictions qualify as career offender predicates, the sentencing court may examine only the statutory definition, the charging document, written plea agreement, transcript of a guilty plea colloquy, and any explicit factual finding by the trial judge to which the defendant agreed. To establish that defendant had a prior predicate conviction under a burglary statute that does not categorically define a crime of violence, the government submitted the information charging the defendant with the crime and a minute order showing that defendant entered a nolo contendere plea to the offense. In U.S. v. Snellenberger, 480 F.3d 1187 (9th Cir. 2007), the court held that the minute order was not sufficient to establish the factual basis of defendant’s plea and therefore did not show that his burglary conviction was for a crime of violence. The government filed a petition for rehearing arguing that the court’s ruling meant that minute orders would be treated differently from abstracts of judgment in applying the modified categorical approach. In an amended opinion, the court held that abstracts of judgment may not be used in applying the modified categorical approach. U.S. v. Snellenberger, 493 F.3d 1015 (9th Cir. 2007).
9th Circuit holds that possession of sawed-off shotgun is a crime of violence. (540) The career offender guideline, § 4B1.1, defines a career offender in part to mean a defendant convicted of a “crime of violence” who has two prior convictions for a crime of violence or a controlled substance offense. Defendant was convicted of possession of an unregistered sawed-off shotgun, in violation of 26 U.S.C. § 5861(d). Because defendant had two prior convictions for crimes of violence or controlled substance offenses, the district court sentenced him as a career offender. The Ninth Circuit held that possession of an unregistered sawed-off shotgun is a “crime of violence” that qualifies a defendant to be treated as a career offender. U.S. v. Ankeny, 490 F.3d 744 (9th Cir. 2007).
9th Circuit says Oregon second-degree robbery is a violent felony under the ACCA. (540) Under the Armed Career Criminal Act, 18 U.S.C. § 924(e), a defendant convicted of being a felon in possession of a firearm is subject to a mandatory minimum sentence if he has three prior convictions for a violent felony or a serious drug offense. The ACCA defines “violent felony” in part to mean an offense that has as an element the use, attempted use, or threatened use of physical force against another. Defendant had a prior conviction under Oregon law for second-degree burglary, an offense defined to include robbery offenses in which the defendant “uses or threatens the immediate use of physical force upon another person.” The Ninth Circuit held that Oregon second-degree burglary is a violent felony. U.S. v. Ankeny, 490 F.3d 744 (9th Cir. 2007).
9th Circuit holds that Oregon second-degree sexual abuse is not a crime of violence. (540) The guideline for illegal reentry after deportation, § 2L1.2(a), requires a 16-level increase in offense level if the defendant was deported after committing a “crime of violence.” That term is defined to include “forcible sex offenses” and any offense that has an element the use or threatened use of force. Defendant had a prior conviction for second-degree sexual abuse under Oregon law, a crime defined as “sexual intercourse, deviate sexual intercourse, or…penetration of the vagina, anus, or penis with any object other than the penis or mouth of the actor” without the victim’s consent. The Ninth Circuit held that this offense did not categorically qualify as a crime of violence because it did not require proof of forcible compulsion, only a lack of consent. U.S. v. Beltran-Munguia, 489 F.3d 1042 (9th Cir. 2007).
9th Circuit says maliciously firing gun inside occupied building or vehicle is not a crime of violence. (540) Defendant, convicted of illegal reentry after deportation (8 U.S.C. § 1326), had a prior conviction under California Penal Code § 246 for maliciously and willfully discharging a firearm inside an inhabited dwelling or occupied building or vehicle. In U.S. v. Lopez-Torres, 443 F.3d 1182 (9th Cir. 2006), abrogation recognized by U.S. v. Narvaez-Gomez, 489 F.3d 970 (9th Cir. 2007), the court held that a violation of § 246 categorically qualifies as a crime of violence under § 2L1.2. In Fernandez-Ruiz v. Gonzalez, 466 F.3d 1121 (9th Cir. 2006) (en banc), the court limited categorical crimes of violence as that term is defined in 18 U.S.C. § 16 to offenses committed through intentional use of force against the person of another, rather than reckless or grossly negligent conduct. The Ninth Circuit held that Fernandez-Ruiz applies to § 2L1.2, that it abrogated Lopez-Torres, and that under Fernandez-Ruiz § 246 did not categorically qualify as a crime of violence. U.S. v. Narvaez-Gomez, 489 F.3d 970 (9th Cir. 2007).
9th Circuit holds that escape from a jail is a crime of violence. (540) In U.S. v. Piccolo, 441 F.3d 1084 (9th Cir. 2006), the court held that a “walkaway escape” under a statute that includes escapes accomplished by nonviolent means is not categorically a crime of violence under § 4B1.2. Defendant, convicted of firearms offenses, had a prior conviction for escape under a Montana law that did not distinguish between violent and nonviolent escapes. The charging document and defendant’s plea allocution for the escape conviction showed, however, that he escaped from a jail, not from a facility that allowed residents the privilege of coming and going. The Ninth Circuit held that defendant’s escape from a jail was a crime of violence under § 4B1.2. U.S. v. Savage, 488 F.3d 1232 (9th Cir. 2007).
9th Circuit, en banc, holds that Oregon second-degree burglary is not a violent felony. (540) Under the Armed Career Criminal Act, 18 U.S.C. § 924(e), a defendant convicted of being a felon in possession of a firearm who has three prior convictions for violent felonies is subject to a mandatory 15-year sentence. A violent felony is defined in part to include “burglary.” A state law statute defining burglary categorically qualifies as a “burglary” under § 924(e) if it defines that offense as an unprivileged entry into a building or structure with the intent to commit a crime. A defendant may be convicted of second-degree burglary under Oregon law if he made an unprivileged entry into a building or any vehicle, boat, or aircraft. Sitting en banc, the Ninth Circuit overruled prior precedent and held that Oregon second-degree burglary is not a violent felony under the ACCA. U.S. v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc).
9th Circuit, en banc, says date of prior conviction falls within prior-conviction exception to Apprendi. (540) Under Almendarez-Torres v. U.S., 523 U.S. 224 (1998), the Sixth Amendment does not require the government to prove a defendant’s prior conviction beyond a reasonable doubt to a jury when the fact of that prior conviction increases a defendant’s maximum sentence. Defendant argued that the date of the prior conviction fell outside the prior-conviction exception to the Apprendi rule that any fact that increases a defendant’s maximum sentence must be proved beyond a reasonable doubt to a jury. Therefore, he argued, in seeking an enhanced sentence under the Armed Career Criminal Act, the government had to prove the date of his conviction beyond a reasonable doubt to a jury. Sitting en banc, the Ninth Circuit held that the date of the offense is part of “the fact” of the prior conviction. U.S. v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc).
9th Circuit says that abstracts of judgment are not categorically unreliable for assessing prior conviction. (540) At defendant’s sentencing for his conviction for illegal reentry after deportation, in violation of 8 U.S.C. § 1326, the district court found that the defendant had a prior drug-trafficking offense under California law and increased defendant’s offense level under § 2L1.2 (b)(1)(A) by 16 levels. To determine the length of defendant’s sentence on the prior offense, the court looked to the abstract of judgment issued by the California court. On appeal, defendant argued that prior Ninth Circuit decisions barred the district court from relying on abstracts of judgment. The Ninth Circuit clarified that a district court may not rely on an abstract of judgment to determine the nature of a prior conviction, but that abstracts of judgment are not categorically unreliable. U.S. v. Sandoval-Sandoval, 487 F.3d 1278 (9th Cir. 2007).
9th Circuit says that abstracts of judgment are not categorically unreliable for assessing prior conviction. (540) At defendant’s sentencing for his conviction for illegal reentry after deportation, in violation of 8 U.S.C. § 1326, the district court found that the defendant had a prior drug-trafficking offense under California law and increased defendant’s offense level under § 2L1.2 (b)(1)(A) by 16 levels. To determine the length of defendant’s sentence on the prior offense, the court looked to the abstract of judgment issued by the California court. On appeal, defendant argued that prior Ninth Circuit decisions barred the district court from relying on abstracts of judgment. The Ninth Circuit clarified that a district court may not rely on an abstract of judgment to determine the nature of a prior conviction, but that abstracts of judgment are not categorically unreliable. U.S. v. Sandoval-Sandoval, 487 F.3d 1278 (9th Cir. 2007).
9th Circuit makes clear that categorical approach looks to conduct in ordinary case. (540) Defendant, convicted of being a felon in possession of a firearm, had a prior conviction under Washington law for second-degree assault, in violation of Wash. Rev. Code § 9A.36.021 (1)(f). That statute makes it a felony punishable by up to ten years’ imprisonment to “knowingly inflict bodily harm which by design causes such pain or agony as to be the equivalent of that produced by torture.” The Ninth Circuit held that this offense categorically qualifies as a “crime of violence” under § 4B1.2(a) because it presents a serious potential risk of physical injury to another. The court cautioned that in determining whether an offense categorically falls into the definition of “crime of violence” in § 4B1.2(a), the court “must not conjure up some scenario, however improbable, whereby a defendant might be convicted under the statute even though he did not commit an act encompassed by” the definition and instead look to the conduct encompassed by the elements of the offense in the ordinary case. U.S. v. Carson, 486 F.3d 618 (9th Cir. 2007).
9th Circuit holds that having sex with minor under 16 is categorically a crime of violence. (540) Defendant, convicted of illegal reentry after deportation (8 U.S.C. § 1326), had a prior conviction under California Penal Code § 261.5 (d), which makes it a crime for a person 21 or older to have sex with a minor under the age of 16. At sentencing, the district court found that this offense was a “crime of violence” and increased defendant’s offense level by 16 under § 2L1.2 (b)(1)(A)(ii). The Commentary to that section defines “crime of violence” to include statutory rape. The Ninth Circuit held that the California statute defined the offense of statutory rape and therefore categorically qualified as a crime of violence under § 2L1.2(b)(1)(A)(ii). U.S. v. Gomez-Mendez, 486 F.3d 599 (9th Cir. 2007).
9th Circuit says Oregon Sentencing Guidelines do not determine maximum sentence for ACCA purposes. (540) Under the Armed Career Criminal Act, 18 U.S.C. § 924(e), a defendant convicted of possession of a firearm by a convicted felon is subject to a mandatory 15-year sentence if he has three prior convictions for “serious drug offenses.” That term is defined to include any offense involving the distribution of a controlled substance for which the maximum term of imprisonment is at least ten years. Defendant had prior convictions under Oregon law for unlawful delivery of methamphetamine. That offense is a Class B felony under Oregon law. Oregon Class B felonies are subject to a maximum penalty of ten years. Defendant argued, however, that under the Oregon Sentencing Guidelines, the maximum penalty for delivery of methamphetamine is 90 months. The Ninth Circuit rejected this argument because the Sentencing Guidelines set only the presumptive sentence, not the maximum sentence for ACCA purposes. U.S. v. Parry, 479 F.3d 722 (9th Cir. 2007).
9th Circuit holds that government may not appeal order finding that government has not proven ACCA predicates. (540) The Armed Career Criminal Act, 18 U.S.C. § 924(e), requires a mandatory 15-year sentence for a defendant convicted of being a felon in possession of a firearm who has three prior violent felony convictions. At a bench trial to determine whether defendant had the requisite three prior convictions, the district court granted a motion for judgment of acquittal under Federal Rule of Criminal Procedure 29 on the ground that two of defendant’s prior convictions were non-jury juvenile offenses that could not be predicate offenses for the purposes of the ACCA sentencing enhancement. The government appealed, but the Ninth Circuit held that the Double Jeopardy Clause bars a government appeal of a district court’s order finding that the government has failed to establish the predicate convictions necessary to establish that a defendant qualifies for an ACCA sentence. U.S. v. Blanton, 476 F.3d 767 (9th Cir. 2007).
9th Circuit says Florida false imprisonment is not a crime of violence. (540) A defendant convicted of illegal reentry after removal is subject to a 16-level enhancement if he was removed after committing a “crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). The definition of “crime of violence” includes kidnapping and any offense that has as an element the use, attempted use, or threatened use of physical force. Defendant had a prior conviction under Florida Stat. § 787.02(1) (a), which defines false imprisonment as “forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will.” The Ninth Circuit held that the Florida false imprisonment statute did not categorically define a “crime of violence.” U.S. v. Gonzalez-Perez, 472 F.3d 1158 (9th Cir. 2007).
9th Circuit to decide en banc whether Oregon second-degree burglary is a “violent felony.” (540) In U.S. v. Cunningham, 911 F.2d 361 (9th Cir. 1990), the court held that Oregon’s second-degree burglary statute meets the generic definition of “burglary” as set forth in Taylor v. U.S., 495 U.S. 575 (1990), and therefore that the statute categorically defines a “violent felony” under the Armed Career Criminal Act. On January 5, 2007, the Ninth Circuit granted en banc review to reconsider this decision. U.S. v. Grisel, 472 F.3d 1104 (9th Cir. 2007) (granting en banc review).
9th Circuit finds that purchase of drugs for sale is a drug-trafficking offense. (540) Under U.S.S.G. § 2L1.2(b)(1)(A), the sentence of a defendant convicted of illegal reentry after deportation is increased 16 levels if the defendant has a prior conviction for a drug-trafficking offense. A drug-trafficking offense is defined in part to include the possession of a controlled substance with intent to distribute it. Defendant had a prior conviction under California Health and Safety Code § 11351.5 for possession or purchase of a controlled substance for purposes of sale. The Ninth Circuit held that the California statute categorically defines an offense that qualifies as a drug trafficking offense under § 2L1.2(b) (1). This decision replaces a prior decision at 438 F.3d 971. U.S. v. Morales-Perez, 467 F.3d 1219 (9th Cir. 2006).
9th Circuit says possession of assault weapon is not a crime of violence. (540) Under § 4B1.2(a), a “crime of violence” includes any felony offense that “has as an element the use, attempted use, or threatened use of physical force” or that “involves conduct that presents a serious potential risk of physical injury to another.” The Ninth Circuit held that possession of an assault weapon, in violation of California law, is not a crime of violence. The court held that as long as an item has substantial legitimate uses, its mere possession cannot, without more, constitute a crime of violence. Assault weapons, the court held, have legitimate uses. U.S. v. Serna, 435 F.3d 1046 (9th Cir. 2006).
9th Circuit rules that making a harassing phone call under Washington law is a violent felony. (540) Under 18 U.S.C. § 924(e), a person convicted of being a felon in possession of a firearm is subject to a mandatory minimum 15-year sentence if he has three prior convictions for “a violent felony.” Defendant had a prior felony conviction for making a harassing telephone call, in violation of Washington law. The Washington statute makes that offense a felony only if the defendant threatens to kill during the call. The Ninth Circuit held that a felony conviction for making a harassing phone call is a violent felony under § 924(e). U.S. v. Ladwig, 432 F.3d 1001 (9th Cir. 2005).
9th Circuit relies on plea transcript to find that burglary was a violent felony. (540) Defendant, convicted of being a felon in possession of a firearm, had three prior felony burglary convictions. The transcript of defendant’s guilty plea to one of the convictions showed that it was for a burglary of his former home, which was still occupied by his ex-girlfriend, but the record of this conviction did not contain the charging document. During the plea colloquy on the burglary, defendant admitted that he took items that did not belong to him. Applying its “modified categorical approach,” which allows the court to look beyond the elements of the offense of conviction, the Ninth Circuit held that the transcript showed that the burglary qualified as a violent felony for purposes of the Armed Career Criminal Act. The court rejected the argument that the government must present the charging document to show that an offense constitutes a violent felony. U.S. v. Smith, 390 F.3d 661 (9th Cir. 2004), amended, U.S. v. Smith, 405 F.3d 726 (9th Cir. 2005).
9th Circuit says that rule of evidence limiting use of old convictions is irrelevant to ACCA sentencing. (540) Federal Rule of Evidence 609(b) limits the use of convictions more than ten years old to impeach the credibility of a witness. The Ninth Circuit held that this rule did not limit the use of older convictions to enhance a defendant’s sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e). U.S. v. Keesee, 358 F.3d 1217 (9th Cir. 2004).
9th Circuit holds that Alaska sexual abuse qualifies as a violent felony. (540) Under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (2)(B), an offense qualifies as a violent felony if, among other things, it “involves conduct that presents a serious potential risk of physical injury to another.” The Ninth Circuit held that sexual abuse of a minor under Alaska Statute § 11.41.436(a) is a “violent felony” under this definition. That statute makes it a crime for a minor’s “parent, stepparent, adopted parent, or legal guardian” to have sexual contact with any person 18 or younger. U.S. v. Melton, 344 F.3d 1021 (9th Cir. 2003).
9th Circuit holds that Virginia burglary offense is not a violent felony but that Virginia common-law robbery is. (540) Burglary under Virginia law is defined to include breaking and entering dwellings, ships, vessels, railroad cars, and automobiles. The Ninth Circuit held that this offense does not categorically qualify as “generic burglary” and thus was not a “violent felony” within the meaning of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B). The court found that armed robbery under Virginia law did qualify as a violent felony. That offense is defined not by statute but by the common law as taking with the intent to steal the property of another against his will by violence or intimidation. The common law definition serves as the functional equivalent of a statutory definition, and contains the requisite element of the use or threatened use of physical force. U.S. v. Melton, 344 F.3d 1021 (9th Cir. 2003).
9th Circuit finds that indictment and defendant’s admission do not establish statute of prior conviction. (540) To show that defendant’s prior state burglary conviction qualified as a “violent felony” for purposes of the Armed Career Criminal Act, the government submitted the indictment charging defendant with the burglary. The government also pointed to defendant’s admission in his sentencing memorandum for the instant offense that he had been convicted under the statute defining the offense charged in the burglary indictment. The Ninth Circuit held that this documentation was insufficient to establish that defendant had been convicted of the offense charged in the indictment. U.S. v. Melton, 344 F.3d 1021 (9th Cir. 2003).
9th Circuit holds that Armed Career Criminal Act does not violate due process nor equal protection. (540) The Ninth Circuit rejected the contention that the Armed Career Criminal Act (21 U.S.C. § 924(e)) is unconstitutional because, unlike the so-called Three Strikes statute (18 U.S.C. § 3559(c)(1)(A)), it does not contain an “escape clause” that exempts certain prior offenses from being used to enhance the defendant’s sentence on the instant offense. The court found no equal protection or due process violation because a defendant convicted under the ACCA is not similarly situated to a three-strikes defendant and because Congress had a rational basis for treating defendants subject to the two statutes differently. U.S. v. Stokes, 292 F.3d 964 (9th Cir. 2002).
9th Circuit, en banc, holds court may not rely solely on PSR to decide if priors are violent felonies, but resentencing is on “open record.” (540) The PSR said that defendant was an Armed Career Criminal because he had prior convictions for burglary and attempted burglary. The PSR gave a description of these priors, but did not cite the specific statutes of conviction or include certified copies of the judgments. Sitting en banc, the Ninth Circuit held that in deciding whether a statute qualifies as a violent felony under the ACCA, the court may not rely “merely on the PSR,” but may use a “variety of sources, including the statutes of conviction themselves,” “copies of the judgments of conviction,” or “other documentary evidence that ‘clearly establishes’ the statutes under which [defendant] was convicted or the elements of those statutes.” The en banc court rejected the panel’s limitation on remand to “the record as it now stands.” Instead, the court held that “as a general matter, if a district court errs at sentencing, [it] will remand for resentencing on an open record – that is, without limitation on the evidence that the district court may consider.” The court noted, however, that it may limit the issues that a court considers on remand and that it may be appropriate to limit the evidence on remand “if the government engaged in deceptive, obstructive, or otherwise inappropriate conduct.” U.S. v. Matthews, 278 F.3d 880 (9th Cir. 2002) (en banc).
9th Circuit reverses Armed Career Criminal increase where civil rights had been restored. (540) Defendant argued that his 1985 Washington state conviction for second degree assault could not be considered as a predicate violent felony for purposes of enhancing his sentence under 18 U.S.C. § 924(e) because he had received a certificate in 1989 restoring his civil rights, with no reference to the possession of firearms. The Ninth Circuit agreed, relying on U.S. v. Herron, 45 F.3d 340 (9th Cir. 1995) which held that a defendant could not be prosecuted for being a felon in possession of a firearm where he had received a similar certificate, even though Washington state law continued to bar defendants who were convicted of a “crime of violence” from possessing a pistol. Moreover, in U.S. v. Laskie, 258 F.3d 1047 (9th Cir. 2001), the court explained that where a felon has had his civil rights restored by a certificate or other written document, any reservation prohibiting the possession of firearms “must be contained in the document itself” in order to support a prosecution for being a felon in possession of a firearm. Judge Alarcon dissented, arguing that the certificate defendant received incorporated by reference a Washington statute giving notice that his prior record could be used to enhance his sentence in a later proceeding. U.S. v. Gallaher, 275 F.3d 784 (9th Cir. 2001).
9th Circuit holds Armed Career Criminal Act is not facially unconstitutional under Apprendi. (540) The Ninth Circuit held that the Armed Career Criminal Act, 18 U.S.C. § 924(e), is not facially unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000), because it requires the government to prove the prior convictions that are used to enhance the defendant’s sentence only by a preponderance of the evidence. The court reiterated that Apprendi has no application to prior convictions that increase a statutory penalty. U.S. v. Summers, 268 F.3d. 683 (9th Cir. 2001).
9th Circuit finds South Dakota burglary was a “violent felony” under the ACCA. (540) Defendant received an enhanced sentence under the Armed Career Criminal Act, 18 U.S.C. 924(e), based in part on the district court’s finding that his prior South Dakota conviction for third-degree burglary constituted a violent felony. The Ninth Circuit held that third-degree burglary under South Dakota law constitutes “generic” burglary under the definition announced in Taylor v. U.S., 495 U.S. 575 (1990). Although the language of the South Dakota statute did not require that the defendant’s entry be “unlawful,” as Taylor requires, the South Dakota Supreme Court has construed the statute to require proof of an unlawful or unauthorized entry. U.S. v. Tighe, 266 F.3d 1187 (9th Cir. 2001).
