The Changing Landscape Governing Armed Career Criminal Sentences
Article Date: Tuesday, June 08, 2010
Written By: Carl Horn, III
Under 18 U.S.C. § 924(e), anyone convicted of a § 922(g) violation (being a felon in possession of a firearm) who has three
previous convictions “for a violent felony or a serious drug offense, or both, committed on occasions different from one another” is subject to a mandatory minimum sentence of fifteen years. The statute, passed as the “Armed Career Criminal Act” (“ACCA”), provides detailed definitions of “serious drug offense” and “violent felony” in §§ 924(e)(2)(A) and (B).
Beginning with Begay v. United States
, 128 S. Ct. 1581 (2008), in which the Supreme Court reversed an Armed Career Criminal sentence based on multiple felony convictions for driving under the influence of alcohol, the Supreme Court and Fourth Circuit Court of Appeals have taken a new look at when this severe sanction is appropriate. This article reviews the string of published opinions in 2009 and 2010 which have significantly altered the ACCA landscape.
In Chambers v. United States
, 129 S. Ct. 687 (2009), the question before the Supreme Court was whether failure to report to a penal institution was a “violent felony” for purposes of the Armed Career Criminal Act. Resolving a split in the circuits – and reversing the Fourth Circuit’s position – a unanimous Supreme Court held that it was not.
The Government argued “that a failure to report reveals the offender’s special, strong aversion to penal custody . . . and . . . point[ed] to three cases arising over a period of 30 years in which reported opinions indicate that individuals shot at officers attempting to capture them.” Id
The Supreme Court was unpersuaded, finding a Sentencing Commission analysis of 160 federal cases charging failure to report – none of which involved violence – more compelling. Id
. at 692-93 (reversing Armed Career Criminal sentence).
In United States v. Thornton
, 554 F.3d 443 (4th Cir. 2009), the issue on appeal was whether statutory rape of a child between the ages of 13 and 15 in violation of Virginia law without the use of force
is a “violent felony” for purposes of the Armed Career Criminal Act. In an opinion written by Judge Duncan and joined by Judges King and Shedd, the Fourth Circuit answered this question in the negative, reversing the Armed Career Criminal sentence imposed by the District Court.
, the court rejected the Government’s argument that “the [statutory rape] offense involves constructive force, which a court can infer because the minor victim lacks capacity to give legal consent,” concluding to the contrary that this argument “ignores the Virginia Criminal Code’s distinction between forcible and nonforcible sexual offenses.” Id
. at 448. The court reasoned:
Although the government correctly points out that under Virginia law a minor victim cannot give legal consent to sexual activity, the victim’s inability to consent does not erase the Code’s distinction between forcible and nonforcible sexual offenses. The Code’s structure shows that the Virginia General Assembly considers forcible and nonforcible sexual offenses to present different risks that are punishable in different ways. Although Virginia’s forcible sexual offenses may qualify as violent felonies under the ACCA, the government cannot persuasively argue that the nonforcible carnal knowledge offense constitutes a violent felony by conflating it with Virginia’s forcible sexual offenses through the concept ofconstructive force.
(vacating Armed Career Criminal sentence of 204 months).
In United States v. White
, 571 F.3d 365 (4th Cir. 2009), the issue was, following Begay
, whether conviction for “conspiracy to commit robbery with a dangerous weapon” qualified as a “violent felony.”
As the Fourth Circuit explained in White
, the ACCA defines a ‘violent felony” as follows:
First, under clause (i) of that provision, 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.” 18 U.S.C. § 924(e)(2)(B)(i). Second, pursuant to clause (ii) of that same provision, a violent felony “is a burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. § 924(e)(2)(B)(ii).
Id. at 368. Thus, because the conviction in question (conspiracy) did not require proof of use or threatened use of physical force [clause (i)] and was not one of the four enumerated offenses in clause (ii), the sole issue in White was whether conspiracy to commit robbery with a dangerous weapon “otherwise involve[d] conduct that presents a serious potential risk of physical injury to another.” Id. at 369.
