Yesterday, we discussed the use of aggravated felonies for the purpose of immigration. Specifically we looked at the courts’ consideration of prior conviction by looking at the actual conduct. In passing, we considered the contrary method of looking at prior convictions by using the generic or categorical approach. Unlike the actual conduct test, the generic or categorical test looks at the code section of the prior conviction and compares it to the statute. Last week the First Circuit Court of Appeals considered a case under the Armed Career Criminal Act (ACCA).

John Pakala was convicted of selling stolen firearms. At sentencing it was found that he had three prior convictions for violent felonies. He had a Nevada conviction for attempted burglary and two Florida convictions for burglary. In United States vs. Pakala the court used the generic or categorical method to determine whether the Florida burglary statute comes under the ACCA.

Under the ACCA, an individual convicted of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1), as Pakala was here, is subject to a sentencing enhancement as an armed career criminal if he “has three previous convictions by any court . . . for a violent felony or a serious drug offense, or both.

The ACCA considers burglary to be a violent felony so at first glance Pakala would appear to have three prior convictions for violent felonies. But since each state defines burglary differently, in order to have a consistent Federal law, the ACCA looks at the essence of burglary. Under Federal law, therefore, the courts consider a burglary to be a 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

But the Florida law is broader than the ACCA definition. It includes the curtilage surrounding the house. Since Pakalawas was convicted under the Florida burglary law, and on the face of the complaint he could have entered the curtilage it would appear that the two Florida priors, using the generic or categorical method, are not violent crimes under the ACCA.

But Florida uses a very narrow definition of “curtilage.” Under Florida law the curtilage is “an enclosed area surrounding a structure.”

The court citing 18 U.S.C. § 924(e)(2)(B)(ii) found that

The ACCA contains an ‘otherwise’ clause, which defines a ‘violent felony’ as a crime that, along with “\’burglary,’ otherwise involves conduct that presents a serious potential risk of physical injury to another.

Still using the generic or categorical method, the court found that entry into the curtilage, as defined by Florida law, is a violent felony since it “involves conduct that presents a serious potential risk of physical injury to another.”

So in any case, Pakala loses. He was sentenced to 235 months in prison for stealing five guns from his employer’s house and selling them.