9th Circuit holds that government’s failure to appeal would not bar argument on remand. (540) At defendant’s sentencing for being a felon in possession of a firearm, the district court held that defendant had three prior convictions for violent felonies and imposed a 15-year mandatory sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e). The court declined “in the interest of judicial economy” to decide whether a fourth conviction, for grand theft, would also qualify as a violent felony. The Ninth Circuit found that one of the convictions on which the district court relied did not constitute a violent felony and remanded for resentencing. It rejected defendant’s contention that by failing to cross-appeal, the government had waived its right to argue at resentencing that his grand theft conviction constituted a violent felony. Instead, the court held, the district court was “free to review the entire sentencing calculus.” U.S. v. Tighe, 266 F.3d 1187 (9th Cir. 2001).
9th Circuit holds ACCA is not facially unconstitutional but Apprendi bars use of juvenile conviction as a predicate offense. (540) Defendant pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). At sentencing, the district court found he had three prior convictions for “violent felonies” and imposed a 15-year mandatory sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e). One prior felony was a juvenile adjudication for reckless endangerment, robbery, and unauthorized use of a vehicle. The Ninth Circuit held that § 924(e) is not facially unconstitutional because Apprendi v. New Jersey, 530 U.S. 466 (2000) held that prior convictions are exempt from the rule that facts that increase a prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt. It concluded, however, that juvenile adjudications do not fall within the prior-conviction exception to Apprendi because the juvenile has no right to a jury trial and proof beyond a reasonable doubt. It also found that the error was not harmless because it increased defendant’s sentence above the otherwise applicable statutory maximum. Because the Guidelines grouping rules increased defendant’s overall offense level based on the length of his sentence on § 922(g) count, the court also vacated his sentence on a drug conspiracy count. Judge Brunetti dissented. U.S. v. Tighe, 266 F.3d 1187 (9th Cir. 2001).
9th Circuit holds that second degree burglary in Alaska is not a “violent felony” under the ACCA. (540) The district court enhanced defendant’s sentence for being a felon in possession of a firearm under 18 U.S.C. § 924(e) based in part on defendant’s conviction for second degree burglary of storage lockers, in violation of Alaska Statute § 11.81.900(b)(4). The Ninth Circuit held that because that statute may be violated by an unlawful entry into “any propelled vehicle … adapted … for carrying on business,” it does not constitute a “generic” burglary statute that qualifies as a violent felony under § 924(e). Nor could defendant’s violation of that statute, as evidenced by the charging document, fall within the definition of generic burglary. Instead, the court held, “a prior conviction for ‘burglary’ of storage lockers should not be counted as generic burglary unless the judicially noticeable facts reveal that the lockers were large enough to accommodate a person.” The court also held that burglary of storage locker did not qualify as an violent felony under the alternative definition in § 924(e) as a crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” U.S. v. Sparks, 265 F.3d 825 (9th Cir. 2001), overruled by U.S. v. Grisel, 488 F.3d 844 (9th Cir. 2007).
9th Circuit says 924(c) firearms offense is a “violent felony” under the Armed Career Criminal Act. (540) The Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), requires a 15-year minimum sentence where a defendant convicted of being a felon in possession of a firearm under 18 U.S.C. § 922(g) has three prior convictions for “a violent felony or a serious drug offense.” The statute defines “violent felony” to include “burglary” and any crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). Here, a divided Ninth Circuit panel held that defendant’s prior conviction under § 924(c) for carrying a gun in connection with a drug trafficking offense fell within the ACCA’s definition of “violent felony.” The majority rejected the defendant’s argument that a conviction for using a gun in connection with a drug trafficking offense is similar to being a felon in possession of a firearm, in violation of 18 U.S.C. § 924(g)(1), which the Sentencing Commission has ruled is not a crime of violence. Judge Reinhardt dissented. U.S. v. Stephens, 237 F.3d 1031 (9th Cir. 2001).
9th Circuit counts burglary of structure as “violent felony” under ACCA. (540) In Taylor v. U.S., 495 U.S. 575 (1990), the Supreme Court ruled that in order to qualify as a predicate offense under the Armed Career Criminal Act, 18 U.S.C. § 924(e), a burglary conviction must involve the following elements: “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Here, defendant argued that his state convictions should not count because Alaska’s burglary statute has an expansive definition of “building” that criminalizes conduct outside the scope of the ACCA. The Ninth Circuit rejected the argument, holding that “because [defendant] was convicted of burglarizing structures within the traditional meaning of ‘building’ his two prior state burglary convictions count as ‘violent felony’ predicates for sentencing enhancement under the ACCA.” The indictments clearly referred to burglaries of “buildings.” U.S. v. Stephens, 237 F.3d 1031 (9th Cir. 2001).
9th Circuit says neither charging documents nor facts in PSR showed priors were “generic burglaries.” (540) Despite the contrary view in U.S. v. Balanga, 109 F.3d 1299, 1303 (8th Cir. 1997), the Ninth Circuit held that the Supreme Court in Taylor v. U.S., 495 U.S. 575, 602 (1990) and prior Ninth Circuit precedents “have foreclosed any approach that considers the underlying facts of prior convictions to determine whether a defendant was convicted by a jury or pleaded guilty to a predicate offense” under the Armed Career Criminal Act, 18 U.S.C. § 924(e). Moreover, in U.S. v. Potter, 895 F.2d 1231, 1238 (1990), the Ninth Circuit stated that a PSR is not a form of “clearly reliable evidence” upon which a district court permissibly may rely to enhance a defendant’s sentence under § 924(e). The court distinguished U.S. v. Romer-Rendon, 220 F.3d 1159, 1163 (9th Cir. 2000) which held that a court may rely on a PSR which specifies the statute of conviction and the defendant does not contest the accuracy of the PSR. In any event, in this case, the Ninth Circuit held that neither the charging documents nor the facts recited in the PSR established that a jury actually found beyond a reasonable doubt or that defendant plead guilty to “generic burglary.” Accordingly, defendant’s sentence under the ACCA was reversed. U.S. v. Franklin, 235 F.3d 1165 (9th Cir. 2000).
9th Circuit says collateral attacks on state convictions cannot be brought under § 2255. (540) In Custis v. U.S., 511 U.S. 485 (1994), the Supreme Court held that a defendant could not collaterally attack prior state convictions in federal sentencing proceedings, unless he had been denied the right to counsel in the state proceeding. In Clawson v. U.S., 52 F.3d 806 (9th Cir. 1995), the Ninth Circuit held that Custis applies equally to 28 U.S.C. § 2255 motions in which defendant claims his federal sentence was improperly enhanced through the use of a state conviction. Here, the panel reaffirmed the holding in Clawson. In a footnote, however, the panel acknowledged that under Brock v. Weston, 31 F.3d 887, 889-91 (9th Cir. 1994), a petition under 28 U.S.C. § 2254 can be a vehicle for challenging state convictions in proper circumstances. U.S. v. Daniels, 195 F.3d 501 (9th Cir. 1999).
9th Circuit permits collateral attack on prior conviction after rejecting it in direct appeal. (540) On direct appeal of his sentence for being an Armed Career Criminal under 18 U.S.C. § 924(e), the Ninth Circuit held that defendant could not collaterally attack his prior conviction as long as he had been advised of his right to counsel at the time of that conviction. Thereafter, defendant filed a 28 U.S.C. § 2255 motion, arguing that the judge, at the time of the prior conviction, failed to advise him of all of his rights under Rule 11. The government argued that the doctrine of the law-of-the-case precluded this collateral attack. The Ninth Circuit rejected the argument, noting that the memorandum decision in the direct appeal never reached the validity of the prior conviction, holding only that under Custis v. U.S., 511 U.S. 485, 496-97 (1994), it could not be collaterally attacked in the direct appeal from the Armed Career Criminal conviction. The panel also rejected the government’s argument that defendant abused the writ of habeas corpus by failing to raise his claims in prior motions. Under Harris v. Pulley, 885 F.2d 1354, 1367 (9th Cir. 1988), the government waived its right to assert abuse of the writ because it did not present this argument to the district court. U.S. v. Dawson, 193 F.3d 1107 (9th Cir. 1999).
9th Circuit holds prior burglaries of adjoining stores were a single transaction under ACCA. (540) The district court sentenced defendant as an Armed Career Criminal under 18 U.S.C. § 924(e) based in part on two prior burglary convictions that occurred on the same day. Defendant and an accomplice broke into a store that was part of a strip mall. Once inside the store, they chopped a hole in the wall between the store they had entered and the adjoining store. Items were removed from each store. Defendant was convicted of two separate burglaries, but argued that, for purposes of § 924(e), they were a single criminal transaction. A majority of the Ninth Circuit panel agreed, relying in part on testimony by then-Assistant Attorney general (now Ninth Circuit Judge) Stephen S. Trott. The majority distinguished U.S. v. Antonie, 953 F.2d 496 (9th Cir. 1991) where the court found that two robberies, committed forty-minutes apart and in two different cities against different victims were “two separate and distinct criminal episodes.” The majority found persuasive the Sixth Circuit’s opinion in U.S. v. Murphy, 107 F.3d 1199 (6th Cir. 1997), and rejected decisions in the Seventh and Tenth Circuits, U.S. v. Hudspeth, 42 F.3d 1015, 1021 (7th Cir. 1994) and U.S. v. Tisdale, 921 F.2d 1095, 1099 (10th Cir. 1990). Judge Trott dissented, characterizing his testimony when he was an Assistant Attorney General as “combative and irrelevant.” U.S. v. McElyea, 158 F.3d 1016 (9th Cir. 1998).
9th Circuit says burglaries of two adjacent businesses are separate prior offenses under ACCA. (540) Near midnight on October 21, 1981, defendant and an accomplice entered and burglarized the Central Valley Barbershop and Beauty Salon near Spokane. Shortly thereafter, the two entered and burglarized an adjacent business, Antique Auto. When police arrived, they were found hiding in the attic of Antique Auto. Defendant possessed a roll of half-dollars stolen from Central Valley. The two businesses were located in separate structures, had different addresses, had separate access and were owned by different individuals. On this evidence, the Ninth Circuit held that defendant’s two convictions for burglary were separate for purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(e). The district court had refused to sentence under the ACCA, ruling that “burglarizing adjacent buildings within moments of each other” should count as only one offense. The case was remanded for resentencing under the ACCA. U.S. v. Phillips, 149 F.3d 1026 (9th Cir. 1998).
9th Circuit holds that grand theft from a person is a violent felony under § 924(e). (540) Under 18 U.S.C. § 924(e), a person with three prior “violent felony” convictions is subject to a fifteen-year mandatory minimum sentence for violating 18 U.S.C. § 922(g), which prohibits felons from possessing firearms. Under California Penal Code § 487(2), grand theft from a person is “theft committed . . . when the property is taken from the person of another.” California courts have required that the property must be attached to or carried by the person. Therefore, the Ninth Circuit noted that the thief must not only come near his victim to commit the crime, he must “reach out and touch” the victim. “When he confronts the victim and seizes property from the victim’s person, the criminal creates a serious risk of physical injury to another.” Applying the “categorical approach” of Taylor v. U.S., 495 U.S. 575, 600 (1990), the Ninth Circuit held that grand theft from a person is a violent felony under § 924(e). U.S. v. Wofford, 122 F.3d 787 (9th Cir. 1997).
9th Circuit examines plea transcript to decide whether plea was to “generic” burglary. (540) Only “generic” burglaries can be used as predicates under the Armed Career Criminal Act, 18 U.S.C. § 924(e). Taylor v. U.S., 495 U.S. 575, 599 (1990). The sentencing court must use a “categorical” approach; it may not examine the particular facts. But there is an exception where the jury was actually required to find all the elements of generic burglary, and this exception has been applied to guilty pleas as well. Thus it is not a forbidden “factual inquiry” to examine the indictment and judgment of conviction, U.S. v. O’Neal, 937 F.2d 1369, 1373 (9th Cir. 1991), nor to consider a signed guilty plea, U.S. v. Sweeten, 933 F.2d 765, 772 (9th Cir. 1991). In this case, the Ninth Circuit held that a court may also consider the transcript of defendant’s guilty plea. Other circuits agree. U.S. v. Adams, 91 F.3d 114, 116 (11th Cir.), cert. denied, 117 S.Ct. 623 (1996); U.S. v. Hill, 53 F.3d 1151, 1154 (10th Cir.) (en banc), cert. denied, 116 S.Ct. 258 (1995); U.S. v. Harris, 964 F.2d 1234, 1236-37 (1st Cir. 1992); U.S. v. Taylor, 932 F.2d 703, 709 (8th Cir. 1991), cert. denied, 502 U.S. 882 (1991); U.S. v. Gallman, 907 F.2d 639, 645 n.7 (7th Cir.), cert. denied, 499 U.S. 908 (1990). U.S. v. Bonat, 106 F.3d 1472 (9th Cir. 1997).
9th Circuit finds 15-year sentence for Armed Career Criminal was not disproportionate. (540) Defendant argued that his 15-year sentence for being an Armed Career Criminal under 18 U.S.C. § 924(e) was unconstitutionally disproportionate to the crime he committed because he was simply in possession of a firearm but had never used a firearm in the commission of any crime. The Ninth Circuit found defendant’s crime and sentence were similar to others that have withstood proportionality challenges, and therefore found no constitutional disproportionality. U.S. v. Bonat, 106 F.3d 1472 (9th Cir. 1997).
9th Circuit holds Armed Career Criminal Act does not violate commerce clause. (540) The Armed Career Criminal Act, 18 U.S.C. § 924(e) provides a mandatory minimum 15-year sentence for anyone convicted of being a felon in possession of a firearm with three prior convictions for a violent felony or serious drug offense. The Ninth Circuit held that because section 924(e) “is a sentence enhancement and not a separate statutory offense, there need not be a nexus between the predicate prior convictions and interstate commerce.” “As long as a sufficient nexus exists between the underlying offense—felon in possession of a firearm—and interstate commerce, the commerce clause concerns are satisfied for both the underlying offense and the aggravating factors.” Because a felon in possession conviction is sufficiently connected to interstate commerce, U.S. v. Hanna, 55 F.3d 1456, 1462 & n.2 (9th Cir. 1995), “the sentence enhancement has the same nexus to commerce and thus does not violate the commerce clause.” U.S. v. Bonat, 106 F.3d 1472 (9th Cir. 1997).
9th Circuit upholds life sentence for carjacker who was armed career criminal. (540) Defendant was sentenced to life imprisonment for being an armed career criminal after he was convicted of carjacking in which one victim was killed and the other was raped and assaulted. The Ninth Circuit found the life sentence proper under both the armed career criminal guideline and the guideline for carjacking. The district court correctly applied § 2K2.1(c)(1), which provides a cross-reference to the first degree murder guideline, § 2A1.1 if the defendant possessed a firearm in connection with the commission of another offense and death resulted. Since the murder guideline provided an offense level of 43 with a range of life imprisonment, the life sentence was proper for the charge of being an armed career criminal. Although the offense was committed before the carjacking guideline was added, the same result could be reached by applying § 2X5.1 to find the most analogous guideline—in this case, first degree murder. U.S. v. Hicks, 103 F.3d 837 (9th Cir. 1996).
9th Circuit says attempted home invasion is not a “violent felony” under Armed Career Criminal Act. (540) Defendant had a prior conviction for attempted home invasion in violation of Nevada Revised Statute § 205.067. This statute makes it clear that the crime is committed “whether or not a person is present at the time of the entry.” Therefore, the Ninth Circuit found that the crime could “perfectly well be committed without physical injury to a human being.” There is “a risk of a risk” of injury to a human person but that “is not enough of a risk.” U.S. v. Weekley, 24 F.3d 1125 (9th Cir. 1994). Accordingly, the district court erred in finding that defendant was an armed career criminal under 18 U.S.C. § 924(e). U.S. v. Sparks, 87 F.3d 276 (9th Cir. 1996).
9th Circuit permits delaying federal charge until after state conviction even though this made defendant an armed career criminal. (540) Defendant argued that the federal government deliberately waited nearly a year to indict him so that he would have a state conviction on his record that would doom him as an armed career criminal. The court noted that federal-state cooperation may cause uneasiness, “if it is so structured that it appears that one government in unfairly piling on a sentence for crimes the other government has already punished or used as a tool to get a plea.” However, the court applied a “plain error” standard and found no prejudice,. The fact that defendant was guilty of criminal conduct for which the state could exact a penalty “was not the doing of the federal prosecution.” For the federal prosecutors to wait until he got his state sentence “was not federal action prejudicial to him; his criminal history was the result of what he had done.” U.S. v. Sparks, 87 F.3d 276 (9th Cir. 1996).
9th Circuit says analogy to Armed Career Criminal guideline violated ex post facto clause. (540) Both defendants were Armed Career Criminals under 18 U.S.C. § 924(e). However, the district court recognized that it would violate the ex post facto clause to sentence them under the Armed Career Criminal guideline, § 4B1.4, because the offense occurred before 1990 when that guideline became effective. Therefore, the district court departed upward, using § 4B1.4 as a guide. The Ninth Circuit reversed in a 2-1 opinion, saying it would make the ex post facto clause “toothless” if the district court were permitted to do indirectly what it could not do directly. The majority acknowledged that the Tenth Circuit upheld a similar departure in U.S. v. Tisdale, 7 F.3d 957, 965-68 (10th Cir. 1993), cert. denied, 114 S.Ct. 1201 (1994). But it refused to follow that case, suggesting that criminal history departures may be more limited in the Ninth Circuit. The fact that the prior crimes were violent offenses was already taken into account by the guidelines, and in any event, criminal history departures must be “horizontal,” not “vertical” on the Sentencing Table. Judge Leavy dissented. U.S. v. Canon, 66 F.3d 1073 (9th Cir. 1995).
9th Circuit reverses departure where criminal history did not show “escalating seriousness.” (540) Reaffirming its ruling in U.S. v. Singleton, 917 F.2d 411 (9th Cir. 1990), the Ninth Circuit held that the mere fact that a defendant has significantly more criminal history points than the 13 required for category VI will not, in and of itself, support a departure. There must be a finding that the offenses are of escalating seriousness and that prior convictions have not affected the defendant’s propensity to commit crimes. Here, the defendant was an Armed Career Criminal under § 4B1.4, with prior offenses that the district court analogized to category VIII in departing upward. The Ninth Circuit reversed, finding that the offenses on which the court relied had not escalated in seriousness over the years, and therefore did not show that defendant’s prior record was “significantly more serious” than other defendants in category VI. U.S. v. George, 56 F.3d 1078 (9th Cir. 1995).
9th Circuit says ACCA guideline does not allow upward adjustments. (540) The District Court found that defendant’s guideline level was 33 under the Armed Career Criminal Act guideline § 4B1.4, and adjusted this upward by two levels for escape. The Ninth Circuit reversed, holding that § 4B1.4 does not permit adjustments except for acceptance of responsibility. U.S. v. George, 56 F.3d 1078 (9th Cir. 1995).
9th Circuit does not require predicate conviction for Armed Career Criminal Act to be final. (540) The Ninth Circuit held that a federal sentence under the former Armed Career Criminal Act (former 18 U.S.C. App. § 1202, repealed 1986) was properly based on a state conviction, even though the defendant’s appeal of that conviction was later re-opened. Due process requires only a substantial factual basis for a prior conviction used to enhance a sentence. If a defendant’s state appeal succeeds, he can then petition the federal court to reopen his sentence. Clawson v. U.S., 52 F.3d 806 (9th Cir. 1995 ).
9th Circuit says 5G1.3 permits sentence below mandatory minimum for Armed Career Criminal. (540) Defendant was convicted in state court of armed robbery with a handgun. Thereafter, he was convicted in federal court of being a felon in possession of a firearm (the handgun), and was found to be an armed career criminal under 18 U.S.C. § 924(e), which carries a 180-month mandatory minimum sentence. His guideline sentence of 188 months included four levels for using the firearm in the state robbery. Defendant sought to have his sentence reduced for the 12 months he had already served on the state robbery, citing USSG 5G1.3(b), which requires such a reduction where “the undischarged term of imprisonment resulted from offense(s) that have been fully taken into account in the determination of the offense level for the instant offense.” The Ninth Circuit rejected the district court’s conclusion that any credit was up to the Bureau of Prisons, holding that the sentence reduction was appropriate, even though this meant that defendant’s actual sentence would fall below the statutory mandatory minimum. U.S. v. Drake, 49 F.3d 1438 (9th Cir. 1995).
9th Circuit applies “clarifying” amendment retroactively to hold that felon in possession has never been crime of violence. (540) In 1991, defendant was found to be an Armed Career Criminal, based in part on his 1988 offense of being a felon in possession of a firearm. On appeal, his sentence was reversed because being a felon in possession of a firearm is not a crime of violence under the Armed Career Criminal Act. U.S. v. Garcia-Cruz, 978 F.2d 537, 543 (9th Cir. 1992). On resentencing, however, the district court found defendant to be a Career Offender under the guidelines, relying on U.S. v. O’Neal, 937 F.2d 1369 (9th Cir. 1990), for the proposition that being a felon in possession was a crime of violence for guidelines purposes in 1988, before amendment 433 amended the commentary to guideline § 4B1.1 to state that felon in possession was not a crime of violence. In this second appeal, the 9th Circuit again reversed, holding that amendment 433 was “clarifying” and therefore retroactive. O’Neal is no longer good law. The court noted that in any event, amendment 433 was later added to the list of retroactive amendments in § 1B1.10. U.S. v. Garcia-Cruz, 40 F.3d 986 (9th Cir. 1994).
9th Circuit says defendant cannot collaterally attack federal prior conviction used for enhancement. (540) The 9th Circuit held that a felon in possession of a firearm cannot collaterally attack the constitutionality of a federal prior conviction used to enhance his sentence under 18 U.S.C. § 924(e)(1). The Supreme Court’s decision in Custis v. United States, 114 S.Ct. 1732, 1737-39 (1994), applies to prior federal convictions as well as prior state convictions. The only exception, that the defendant was unrepresented by counsel, was not asserted here. The 9th Circuit therefore held the district court erred in striking the prior conviction on the ground the plea was involuntary. U.S. v. Sanchez, 37 F.3d 1417 (9th Cir. 1994).