In route to affirming District Judge Frank D. Whitney’s conclusion that the subject conspiracy conviction was a “violent felony” for ACCA purposes, the Fourth Circuit: (1) reject[ed] the defendant’s] contention that, absent an overt-act element, the Conspiracy Offense categorically fails to present a degree of risk of physical harm that is similar to the risks posed by the enumerated offenses of clause (ii)”; (2) held to the contrary that “the Conspiracy Offense presents an immediate, serious, and foreseeable physical risk that arises concurrently with the formation of the conspiracy”; (3) found that the subject conspiracy offense was “similar in kind to the enumerated offenses in [clause (ii)] because its completion requires conduct that is ‘purposeful, violent, and aggressive’”; and (4) concluded that the conviction for conspiracy to commit robbery with a dangerous weapon required proof of intent to commit violence which “render[ed] their crime categorically aggressive.” Id. at 370-73 (4th Cir. 2009) (affirming sentence as an Armed Career Criminal).
In United States v. Thompson, 588 F.3d 197 (4th Cir. 2009), the defendant pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Because he had at least three “breaking or entering” convictions in violation of North Carolina law (the actual numbers of convictions was six), the Government argued that the defendant faced a 15-year minimum as an Armed Career Criminal. District Judge Terence W. Boyle concluded that prior Fourth Circuit rulings that “breaking or entering” in violation of North Carolina law constituted “burglary” (and were therefore “violent felonies” under the ACCA) were abrogated by the Supreme Court’s decision in Begay.
The Fourth Circuit reversed, concluding to the contrary that the relevant Fourth Circuit decisions – United States v. Bowden, 975 F.2d 1080, 1085 (4th Cir. 1992), and United States v. Thompson, 421 F.3d 278, 284 (4th Cir 2005) – were still good law. Specifically, the court reasoned that Begay addressed what crimes not listed in the Armed Career Criminal Act – crimes that fell under the “otherwise clause” – would qualify as “violent felonies” under the statute. On the other hand, Begay did nothing to change the fact that the crimes specifically named in the statute – including “burglary” – were ipso facto “violent felonies” for ACCA purposes. Thompson, 588 F.3d at 201.
“In sum, the Supreme Court’s decision in Taylor and our decisions in Bowden and Thompson remain controlling law, even after the Supreme Court’s decision in Begay, and when applied, a North Carolina conviction for ‘breaking or entering’ under North Carolina General Statutes § 14-54(a) is, as a matter of law, a ‘violent felony’ within the meaning of [the] ACCA.” Id. (vacating and remanding with instructions that the defendant be resentenced as an Armed Career Criminal).
In United States v. Harcum, 587 F.3d 219 (4th Cir. 2009), the defendant was first charged in Maryland State District Court based on a “Statement of Charges” prepared by a local police detective, but later charged and tried in a higher State court on a “criminal information.” The issue on appeal was whether the resulting conviction was a violent felony for ACCA purposes. The Government argued, in support of the Armed Career Criminal sentence imposed by District Judge Andre M. Davis, that the Statement of Charges in the lower court was sufficient demonstration that the conviction was for a violent felony; the defendant argued to the contrary that the District Court erred in relying on a document from a different court in support of a different charging document.
The Fourth Circuit, reviewing de novo, agreed with the defendant. Describing the “two types of analysis” as the “categorical approach” and the “modified categorical approach” (used here), the court distinguished Simms, reasoning that the Statement of Charges in the lower State court had not been “explicitly incorporated” in the charges on which the defendant was later tried. Id. at 222-24. Rejecting the Government’s argument that notation of the “tracking and case numbers” in the lower court on the subsequent charging document was sufficient, the Fourth Circuit concluded to the contrary that this fell short of the required “explicit incorporat[ion].” Id. at 224-25 (reversing Armed Career Criminal sentence).