9th Circuit says gun was possessed “in connection with” murder, even though 12 days elapsed. (540) The 9th Circuit held that defendant committed his offense–possessing a firearm as a felon–”in connection with” the Arizona murder under §2K2.1(c)(2). The gun defendant possessed was the one he used in the murder. He was found with the gun in his pocket, near where he had left the car he had stolen from his victim. “This constitutes a sufficiently tight ‘connection’ between the murder and the possession, even though [defendant] wasn’t actually caught with the gun until 12 days after the murder and in another state.” U.S. v. Thornton, 23 F.3d 1532 (9th Cir. 1994).
9th Circuit says defendant cannot challenge prior conviction used to enhance sentence. (540) Defendant was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). He was sentenced to the mandatory minimum of 15 years under the Armed Career Criminal Act, 18 U.S.C. § 924(e). Relying on Custis v. U.S., 511 U.S. 485 (1994), the 9th Circuit held that he could not challenge the validity of the 1985 California robbery conviction used as a predicate conviction under the ACCA. Custis limited collateral attacks on prior convictions to claims that the conviction was obtained in violation of the right to counsel. Since defendant was represented by counsel when he entered his robbery plea, he could not collaterally attack the conviction. U.S. v. Fondren, 43 F.3d 1228 (9th Cir. 1994).
9th Circuit holds armed career criminal cannot challenge prior state convictions. (540) In Custis v. U.S., 511 U.S. 485 (1994), the Supreme Court held that the Armed Career Criminal Act, 18 U.S.C. §924(c) does not permit the federal sentencing forum to be used to review the underlying state convictions. There is an exception if the defendant was not afforded the right to counsel at the state trial, but Custis does not permit challenges based on claims of ineffective assistance of counsel. In the present case, defendant was not denied appointed counsel at his previous three state convictions. He only claimed his attorneys were ineffective, a claim that is barred by Custis. Accordingly, his appeal from his sentence was dismissed. U.S. v. Daly, 28 F.3d 88 (9th Cir. 1994).
9th Circuit says two burglaries of same residence constituted separate incidents. (540) Defendant claimed the district court erred in applying the Armed Career Criminal Act to him because it only applies to those who commit three or more felonies. According to defendant, two of his burglaries did not represent separate incidents because they involved the same residence. The 9th Circuit was not persuaded. The burglaries were “committed on occasions different from one another” as required by 18 U.S.C. §924(e)(1) because they were 12 days apart. U.S. v. Thornton, 23 F.3d 1532 (9th Cir. 1994).
9th Circuit finds state law determines number of prior convictions for ACCA purposes. (540) Defendant was convicted of being a felon in possession of a firearm and the government appealed the district court’s failure to sentence him under the Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e). The presentence report showed that defendant had been convicted of five counts of first degree burglary, but that the counts had been consolidated for disposition and sentence. The 9th Circuit ruled that the prior convictions must be determined in accordance with state law and remanded the case to determine the accuracy of the presentence report. In California, each entry into a dwelling with the intent to commit burglary should be charged as a separate crime. If this standard was observed in the California court where defendant was convicted, he should be sentenced under the ACCA because he had five prior separate burglary convictions. U.S. v. Frushon, 10 F.3d 663 (9th Cir. 1993).
9th Circuit requires district court to consider constitutional attacks on predicate offenses. (540) Defendant argued the district court should have let him attack the constitutionality of the convictions that were the basis for enhancing his sentence as a career offender. Relying on U.S. v. Vea-Gonzales, 999 F.2d 1326, 1332-33 (9th Cir. 1993), the Ninth Circuit agreed and found that the district court should have allowed defendant to attack the constitutionality of the convictions at the federal sentencing hearing. U.S. v. Breitkreutz, 8 F.3d 688 (9th Cir. 1993), abrogated on other grounds by Old Chief v. U.S., 519 U.S. 172, 117 S.Ct. 644 (1997).
9th Circuit holds burglary conviction was violent felony for Armed Career Criminal purposes. (540) A felon convicted of possessing a firearm must be sentenced as an armed career criminal under 18 U.S.C. section 924(e) if he or she has three prior convictions for a violent felony. Because burglary statutes differ from one jurisdiction to another, not all burglaries are treated as predicate offenses. In Taylor v. U.S., 495 U.S. 575 (1990), the Supreme Court held that only “generic” burglaries constitute predicate burglaries. In this case, defendant’s prior burglary convictions included the element of entering a “building” which is consistent with the definition of “generic burglary.” Even though the word “intent” was not mentioned in defendant’s guilty plea, this did not undercut the fact that both the statute and the information under which he was charged included intent as a necessary element. Accordingly, he should have been sentenced as an armed career criminal and the judge’s failure to do so required reversal and resentencing. U.S. v. Kilgore, 7 F.3d 854 (9th Cir. 1993).
9th Circuit requires notice of prior convictions used for enhancement. (540) Following the decisions in U.S. v. Craviero, 907 F.2d 260, 264 (1st Cir.) cert denied, 498 U.S. 1015 (1990) and U.S. v. Pedigo, 879 F.2d 1315, 1318-20 (6th Cir. 1989), the 9th Circuit held that due process requires notice and an opportunity to be heard before prior convictions can be used for an armed career criminal enhancement under 18 U.S.C. §924(e). The notice must be sufficient to allow a defendant to investigate and object to the validity of the prior convictions. In this case, defendant received a notice in the presentence report of all prior felony convictions known to the government, five months before sentencing. He also received a brief notice on the day of the sentencing hearing. The court found it unnecessary to decide whether 15 minutes was adequate notice, because any deficiency in notice was harmless because defendant conceded that he knew of no defect in the 1975 robbery conviction. U.S. v. Wilson, 7 F.3d 828 (9th Cir. 1993).
9th Circuit says to decide whether prior conviction was violent felony, court cannot rely solely on written charges. (540) Defendant had a prior felony conviction for second degree burglary. The government argued that the 1968 charging document showed that the conviction was for residential burglary, i.e., a categorical “violent felony.” The district court rejected the argument, and therefore found that defendant was not an armed career criminal under 18 U.S.C. section 924(e). On appeal, the 9th Circuit affirmed, holding that the district court may not resort solely to the charging paper and verdict form where the form fails to reflect the requisite facts were found by the jury. Where, as in this case, the jury instructions had been destroyed or lost, and the verdict form did not confirm the requisite findings, the court must use the strict categorical approach set out in U.S. v. Sherboundy, 865 F.2d 996, 1009 (9th Cir. 1988). That is, it must look to the statutory definition of the offense only, and in this case the statutory definition of second degree burglary did not qualify as a “violent felony.” U.S. v. Parker, 5 F.3d 1322 (9th Cir. 1993).
9th Circuit says there is a presumption of regularity for prior convictions used to enhance sentence. (540) Under Boykin v. Alabama, 395 U.S. 238 (1969), a silent or ambiguous record of a prior conviction is presumptively invalid. However, in Parke v. Raley, 113 S.Ct. 517, 523 (1992), the Supreme Court held that this presumption did not apply to state prior convictions that are collaterally attacked, because there is a “presumption of regularity” that attaches to final judgments, even when the question is waiver of constitutional rights. In the present case, the 9th Circuit extended the holding of Parke to collateral review of federal prior convictions, holding that the defendant has the burden to show the Constitutional invalidity of his prior convictions. Since the district court placed the burden on the government in this case, the sentence was vacated and the case was remanded to permit the defendant to attempt to show that his prior convictions were invalid. U.S. v. Mulloy, 3 F.3d 1337 (9th Cir. 1993).
9th Circuit finds defendants should be sentenced as armed career criminals but not career offenders. (540) Two defendants, convicted of being felons in possession of a firearm, argued they should not have been sentenced as career offenders or armed career criminals. The government conceded that career offender sentencing under §4B1.1 was not proper but maintained that defendants were armed career criminals subject to sentencing under 18 U.S.C. §924(e) and §4B1.4. The 9th Circuit found that sentencing under the Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e) and §4B1.4, was proper. One defendant had three prior armed robbery convictions which are considered violent felonies under the ACCA. The other defendant also had three qualifying priors — an armed robbery, a burglary and possession of a sap, a deadly weapon similar to a blackjack. Unlawful possession of a sap necessarily entails a serious risk of physical injury to another. U.S. v. Canon, 993 F.2d 1439 (9th Cir. 1993).
9th Circuit permits collateral attack on prior convictions under new Armed Career Criminal Act. (540) In U.S. v. Clawson, 831 F.2d 909, 914 (9th Cir. 1987) the 9th Circuit held that under the original version of the Armed Career Criminal Act, 18 U.S.C. App. section 1202(a) (1982 Ed.) (repealed) a defendant must be permitted to collaterally attack prior convictions which are relied upon for sentencing. In this case, the 9th Circuit held that the repealed Armed Career Criminal Act is in pari materia with 18 U.S.C. section 924(e), the current Armed Career Criminal Act. Accordingly, consistent with Clawson, the defendant was entitled to collaterally attack his prior convictions. U.S. v. Lewis, 991 F.2d 524 (9th Cir. 1993).
9th Circuit finds consolidated sentencing does not make ACCA predicate priors a single conviction. (540) Defendant was sentenced under the Armed Career Criminal Act (ACCA) based on five prior burglary convictions. The five burglaries were committed on separate dates but defendant was sentenced on two of the burglaries at one time and on the other three burglaries at another time. The district court relied on U.S. v. Antonie, 953 F.2d 496 (9th Cir. 1991), cert. denied, 113 S.Ct. 138 (1992) in finding the five discrete crimes were proper predicates because they were committed on occasions different from one another. The decisions in U.S. v. Chapnick, 963 F.2d 224 (9th Cir. 1992) and U.S. v. Bachiero, 969 F.2d 733 (9th Cir. 1992) which held that cases consolidated for sentencing counted as a single conviction, do not apply to ACCA predicate priors. Chapnick and Bachiero interpreted the meaning of guideline language in Note 3 to section 4A1.2 and had nothing to do with the ACCA. U.S. v. Arnold, 981 F.2d 1121 (9th Cir. 1992).
10th Circuit holds that use of juvenile adjudication as predicate ACCA offense did not violate Eighth Amendment. (540) Defendant was convicted of being a felon in possession of a firearm, and was sentenced to 198 months under the Armed Career Criminal Act, 18 U.S.C. § 924(e). He argued that the use of his juvenile aggravated assault adjudications as predicate offenses for ACCA purposes violated the Eighth Amendment’s prohibition against cruel and unusual punishment. The Tenth Circuit disagreed, concluding that defendant did not establish that a national consensus existed against the use of juvenile adjudications to enhance a later adult sentence. Further, because the full punishment of a sentence imposed pursuant to a recidivist statute is related to the crime of conviction rather than to any prior offenses, defendant’s reliance on precedent establishing that juveniles are less culpable than adults was misplaced. U.S. v. Orona, 724 F.3d 1297 (10th Cir. 2013).
10th Circuit says dismissal of juvenile case did not nullify finding that defendant committed offense. (540) Defendant pled guilty to firearms charges. He was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e), based in part on an Oklahoma juvenile adjudication for robbery with a dangerous weapon. He argued that the juvenile adjudication was not a predicate conviction because it was “dismissed” by Oklahoma courts, which rendered the finding that he committed an act of juvenile delinquency a nullity. The Tenth Circuit disagreed, noting that it had recently rejected a similar argument in U.S. v. Washington, 706 F.3d 1215 (10th Cir. 2012). That case concluded that the decision of an Oklahoma court to “dismiss” a juvenile case after adjudication meant nothing more than the court was terminating its jurisdiction. Even if Washington was not binding, defendant presented no convincing evidence that “dismissal” meant something different in his case. The use of a 20-year-old conviction to enhance his sentence under the ACCA did not violate due process. U.S. v. Rich, 708 F.3d 1135 (10th Cir. 2013).
10th Circuit says Oklahoma juvenile adjudication for pointing weapon was violent felony. (540) Defendant was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e), based in part on the district court’s finding that his prior Oklahoma juvenile adjudication for pointing a weapon was a violent felony. The Tenth Circuit affirmed. Although the charging document for the adjudication did not include a statutory reference, it clearly tracked the language of the felony offense. The fact that defendant was sentenced to five months of probation as a juvenile delinquent did not prove he would have been sentenced to a similar term of imprisonment had he been sentenced as an adult. The panel also rejected defendant’s argument that Oklahoma law prevented the treatment of juvenile adjudications as criminal convictions under the ACCA or for other purposes. State law cannot bar consideration of a defendant’s state juvenile court records by a federal court in determining a sentence, when federal law provides otherwise. Finally, the dismissal of defendant’s juvenile adjudication following his five-month term of probation did not constitute expungement of the conviction for ACCA purposes. U.S. v. Washington, 706 F.3d 1215 (10th Cir. 2012).
10th Circuit holds California first-degree burglary was violent felony. (540) Defendant challenged the court’s decision to sentence him under the Armed Career Criminal Act (ACCA), claiming that one of his prior convictions, a first-degree burglary conviction in California, was not a violent felony under the ACCA. The Tenth Circuit held that the offense qualified as a violent felony under the ACCA’s residual clause. A crime is a violent felony under the residual clause when it “involves conduct that presents a serious potential risk of physical injury to another.” § 924(e)(2)(B)(ii). By its nature, burglary involves a substantial risk that the burglar will use force against a victim in completing the crime. Although the California statute does not contain unlawful entry as an element, it was likely that many burglars in California do commit their crimes through unlawful entry. California’s first-degree burglary offense was also “roughly similar” to the crime of generic burglary as enumerated in the ACCA. See U.S. v. Park, 649 F.3d 1175 (9th Cir. 2011) (holding California’s first-degree burglary was crime of violence under residual clause of guidelines). U.S. v. Maldonado, 696 F.3d 1095 (10th Cir. 2012).
10th Circuit holds that second-degree, heat of passion, assault was a violent felony. (540) Defendant was sentenced as an armed career criminal based in part on the court’s finding that his prior Colorado conviction for second-degree assault, even though mitigated by heat of passion, was a violent felony under the residual clause of Armed Career Criminal Act, 18 U.S.C. § 924(e). The Tenth Circuit affirmed. The residual clause analysis involves a two-part inquiry: (1) 1) “whether the offense presents a serious potential risk of physical injury to another” and (2) whether “the offense is roughly similar, in kind as well as degree of risk posed, to the enumerated crimes,” i.e., whether it was purposeful, violent, and aggressive. However, where the felony at issue is not a strict liability, negligence or recklessness crime, the test is not whether the crime was “purposeful, violent, and aggressive” but whether it is “similar in risk to the listed crimes.” Here, the statutory elements of second-degree, heat-of-passion assault required specific intent, i.e. defendant intended to cause bodily injury to the victim and actually caused bodily injury. U.S. v. Sandoval, 696 F.3d 1011 (10th Cir. 2012).
10th Circuit says prior Kansas convictions were not violent felonies where firearms rights had been restored. (540) Defendant challenged his classification as an armed career criminal under the ACCA, 18 U.S.C. § 924(e), arguing that two prior state convictions did not qualify as violent felonies because Kansas law restored to him the civil rights that he lost as a result of the convictions. A prior conviction is not a violent felony under the ACCA if a defendant has civil rights restored to him upon or after his release from imprisonment. 18 U.S.C. § 921(a)(20). However, the ACCA’s civil rights restoration exception does not apply if the defendant does not have his right to firearms restored. 18 U.S.C. § 921(a)(20). The Tenth Circuit ruled that the district court erred in ruling that the firearms ban from defendant’s Kansas convictions would not begin to run until 2004, when he was released from federal custody. Rather, the ban began to operate in 1998, upon defendant’s release from state prison for both of his state felonies. Under Kansas law, defendant was subject to a 10-year firearms ban, not a lifetime firearms ban. U.S. v. Hoyle, 697 F.3d 1158 (10th Cir. 2012).
10th Circuit finds prior convictions for serious drug offenses involved separate offenses under ACCA. (540) Defendant had four prior drug convictions: one conviction for possessing cocaine with intent to distribute on November 10, 1992, and three convictions for distribution of cocaine on November 2, 1992, November 16, 1992, and November 24, 1992. HeeHe challenged his status as an armed career criminal, 18 U.S.C. § 924(e)(1), arguing that the four convictions arose from a single criminal episode, and should be treated as a single conviction under the ACCA. He argued that not only were the drug offenses committed close in time, but were also tied together legally and factually by a sting operation that anticipated each of the acts occurring after the initial purchase. The Tenth Circuit disagreed, ruling that the undercover officer’s decision not to arrest defendant after the first sale did not prevent the drug sales from being separate occasions. Disregarding additional criminal conduct merely because the government allowed defendant to engage in that conduct “would force officers to arrest all evildoers as soon as they see a crime committed; [which] would destroy large scale police ‘sting operations and undercover infiltrations.'” U.S. v. Delossantos, 680 F.3d 1217 (10th Cir. 2012).
10th Circuit rules Oklahoma second-degree burglary for entry by tool was burglary under ACCA. (540) The district court sentenced defendant as an armed career criminal, 18 U.S.C. § 924(e)(1), based on three prior Oklahoma burglary convictions. Defendant argued that one of the burglaries was not generic burglary because the jury instruction stated that entry occurs not only where a person’s body is within the building, but also where a tool or instrument is inserted inside that building without any physical entry by the person. The Tenth Circuit held that a burglary conviction based on entry into a building by an instrument capable of completing the intended crime qualifies as a “burglary” under the ACCA. The generic definition of burglary in Taylor v. U.S., 495 U.S. 575 (1990), does not require a physical, bodily entry into a building or structure. Moreover, at common law, no entry occurred where a person used an instrument to open a building, but if the actor used the instrument to reach some property within the building, then it constituted an entry. This definition was consistent with the jury instruction in defendant’s case. U.S. v. Cartwright, 678 F.3d 907 (10th Cir. 2012).
10th Circuit upholds use of prior conviction based on nolo contendere plea. (540) Defendant challenge the use of a second-degree burglary conviction to which he pled nolo contendere to sentence him as an armed career offender under 18 U.S.C. § 924(e). He argued that because a nolo contendere plea does not expressly admit guilt, his conviction should not count as a predicate offense under the ACCA. The Tenth Circuit disagreed. A no contest plea in Oklahoma admits the facts pleaded in the information. The information in this case set forth the essential elements of a burglary under the ACCA, in its allegation of “breaking in the front door of said residence and entering without the consent of said owner, with the willful, felonious and burglarious intent to steal said property….” The charging document did not charge defendant with an offense broader than generic burglary. Moreover, defendant admitted that he was charged with generic burglary for purposes of the ACCA. The government met its burden of showing, by a preponderance of the evidence, that the prior conviction constituted a “violent felony.” U.S. v. Cartwright, 678 F.3d 907 (10th Cir. 2012).
10th Circuit holds convictions under Oklahoma’s Youthful Offender Act were “serious drug offenses.” (540) When defendant was a teen, he was convicted of several drug trafficking offenses in Oklahoma. The state court adjudicated him under Oklahoma’s Youthful Offender Act (YOA), OKLA. STAT. tit 10, §§ 7306-2.1-2.13, which limited his sentence to ten years. In 2009, defendant pled guilty to being a felon in possession of a firearm, and was sentenced under the Armed Career Criminal Act based in part on the district court’s finding that his Oklahoma drug trafficking convictions qualified as “serious drug offenses.” Defendant challenged this finding on the ground that if the juvenile convictions were converted to adult convictions, the maximum adult sentence could be only ten years. The Tenth Circuit rejected this argument. To determine whether a conviction is for a serious drug offense, the Supreme Court looks to the maximum term prescribed by the statute. Here, the relevant criminal statute was the Oklahoma drug trafficking act, not the YOA. The maximum punishment for any defendant charged under the Oklahoma drug trafficking act was life imprisonment. U.S. v. Coleman, 656 F.3d 1089 (10th Cir. 2011).
10th Circuit rules crimes committed by 17-year-old, but treated by state as felonies, were predicate ACCA offenses. (540) The district court found that defendant had three qualifying prior felonies under the Armed Career Criminal Act (ACCA), and sentenced him to 15 years, the mandatory minimum under the ACCA. Defendant argued that his two prior Oklahoma drug convictions should not have been counted under the ACCA because he was a juvenile at the time. Under Missouri law, defendant was classified as an adult because of the nature of the charges. Defendant pointed out that federal law considers a person under 18 to be a juvenile. 18 U.S.C. § 5031. The Tenth Circuit disagreed. Federal law does not determine whether the Missouri convictions qualify as “previous convictions” under the ACCA. What constitutes a conviction (a crime punishable for a term more than one year) “shall be determined in accordance with the law of the jurisdiction in which the proceedings were held.” 18 U.S.C. § 921(A)(20). Because Missouri treated the offenses of conviction as felony crimes, i.e. treated defendant as an adult, these convictions were properly counted as predicate offenses under the ACCA. U.S. v. Johnson, 630 F.3d 970 (10th Cir. 2010).
10th Circuit holds that criminal discharge of weapon into occupied dwelling or vehicle was violent felony. (540) The district court sentenced defendant as an armed career criminal under the ACCA based in part on its finding that his 1997 Kansas conviction for criminal discharge of a firearm at an occupied dwelling or occupied vehicle was a violent felony under the residual clause of § 924(e)(2)(B)(ii). The Tenth Circuit affirmed. The residual clause includes crimes “otherwise involv[ing] conduct that presents a serious potential risk of physical injury to another,” and encompasses only crimes that are “roughly similar, in kind as well as in degree of risk posed,” to the enumerated crimes of burglary, arson, extortion, and crimes involving the use of explosives. Criminal discharge of a firearm at an occupied building or vehicle is at least as risky as burglary or arson. Unlike burglary, criminal discharge requires a person’s presence in the targeted building or vehicle, which increases the likelihood of a confrontation. The crime is also similar to the enumerated crimes because it involves purposeful, violent, and aggressive conduct. The statute requires intentional conduct. Moreover, maliciously and intentionally shooting an occupied building or vehicle is violent and aggressive. U.S. v. Ford, 613 F.3d 1263 (10th Cir. 2010).
10th Circuit holds the unauthorized entry of a shed with intent to commit felony was violent felony. (540) The district court sentenced defendant under the Armed Career Criminal Act, 18 U.S.C. § 924(e) based on three prior convictions that the court found qualified as violent felonies. The Tenth Circuit held that defendant’s prior New Mexico burglary conviction, which was based on a plea of guilty to the unauthorized entry of a “structure, a shed” with the intent to commit a felony, qualified as a violent felony under the ACCA. The “building or other structure” element in generic burglary encompasses those burglaries that have been “committed in a building or enclosed space …, not in a boat or motor vehicle.” A “structure, a shed,” by its nature is an enclosed space. U.S. v. Ramon Silva, 608 F.3d 663 (10th Cir. 2010).
10th Circuit holds that New Mexico aggravated assault conviction qualified as violent felony. (540) The district court sentenced defendant under the Armed Career Criminal Act, 18 U.S.C. § 924(e) based on three prior convictions that the court found qualified as violent felonies, including a New Mexico conviction for aggravated assault. Defendant argued that the aggravated assault offense can occur under either of two theories, by attempting a battery with a deadly weapon, or by “engaging in conduct with a deadly weapon that causes the victim to believe he or she was about to receive a battery.” He argued that the latter theory of aggravated assault, which he termed “apprehension causing” aggravated assault, was not a violent felony. The Tenth Circuit disagreed, holding that a New Mexico conviction for “apprehension causing” aggravated assault qualifies as a violent felony under the ACCA. Threatening or menacing conduct toward a victim, with a dangerous weapon, threatens the use of “violent force” because by committing such an act, the aggressor communicates to his victim that he will potentially use violent force against the victim in the near future. . U.S. v. Ramon Silva, 608 F.3d 663 (10th Cir. 2010).
10th Circuit says attempted burglaries were crimes of violence even though not violent felonies. (540) Defendant pled guilty to being a felon in possession of a firearm. He had previously been convicted twice in Arizona of attempted second-degree burglary. After determining that his attempted burglary convictions were not violent felonies for purposes of the Armed Career Criminal Act, the Tenth Circuit held that the offenses were crimes of violence for purposes of § 2K2.1(a)(2) and § 4B1.2(a). The definitions of violent felonies and crimes of violence are very similar, but they are not identical. In particular, the commentary to § 4B1.2 states that a “crime of violence” includes “the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.” This commentary required treating defendant’s two attempted burglary conviction as crimes of violence. The panel rejected defendant’s claim that the commentary was invalid because it was inconsistent with the language of § 4B1.2 itself. U.S. v. Martinez, 602 F.3d 1166 (10th Cir. 2010).
10th Circuit rules that discharging firearm at another person is violent felony. (540) The district court found that defendant’s deadly conduct conviction under Texas law constituted a prior violent felony under the Armed Career Criminal Act. Defendant argued that the statute was too broad to categorically constitute a violent felony. The Tenth Circuit used the modified categorical approach to examine the indictment, which charged that defendant knowingly discharged a firearm at another person. This conduct has as an element the use, attempted use, or threatened use of physical force against the person of another. Therefore, the district court properly held that the offense qualified as a violent felony under the ACCA. U.S. v. Hernandez, 568 F.3d 827 (10th Cir. 2009).
10th Circuit holds that breaking and entering and third-degree burglaries were violent felonies. (540) The district court sentenced defendant under the ACCA based on a 1993 breaking and entering conviction, a 1995 third-degree burglary conviction, and a 2000 third-degree burglary conviction. The Tenth Circuit affirmed, upholding the district court’s finding that all three were violent felonies. The breaking and entering statute was overbroad, because it included trespassing in structures beyond generic burglary such as watercraft and tents. However, the documents underlying the conviction revealed that defendant pled guilty to a charge that established all of the elements of generic burglary: unlawful entry into a building (a laundromat) with intent to commit a crime. The third-degree burglary convictions constituted violent felonies because they met the residual definition of violent felony in § 924(e)(2)(B)(ii) – they otherwise involved conduct that presented a serious risk of potential physical injury to another. The offenses are obviously similar in kind and degree of risk to burglary. The third-degree burglary statute requires that any person be present or likely to be present. U.S. v. Scoville, 561 F.3d 1174 (10th Cir. 2009).
10th Circuit holds that possession of deadly weapon in prison is violent felony. (540) Defendant argued that his Texas conviction for possession of a deadly weapon in a penal institution was not a violent felony under the ACCA. Previous cases have ruled that a conviction for conveying a weapon in a federal prison is a violent felony. However, the courts analyzed the issue only in terms of whether the offense “posed a serious potential risk of physical injury to another.” After the Supreme Court’s recent decision in Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), a court must also determine whether the offense is “roughly similar, in kind as well as in degree or risk posed,” to the offenses specifically enumerated in §924(e)(2)(B)(ii), i.e. burglary, arson, extortion or crimes involving explosives. The Tenth Circuit held that possession of a deadly weapon in a penal institution involves purposeful, violent and aggressive conduct, and thus qualifies as a violent felony. Those who possess deadly weapons in a penal institution typically intend to possess them. Possession of a deadly weapon in a penal institution likely indicates that the possessor is prepared to use violence if necessary, which in turn creates a danger for those surrounding the armed prisoner. U.S. v. Zuniga, 553 F.3d 1330 (10th Cir. 2009).
10th Circuit rules taking indecent liberties with a minor was not crime of violence. (540) Defendant pled guilty to being a felon in possession of a firearm, and received an enhanced offense level under §2K2.1(a)(4)(A) based on the court’s finding that his prior state conviction for knowingly taking indecent liberties with a minor constituted a crime of violence. The Tenth Circuit reversed and remanded. The indecent liberties statute does not have “as an element the use, attempted use, or threatened use of physical force against the person of another.” Rather, it proscribes taking “immodest, immoral or indecent liberties” with a minor under the age of 18. The offense also did not otherwise involve conduct that presents a serious potential risk of physical injury to another. Under Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), to fall within this clause, the offense must be “roughly similar, in kind as well as degree of risk posed,” to the listed examples. U.S. v. Dennis, 551 F.3d 986 (10th Cir. 2008).
10th Circuit rules Florida aggravated battery was not a crime of violence. (540) Defendant pled guilty to unlawful reentry by a deported alien previously convicted of an aggravated felony. He argued that his prior Florida conviction for felony aggravated battery was not a “crime of violence” warranting a 16-level enhancement under USSG. §2L1.2(b)(1)(A)(ii). The Tenth Circuit agreed, and reversed. Aggravated battery is not one of the enumerated crimes of violence in §2L1.2(b)(10(A)(ii). It also does not have as an element the use, attempted use, or threatened use of physical force against another person. The offense does not set forth a substantive offense, but rather elevates simple battery to felony aggravated battery when the victim is pregnant. The offense could be committed by merely touching a pregnant woman against her will. The charging document alleged that defendant touched or struck the victim against her will, and the judgment did not clarify this issue. Thus, the record did not indicate which of these two prongs defendant violated when he committed battery on the pregnant victim. Unlawfully touching another does not contain an element of the use or attempted use of force. U.S. v. Barraza-Ramos, 550 F.3d 1246 (10th Cir. 2008).
10th Circuit says government failed to show that California robbery was a crime of violence. (540) Defendant challenged the district court’s finding that his robbery conviction under Cal. Penal Code §211 qualified as a “robbery” under §2L1.2’s definition of a crime of violence. The California statute defined robbery as “the felonious taking of personal property in the possession of another from his person or immediate presence, and against his will, accomplished by means for force or fear.” The Tenth Circuit held that the government failed to establish that defendant’s robbery conviction was a conviction for generic robbery, and remanded for resentencing. The government conceded that the California statute’s definition of robbery was broader than the generic definition of “robbery,” and made no effort to show that defendant was convicted of generic robbery. A state’s designation of a criminal provision as its “robbery” statute does not necessarily mean that it qualifies as a robbery under §2L1.2. U.S. v. Servin-Acosta, 534 F.3d 1362 (10th Cir. 2008).
10th Circuit holds Maine burglaries were violent felonies under ACCA. (540) Defendant argued that his three Maine burglary convictions did not qualify as “violent felonies” under the Armed Career Criminal Act because the Maine statute was broader than the generic burglary definition in Taylor v. U.S., 495 U.S. 575 (1990). Here, the Maine definition was “remarkably similar” to the generic definition: “enter[ing] or surreptitiously remain[ing] in a structure knowing that that person is not licensed or privileged to do so, with the intent to commit a crime therein.” The term “structure” is defined as “a building or other place designed to provide protection for persons or property against weather or intrusion, but does not include vehicles or other conveyances….” The Tenth Circuit rejected defendant’s claim that the Maine definition of “structure” was too broad to qualify the burglary offense as a violent felony. The generic definition in Taylor also includes burglary of a “building or other structure.” Other federal courts have interpreted the Maine statute to include all of the elements of generic burglary. U.S. v. Cummings, 531 F.3d 1232 (10th Cir. 2008).
10th Circuit says Texas offense of assaulting public servant was not crime of violence. (540) Defendant pled guilty to illegally reentering the U.S. after deportation, and received a § 2L1.2 crime of violence enhancement based on his prior Texas conviction for assaulting a public servant. Section 2L1.2 defines a crime of violence to include any felony under state or federal law that “has as an element the use attempted use, or threatened use of physical force against the person of another.” The Tenth Circuit held that § 2L1.2’s “as an element” language limits the scope of a proper inquiry to the statutory definition of the prior offense and does not permit judicial examination of the facts behind conviction. A court may consider certain judicial records only for the purpose of determining which part of a divisible statute was charged against a defendant. Defendant’s prior conviction was not a crime of violence under § 2L1.2 because the portion of the Texas assault statute under which he pleaded guilty permitted conviction for reckless conduct. Recklessness falls into the category of accidental conduct that the Supreme Court in Leocal v. Ashcroft, 543 U.S. 1 (2004) described as failing to satisfy the use of physical force requirement in the definition of crime of violence. U.S. v. Zuniga-Soto, 527 F.3d 1110 (10th Cir. 2008).
10th Circuit holds drugging a victim is not crime of violence. (540) Defendant pled guilty to illegal reentry after deportation. He received a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on the district court’s finding that his prior conviction for assault two (drugging a victim) in Colorado was a crime of violence. See Colo. Rev. Stat. Ann. § 18-3-203(1)(e) (2001). A person commits assault two if he intentionally causes physical or mental impairment or injury to another person by administering to him, without his consent, a drug. The Tenth Circuit held that the nonconsensual administration of a drug cannot be characterized as “the use of physical force,” and thus the offense was not a crime of violence. The use of the word physical does not simply relate to the effect of the force, because if it had that meaning, it added nothing to the Guidelines’ definition of a crime of violence. Rather, it is the presence of a mechanical impact that defines when force is physical, such as when someone is struck by a fist, a bat or a projectile. In contract, the effect of poison on the body is achieved by chemical action, not by mechanical impact. Nonetheless, the error here was only in computing the Guidelines sentencing range. On remand, the sentencing judge has discretion to vary from that range, perhaps based on what may seem to be an artificial distinction between shooting a victim and poisoning him. U.S. v. Rodriguez-Enriquez, 518 F.3d 1191 (10th Cir. 2008).
10th Circuit finds court document was insufficient to show that harassment conviction was violent. (540) Under § 2L1.2(b)(1)(E), a defendant convicted of illegal reentry who has three or more convictions for misdemeanors that are crimes of violence receives a four-level enhancement. Defendant had three prior misdemeanor convictions for harassment under Colorado law. Colo. Rev. Stat. § 18-9-111(1)(a). A person commits harassment under Colorado law if he intentionally “[s]trikes, shoves, kicks, or otherwise touches a person or subjects him to physical contact.” Under § 2L1.2. harassment was a crime of violence only if it had “as an element the use, attempted use, or threatened us of physical force against the person of another.” The Tenth Circuit found that the definition was broad enough to encompass both violent crimes (striking a victim) and nonviolent crimes (spitting on a victim). Here, the colloquy in two of the prior convictions transcripts indicated that defendant engaged in domestic violence, a violent crime. However, there was no transcript or charging document for the third harassment conviction to determine whether it was for a violent crime. Therefore, the district court erred in enhancing defendant’s sentence. U.S. v. Maldonado-Lopez, 517 F.3d 1207 (10th Cir. 2008).
10th Circuit finds refusal to vary below guidelines for armed career criminal was reasonable. (540) Defendant was convicted of being a felon in possession of a firearm, and was sentenced under the Armed Career Criminal Act to 235 months. He argued that his sentence was unreasonable because the nature of the offense was “benign” because the gun was small and unloaded, it did not belong to him, it was inoperative, and it was not used to commit another crime. Moreover, he noted that all of crimes used to sentence him under the ACCA occurred in the 1980s, and therefore were sufficiently “stale” so as to warrant a sentence of no more than the 15-year mandatory minimum. The Tenth Circuit found no error. The district court thoroughly considered and rejected defendant’s contentions, noting that the guidelines do not distinguish among firearms of different sizes. The court heard testimony that the gun could easily be concealed and could easily be made operable by using a rubber band. Neither defendant’s age nor the age of the predicate convictions justified a sentence below the guidelines range. The ACCA is designed to punish recidivists more harshly than first-time offenders. U.S. v. Hanrahan, 508 F.3d 962 (10th Cir. 2007).
10th Circuit holds that Colorado misdemeanor unlawful sexual contact was “forcible sex offense.” (540) Defendant received a 16-level crime of violence enhancement under § 2L1.2 (b)(1)(A)(ii) for a previous misdemeanor conviction under Colorado law of unlawful sexual contact, in violation of Colo. Rev. Stat. § 18-3-404(1). Defendant did not contest that the state conviction was a felony for purposes of the guidelines, but argued that the offense did not constitute a crime of violence. The Tenth Circuit held that the offense was a “forcible sex offense,” and thus it qualified as a crime of violence. The statute prohibits nonconsensual sexual contact that is not necessarily achieved by physical force. However, the panel determined that physical compulsion is not required for a sex offense to be “forcible.” Where one party has sufficient control of a situation to overcome the other’s free will, force is present. The panel concluded that nonconsensual sexual contact, such as that prohibited by the Colorado offense, is necessarily “forcible.” U.S. v. Romero-Hernandez, 505 F.3d 1082 (10th Cir. 2007).
10th Circuit holds that Arizona “unlawful use of means of transportation” was not crime of violence. (540) In 2005, defendant had pled guilty in Arizona state court to unlawful use of means of transportation (“UUMT”), as defined in Ariz.Rev. Stat. § 13-1803(A)(1). A person commits UUMT if, without intent to permanently deprive, the person takes unauthorized control over another person’s means of transportation. The Tenth Circuit rejected an eight-level aggravated felony enhancement under § 2L1.2(b)(1)(C) based on the UUMT offense. An aggravated felony is defined in 8 U.S.C. § 1101(a)(43)(F) as “a crime of violence” under 18 U.S.C. § 16. UUMT did not qualify as a crime of violence under § 16(a) because it did not have as an element the use, attempted use, or threatened use of force. The sole issue was whether UUMT fell within § 16(b) as a crime “that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” The panel ruled that the offense did not present such a substantial risk. While there was some chance that destructive or violent force might be used in the commission of UUMT when a person initially takes unauthorized control over a vehicle, such risks are not “substantial.” The offense covers a broad range of conduct that does not present any risk of such force being used, such as driving a rental vehicle past the expiration of a rental agreement or surreptitiously taking a friend’s keys and going joyriding. The fact that the Fifth Circuit reached the opposite conclusion in U.S. v. Galvan-Rodriguez, 169 F.3d 217 (10th Cir. 1999), did not persuade the panel otherwise. U.S. v. Sanchez-Garcia, 501 F.3d 1208 (10th Cir. 2007).
10th Circuit holds that Nebraska conviction for first-degree false imprisonment was not crime of violence. (540) Defendant pled guilty to illegal reentry after deportation and received a 16-level crime of violence enhancement based on his Nebraska conviction for first-degree false imprisonment. § 2L1.2(b)(1)(A)(ii). First-degree false imprisonment is defined as knowingly restraining or abducting another person “(a) under terrorizing circumstances or under circumstances which expose a person to the risk of serious bodily injury; or (b) with intent to hold him or her in a condition of involuntary servitude.” Section 2L1.2 defines a “crime of violence” more narrowly than the career offender provision, U.S.S.G. § 4B1.1, which defines a crime of violence as one that has an element of force or “involves conduct that presents a serious potential risk of physical injury to another.” In contrast, § 2L1.2 requires a crime of violence to have an element of force, and does not provide for the latter alternative definition. Therefore, although the Tenth Circuit has held that false imprisonment can qualify as a crime of violence under § 4B1.1, that determination was not binding here because it was based on a finding that the crime entailed “a substantial risk of physical force being used.” The Tenth Circuit held false imprisonment did not have an element of force, and therefore the offense was not a crime of violence. The statutory definition of restraint does not require force, but applies where a defendant uses “deception.” In addition, the qualifying phrase “under terrorizing circumstances or under circumstances which expose the person to the risk of serious bodily injury” also does not necessarily encompass an element of force. U.S. v. Ruiz-Rodriguez, 494 F.3d 1273 (10th Cir. 2007).
10th Circuit holds that extreme upward deviation was reasonable. (540) Defendant pled guilty to one count of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). His advisory guideline range was 15-21 months, but the district court, after considering the sentencing factors in 18 U.S.C. § 3553(a), found this insufficient, and imposed a sentence of 120 months’ imprisonment. The Tenth Circuit held that the extreme upward deviation was reasonable. The district court’s reference to defendant’s prior arrest record was not improper – the court did not rely on the arrest record itself, but it extrapolated from the uncontested facts in the PSR (including the number, frequency, and seriousness of defendant’s various arrest and convictions) to draw conclusions about characteristics relevant to sentencing factors. The court also did not err by comparing defendant’s history to that of an armed career criminal, 18 U.S.C. § 924(e). The court properly sought guidance from the provision as to the appropriate length of sentence given defendant’s criminal history. The magnitude of the variance, although large, was reasonable, given defendant’s exceptional history and the fact that the advisory guideline sentence did not fully reflect the serous nature of his criminal record. Defendant had had significant contact with the criminal justice system over a short period of time, and indicated “a commitment to a criminal lifestyle.” U.S. v. Mateo, 471 F.3d 1162 (10th Cir. 2006).
10th Circuit upholds § 4B1.4(b)(3)(A) increase even though defendant was not convicted of a crime of violence. (540) Defendant was convicted of being a felon in possession of a firearm, and qualified as an armed career criminal under 18 U.S.C. § 924(e)(1) and U.S.S.G. § 4B1.4. The district court found that defendant possessed the gun in connection with a crime of violence – pointing and shooting the gun at a police officer – and applied an increased offense level under § 4B1.4(b)(3)(A). Defendant argued that the jury, in a special interrogatory, concluded that the government failed to prove this fact beyond a reasonable doubt. The Tenth Circuit affirmed the increase. There is no requirement that the § 4B1.4 (b)(3)(A) enhancement be applied only when the defendant is charged with or convicted of a crime of violence. If the district court finds, based on a preponderance of the evidence, that the unlawful conduct occurred, the enhancement is proper. While the jury did not find that defendant fired upon the officer, this did not prevent the court from finding, under a preponderance of the evidence, that the conduct occurred for purposes of sentencing. Moreover, courts have concluded that merely pointing a firearm at another, without firing, constitutes a crime of violence. U.S. v. Rockey, 449 F.3d 1099 (10th Cir. 2006).
10th Circuit holds that judge can determine whether prior crimes were committed on separate occasions under the ACCA. (540) Under the Armed Career Criminal Act, a person who violates 18 U.S.C. § 922(g) is subject to an enhanced penalty if he has three previous convictions “for a violent felony or a serious drug offense, or both, committed on occasions different from one another.” § 924(e). Defendant argued that the district court violated his Sixth Amendment rights by determining that his prior crimes were committed on different occasions. The Tenth Circuit disagreed, holding that the “prior conviction exception” outlined in Apprendi v. New Jersey, 530 U.S. 466 (200) includes the issue of whether the prior crimes were committed on separate occasions. See U.S. v. Michel, 446 F.3d 1122 (10th Cir. 2006). The separateness of prior crimes is inherent in the fact of conviction. The district court had sufficient evidence from which to conclude that the defendant’s prior convictions were committed on separate occasions. The court had before it some of the court records from defendant’s prior crimes. Moreover, defendant’s failure to object to the PSR created a factual basis for the court to enhance his sentence under the ACCA. U.S. v. Harris, 447 F.3d 1300 (10th Cir. 2006).
10th Circuit holds that New Mexico conviction for commercial burglary was violent felony. (540) Defendant was sentenced as an armed career criminal under 18 U.S.C. § 922(g) based on the district court’s finding that his prior conviction for commercial burglary was a “violent felony.” Burglary is included in the ACCA’s definition of “violent felony.” 18 U.S.C. § 924(e)(2(B). Under the generic definition of burglary adopted in Taylor v. U.S., 495 U.S. 575 (1990), “any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime” is a burglary, and a violent felony under the ACCA. Defendant argued that his commercial burglary was not a violent felony because the evidence properly considered under the categorical approach did not establish the storage unit was a “structure.” The Tenth Circuit disagreed. Since defendant was convicted under a non-generic burglary statute, the district court properly considered the indictment and plea agreement related to the offense. The indictment charged that defendant “entered a structure” and defendant pled guilty to the offense “as charged in … [the] indictment.” Thus, both of these documents established that defendant was convicted for unlawfully entering a structure. U.S. v. King, 422 F.3d 1055 (10th Cir. 2005).
10th Circuit finds plain error where court says 210-month ACCA guideline sentence was “immoral.” (540) Defendant was found guilty of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), and sentenced as an armed career criminal to 210 months’ imprisonment. While the district court denied defendant’s request for a downward departure, it was clearly dissatisfied with the sentence required by the guidelines, stating that the sentence was “immoral” and “so grossly out of proportion to the offense conduct here that it just smacks of something that certainly isn’t justice.” The district court sentenced defendant under the erroneous belief that the guidelines were mandatory, thus committing a “non-constitutional Booker error.” The Tenth Circuit found that under the unique circumstances of this case, and regardless of factors which are developed for the application of plain error post-Booker, defendant satisfied the third and fourth prongs of plain-error review. Clearly, under the third prong, defendant showed a reasonable probability that but for the error, his sentence would have been different. In addition, he demonstrated that the error was “particularly egregious” and that the appellate court’s failure to notice it would result in a “miscarriage of justice.” U.S. v. Williams, 403 F.3d 1188 (10th Cir. 2005).