In United States v. Carr, 592 F.3d 636 (4th Cir. 2010), the defendant had been convicted of breaking into 13 different storage units within a single facility on a single date. The only issue on appeal was whether Chief District Judge Louis W. Flanagan erred in concluding that the crimes of breaking into the individual storage units were “committed on different occasions,” and therefore erred in sentencing the defendant as an Armed Career Criminal.
In an opinion written by Judge Shedd and joined by Judge Wilkinson and Judge Agee – which affirmed Judge Flanagan – the Fourth Circuit began its analysis by discussing its line of authority addressing this issue. Id. at 639-42, discussing United States v. Letterlough, 63 F.3d 332, 335 (4th Cir. 1995) (two separate sales of a single rock of crack cocaine to the same undercover officer within less than a two hour period were crimes “committed on different occasions”); United States v. Hobbs, 136 F.3d 384, 389 (4th Cir. 1998) (burglary of three different stores a mile apart from one another within a one hour period were crimes “committed on different occasions”); United States v. Williams, 187 F.3d 429, 431 (4th Cir. 1999) (three offenses committed during 10-15 minute flight from law enforcement during which the defendant shot at one officer and pointed his gun at two other officers were crimes “committed on different occasions”); United States v. James, 337 F.3d 387, 391 (4th Cir 2003) (two burglaries on the same day of stores across the street from one another were crimes “committed on different occasions”); and United States v. Leeson, 453 F.3d 631, 641-43 (4th Cir 2006) (robbery of store and firing weapon at off-duty policeman who was outside the store and ordered defendant to stop were crimes “committed on different occasions”).
Applying this Fourth Circuit authority, and citing cases from other circuits more factually on point, the court ultimately agreed with Judge Flanagan that breaking into the individual storage units were crimes “committed on different occasions,” and therefore that she properly sentenced the defendant as an Armed Career Criminal. Carr, 592 F.3d at 644-45. In reaching these conclusions, the court described itself as “most persuaded” by three factors: (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 he committed each of the 13 crimes, [the defendant] had the opportunity to make a conscious and knowing decision to cease and desist his criminal behavior or engage in yet another crime.” Id. at 645 (internal quotations and citations omitted).
Any burglary that is “an act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for [a term exceeding one year] if committed by an adult” qualifies as a “violent felony” for purposes of the Armed Career Criminal Act. 18 U.S.C. § 924(e)(2)(B).
In United States v. Wright, 594 F.3d 259 (4th Cir. 2010), the defendant was sentenced as an Armed Career Criminal based, in part, on South Carolina juvenile adjudications in which he stole firearms during three separate burglaries. The defendant argued on appeal: (1) “that the use of his juvenile adjudications as predicate crimes under the ACCA violates … Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), because South Carolina family courts do not employ juries”; and (2) “that the burglaries he committed as a juvenile do not qualify as violent felonies under the ACCA, because he did not ‘carry’ firearms merely by stealing them.” Id. at 262. In an opinion written by Judge Wilkinson and joined by Judges Gregory and Duncan, the Fourth Circuit disagreed on both points.
Regarding the absence of juries in South Carolina’s family courts, the court applied McKiever v. Pennsylvania, 403 U.S. 528, 545 (1971), in which five of the nine Justices rejected Sixth Amendment challenges to juvenile delinquency proceedings, holding that “trial by jury in the juvenile court’s adjudicative stage is not a constitutional requirement.” Applying that underlying principle in Wright, the Fourth Circuit reasoned:
As a jury is not required in a juvenile adjudication on the merits, we see no reason to impose such a requirement through the back door by allowing former juveniles who have subsequently reached adulthood to overturn their adjudications in subsequent sentencing hearings.
Id at 263-64 (joining a majority of the circuits that have considered the issue in holding that non-jury juvenile adjudications properly serve as predicate convictions under the Armed Career Criminal Act).
The Fourth Circuit was no more receptive to the defendant’s alternative argument, that stealing a firearm during a burglary does not constitute “carrying” under 18 U.S.C. § 924(e)(2)(B). Here, the court noted that § 924(e)(2)(B) only requires that the prior juvenile adjudication be one “involving the use or carrying of a firearm,” which is “broader than language such as breaking and/or entering with firearms – a formulation Congress could have used but did not.” Id. at 265-67 (emphasis in original) (“A burglary that results in the theft of firearms necessarily involves carrying them, else the burglar would be forced to leave his spoils at the scene of the crime.”).