10th Circuit holds that prior conviction need not be proven to jury. (540) Defendant was sentenced under the Armed Career Criminal Act pursuant to 18 U.S.C. § 924(e) based on the court’s finding that he had three prior convictions for a violent felony. The Tenth Circuit rejected defendant’s claim that the three previous felony convictions are facts that must be charged in the indictment and either admitted to by the defendant or proven to a jury beyond a reasonable doubt. Under Almendarez-Torres v. U.S., 523 U.S. 224 (1998) the court held that the fact of a prior conviction was a traditional sentencing factor that need not be charged in the indictment and proven. Almendarez-Torres was not overruled by Apprendi v. New Jersey, 530 U.S. 466 (2000). U.S. v. Dorris, 236 F.3d 582 (10th Cir. 2000). Almendarez-Torres is still good law, despite language in recent Supreme Court cases suggesting otherwise. See the concurrence of Justice Thomas in Shepard v. U.S., 125 S.Ct. 1254 (2005) (Almendarez-Torres has been eroded and a majority of the Supreme Court now recognizes it was wrongly decided). The panel also rejected defendant’s argument that the determination of a previous felony as “violent” under § 924(c) was a fact to be proven to a jury. It is a question of law whether a given conviction constitutes a “violent felony” and such a question does not trigger the Sixth Amendment. U.S. v. Moore, 401 F.3d 1220 (10th Cir. 2005).
10th Circuit upholds conclusion that failure to return to work release program was “violent felony.” (540) Defendant pled guilty to being a felon in possession of a firearm, and received an enhanced sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e), and U.S.S.G. § 4B1.4. The enhancement was based in part on the court’s finding that defendant’s previous failure to return to prison during a work-release program constituted an escape from prison, and thus constituted a “violent felony.” Although defendant challenged this conclusion on appeal, counsel admitted that 10th Circuit precedent foreclosed his argument, and raised the argument on appeal only to preserve the issue for Supreme Court review. Accordingly, the Tenth Circuit held that the district court properly enhanced defendant’s sentence. U.S. v. Maddox, 388 F.3d 1356 (10th Cir. 2004).
10th Circuit adds criminal history points for offense committed after defendant re-entered U.S. (540) Defendant pled guilty to illegally reentering the U.S. after deportation, in violation of 8 U.S.C. § 1326. Because defendant was on probation for a state DWI misdemeanor conviction at the time of his August 1, 2000 arrest, the district court added two criminal history points under § 4A1.1(d). Defendant argued that his § 1326(a) offense was a status offense that occurred on the date he reentered the U.S., and thus before his DWI offense. The Tenth Circuit found no error. A previously deported alien who illegally enters and remains in the U.S. can violate § 1326(a) at three different times – when the alien (a) enters, (2) attempts to enter, or (3) is at any time “found in” the U.S. Although defendant reentered the U.S. before his state DWI conviction and sentence, he was “found” in the U.S. after the state conviction. U.S. v. Rosales-Garay, 283 F.3d 1200 (10th Cir. 2002).
10th Circuit holds that sexual assaults on children under 12 are violent felonies under “otherwise” clause. (540) Defendant was sentenced as an armed career criminal, USSG § 4B1.4, based on his three Wyoming felony convictions for third degree sexual assault. In U.S. v. Coronado-Cervantes, 154 F.3d 1242 (10th Cir. 1998), the Tenth Circuit held that a nonforcible sex offense involving a child victim and an adult offender is a crime of violence as that term is defined in USSG § 4B1.2(a). Although the state statute did not have as an element the use, attempted use, or threatened use of physical force, and there was no evidence that the defendant used or threatened to use force, the court concluded that a sexual assault of a minor “by its nature present[s] a serious potential risk of injury to [the] victim and thus should be considered a ‘crime of violence.’“ Relying on Coronado-Cervantes, the Tenth Circuit held that the district court properly applied the USSG § 4B1.4 enhancement. The three assault victims involved here were all children under the age of 12. Wyoming’s classification of the crimes was irrelevant to the inquiry into whether those crimes involved a potential risk of physical injury to the victims. Coronado-Cervantes directly controlled this issue. Defendant’s three Wyoming felony convictions involving sexual assaults on children under the age of 12 were violent felonies under the “otherwise” clause of § 924(c)(2)(B)(ii). U.S. v. Moyer, 282 F.3d 1311 (10th Cir. 2002).
10th Circuit holds that Apprendi does not apply to prior convictions. (540) Because defendant had three prior felony convictions, the penalty for defendant’s felon in possession offense increased from a maximum of ten years to a mandatory minimum sentence of 15 years. See 18 U.S.C. § 924(e). Defendant argued that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), required that prior convictions be charged, treated as elements of the offense, instructed upon, and proven to a jury. The Tenth Circuit disagreed, since Almendarez-Torres v. United States, 523 U.S. 224 (1998) held that prior convictions are mere sentence enhancements, not elements of the offense. The Apprendi majority did not overrule Almendarez-Torres, expressly carving out an exception for previous convictions: “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 120 S.Ct. 2362-62. U.S. v. Dorris, 236 F.3d 582 (10th Cir. 2000).
10th Circuit holds that foreign convictions cannot be used a predicate convictions under ACCA. (540) Defendant was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). The Armed Career Criminal Act provides for a mandatory 15-year sentence if such a person has “three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense.” Three of defendant’s four prior convictions took place in the United Kingdom. The Tenth Circuit held that foreign convictions cannot be predicate convictions under the ACCA. First, although § 922(g) does not define was constitutes “convictions by any court,” § 921(20) excludes certain federal and state crimes from § 922(g)(1), but makes no comparable mention of foreign crimes. “If § 922(g)(1) were meant to cover foreign crimes, we would be left with the anomalous situation that fewer domestic crimes would be covered than would be foreign crimes.” This comports with the general approach of the guidelines, which is not to count foreign convictions in computing a defendant’s criminal history. The panel recognized that the Fourth and Sixth Circuits have made credible textual arguments in favor of counting foreign convictions as predicate offenses under § 922. See U.S. v. Atkins, 872 F.2d 94 (4th Cir. 1989); U.S. v. Winson, 793 F.2d 754 (6th Cir. 1986) (the term “any court” is not ambiguous and is all-inclusive in nature). However, under the rule of lenity, the panel refused to “interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended.” U.S. v. Concha, 233 F.3d 1249 (10th Cir. 2000).
10th Circuit holds that “walkaway” from prison honor camp is a violent felony under ACCA. (540) The district court refused to sentence defendant as an armed career criminal under 18 U.S.C. § 924(e) because it found that defendant’s prior conviction for escape after he walked away from a prison honor camp was not a “violent felony.” The Tenth Circuit reversed, since under U.S. v. Moudy, 132 F.3d 618 (10th Cir. 1998), overruling recognized by U.S. v. Shipp, 589 F.3d 1083 (10th Cir. 2009), a felony escape necessarily constitutes a violent felony under the ACCA. Such an escape always presents a serious potential risk of physical injury to others. It is irrelevant whether the escape actually involved violence or whether defendant was convicted under a state statute that defines escape as a non-violent crime. Judge McKay concurred, reserving judgment as to whether the court should treat as violent a felony which the state creating the felony has defined as non-violent. U.S. v. Springfield, 196 F.3d 1180 (10th Cir. 1999).
10th Circuit says felony escape, violent or not, is a violent felony under ACCA. (540) Defendant argued that the district court improperly counted his non-violent escape from a juvenile facility as a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e). The Tenth Circuit held that under U.S. v. Moudy, 132 F.3d 618 (10th Cir. 1998), overruling recognized by U.S. v. Shipp, 589 F.3d 1083 (10th Cir. 2009), a felony escape, violent or not, necessarily constitutes a violent felony under the ACCA because such an escape always presents a serious potential risk of physical injury to others. One panel cannot overturn the decision of another panel of the court. Judge McKay concurred to point out that where state law defines a failure to return to work release or other inmate release program as a felony escape, such an escape does not present a serious potential risk of physical injury to another. U.S. v. Adkins, 196 F.3d 1112 (10th Cir. 1999).
10th Circuit says escape conviction counts as third violent felony. (540) The government offered six prior convictions of defendant that it believed qualified as violent felonies under 18 U.S.C. § 924(e)(2)(B). The convictions included one each for felony menacing, aggravated assault, intimidating a witness, and escape, and two for third-degree burglary. The district court found the felony menacing, aggravated assault, and intimidating a witness convictions were “violent felonies” and sentenced defendant as an armed career criminal. Defendant appealed, claiming that the conviction for intimidating a witness did not constitute a violent felony. The Tenth Circuit did not address this argument, because even if the witness intimidation conviction did not count for the sentence enhancement, defendant’s 1981 escape conviction from Nebraska clearly constituted a third violent felony that satisfied § 924(e). See U.S. v. Moudy, 132 F.3d 618 (10th Cir. 1998), overruling recognized by U.S. v. Shipp, 589 F.3d 1083 (10th Cir. 2009) (“escape always constitutes” a violent felony under § 924(e)(2)(B)). U.S. v. Bad Heart Bull, 182 F.3d 1216 (10th Cir. 1999).
10th Circuit says court properly relied on available documents to make violent felony finding. (540) Defendant was sentenced as an armed career criminal under 18 U.S.C. § 924(e) based in part on a 1969 burglary conviction. The Tenth Circuit held that the court properly relied on available documents to decide that the burglary was a violent felony. The Missouri statute, by including places other than buildings, defined burglary more broadly than the generic definition of burglary. Under these circumstances, a court may consider whether the charging paper and jury instructions required the jury to find all the elements of generic burglary. Where there are no jury instructions because the defendant pled guilty, a court may look to the underlying indictment or information and the text of the guilty plea. Here, many of the records pertaining to defendant’s burglary conviction were destroyed by fire. The available records contained an authenticated copy of the complaint charging defendant with breaking and entering a building with intent to steal, and a journal entry of judgment showing defendant pled guilty to the burglary of a building. The district court did not err in relying on available documents to concluded that his 1969 burglary was a violent felony. U.S. v. Haslip, 160 F.3d 649 (10th Cir. 1998).
10th Circuit upholds Armed Career Criminal status even though priors were under an alias. (540) Defendant was convicted of robbery and being a felon in possession of a firearm. He objected to his status as an Armed Career Criminal on the ground that two of the three predicate convictions charged a person other than defendant. The Tenth Circuit upheld defendant’s career criminal status because defendant was in fact the person convicted of the prior crimes. A probation officer testified that the names were aliases of defendant’s. Defendant’s FBI “rap sheet” listed defendant as the perpetrator of the crimes. The FBI had matched defendant’s fingerprints with those of the defendants in the previous cases. U.S. v. Shinault, 147 F.3d 1266 (10th Cir. 1998).
10th Circuit holds conveying a weapon in prison is a violent felony under ACCA and a serious violent felony under 3 Strikes Law. (540) Defendant participated in a carjacking and robbery. The Tenth Circuit held that defendant’s prior conviction for conveying a weapon in a federal prison was a “violent felony” under the ACCA and a “serious violent felony” under the federal Three Strikes Law. In a prison setting, an inmate’s possession of a deadly weapon presents a serious potential risk of physical injury to another. There can be no innocent purpose, such as collection or recreation, for possessing such a weapon in prison. A “serious violent felony” under the federal Three Strikes Law must have a maximum term of ten years or more. Defendant’s conviction met that requirement, even though the maximum penalty for the offense was reduced to five years in 1994. Finally, a serious violent felony need not have as an element the use of force if it meets the second test contained in the statute—that is, if “by its nature,” it involves a substantial risk that physical force against another may be used. Defendant’s conveying offense easily met that test. There is no legitimate purpose for a prisoner to carry a weapon designed to kill or injure another, and it clearly involves a substantial risk that physical force will be used. U.S. v. Romero, 122 F.3d 1334 (10th Cir. 1997).
10th Circuit looks to state penalty to decide whether crime is “serious drug offense.” (540) Defendant was classified as an armed career criminal under 18 U.S.C. § 924(e) based in part on a 1981 Oklahoma conviction for distributing 8 ounces of marijuana. If the conviction had been under federal law it would not have been a “serious drug offense” under § 924(e)(2)(A) because federal law provides for a maximum five‑year sentence. Oklahoma provided for a maximum ten‑year sentence. The Tenth Circuit rejected defendant’s claim that state offenses should be treated like the most analogous federal drug offense to ensure equality in sentencing under the ACCA. The district court correctly classified the offense as a serious drug offense based on the maximum term of imprisonment under state law. U.S. v. McMahon, 91 F.3d 1394 (10th Cir. 1996).
10th Circuit holds Texas burglary of a habitation is crime of violence and violent felony. (540) The Tenth Circuit held that Texas burglary of a habitation was a violent felony under the ACCA and a crime of violence under § 4B1.1. It was a violent felony because its statutory elements substantially corresponded to the generic elements of burglary contained in Taylor v. U.S., 495 U.S. 575 (1990). Although Taylor noted that some states define burglary more broadly than its generic definition, and gave as an example burglary of automobiles, the Texas Code does not include vehicles in the sense in which Taylor intended. Only vehicles that are “adapted for the overnight accommodation of persons” qualify as habitations. This clearly connotes a dwelling, and under § 4B1.1, burglary of a dwelling is a crime of violence. U.S. v. Spring, 80 F.3d 1450 (10th Cir. 1996).
10th Circuit upholds armed career criminal status where right to carry firearm was never restored. (540) Defendant was convicted of being a felon in possession of a firearm and sentenced as an Armed Career Criminal based on three prior Oklahoma robberies. Defendant argued that these robberies should not be considered predicate offenses because the state judge told him in open court that those convictions would not be used against him. The 10th Circuit found that even if this were true, any attempt to bar use of the convictions under federal law was ultra vires and unenforceable. However, the Act does exempt convictions where a defendant’s civil rights have been restored. Although Oklahoma law appears to automatically restore a felon’s civil rights on completion of the sentence, it does not restore the right to carry a firearm. Because defendant’s right to carry firearms was not restored, the robbery convictions were properly used to trigger the Act’s enhanced sentencing provision. U.S. v. Sanders, 18 F.3d 1488 (10th Cir. 1994).
10th Circuit holds that Missouri burglaries and kidnapping were violent felonies under ACCA. (540) Defendant was classified as an armed career criminal under 18 U.S.C. § 924(e) based on two prior Missouri burglary convictions, and a kidnapping conviction. The 10th Circuit affirmed that these offenses were violent felonies under the ACCA. The 1975 Missouri burglary statute was broader than the generic definition of burglary because it extended to unlawful entry of any booth, tent, boat, vessel or railroad car. However, an examination of the charging document, as permitted by Taylor v. U.S., 495 U.S. 575 (1990), showed that defendant unlawfully entered the building of an individual with the intent to steal. Thus, this conviction fell within the generic definition of burglary, and constituted a crime of violence. The second burglary conviction was under Missouri’s amended burglary statute, modified to contain only the essential elements of a generic burglary. Thus, this burglary also was a crime of violence. Although section 924(e) does not specifically list kidnapping, the crime is a violent felony because under Missouri law it involves a serious “potential” risk of injury. U.S. v. Phelps, 17 F.3d 1334 (10th Cir. 1994).
10th Circuit says felonies committed on same day and prosecuted together were separate. (540) Defendant argued that his sentence was improper because two of the three violent felony convictions used to enhance his sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), occurred on the same day and were charged under the same case number. He argued they should be considered a single criminal episode. The 10th Circuit disagreed. After defendant successfully completed robbing one business, he was free to leave. The fact that he chose, instead, to rob another business was evidence of his intent to engage in a separate criminal episode. U.S. v. Lloyd, 13 F.3d 1450 (10th Cir. 1994).
10th Circuit upholds New Mexico burglary as violent felony despite broad definition and age of conviction. (540) The 10th Circuit affirmed that defendant’s New Mexico burglary conviction was a violent felony under the Armed Career Criminal Act (ACCA), even though New Mexico’s statutory definition of burglary was broader than the “generic” burglary discussed in Taylor v. U.S., 110 S.Ct. 2143 (1990). Where the state definition of burglary is too broad, the conviction can still be used for an ACCA enhancement if the “charging paper and jury instructions actually required the jury to find all the elements of generic burglary in order to convict the defendant.” Here, the indictment stated that defendant made an unauthorized entry into a jewelry store with intent to commit a theft. “Unauthorized entry” had the same meaning as “unlawful or unprivileged entry” in Taylor. The fact that the burglary conviction was “ancient” under section 4A1.2 was not relevant, because the time periods for counting prior sentences under section 4A1.2 are not applicable to sentence enhancements under the ACCA. U.S. v. Lujan, 9 F.3d 890 (10th Cir. 1993).
10th Circuit upholds departure based upon analogy to armed career criminal guideline. (540) Defendant was classified as an armed career criminal subject to a mandatory minimum 15-year sentence under 18 U.S.C. section 924(e). At the time he committed his offense, the guidelines did not yet contain section 4B1.4, the armed career criminal provision. Thus, absent the mandatory minimum, defendant would have had a guideline range of 18 to 24 months. The 10th Circuit approved an upward departure from the mandatory minimum based upon an analogy to the armed career criminal guideline. The guidelines’ “omission” of an armed career criminal category was a proper grounds for departure. The degree of departure, determined with reference to what defendant’s guideline range would be under section 4B1.4, was reasonable. There was no ex post facto violation. It was clear that the district court did not apply section 4B1.4, but merely used it as a benchmark to test the reasonableness of its degree of departure. U.S. v. Tisdale, 7 F.3d 957 (10th Cir. 1993).
10th Circuit rejects enhancement challenges because defendant was sentenced as an armed career criminal. (540) Defendant was convicted of several firearms offenses and was classified as an armed career criminal. Under section 4B1.4(b), defendant’s offense level was the greatest of either the offense level calculated under chapters two and three of the guidelines, or 34. Because defendant’s total offense level under the chapters two and three, after applying various enhancements, was less than 34, he was assigned an offense level of 34. The 10th Circuit refused to consider defendant’s challenges to the various enhancements. Defendant was not sentenced under chapters two and three of the guidelines, but was instead sentenced as an armed career criminal under section 4B1.4, which does not contain the enhancement provisions. U.S. v. Hamilton, 992 F.2d 1126 (10th Cir. 1993).
10th Circuit says defendant has burden to prove invalidity of priors for armed career criminal purposes. (540) The 10th Circuit held that in sentence enhancement proceedings under the Armed Career Criminal Act, once the government has established the fact of a prior conviction based on a guilty plea, the defendant has the entire burden of proving the invalidity of the conviction. No presumption of an invalid guilty plea arises when the transcript or other records of the plea proceeding are incomplete or missing, or, in pre-1969 cases, when the waiver of constitutional rights do not show on the record. Defendant failed to prove his 1963 guilty pleas were involuntary or unknowing. U.S. v. Wicks, 995 F.2d 964 (10th Cir. 1993).
10th Circuit affirms that second-degree burglary is violent felony for armed career criminal purposes. (540) The 10th Circuit affirmed that defendant’s prior second-degree burglary conviction qualified as a violent felony for purposes of the Armed Career Criminal Act. In Taylor v. United States, 495 U.S. 575 (1990), the Supreme Court concluded that Congress intended burglaries to be included in the enhancement statutes even if they do not necessarily involve the use or threat of force against a person. A person has been convicted of burglary for purposes of enhancement if he is convicted of any crime, regardless of its exact definition, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime. Defendant’s crime met this definition of burglary and thus qualified as a violent felony. U.S. v. Amos, 984 F.2d 1067 (10th Cir. 1993).
11th Circuit says Alabama third degree burglary is not violent felony. (540) Defendant was sentenced under the Armed Career Criminal Act based in part on the district court’s decision to treat his Alabama convictions for third-degree burglary as “violent felonies.” At the time defendant was sentenced, the law in the Eleventh Circuit was that convictions under Alabama’s third-degree burglary statute, Ala.Code § 13A-7-7, could qualify as violent felonies. See U.S. v. Rainer, 616 F.3d 1212 (11th Cir.2010). However, based on Descamps v. U.S., 133 S.Ct. 2276 (2013), the Eleventh Circuit recently held that Rainer was no longer good law because Alabama’s third-degree burglary statute was a non-generic, indivisible statute. See U.S. v. Howard, 742 F.3d 1334 (11th Cir. 2014). However, unlike the defendant in Howard, defendant here did not preserve the issue by objecting to the ACCA enhancement on this ground in the district court. The Eleventh Circuit nonetheless concluded that treating the Alabama convictions for third degree burglary as violent felonies was plain error. An intervening decision by “this Court or the Supreme Court squarely on point may make an error plain.” The error affected defendant’s substantial rights, because at sentencing, the court expressed its desire to give defendant a shorter sentence than the ACCA allowed. U.S. v. Jones, 743 F.3d 826 (11th Cir. 2014).
11th Circuit rules third-degree burglary in Alabama is not violent felony. (540) The district court sentenced defendant under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), based on its finding that defendant’s Alabama convictions for third-degree burglary qualified as violent felonies. In U.S. v. Rainer, 616 F.3d 1212 (11th Cir. 2010), the Eleventh Circuit had used the modified categorical approach to find that a conviction under Alabama’s third-degree burglary statute, Ala.Code § 13A-7-7, can qualify as a violent felony. However, in Descamps v. U.S., 133 S.Ct. 2276 (2013), the Supreme Court ruled that the modified categorical approach can be applied only when the non-generic statute is also a “divisible” statute, i.e. one that “sets out one or more elements of the offense in the alternative.” The Eleventh Circuit held that Alabama’s third-degree burglary statute was an indivisible statute, and thus the offense did not qualify as a violent felony. A number of things included in the definition of “building” such as vehicles and water craft, fell outside the “building or structure” element of generic burglary. The definition of “building” in the statute was not drafted in the alternative; illustrative examples are not alternative elements. U.S. v. Howard, 742 F.3d 1334 (11th Cir. 2014).
11th Circuit says prior convictions were committed on different occasions without proof beyond a reasonable doubt. (540) Defendant was convicted of being a felon in possession of a firearm, 18 U.S.C. § 922(g), and was sentenced as an armed career criminal. He argued that one of the ACCA elements, that the prior offenses be “committed on occasions different from one another,” should have been alleged in the indictment and proven beyond a reasonable doubt. The Eleventh Circuit found that this argument was foreclosed by binding precedent. Under Almendarez–Torres v. U.S,., 523 U.S. 224 (1998), the existence of his prior conviction did not need to be admitted in his guilty plea or otherwise proven beyond a reasonable doubt. Moreover, in U.S. v. Weeks, 711 F.3d 1255 (11th Cir. 2013), this circuit concluded that a district court can determine “the factual nature” of prior convictions for ACCA purposes, “including whether they were committed on different occasions,” as long as the court limits itself to Shepard-approved documents. U.S. v. Overstreet, 713 F.3d 627 (11th Cir. 2013).