In United States v. McNeill, 598 F.3d 161 (4th Cir. 2010), the defendant pled guilty to being a felon in possession of a firearm and to possessing 3.1 grams of crack cocaine with intent to distribute it. At sentencing District Judge James C. Dever III determined that the defendant qualified as an Armed Career Criminal and was therefore subject to a 180-month minimum sentence, and that because the defendant’s criminal history category (VI) under-represented his actual criminal history that an upward departure was required. Judge Dever then proceeded to impose a 300-month sentence for the firearm offense and a 240-month sentence (the statutory maximum) for the crack offense.
The defendant argued on appeal that the two North Carolina drug convictions on which the Armed Career Criminal sentence was based were not “serious drug offenses” for purposes of the ACCA. The defendant reasoned that although the North Carolina law provided for a 10-year maximum when he sustained the convictions in 1992 and 1995 (as required to qualify as a “serious drug offense” under the ACCA), the State has since revised its sentencing provisions and today the same offenses carry only a 25-month maximum. Id. at 164. In support of his argument, the defendant cited United States v. Morton, 17 F.3d 911, 915 (6th Cir. 1994) (statutory maximum at time federal sentencing, not on date of conviction, is the relevant maximum in determining whether conviction was for “serious drug offense” under ACCA); and United States v. Darden, 539 F.3d 116, 121-27 (2d Cir. 2008) (same).
The Fourth Circuit was unpersuaded, choosing instead to follow the Fifth Circuit’s decision in United States v. Hinojosa, 349 F.3d 200, 205 (5th Cir. 2003), where Texas revisions in sentencing – as in North Carolina – were only applicable to offenses committed after the maximums were reduced. “When North Carolina revised its sentencing scheme in 1994, it specifically provided that the revised sentences would not apply to crimes committed before the effective date of the revisions…. In this regard, North Carolina’s sentencing scheme is similar to the Texas sentencing scheme at issue in Hinojosa, and we find the Fifth Circuit’s reasoning in that case to be persuasive.” McNeill, 598 F.3d at 165-66 (affirming Armed Career Criminal sentence).
In United States v. Rivers, 595 F.3d 558 (4th Cir. 2010), the Fourth Circuit ended the “South Carolina blue light saga,” deciding that a South Carolina conviction for failure to stop for a blue light does not qualify as a “violent felony” for ACCA purposes – whether the violation is intentional or unintentional. Although one might justifiably wonder how this ever became a significant, ongoing issue, it has, in fact, been the primary subject of two prior published Fourth Circuit opinions. See United States v. James, 337 F.3d 387, 390-91 (4th Cir. 2003) (failure to stop for blue light in violation of South Carolina statute is “violent felony” for ACCA purposes); and United States v. Roseboro, 551 F.3d 226, 240 (4th Cir. 2009) (conviction for failure to stop for blue light only a “violent felony” if violation is intentional, remanding for district court to determine whether failure to stop for blue light was “intentional”).
In an opinion written by Judge Gregory and joined by Judges Wilkinson and Duncan, the Fourth Circuit applied the Supreme Court’s decision in Chambers v. United States, 129 S. Ct. 687 (2009), determined that Chambers effectively overruled Roseboro (which overruled James), and decided that a conviction for failure to stop for a blue light in violation of the South Carolina statute could never qualify as a “violent felony” for ACCA purposes.
In United States v. Bethea, __ F.3d __ (4th Cir. 2010), the Fourth Circuit continued to pare down what constitutes a “violent felony” ACCA purposes. Applying Chambers, the court held “that a conviction under South Carolina’s escape statute does not inherently constitute a violent felony.” The court reached this conclusion because, as was true of the Illinois escape statute in Chambers, the South Carolina statute proscribed both violent and non-violent conduct, the latter including “failure to report.”