11th Circuit rules that information showed defendant had been convicted of ACCA predicate offense. (540) Defendant was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e), based in part on a Florida conviction for aggravated assault on a law enforcement officer. Defendant did not dispute that the crime was a violent felony. However, he contended that, because the information and certified judgment of conviction cited only a sentence enhancement provision (Fla.Stat. § 784.07), and not the substantive provision of the aggravated assault statute, the government did not sufficiently prove that his conviction was for that particular crime. The Eleventh Circuit disagreed, ruling that the omission of a citation to Fla. Stat. § 784.021 (the substantive provision creating the crime of aggravated assault) was not fatal, The information and certified final judgment established that defendant had pleaded guilty to aggravated assault on a law enforcement officer, a violent felony under the ACCA. U.S. v. Gandy, 710 F.3d 1234 (11th Cir. 2013).
11th Circuit holds that Florida conviction for simple vehicle flight was predicate offense under ACCA. (540) Defendant challenged his status as an armed career criminal under 18 U.S.C. § 924(e). Although not relied on by the district court as a predicate offense, the Eleventh Circuit ruled that defendant’s 2001 conviction for simple vehicle flight, in violation of Fla. Stat. § 316.1935(2), was a predicate offense under the ACCA. At the time of defendant’s sentencing, the circuit had ruled that a conviction under Fla. Stat. § 316.1935(2) was not a violent felony under the ACCA. U.S. v. Harrison, 558 F.3d 1280 (11th Cir. 2009). However, Harrison was abrogated by Sykes v. U.S., 131 S.Ct. 2267 (2011). In U.S. v. Petite, 703 F.3d 1290 (11th Cir. 2013), the court held that simple vehicle flight in violation of Fla. Stat. § 316.1935(2), qualified as a violent felony under the residual clause of § 924(e)(2)(B)(ii). The panel rejected defendant’s additional argument that the residual clause of the ACCA was unconstitutionally vague. U.S. v. Gandy, 710 F.3d 1234 (11th Cir. 2013).
11th Circuit upholds 15-year sentence despite erroneous advice that maximum penalty was 10 years. (540) Defendant was sentenced as an armed career criminal. He argued that the district court erred by sentencing him to the mandatory minimum 15 years, since he was erroneously advised by the prosecutor and the magistrate judge that the maximum penalty for his offense was 10 years in prison. The Eleventh Circuit ruled that the court did not commit plain error by sentencing defendant to 15 years. At sentencing, the district court noted that defendant had entered his plea based on these representations. It thoroughly explained that this was an error, and that the mandatory minimum sentence under the ACCA would be 15 years. The district court asked defendant if he had any questions, and then asked if he would like to enter into the same guilty plea at that time. The court even offered to take a break in the proceedings to permit defendant and his attorney to discuss the matter, but defendant stated that he had already spoken with his attorney about the matter and that he did not wish to withdraw his guilty plea. Thus, the error was harmless and did not affect defendant’s substantial rights. U.S. v. Gandy, 710 F.3d 1234 (11th Cir. 2013).
11th Circuit finds battery on law enforcement officer, shooting into occupied building, and aggravated battery were violent felonies. (540) Defendant argued that the predicate offenses used to sentence him as an armed career criminal no longer qualified as “violent felonies” under the ACCA. The Eleventh Circuit disagreed, ruling that the three predicate offenses—battery on a law enforcement officer, aggravated assault/shooting into an occupied building, and aggravated battery—were still violent felonies. The aggravated assault included as an element the threatened use of physical force against the person of another. The conviction for shooting into an occupied building constituted a violent felony under the modified categorical approach, because it necessarily included the wanton or malicious firing of a gun at an occupied building. Although Florida’s felony battery offense was not categorically a crime of violence, it qualified as one under the modified categorical approach. Defendant pushed an officer against a wall, injuring her hand, which likely constituted “[a]ctually and intentionally … strik[ing]” the officer. The aggravated battery conviction, which stemmed from defendant stabbing a man in the chest, was also a violent felony under the elements clause. Turner v. Warden Coleman FCI, 709 F.3d 1328 (11th Cir. 2013).
11th Circuit says intentional vehicular flight qualified as a violent felony. (540) Defendant was sentenced to 188 months under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The sole issue on appeal was whether defendant’s prior conviction for intentional vehicular flight from a law enforcement patrol car, in violation of Fla. Stat. § 316.1935(2), was a violent felony under the ACCA. The Eleventh Circuit ruled that it was, and affirmed defendant’s sentence. In Sykes v. U.S., 131 S.Ct. 2267 (2011), the Supreme Court held that a very similar Indiana vehicle flight offense was a violent felony for ACCA purposes. The Indiana statute was strikingly similar to the Florida statute at issue here, and similarly did not have as an element anything related to driving at a high speed or operating the vehicle in a reckless manner. Sykes made clear that the risk of violence is inherent to vehicle flight. Sykes so fully undermined the circuit’s prior decision in U.S. v. Harrison, 558 F.3d 1280 (11th Cir. 2009), abrogated by Sykes v. U.S., 131 S.Ct. 2267 (2011) (holding simple vehicle flight was not a violent felony), as to abrogate its holding. U.S. v. Petite, 703 F.3d 1290 (11th Cir. 2013).
11th Circuit holds that Florida robbery conviction was “violent felony” under ACCA. (540) Defendant was convicted of being a felon in possession of a firearm. He was sentenced as an armed career criminal based in part on the court’s finding that his prior Florida conviction for strong arm robbery was a violent felony. The Eleventh Circuit, applying the categorical approach, held that the robbery conviction qualified as a violence felony. The Florida statute criminalized stealing property from another’s person or custody using “force, violence, assault, or putting in fear.” Defendant contended that the degree of force required to violate the state statute was too slight to satisfy the federal statute, noting that Florida law at the time made mere snatching a robbery. However, in U.S. v. Lockley, 632 F.3d 1238, 1246 (11th Cir. 2011), the court held that Florida attempted robbery was a crime of violence under the Sentencing Guidelines. Although Lockley involved a crime of violence rather than a violent felony, and the Florida statutory provisions were slightly different at the time Lockley was decided, these distinctions did not make a difference. U.S. v. Welch, 683 F.3d 1304 (11th Cir. 2012).
11th Circuit rules Florida conviction for false imprisonment was a violent felony under ACCA. (540) Defendant was sentenced under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), based in part on the district court’s finding that his prior Florida conviction for false imprisonment was a violent felony. The Eleventh Circuit affirmed. The Florida false imprisonment crime means “forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will.” The panel agreed with the district court that Florida false imprisonment was comparable to burglary with respect to the degree and kind of risk produced. The risk created by false imprisonment, even if accomplished by deceit rather than by force, arises from the possibility that the victim might try to resist or escape. Florida false imprisonment is not a strict liability, negligence, or recklessness crime. It requires an intent to “confin[e], abduct[ ], imprison[ ], or restrain[ ] another person without lawful authority and against her or his will.” Therefore, the Begay inquiry into whether the crime was “purposeful, violent, and aggressive” did not apply. U.S. v. Schneider, 681 F.3d 1273 (11th Cir. 2012).
11th Circuit reverses where government failed to serve notice of enhanced sentence before trial. (540) Defendant was convicted of drug and firearms charges. He argued that the government did not file and serve an information containing notice of an enhanced sentence in accordance with § 851(a)(1). The government argued that the second information was properly filed because it was handed to the district court in open court, and it was properly served on defendant, because he had actual notice of the information and the district court had read a portion of the information to him in open court. The Eleventh Circuit held that the statutory language of § 851(a) requires the government to strictly comply with the service requirement before trial. The defendant’s actual notice of the government’s filing of an information does not obviate the government’s statutory obligation under § 851(a) to serve a copy of the information on the defendant or his counsel before trial. Here, it was not apparent from the record whether the district court made a finding at defendant’s sentencing that he or his trial counsel was served with a copy of the second information before trial. Moreover, the record would not have supported such a finding. The government did not produce any evidence or testimony at sentencing to prove that it had served the second information on defendant or his trial counsel before trial. U.S. v. Ladson, 643 F.3d 1335 (11th Cir. 2011).
11th Circuit rules burglaries committed on same day at two addresses on same street were separate offenses. (540) Defendant challenged his sentence under the ACCA, arguing that his convictions for two burglary offenses, committed on the same day at separate addresses on the same street, were part of one criminal episode. The Eleventh Circuit disagreed. Defendant was convicted of burglarizing two businesses that were located on the same commercial boulevard but separated by a side street and parking lots. Logic dictated that defendant would not flee across two parking lots and a side street to escape detection. Rather, the locations of the victims businesses suggested two separate and distinct criminal episodes where defendant had the opportunity to desist but chose instead to commit another crime. Defendant’s escape also constituted a separate crime from the burglaries. Defendant’s arrest stopped the criminal episode of the burglary. Defendant’s attempt to escape from police custody was a separate offense from the burglaries. U.S. v. Proch, 637 F.3d 1262 (11th Cir. 2011).
11th Circuit holds that Florida escape from custody is violent felony. (540) The district court sentenced defendant under the ACCA based in part on its finding that his Florida escape conviction constituted a violent felony. The Eleventh Circuit held that escape from custody under the Florida law was a violent felony. The Florida offense involved a crime similar in risk and similar in kind to the enumerated crimes. It involved either an escape from jail or an escape from the immediate custody of an officer transporting the person to or from jail. Escapes from custody, like burglary, will almost always involve the police attempting to apprehend the escapee and are likely to cause “an eruption of violence” upon discovery. Such an eruption clearly presents a serious potential risk of physical injury. Also like burglary, escape from custody is a stealth crime that involves a high degree of recklessness. Like burglary, arson, and the use of explosives, escape from custody is purposeful, violent, and aggressive because it involves a choice that will almost certainly be responded to with force, and potentially violent force, by the police. U.S. v. Proch, 637 F.3d 1262 (11th Cir. 2011).
11th Circuit rules possession of short-barreled shotgun was not violent felony. (540) Defendant, a convicted felon, pled guilty to unlawful possession of a firearm. Based in part on his prior conviction for unlawful possession of a short-barreled shotgun, the government sought to have him sentenced under the Armed Career Criminal Act (ACCA). The Eleventh Circuit upheld the district court’s refusal to sentence defendant under the ACCA, ruling that possession of a short-barreled shotgun was not a violent felony. Even if short-barreled shotguns were more like explosives, Congress included only the use, but not the possession of explosives, among the ACCA’s example crimes. The National Firearms Act (NFA) defines and regulates short-barreled shotguns and explosives in the same firearms category and heavily proscribes their manufacture and possession. Nevertheless, Congress did not include possession of explosives in the ACCA’s list of example crimes. The court could not classify possessing one type of NFA outlawed weapon as a violent felony when the ACCA speaks only to the use of another. U.S. v. McGill, 618 F.3d 1273 (11th Cir. 2010).
11th Circuit holds that Florida conviction for sexual battery of a child under 16 was not violent felony. (540) The district court sentenced defendant under the Armed Career Criminal Act based in part on its finding that his prior Florida conviction for sexual battery of a child under 16 was a violent felony. The Court of Appeals affirmed, and the Supreme Court remanded for further consideration in light of Johnson v. U.S., 130 S.Ct. 1265 (2010). On remand, the government conceded that the sexual battery conviction was not a “violent felony” under § 924(e)(2)(B) (i), but argued that it qualified as a violent felony under the residual clause in § 924(e)(2)(B)(ii). The Eleventh Circuit concluded that the sexual battery conviction did not qualify as a violent felony. The offense clearly presented a serious potential risk of physical injury. However, the Florida statute, viewed categorically, imposes strict liability and covers a broad range of conduct, including conduct in which the offender might not have had any criminal intent at all. Given this, the panel was unable to conclude that a violation of the Florida statute typically involves purposeful, violent, and aggressive conduct, as required by Begay v. U.S., 553 U.S. 137 (2008). U.S. v. Harris, 608 F.3d 1222 (11th Cir. 2010).
11th Circuit upholds 2005-month sentence for multiple § 924 convictions. (540) Defendant was sentenced to 2005 months in prison for 15 counts of armed bank robbery, 18 U.S.C. § 2113(a)(d), carrying a firearm in relation to a crime of violence, § 924, and being a felon in possession of a firearm. § 922(g)(1). Defendant argued that a sentence for multiple violations of § 924 is capped at 25 years of imprisonment. The Eleventh Circuit noted that it rejected this argument in its recent decision in U.S. v. Tate, 586 F.3d 936 (11th Cir. 2009). Section 924 requires minimum consecutive sentences of 25 years for all subsequent convictions under the statute. The 2005-month sentence was not substantively unreasonable. The statutory minimum sentences, as provided in § 924, had to be applied even though the Sentencing Guidelines were only advisory. Defendant was a repeat offender recently released from prison when he committed the seven armed bank robberies. There was nothing in the record or the § 3553(a) factors that militated against a within-guidelines sentence. U.S. v. Phaknikone, 605 F.3d 1099 (11th Cir. 2010).
11th Circuit bars use of police reports to determine if crimes were committed on different occasions. (540) The PSR found that defendant was an armed career criminal under § 924(e)(1) based on three prior Alabama drug convictions. To prove that the offenses occurred on occasions separate from one another, the government submitted a copy of the state indictments. None of the counts contained dates, times or locations for the offenses, but the government also submitted copies of police reports for each state offense. The police reports indicated that each of the three offenses occurred on two different dates and at three different times. The government argued that under U.S. v. Richardson, 230 F.3d 1297 (11th Cir. 2000), the district court could examine police report to determine whether qualifying predicate felonies were separate for purposes of the ACCA. The Eleventh Circuit found that Richardson was abrogated by Shepard v. U.S., 544 U.S. 13 (2005), and ruled that the court could not use the police report to determine whether defendant’s prior convictions were committed on different occasions. Although Shepard involved the “violent felony” phrase in § 924(e) and did not address the “different occasions” phrase, it nonetheless undermined Richardson’s approval of the use of police reports. U.S. v. Sneed, 600 F.3d 1326 (11th Cir. 2010).
11th Circuit holds Alabama first-degree possession of marijuana was “serious drug offense.” (540) The district court found that defendant qualified for an enhanced sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), based in part on his prior Alabama conviction for possession of marijuana. The conviction, under Ala. Code § 13A-12-213, prohibits possession of marijuana for other than personal use. The Eleventh Circuit held that the offense qualified as a serious drug offense under the ACCA, and affirmed. The ACCA requires that the prior conviction involve manufacturing, distributing, or possession with intent to manufacture or distribute. Although the Alabama statute does not define the phrase “for other than personal use,” the section necessarily punishes possession for someone else’s use. In other words, the statute punishes the possession of marijuana with the intent to distribute to another. Moreover, the offense was a Class C felony that carried a maximum term of imprisonment of ten years. U.S. v. Robinson, 583 F.3d 1292 (11th Cir. 2009).
11th Circuit holds that “walkaway” escape was not a violent felony. (540) Defendant was sentenced as an armed career criminal, 18 U.S.C. § 924(e), based in part on the district court’s finding that defendant’s prior escape conviction under New Jersey law was a violent felony. As a matter of first impression after the Supreme Court’s decision in Chambers v. U.S., 555 U.S. 122, 129 S.Ct. 687 (2009), the Eleventh Circuit held that a non-violent walkaway escape from unsecured custody is not sufficiently similar in kind or in degree or risk posed to the ACCA’s enumerated crimes to qualify as a violent felony under the residual clause of § 924(e)(2)(B)(ii). In order to be convicted of third-degree escape under the New Jersey statute, a person need only leave or fail to return to an unsecured area where he is supposed to return. Given that this conduct did not involve the use or threat of physical force, it was unlikely to lead to escalated confrontations with law enforcement or to otherwise create a serious potential risk of physical injury to others. In addition, a walkaway offense does not involve the same kind of violent and aggressive conduct that characterizes the ACCA’s enumerated crimes. U.S. v. Lee, 586 F.3d 859 (11th Cir. 2009).
11th Circuit says government failed to show that escape and obstruction were committed on separate occasions. (540) Defendant was sentenced under the Armed Career Criminal Act based in part on a conviction for escape and a conviction for obstruction or opposing an officer with violence. Defendant argued that after Begay, his escape conviction should not be considered a violent felony. The Eleventh Circuit found that even if escape was categorically a violent felony, the record did not support the ACCA enhancement. For crimes to be committed “on occasions different from one another,” the crimes must be committed successively rather than simultaneously. The records of convictions submitted by the government contained no information on whether defendant’s crimes of escape and obstructing or opposing an officer with violence were committed successively or simultaneously. Both crimes were committed on the same day and were evidenced by a single judgment of conviction. The government was not entitled to a remand to present additional evidence on this issue. U.S. v. Canty, 570 F.3d 1251 (11th Cir. 2009).
11th Circuit upholds sentence where defendant pled guilty to count that alleged he qualified under ACCA. (540) Defendant challenging the district court’s application of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), arguing that one of the three predicate offenses the court relied on was constitutionally invalid. He admitted that he pleaded guilty to that offense, but he claimed he had ineffective counsel and was absent from his own plea colloquy in that case. The Eleventh Circuit rejected defendant’s challenge. First, neither a claim that counsel for a predicate conviction was ineffective nor a claim that the guilty plea leading to that conviction was not knowing and intelligent is cognizable under § 924(e). Moreover, defendant pleaded guilty to a count that alleged that he had possessed a firearm in violation of § 922(g)(1); it listed his three prior felonies; and it alleged that he qualified under the ACCA. Defendant’s challenge to his ACCA-enhanced sentence was meritless. U.S. v. Covington, 565 F.3d 1336 (11th Cir. 2009).
11th Circuit says retroactive crack amendment did not affect armed career criminal. (540) Defendant was convicted of crack and firearms charges and was sentenced as an armed career criminal under §4B1.4(b)(3)(A). He was sentenced to 295 months on the firearm counts, and a concurrent 240 months on the crack count. Defendant moved under §3582(c)(2) to reduce his sentence based on Amendment 706, which retroactively reduced the base offense levels for crack offenses. The Eleventh Circuit held that defendant was not entitled to a sentence reduction because the reduced crack offense levels would have no effect on his sentencing range. His offense level was calculated under the armed career criminal provisions of §4B1.4. In U.S. v. Moore, 541 F.3d 1323 (11th Cir. 2008), the court held that defendants whose offense levels were calculated under the career offender guideline were not entitled to sentence reductions under the crack amendments. The fact that defendant was sentenced under the armed career criminal guideline, rather than the career offender guideline, made no difference. U.S. v. Thomas, 545 F.3d 1300 (11th Cir. 2008).
11th Circuit rules that carrying a concealed firearm is not crime of violence. (540) In Begay v. United States, 128 S.Ct. 1581 (2008), the Supreme Court held that not every felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another” qualifies as a violent felony under Armed Career Criminal Act. Instead, the offense must be “roughly similar, in kind as well as in degree of risk posed,” to the enumerated felonies (burglary of a dwelling, arson, extortion, or use of explosives). Thus, Begay ruled that felony drunk driving was not a “violent felony” under the ACCA because it did not involve the “purposeful, violent and aggressive conduct” typically involved in the enumerated crimes. On remand from the Supreme Court for reconsideration in light of Begay, the Eleventh Circuit ruled that carrying a concealed firearm was not a crime of violence under the career offender guideline, § 4B1.2(a). The offense does not involve the aggressive, violent conduct that is inherent in the enumerated crimes. The Supreme Court’s decision in Begay has abrogated previous circuit caselaw holding to the contrary. Courts have repeatedly read the definition of a violent felony under § 924(e) of the ACCA as “virtually identical” to the definition of a crime of violence under U.S.S.G. § 4B1.2. U.S. v. Archer, 531 F.3d 1347 (11th Cir. 2008).
11th Circuit holds Florida conviction for battery of a child involving bodily fluids was crime of violence. (540) Defendant pled guilty to Hobbs Act robbery and brandishing a firearm in relation to a crime of violence. He was sentenced as a career offender based in part on a Florida conviction for Battery of a Child Involving Bodily Fluids. The Eleventh Circuit affirmed, holding that the offense was a crime of violence for career offender purposes. The statute applies to causing “a child to come into contact with blood, seminal fluid, or urine or feces by throwing, tossing, projecting, or expelling such fluid or material. The use of physical force against another is an element of the statute. The actions covered by the statute require a physical act and are directed against another person. The only remaining requirement for physical force is that it involves “power, violence, or pressure.” The impact of the fluids against the child creates pressure and this minimal contact satisfies the requirement of physical force. U.S. v. Young, 527 F.3d 1274 (11th Cir. 2008).
11th Circuit holds that only foreign, and not domestic, offenses were subject to 15-year limit for aggravated felonies. (540) Defendant pled guilty to illegally reentering the U.S. after having previously been deported. The district court enhanced his sentence by 17 months because he had committed an “aggravated felony” before he had been deported. 8 U.S.C. §§ 1101(a)(43), 1326 (b)(2). Defendant argued that he was not subject to the enhancement because the term of imprisonment for his offense ended more than 15 years before his reentry. Section 1101(a)(43) distinguishes between offenses under domestic law and foreign law as follows: “The term [aggravated felony] applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years.” The Eleventh Circuit held that the temporal restriction in § 1101(a)(43) applies only to violations of foreign law, not domestic law. The language of § 1101(a)(43) was clear, so it was unnecessary to discuss legislative history nor the rule of lenity. U.S. v. Maturin, 499 F.3d 1243 (11th Cir. 2007).
11th Circuit holds that aggravated battery on a pregnant woman is a crime of violence. (540) Defendant pled guilty to illegally reentering the U.S. after deportation. He had previously been convicted of aggravated battery on a pregnant woman, in violation of Fla. Stat. § 784.045(a)(b) The Eleventh Circuit upheld a 16-level enhancement under § 2L1.2(b)(1)(A)(ii), ruling that defendant’s convictions constituted “crimes of violence.” In closely analogous cases, it previously held that simple battery on a law enforcement officer is a crime of violence, see U.S. v. Glover, 431 F.3d 744 (11th Cir. 2006), abrogation recognized by U.S. v. Johnson, 371 Fed. Appx. 70 (11th Cir. 2010 (unpublished), No. 09-14537, and that simple battery under Georgia law constitutes a “crime of domestic violence” under 18 U.S.C. § 922(g)(9). There is no meaningful distinction between the definition of a “crime of violence” under § 2L1.2(b)(1) (the issue here), the definition of a “crime of violence” under § 4B1.2(a) (at issue in Glover), or the definition of a “crime of domestic violence” (the issue in Griffith). U.S. v. Llanos-Agostadero, 486 F.3d 1194 (11th Cir. 2007).
11th Circuit holds that felony fleeing is a crime of violence. (540) Defendant challenged the district court’s finding that his prior Florida conviction for fleeing and eluding law enforcement was a crime of violence for career offender enhancement purposes. The offense applies to one who “willfully flees or attempts to elude a law enforcement officer … and during the course of the fleeing or attempted eluding … drives at high speed, or in any manner which demonstrates a wanton disregard for the safety of persons or property.” The Eleventh Circuit, agreeing with the Sixth, Seventh and Eighth Circuits, held that felony fleeing is a crime of violence for purposes of § 4B1.2. Compare U.S. v. Kelly, 422 F.3d 889 (9th Cir. 2005) (fleeing and eluding under Washington statute not a crime of violence because statute did not require anyone to actually be endangered). The language of the guidelines makes clear that the “potential risk” of injury, rather than actual violence or actual injury, is the touchstone of a crime of violence. The dangerous circumstances surrounding a person’s attempt to flee from law enforcement, coupled with the person’s operation of a motor vehicle, presents a “potential risk of physical injury” to others. U.S. v. Orisnord, 483 F.3d 1169 (11th Cir. 2007).
11th Circuit holds that threat to use weapon of mass destruction against government property was not “serious violent felony.”(540) Defendant mailed a letter to a federal courthouse referencing anthrax several times and containing a harmless powder that resembled anthrax. He pled guilty to threatening to use a weapon of mass destruction against federal government property, in violation of 18 U.S.C. 2332(a)(3). The district court applied a life sentence under § 3559(c), finding that the offense was a “serious violent felony.” The offense is not one of the crimes enumerated in § 3559(c)(2)(F)(i) as a serious violent felony. The Eleventh Circuit held that an anthrax threat to a federal building does not “by its nature, involve a substantial risk that physical force against the person of another may be used in the course of committing the offense,” § 3559(c) (2)(F)(ii), and therefore, it did not qualify as a serious violent felony. Under the offense charged, the only force threatened was against property, not against a person. The risk of physical harm presented by threatening a federal building with anthrax is “not the natural outcome of an illegal use of force.” This result is supported by the fact that in 2004 (after defendant was indicted), Congress passed 18 U.S.C. § 1038, entitled “False information and Hoaxes” which specifically covers sending an anthrax hoax letter. If neither serious bodily injury nor death occurs, the maximum term of imprisonment under the new statute would be five years. U.S. v. Evans, 478 F.3d 1332 (11th Cir. 2007).
11th Circuit says court did not err in relying on undisputed facts in PSR to determine burglaries were violent felonies. (540) The district court sentenced defendant under the Armed Career Criminal Act based in part on the court’s finding that his prior Georgia burglary conviction was a violent felony. Defendant argued that because Georgia’s burglary statute was non-generic, the court was required by Shepard v. U.S., 544 U.S. 13 (2005) to find that his prior convictions contained all of the elements of generic burglary using only appropriate court records from those prior convictions. He contended that the PSR relied on by the court was not a permissible source under Shepard. The Eleventh Circuit held that the district court properly relied on the PSR to classify the burglaries as violent felonies. The PSR indicated that court documents of defendant’s prior burglaries showed that his burglaries were of either residential or commercial buildings, and defendant never disputed that the court documents showed these facts. Because defendant never objected to the facts of his prior convictions as contained in his PSR and addendum, he was deemed to have admitted those facts. The Eleventh Circuit held that the district court did not err in relying on the undisputed facts in defendant’s PSR to determine that his prior convictions were violent felonies under the ACCA and, therefore, that he was an armed career criminal. U.S. v. Bennett, 472 F.3d 825 (11th Cir. 2006).
11th Circuit holds that third-degree burglary was a violent felony. (540) Defendant was convicted of being a felon in possession of a firearm, and was sentenced as an armed career criminal, 18 U.S.C. § 924(e), based in part on the court’s finding that his prior Florida convictions for third-degree burglary were “violent felonies.” Florida defined third-degree burglary as an unprivileged entry into an unoccupied structure or an unoccupied conveyance with intent to commit an offense therein. A structure is defined to include the curtilage of the structure, but Florida case law construes curtilage narrowly to include only a enclosed area surrounding a structure. Even if burglary of a curtilage did not qualify as a “generic” burglary, the Eleventh Circuit held that the offense was a crime of violence because it satisfied an alternative prong of the statutory test for a violent felony: the crime “otherwise involved conduct that presented a serious potential risk of physical injury to another.” § 924(e)(2)(B)(ii). Regardless of whether a burglar breaches the roofed portion of a structure, his unlicensed entry into the enclosed area surrounding that structure might bring him into close physical proximity with the same persons he might encounter were he to enter the structure. His close physical presence to the structure could lead an innocent person to investigate why he was there, and his presence alone could reasonably be perceived by any of these persons as threatening. U.S. v. Matthews, 466 F.3d 1271 (11th Cir. 2006).
11th Circuit holds that court erred in relying on information where defendant pled guilty to different offense than charged in the information. (540) Defendant pled guilty to being a felon in possession of a firearm, and was sentenced as an armed career criminal, 18 U.S.C. § 924(e)(1). He argued that his 1989 burglary conviction should not be considered a conviction for a violent felony, noting that while he was charged with second-degree burglary and the information stated that he unlawfully entered a structure with intent to commit a theft, he was not convicted of that crime. Instead, he pled guilty to third-degree burglary, which under Florida law could be committed by entry into an unoccupied structure, including the curtilage of that unoccupied structure. The Eleventh Circuit held that the district court erred in relying on the information to find that the conviction was for generic burglary. The information charged a crime (second degree burglary) which was different than the one to which defendant pled guilty (third degree burglary). U.S. v. Day, 465 F.3d 1262 (11th Cir. 2006).
11th Circuit holds that offenses separately by intervening arrest were not consolidated. (540) Defendant argued that his prior youthful offender convictions should not be counted separately for enhancements purposes because the convictions were consolidated for sentencing. The Eleventh Circuit disagreed. Although sentenced on the same day, defendant’s first conviction was for a charge of aggravated assault on a law enforcement officer stemming from an arrest on July 31, 1996. Defendant’s second conviction stemmed from an arrest on August 15, 1996 for three separate crimes – grand theft, burglary with assault and strong arm robbery. Sixteen days separated the arrests for these two convictions. Because an intervening arrest separated the underlying predicate offenses, the district court did not err in counting them separately under U.S.S.G. § 4B1.1. As for the ACCA, § 924(e)(1) requires only that the prior felonies or offenses be “committed on occasions different from one another,” not that the convictions be obtained on separate occasions. U.S. v. Wilks, 464 F.3d 1240 (11th Cir. 2006).
11th Circuit holds that youthful offender convictions qualify as predicate offenses under ACCA and career offender guideline. (540) In U.S. v. Pinion, 4 F.3d 941 (11th Cir. 1993), the court held that prior youthful offender convictions under state law may be used as predicate offenses to classify an adult defendant as a career offender under § 4B1.1 if the defendant’s youthful offense resulted in an adult conviction and a sentence of more than one year and one month. In U.S. v. Spears, 443 F.3d 1358 (11th Cir. 2006), the court held that a defendant’s robbery conviction for a crime committed when he was 17 years old counted towards ACCA enhancement because he was prosecuted as an adult and the offense was punishable by a term of imprisonment exceeding one year. The Eleventh Circuit held that Roper v. Simmonds, 543 U.S. 551 (2005), did not overrule either Pinion or Spears. Roper held only that the Eighth Amendment prohibits sentencing capital offenders to death if the offender was under 18 at the time of the offense. Roper did not deal specifically, or even tangentially, with sentence enhancements. The district court properly relied on defendant’s youthful offender convictions as predicate offenses under the ACCA and the career offender guideline. U.S. v. Wilks, 464 F.3d 1240 (11th Cir. 2006).
11th Circuit holds that Georgia conviction for attempted burglary of a dwelling was “violent felony” under ACCA. (540) Defendant was convicted of being a felon in possession of a firearm, and was sentenced as an armed career criminal under 18 U.S.C. § 924(c) and U.S.S.G. § 4B1.4. The Eleventh Circuit held that defendant’s prior Georgia conviction for attempted burglary of a dwelling was a violent felony within the meaning of § 924(e)(2)(B). The court has previously held that attempted burglary of a dwelling under Florida law is a violent felony. U.S. v. James, 430 F.3d 1150 (11th Cir. , 2005). James was controlling here. Georgia’s attempt statute was narrower than Florida’s and described conduct that was further advanced toward completion of the offense of burglary, which is listed as a violent felony in § 924(e)(2). If an offense is an enumerated violent felony under § 924(e)(2) (B)(ii), then the crime of attempting to commit that offense is also a violent felony. U.S. v. Wade, 458 F.3d 1273 (11th Cir. 2006).
11th Circuit holds that Florida drug trafficking conviction was “serious drug offense.” (540) The district court held that defendant’s Florida conviction for trafficking in cocaine by possession of between 200 and 400 grams of cocaine was not a predicate conviction under the Armed Career Criminal Act (ACCA) because it did not include as an element of proof that defendant had intended to distribute the cocaine. Therefore, the court refused to enhance defendant’s sentence under the ACCA. The Eleventh Circuit held that the court erred in finding that the cocaine trafficking conviction was not a qualifying conviction under the ACCA. The ACCA includes any state offense “involving” the intent to distribute, not only those offenses having “as an element” such intent. See U.S. v. Madera-Madera, 333 F.3d 1228 (11th Cir. 2003). Florida’s three-tier system for punishing drug offenses is nearly identical to Georgia’s three-tiered scheme involved in Madera-Madera. In both cases, the defendant must be in possession of a significant quantity of drugs, namely 28 grams, before the state deems the offense to be “trafficking.” Florida’s drug trafficking statute necessarily infers an intent to distribute once a defendant’s possesses 28 grams or more. U.S. v. James, 430 F.3d 1150 (11th Cir. 2005).
11th Circuit holds that attempted burglary is violent felony under ACCA. (540) The district court held that attempted burglary under Florida law is a “violent felony” under 18 U.S.C. § 924(e)(2)(B). Burglary is an enumerated felony under § 924(e)(2)(B)(ii). Moreover, an attempt to commit an enumerated felony constitutes a “violent felony.” Therefore, attempted burglary is also a “violent felony.” The Eleventh Circuit agreed. An attempt to commit burglary presents a potential risk of physical injury to another sufficient to satisfy the ACCA’s definition of a “violent felony.” U.S. v. James, 430 F.3d 1150 (11th Cir. 2005).
11th Circuit holds that juvenile adjudication constituted predicate offense under ACCA. (540) The district court sentenced defendant as an armed career criminal under 18 U.S.C. § 924(e) based on its finding that his juvenile charge of burglary in the first degree, which was adjudicated by a juvenile court in Alabama, constituted a predicate violent felony. Based on the statutory language of Ala. Code § 13A-7-5, the juvenile petition, and the juvenile judgment of delinquency, the district court found that the juvenile adjudication satisfied the requirements of § 924(e). The Eleventh Circuit held that the district court properly considered the petition and judgment of the juvenile adjudication to determine that the juvenile adjudication could count as a conviction under the ACCA. A judge may look behind the judgment of conviction when it is impossible to determine from the face of the judgment or statute whether the prior crime satisfies the enhancement statute. Here, the judge examined the petition and judgment in order to determine that defendant was adjudicated delinquent for committing first degree burglary while carrying a firearm. A juvenile adjudication may be a “prior conviction” under the ACCA, even though, as in this case, it did not afford him the right to a jury trial. Trial by jury in the juvenile court’s adjudicative stage is not a constitutional requirement. A prior non-jury juvenile adjudication that was afforded all constitutionally required procedural safeguards can properly be characterized as a prior conviction. U.S. v. Burge, 407 F.3d 1183 (11th Cir. 2005).
11th Circuit says escape qualified as predicate serious violent felony under federal “three strikes” law. (540) Defendant argued that his sentence violated the Ex Post Facto Clause because the district court found his prior escape conviction was a crime of violence, and used it to enhance his sentence under 18 U.S.C. § 3559(c), the federal “three-strikes” law. The Eleventh Circuit rejected this argument – the use of predicate felonies to enhance a defendant’s sentence does not violate the Ex Post Facto Clause because such enhancements do not represent additional penalties for the earlier crimes, but rather stiffen the penalty for the latest crime. U.S. v. Reynolds, 215 F.3d 1210 (11th Cir. 2000). Thus, the enhancement was proper if defendant’s prior escape conviction qualified as a “serious violent” felony under § 3559(c). Escape has previously been held to be a crime of violence under U.S.S.G. § 4B1.2(a)(ii), the career offender guideline. U.S. v. Gay, 251 F.3d 950 (11th Cir. 2001). There is no meaningful distinction between the language of the career offender guideline, which refers to conduct that “presents a serious potential risk of physical injury to another,” and § 3559, which refers to conduct that “involves a substantial risk that physical force against the person of another may be used.” Therefore, under the reasoning of Gay, escape is a serious violent felony under the federal three-strikes law. U.S. v. Abraham, 386 F.3d 1033 (11th Cir. 2004).
11th Circuit holds that conviction for attempted arson was violent felony under Armed Career Criminal Act. (540) Defendant argued that his conviction for attempted arson was not a violent felony under the Armed Career Criminal Act, 18 U.S.C.924(e) and U.S.S.G. § 4B1.4. The Eleventh Circuit disagreed. Section 924(e)(2)(B) (ii) enumerates arson as a violent felony; therefore, attempted arson should also be considered a violent felony. See U.S. v. Wilkerson, 286 F.3d 1324 (11th Cir. 2002); U.S. v. Mendoza-Cecilia, 963 F.2d 1467 (11th Cir. 1992), abrogated on other grounds, Coleman v. Singletary, 30 F. 3d 1420 (11th Cir. 1994). Attempt to commit arson, like conspiracy to commit arson, presents the potential risk of physical injury to another. U.S. v. Rainey, 362 F.3d 733 (11th Cir. 2004).
11th Circuit holds that increase for gun used in drug offense refers to gun involved in offense of conviction. (540) Defendant was arrested after a police officer saw him selling drugs. A search of his residence revealed weapons and ammunition. Defendant pled guilty to being a convicted felon in possession of several guns, and 30-30 caliber ammunition. The PSR recommended that defendant be sentenced under USSG §§ 4B1.4(b) (3)(A) and 4B1.4(c)(2), which provide for an enhanced offense level and criminal history “if the defendant used or possessed the firearm or ammunition in connection with a . . . controlled substance offense.” The district court found that it was “clearly improbable” that the 30-30 ammunition and the firearms were connected to the offense, but found that certain .357 ammunition, which was found at defendant’s residence but not charged in the indictment, was connected to the offense. The Eleventh Circuit the phrase “the firearm or ammunition” in §§ 4B1.4(b)(3)(A) and 4B1.4(c)(2) refers to the firearm or ammunition that the defendant was convicted of possessing. Because defendant was not convicted of possessing the .357 ammunition, §§ 4B1.4(b)(3)(A) and 4B1.4(c)(2) were not property applied to him. U.S. v. Sutton, 302 F.3d 1226 (11th Cir. 2002).
11th Circuit remands for court to complete record as to whether prior convictions were violent felonies. (540) In finding that defendant had three prior violent felonies under the Armed Career Criminal Act, 18 U.S.C. § 924(c), the district court relied in part on a prior conviction for possession of an unregistered firearm and two prior burglary convictions under state law. Defendant argued that the district court erred in treating his two 1965 burglary convictions as predicate offense because the court neither ascertained the actual burglary statute under which he was charged nor determined the statutory elements of burglary under Georgia law. According to defendant, Georgia law did not define burglary as an unlawful entry into a building or other structure at the time of his conviction. Further, defendant contended that the court did not find that his conviction for two counts of burglary were for felonies “committed on occasions different from one another” as required under § 924(e)(1). The government recommended, and defendant agreed, that the appellate court should remand the case for the district court to make factual findings necessary to complete the record on the issue of defendant’s previous convictions. The Eleventh Circuit remanded, and instructed the court to find whether defendant committed the requisite number of prior violent felonies under § 924(c), and to consider the facts underlying the prior convictions in determining whether the 1965 convictions arose from a single episode. U.S. v. Miles, 290 F.3d 1341 (11th Cir. 2002).
11th Circuit approves using police reports and arrest records to determine that crimes were separate. (540) The district court sentenced defendant as an armed career criminal under 18 U.S.C. § 924(e)(1) based in part on two 1990 burglary convictions in Clarke County, Alabama. Section 924(e)(1) requires that the predicate convictions be “committed on occasions different from one another.” So long as the crimes are successive rather than simultaneous, they constitute separate criminal episodes for purposes of § 924(e)(1). U.S. v. Lee, 208 F.3d 1306 (11th Cir. 2000). The Clarke County indictments and judgments did not indicate whether the burglaries occurred simultaneously or successively. (Because of the involvement of defendant’s accomplices, the burglaries theoretically could have occurred simultaneously.) The Eleventh Circuit held that the district court did not err in examining police reports and arrest records to determine that the burglaries were separate offenses. Taylor v. United States, 495 U.S. 575 (1990), which held that § 924(e) only permits a court to look to the statutory definition of a prior offense and not to the facts underlying those convictions, was not applicable here. Determining whether crimes were committed on occasions different from one another is a question unsuited to a categorical approach that relies on an examination of the criminal statute. Instead, it requires looking at the facts underlying the prior convictions. U.S. v. Richardson, 230 F.3d 1297 (11th Cir. 2000).
11th Circuit says that using predicate felony that predated ACCA did not violate ex post facto clause. (540) The district court sentenced defendant as an armed career criminal based in part on a 1984 drug conviction. Defendant claimed that the use of the 1984 drug conviction violated the ex post facto clause because the ACCA, enacted in 1984, did not provide for drug offenses to be used as predicate offenses until 1986. The Eleventh Circuit held that the ACCA’s use of prior felony predicates, even where such convictions occurred before the effective date of the ACCA, does not violate the ex post facto clause. Two essential elements must be present for a criminal law to violate the ex post facto clause: First, the law must be retrospective, that is, it must apply to events occurring before its enactment; and second, it must disadvantage the offender. In this case, the ACCA was applied to defendant’s 1997 gun possession. At the time of defendant’s possession of the weapon, he was on notice that as a felon convicted three previous times, he would receive a 15-year mandatory minimum sentence if convicted of violating 18 U.S.C. § 922(g). In no sense did the statute impose or increase punishment for a crime committed before its enactment. See U.S. v. Etheridge, 932 F.2d 318 (4th Cir. 1991). U.S. v. Reynolds, 215 F.3d 1210 (11th Cir. 2000).
11th Circuit holds that 15-year ACCA sentence was not cruel and unusual. (540) Defendant received a 180-month sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e), for his felon-in-possession conviction. The Eleventh Circuit held that the 180-month sentence did not constitute cruel and unusual punishment. “In non-capital cases, the Eighth Amendment encompasses, at most, only a narrow proportionality principle.” U.S. v. Brant, 62 F.3d 367 (11th Cir. 1995). Under Brant, a reviewing court must make a threshold determination that the sentence imposed is grossly disproportionate to the offense committed. If so, the court must then consider the sentences imposed on others convicted in the same jurisdiction and the sentences imposed for the same crime in other jurisdictions. Defendant’s 15-year sentence was not grossly disproportionate to his offense of possession of a firearm by a three-time felon. His predicate crimes included a serious drug offense, a robbery where he pretended to have a gun, and an aggravated battery where he detained the victim while his associate struck the victim in the head. Every circuit to have considered this issue has concluded that the 15-year minimum sentence under the ACCA is neither disproportionate to the offense nor cruel and unusual punishment. U.S. v. Reynolds, 215 F.3d 1210 (11th Cir. 2000).
11th Circuit says court may reopen ACCA sentence after successful attack of predicate state conviction. (540) In 1995, defendant was sentenced as an armed career criminal. In 1998, after an uncontested hearing, a state court judge vacated defendant’s 1979 state manslaughter conviction, concluding that defendant had not entered a voluntary and knowing plea. Defendant then moved, under § 2255 and Fed.R.Civ.P. 60(b), for relief from his 1995 ACCA federal sentence. The Eleventh Circuit, joining the other seven circuits to decide the issue, held that a district court may reopen and reduce a federal sentence, once a federal defendant has, in state court, successfully attacked a prior state conviction previously used in enhancing the federal sentence. Dicta in Custis v. United States, 511 U.S. 485 (1994) states that if a defendant is successful in attacking a state sentence, then he may apply for reopening of any federal sentence enhanced by the state sentences. Senior Judge Hill concurred to express concern for a procedure that “removes the entire federal establishment from the fixing of federal sentences for repeat miscreants.” U.S. v. Walker, 198 F.3d 811 (11th Cir. 1999).
11th Circuit rejects departure from ACCA based on small amount of drugs involved in prior convictions. (540) At the time defendant committed the current crimes, he already had three prior state convictions that constituted “serious drug offenses” under the 18 U.S.C. § 924(e) and thus qualified as an armed career criminal. The district court found that the prior drug convictions were “very minor” because they only involved a small amount of drugs, and departed downward from § 4B1.4. The Eleventh Circuit reversed, holding that the district court erred by departing based on its conclusion that, even though the prior convictions fell within the statutory definition of serious drug offenses, they were “very minor” because they involved only small amounts of drugs. In U.S. v. Gonzalez-Lopez, 911 F.2d 542 (11th Cir. 1990), the court rejected a downward departure from the career offender guideline based on the nature of the prior offenses. Similarly, it would make no sense to say that a sentencing court may not look behind a judgment in determining whether a prior conviction qualifies as a “serious drug offense” for armed career criminal purposes, but the court may do so to conclude that a downward departure is warranted on the grounds that the offense was not really “serious” because it involved only a small amount of drugs. U.S. v. Rucker, 171 F.3d 1359 (11th Cir. 1999).