Because the South Carolina statute proscribed both violent and non-violent conduct, the Fourth Circuit examined the indictment and “sentencing sheet” to determine whether the underlying conduct was “violent” for ACCA purposes. Noting that “these documents simply state that [the defendant] escaped, which makes it possible that [he] engaged in … non-violent conduct,” the conviction “[wa]s not a violent felony under the ACCA.”
And most recently, in United States v. Tucker, __ F.3d __ (4th Cir. 2010), the defendant successfully challenged his Armed Career Criminal sentence in a 28 U.S.C. § 2255 proceeding.
Senior District Judge G. Ross Anderson, Jr. imposed the Armed Career Criminal sentence in the underlying proceeding based upon “four prior violent felony convictions described in the PSR: two convictions for second degree burglary, one conviction for assault and battery of a high and aggravated nature, and one conviction for failure to stop for a blue light.”
Although, as reported above, intervening case law has reversed the prior Fourth Circuit position that failure to stop for a blue light was a “violent felony” for ACCA purposes, that issue was not raised in this case. Rather, the defendant contended in the § 2255 proceeding only that his lawyer provided ineffective assistance: (1) by failing to argue that the assault and battery conviction – sustained in a State Magistrate Court, which had jurisdiction in “criminal cases in which the punishment does not exceed … imprisonment for 30 days” – did not qualify as a predicate conviction under the Armed Career Criminal Act (“ACCA”); and (2) by failing to argue that the two second degree burglaries, based on the defendant and an accomplice breaking into four units at a mini-storage facility, should have been counted as a single conviction for ACCA purposes, thus reducing the predicate convictions from three to two. The Fourth Circuit agreed on both points.
Regarding the assault and battery conviction, the court reasoned:
At the time of trial, the information in the PSR was sufficient to alert counsel that Tucker’s assault and battery charge was remanded to Magistrate Court where he pled guilty to the misdemeanor offense of common law assault and battery. Even despite the strong presumption that counsel’s conduct was reasonable, Tucker’s counsel’s failure to object to the use of this conviction as a predicate violent felony conviction was objectively unreasonable under prevailing professional standards.
Regarding whether the two second degree burglary convictions constituted one or two predicate convictions, which turns on whether the offenses were committed on “different occasions,” the court began its analysis by noting the factors relevant to this determination. Those factors are:
(1) whether the offenses arose in different geographic locations; (2) whether the nature of each offense was substantively different; (3) whether each offense involved different victims; (4) whether each offense involved different criminal objectives; and (5) after the defendant committed the first-in-time offense, [whether] the defendant ha[d] the opportunity to make a conscious and knowing decision to engage in next-in-time offense[.]
Applying the prescribed factors, the Fourth Circuit found that “the nature of each burglary [of four separate units at a single storage facility] was substantially the same”; that the record was unclear as to whether there were different victims; and that “each offense had the same objective: to burglarize a storage unit.” Further, the court noted, although each storage unit is considered “a different location” and “a conscious and knowing decision [was made to] break in [each separate] unit,” the record was unclear whether the defendant – or his accomplice – had himself entered more than one unit. This being the case, the court agreed that the two burglaries should have been counted as a single predicate conviction – and that trial counsel provided constitutionally ineffective assistance of counsel by failing to raise the issues leading to that result.
Collectively, these decisions offer a glimmer of hope to those concerned about ever more severe federal sentences, particularly where guns or drugs are involved. Perhaps they even signal a modest shift from a judiciary that has appeared to endorse an almost political “tough on crime” agenda to one that will struggle with the tougher and far subtler issues which must be engaged – assuming, of course, that proportionate sentencing is our goal.
Carl Horn, a former federal prosecutor and federal magistrate, is in private practice in Charlotte with Anderson Terpening PLLC. For more background, see www.houseofefense.com .
Views and opinions expressed in articles published herein are the authors' only and are not to be attributed to this newsletter, the section, or the NCBA unless expressly stated. Authors are responsible for the accuracy of all citations and quotations.