11th Circuit holds that previous conviction under ACCA must occur before felon in possession violation. (540) Defendant possessed a firearm as a felon on December 31, 1995, in violation of 18 U.S.C. § 922(g). The district court found that defendant qualified as an armed career criminal because he had three prior violent felony convictions. However, the arrest and conviction for one of the felonies, a 1996 drug offense, occurred after the commission of the § 922(g) offense, although the sentencing took place before sentencing for the § 922(g) offense. The Eleventh Circuit held that a conviction is only previous to a § 922(g) offense if the conviction occurred before the violation of § 922(g), not simply before conviction or sentencing for that violation. The 1996 drug conviction was not previous to defendant’s 1995 violation of §922(g). The district court committed plain error in relying on that conviction to sentence defendant as an armed career criminal. U.S. v. Richardson, 166 F.3d 1360 (11th Cir. 1999).
11th Circuit holds felon in possession need not be convicted of crime of violence for increase to apply. (540) Defendant was convicted of being a felon in possession of a firearm after threatening his wife and daughter with a revolver. He qualified as an armed career criminal. Section 4B1.4(b)(3)(A) provides for an increase if the firearm was possessed in connection with a crime of violence. Defendant objected to this increase because he was not convicted of any crime of violence in connection with his firearm possession. The Eleventh Circuit held that the defendant need not be convicted of that crime of violence. It must only be shown by a preponderance that defendant possessed the gun in connection with a crime of violence. The language of § 4B1.4(b)(2)(A) does not mention a conviction. In contrast, § 4B1.1, the section that defines a career offender, specifically requires defendant to have two prior felony convictions. The difference showed that the Sentencing Commission knew how to make a conviction the prerequisite. U.S. v. Mellerson, 145 F.3d 1255 (11th Cir. 1998).
11th Circuit says “maximum term of imprisonment” in § 924(e) refers to statutory maximum. (540) Defendant was convicted of being a felon in possession of a firearm. A mandatory 15-year sentence is required by 18 U.S.C. § 924(e) for defendants who have 3 previous convictions that are either a violent felony or a serious drug offense. A “serious drug offense” is defined to include any state law drug crime for which a maximum term of imprisonment of ten years or more is prescribed by law. Defendant argued that the phrase “maximum term of imprisonment” referred to the high end of the range under Florida’s sentencing guidelines, rather than the statutory maximum penalty. Because his three prior Florida convictions had presumptive sentencing ranges of between 3 1/2 and 4 1/2 years, he contended they were not serious drug offenses. The Eleventh Circuit held that the term “maximum term of imprisonment” refers to the statutory maximum penalty. Because the predicate drug offenses carried statutory maximum terms of 15 years, they qualified as “serious drug offenses.” McCarthy v. U.S., 135 F.3d 754 (11th Cir. 1998).
11th Circuit holds that successive crimes are separate criminal episodes under ACCA. (540) Defendant had three prior burglary convictions. The district court ruled that two of the burglaries constituted a single criminal incident under the Armed Career Criminal Act, 18 U.S.C. § 924(e), because they occurred on the same night and the buildings were within 200 yards of one another. The Eleventh Circuit, following the majority of circuits, held that as long as the predicate crimes are successive rather than simultaneous, they constitute separate criminal episodes under the ACCA. Successful completion of one crime and a conscious decision to commit another crime makes that second crime distinct from the first. Here, defendant completed one burglary, and then made a conscious decision to commit the second burglary by breaking into another office 200 feet away. They were separate criminal episodes and defendant should have been sentenced as an Armed Career Criminal. U.S. v. Pope, 132 F.3d 684 (11th Cir. 1998).
11th Circuit says gun stolen during burglary was possessed “in connection with” crime of violence. (540) The police received information from a 14-year-old runaway that she had been staying at defendant’s house and observed guns in his attic. Since defendant was a convicted felon, police searched the home, found the guns, and arrested defendant. At defendant’s trial for being a felon in possession of a firearm, a government witness identified the rifle found in defendant’s attic as a rifle stolen from his home during a burglary the previous year. The district court sentenced defendant as an armed career criminal under § 4B1.4(b)(3)(A), ruling defendant’s possession of the firearm was “in connection with” another felony, i.e. the burglary. The Eleventh Circuit agreed, ruling that an armed career criminal possesses a firearm in connection with a crime of violence when that firearm is obtained during the commission of a burglary. Defendant possessed the weapon in connection with a violent crime—a burglary—whether he entered the dwelling with the firearm or later obtained the firearm while in the dwelling. The “in connection with” language does not require more than mere use or possession of the firearm. U.S. v. Young, 115 F.3d 834 (11th Cir. 1997).
11th Circuit holds that loaded gun in pocket was possessed “in connection with” drug offense. (540) Police obtained a search warrant for defendant’s residence based on a controlled heroin buy by a confidential informant. When the officers entered the residence, defendant was wearing a container of heroin around his neck. In his left pant’s pocket, defendant had a loaded gun. In the other pocket, he had $377. Defendant was convicted of being a felon in possession of a firearm. The Eleventh Circuit approved a § 4B1.4(b)(3)(A) enhancement for possessing the firearm “in connection with” a controlled substance offense. The facts established that the presence of the gun potentially emboldened defendant to undertake illicit drug sales. U.S. v. Gainey, 111 F.3d 834 (11th Cir. 1997).
11th Circuit approves upward criminal history departure for armed career criminal. (540) Defendant was convicted of being a felon in possession of a firearm. His offense level was increased from 28 to 34 because he was an armed career criminal under 18 U.S.C. § 924(e). In addition, he had a criminal history score of 21, which resulted in a criminal history category of VI. The district court departed upward under § 4A1.3, increasing his offense level to 36. Defendant argued that the increase in offense level under the armed career criminal act precluded an upward departure under § 4A1.3. The Eleventh Circuit held that the court properly made a criminal history departure even though defendant was already classified as an armed career criminal. Defendant’s 21 criminal history points far exceeded the 13 needed for a criminal history category of VI. In addition, the score did not reflect several other prior convictions. These other crimes were not needed to sentence defendant as an armed career criminal. U.S. v. Santos, 93 F.3d 761 (11th Cir. 1996).
11th Circuit looks beyond jury instructions to decide conviction was violent felony. (540) The district court found that defendant’s prior Georgia burglary conviction was a violent felony for purposes of 18 U.S.C. § 924(e), the Armed Career Criminal Act. However, the Georgia statute defined burglary more broadly than “generic” burglary. In such a situation, Taylor v. U.S., 495 U.S. 575 (1990) allows the conviction to be counted if the charging paper and jury instructions required the jury to find all the elements of generic burglary. Defendant argued that his convictions under Georgia’s non-generic burglary statute did not qualify since they were obtained by guilty pleas instead of jury trials. The Eleventh Circuit held that the government is not limited to jury instructions. Here, the district court considered the PSR, which showed that defendant’s prior convictions were for burglarizing both dwellings and businesses. The information in the PSR showed that the prior convictions were generic burglaries under Taylor and therefore were properly counted as predicate violent felonies under § 924(e). U.S. v. Adams, 91 F.3d 114 (11th Cir. 1996).
11th Circuit holds that guilty pleas on single day did not make five robberies a single conviction under ACCA. (540) Defendant was sentenced as an armed career criminal based on a prior guilty plea on one date to five counts of robbery by assault. Those counts were based on five separate robberies that defendant committed within a two-month period and for which defendant received concurrent sentences. Defendant argued that the five robbery convictions were consolidated for sentencing purposes and constituted a single conviction. The Eleventh Circuit disagreed, since 18 U.S.C. § 924(e)(1) only requires that the offenses be committed on occasions different from one another, not that the convictions be obtained on separate occasions. Note 1 to guideline § 4B1.4 says the same thing. U.S. v. Jackson, 57 F.3d 1012 (11th Cir. 1995).
11th Circuit holds court should not have reviewed validity of predicate ACCA convictions. (540) At sentencing, the government moved to enhance defendant’s sentence under the Armed Career Criminal Act based on five prior state convictions. The district court barred the use of four of these convictions, since the plea hearing transcripts did not show a sufficient factual basis for the pleas. The Eleventh Circuit reversed, holding that Custis v. U.S., 511 U.S. 485 (1994) prohibited a collateral attack on prior convictions used to enhance a sentence under the ACCA, except for convictions obtained in violation of the right to counsel. U.S. v. Gilley, 43 F.3d 1440 (11th Cir. 1995).
11th Circuit holds armed career criminal enhancement is mandatory and does not require government motion. (540) In the plea agreement, the government agreed not to file a motion to enhance defendant’s sentence under 18 U.S.C. § 924(e) as an armed career criminal. Nevertheless, at sentencing, the government argued that § 924(e) was mandatory and no government motion was required for the enhancement to apply. The Eleventh Circuit agreed that the armed career criminal enhancement is mandatory and must be applied regardless of whether the government seeks it. However, under Fed. R. Crim. P. 11(C)(1), a defendant he must be notified of any mandatory minimum and maximum possible penalties. Here, he was notified of the possible applicability of § 924(e) in his plea agreement, and at the plea hearing the court advised him that § 924(e) might be applicable, with a mandatory minimum of 15 years or a maximum term of life in prison. Moreover, defendant received notice of the prior convictions to be used for enhancement purposes in the presentence investigation report. U.S. v. Cobia, 41 F.3d 1473 (11th Cir. 1995).
11th Circuit “triple counts” prior felony for felon in possession, in calculating criminal history and offense level. (540) Defendant was convicted of being a felon in possession of a firearm. Based on his prior violent felonies, he was classified as an armed career criminal. He argued that the district court erroneously “triple-counted” his 1980 robbery conviction, which was used as the basis for the instant offense as well as in the calculation of his offense level and criminal history. The 11th Circuit found no error. Double or triple-counting a single offense for entirely distinct purposes under the guidelines is permissible. U.S. v. Oliver, 20 F.3d 415 (11th Cir. 1994).
11th Circuit holds felon’s possession of a firearm is not a violent felony under ACCA. (540) The 11th Circuit held that a felon’s possession of a firearm is not a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e). It is instructive that for purposes of the career offender section of the guidelines, most courts and the guideline commentary have interpreted the term “crime of violence” to exclude a felon’s possession of a firearm. While the terms “violent felony” and “crime of violence” are not interchangeable, the 11th Circuit found the two terms were not conceptually distinguishable for purposes of the narrow question raised in this appeal. Conduct that does not pose a serious potential threat of physical injury to another for purposes of § 4B1.2 similarly cannot pose such a risk with respect to the ACCA. Also significant is the fact that the ACCA lists “use” of explosives as descriptive of violent felonies. It is unlikely that Congress intended the possession of a firearm to be deemed a violent felony, while possession of explosive would not be so categorized. U.S. v. Oliver, 20 F.3d 415 (11th Cir. 1994).
11th Circuit upholds use of juvenile convictions as predicate ACCA offenses. (540) Defendant was classified as an Armed Career Criminal under 18 U.S.C. § 924(e) based on his three prior juvenile convictions. He argued that he was not the type of defendant to which the Armed Career Criminal Act was intended to apply due to his youth (14) at the time the earlier criminal acts were committed. The 11th Circuit found this claim without merit, since Congress explicitly included juvenile offenses within its definition of prior convictions under the Act. Moreover, although the offenses were all resolved in one proceeding, they were properly considered separate, since the felonies each occurred on a different date. U.S. v. Owens, 15 F.3d 995 (11th Cir. 1994).
11th Circuit says court cannot review validity of prior convictions unless presumptively void. (540) Following its reasoning in U.S. v. Roman, 989 F.2d 1117 (11th Cir. 1993), decided under the guidelines, the 11th Circuit held that a district court does not have discretion to review the constitutionality of prior convictions used to enhance a sentence under the Armed Career Criminal Act, unless the conviction is presumptively void. For purposes of this question, there is little substantive distinction between the language of the ACCA and the guidelines. Cases in other circuits holding a court has such authority have not identified a satisfactory source of such authority. However, under Roman, a court is constitutionally empowered to conduct a collateral review of a prior conviction when the defendant shows that the prior conviction is presumptively void. The Boykin violation alleged here did not render defendant’s prior convictions presumptively void. U.S. v. Owens, 15 F.3d 995 (11th Cir. 1994).
11th Circuit finds insufficient showing to justify reviewing validity of predicate convictions. (540) The government sought an enhanced sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e), based on 10 prior state burglary convictions. The district court found that defendant was not properly advised by the state trial judge of his rights under Boykin v. Alabama, 395 U.S. 238 (1969) before his pleas were entered, and refused to enhance defendant’s sentence. The 11th Circuit reversed, holding that defendant did not present a sufficient factual foundation for the alleged Boykin violation to justify collateral review. Under U.S. v. Roman, 989 F.2d 1117 (11th Cir. 1993) (en banc), a defendant must assert facts that show that an earlier conviction is “presumptively void.” The factual foundation must overcome the presumption of regularity that attaches to final judgments. Here, it was unclear whether the plea was even entered at the hearing for which a transcript was provided. U.S. v. Medlock, 12 F.3d 185 (11th Cir. 1994).
11th Circuit holds that “offense statutory maximum” under the Armed Career Criminal Act is life in prison. (540) Defendant was convicted of bank robbery, use of a firearm during a violent felony and being a felon in possession of a firearm. The 11th Circuit upheld the district court’s determination that “offense statutory maximum” under the Armed Career Criminal Act, 18 U.S.C. §924(e), is life in prison, and therefore defendant properly received a base offense level of 37. Section 4A1.1(B) (base offense level of 34) applies to any statute which provides a sentence for a certain and fixed number of years in excess of 25 but excluding life imprisonment, and section 4A1.1(B) (base offense level 37) applies to statutes that allow a life sentence. U.S. v. Brame, 997 F.2d 1426 (11th Cir. 1993).
11th Circuit upholds constitutionality of armed career criminal sentencing scheme. (540) Defendant argued that section 4B1.4, the armed career criminal provisions, violates due process and equal protection because it takes into account a defendant’s criminal record in calculating both his criminal history and his offense level. Noting that every other circuit to consider this argument has rejected it, the 11th Circuit also rejected it. U.S. v. Johns, 984 F.2d 1162 (11th Cir. 1993).
11th Circuit affirms upward departure for defendant whose sentence was enhanced under Armed Career Criminal Act. (540) Defendant was convicted of possession of a firearm by a felon. His guideline range was 18 to 24 months. However, since he had at least three prior violent felonies, the Armed Career Criminal Act prescribed a mandatory minimum sentence of 15 years. The district court departed upward and imposed a 50-year sentence, based on his obstruction of justice and numerous convictions in excess of the three necessary to qualify as an armed career criminal. The 11th Circuit upheld the upward departure. Neither the statute nor the guidelines provide any means to factor an enhancement for obstruction of justice into the offense level or to adjust defendant’s criminal history category based on conduct not used in calculating his statutory sentence. It was not impermissible double counting to consider his prior convictions. In reaching the 15-year sentence, the court only considered the predicate offense and the three prior qualifying offenses. The extent of the departure, although harsh, was also reasonable. U.S. v. Simmons, 924 F.2d 187 (11th Cir. 1991).
11th Circuit affirms upward departure based upon defendant’s extensive criminal history and danger to public safety. (540) Defendant was convicted under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(1), which mandated a minimum sentence of 15 years because he had three prior violent felonies. Because his applicable guideline range was below the statutory minimum, the statutory minimum became defendant’s guideline sentence. Nonetheless, the district court departed upward and sentenced defendant to 360 months, based on defendant’s extensive criminal history and his danger to public safety. Defendant had 23 criminal history points, 10 more than necessary to classify him in the highest criminal history category. Defendant’s prior convictions showed violent and dangerous conduct, all of which occurred with frequency and soon after his release from prison or placement on probation. The 11th Circuit affirmed. “Recognizing that the presumptive Guideline sentence of 15 years failed to reflect the egregious nature of [defendant’s] criminal record, the district court reasonably enhanced his sentence in keeping with the goals of the Sentencing Guidelines.” U.S. v. Briggman, 931 F.2d 705 (11th Cir. 1991).
D.C. Circuit says ruling that defendant was Armed Career Criminal was law of the case. (540) Defendant was convicted of being a felon in possession of a firearm, and was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(c), to 188 months. The case was remanded for resentencing in light of Booker. The court resentenced defendant to 82 months, holding that the government had not proven on remand that defendant qualified for sentencing under the ACCA. The D.C. Circuit held that because defendant did not did not challenge the ACCA determination on the first appeal, the law of the case doctrine precluded the district court from revisiting that issue at resentencing. The decision to sentence defendant under the ACCA was the law of the case, and was binding on remand. Moreover, even if the court was permitted to revisit defendant’s ACCA status, the government presented sufficient evidence that defendant’s two predicate drug offenses were committed on occasions different from one another. 18 U.S.C. § 924(e). U.S. v. Thomas, 572 F.3d 945 (D.C. Cir. 2009).
D.C. Circuit finds insufficient proof that prior robbery was crime of violence. (540) The district court sentenced defendant as a career offender based on an August 1986 robbery and a September 1986 armed robbery. The D.C. Circuit upheld the district court’s finding that the two robberies were unrelated and counted as two prior convictions. The offenses were not part of a common scheme or plan, and had not been formally consolidated for trial or sentencing. However, the court erred in finding that the robbery conviction qualified as a crime of violence. The D.C. statute covered both violent and nonviolent crimes. Under Shepard v. U.S., 544 U.S. 16 (2005), the court erred by looking at the warrant affidavit and the detention order. The judgment established only that defendant pled guilty to robbery, but it failed to show whether he pled guilty to robbery by snatching rather than by violence. Since the government did not dispute the possibility that defendant pled to a non-qualifying offense, it necessarily admitted that the record was ambiguous. In re Sealed Case, 548 F.3d 1085 (D.C. Cir. 2008).
D.C. Circuit holds that New Jersey conviction for promoting prostitution of a minor is a crime of violence. (540) Defendant was a pimp whose prostitutes included girls under the age of 18. The D.C. Circuit held that the defendant’s New Jersey felony conviction for promoting prostitution, in violation of NJ Stat. Ann. § 2C:34-1(b)(3), was a crime of violence, and therefore, the district court properly sentenced him as a career offender. Although the use of force is not an element of the offense, the crime “involves conduct that presents a serious potential risk of physical injury to another.” It is common knowledge that prostitutes risk serious physical harm from customers and from their pimps. A child prostitute is particularly vulnerable to such violence. In addition, a pimp is complicit in the sex offense of the customer, and courts have universally recognized that sex offenses against minors are crime of violence because of the substantial likelihood that the perpetrator will use physical force to ensure the child’s compliance. U.S. v. Curtis, 481 F.3d 836 (D.C. Cir. 2007).
D.C. Circuit holds that Maryland housebreaking is a violent felony. (540) Defendant was convicted of being a felon in possession of a firearm. The district court sentenced him under the Armed Career Criminal Act after finding that his 1982 Maryland conviction for housebreaking was a violent felony. The D.C. Circuit held that housebreaking under Maryland law was a violent felony because it involved conduct that presented a serious potential risk of physical injury to another. The housebreaking did not fall within the generic definition of “burglary” because the statute required only “breaking,” and not entering. However, breaking a dwelling house, i.e. a house that is likely to be occupied, creates a substantial risk of confrontation between the perpetrator and an occupant. Although such a confrontation is even more likely where the criminal has actually entered the house, breaking the house still creates a serious potential risk of physical injury to another. U.S. v. Jackson, 113 F.3d 249 (D.C. Cir. 1997).
D.C. Circuit holds that housebreakings on three separate dates were separate offenses. (540) Defendant argued that his prior housebreakings should be counted as one prior conviction under the Armed Career Criminal Act because they were committed close together (September 22, 24 and 30, 1982) in the same neighborhood, and they were adjudicated together with concurrent sentences imposed on each. The D.C. Circuit held that the housebreaking convictions should be counted separately under the ACCA because they were committed at different times, at different locations and against different victim. Defendant was clearly free to desist from the criminal activity after each breaking. U.S. v. Jackson, 113 F.3d 249 (D.C. Cir. 1997).
Commission restricts criminal history departures. (540) The Commission amended § 4B1.3 to prohibit criminal history departures for defendants who are Armed Career Criminals within the meaning of §4B1.4 or Repeat and Dangerous Sex Offenders Against Minors within the meaning of §4B1.5. In addition, defendants who are Career Offenders under § 4B1.2 can only receive a one-level downward departure. The amendment also provides that a departure to Category I does not qualify an otherwise ineligible defendant for “safety valve” relief from a mandatory minimum sentence, under § 5C1.2. Finally, the amendment requires the court to state its reasons in writing why the criminal history category underrepresents or overrepresents the seriousness of the defendant’s criminal history. Amendment 651, October 27, 2003.
Federal “three strikes” law is enacted. (540) Title VII of the Violent Crime Control Act of 1994 amends 18 U.S.C. § 3559 to require mandatory life imprisonment for a defendant who is convicted of a serious violent felony if the defendant has been convicted (and those convictions have become final) on separate prior occasions of (i) two or more serious violent felonies; or (ii) one or more serious violent felonies and one or more serious drug offenses; and each prior used as a basis for sentencing, other than the first, “was committed after the defendant’s conviction of the preceding serious violent felony or serious drug offense.”
Articles assess three-strikes statutes. (540) Both state and federal legislators have recently considered legislation that requires a lengthy sentence for repeat offenders, often for those who have committed two prior offenses of some specified sort and then commit a third offense. A series of articles evaluate these three-strike statutes from a number of perspectives. They include the lessons to be learned from the Armed Career Criminal Act, especially the problems related to challenging the validity of prior convictions. Also addressed are the aspects of the sentencing guidelines that already attempt to serve the goals of three-strikes legislation and predictions of the impact of three-strikes legislation in California. Three Strikes Statutes: Goals, Problems, and Precedents, 7 Fed. Sent. Rptr. 55-106 (1994).