Curtis Johnson plead guilty in Federal Court to possession of ammunition by a convicted felon.The United State attorney argued that he should be sentenced as an armed career criminal with a possible sentence of fifteen years to life. The U. S. attorney claimed and the District Court accepted the claim Johnson had convictions for three violent felonies.

A “violent felony” is defined as “any crime punishable by imprisonment for a term exceeding one year” that:

“(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

“(ii) 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).

Johnson had convictions for aggravated battery, burglary, and battery. On appeal he challenged the designation of the battery as a violent felony. Battery is generally a misdemeanor but in Florida a conviction for battery with a prior conviction for battery can be a felony. Battery is defined under Florida law as either:

1. [a]ctually and intentionally touches or strikes another person against the will of the other,” or “2. [i]ntentionally causes bodily harm to another person.

There is no evidence that Johnson caused bodily harm to anyone. Therefore for Johnson to be an armed career criminal, one guilty of intentionally touching or striking another person against his or her will must be guilty of a violent felony. The use of physical force must mean something more than touching another person against his/her will.

The Supreme Court held that “in the context of a statutory definition of ‘violent felony,’ the phrase ‘physical force’ means violent force–that is, force capable of causing physical pain or injury to another person.” Battery under Florida law which involved an unwanted touching does not necessarily involve a violent force resulting in injury and therefore Johnson cannot be sentenced as an armed career criminal.

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.

The Supreme Court again considered the issue of what is an aggravated felony for immigration purposes this week in Nijhawan v. Holder. In immigration law the question is an important one because convictions for aggravated felonies lead to deportation.

Aggravated felonies are defined in 8 U. S. C. 1101(a)(43). At question in Nijhawan is subdivision (M)(i) which involves offenses that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000. The question is what convictions involve a loss of over $10,000. There are two ways to look at it. The first is called the categorical or generic method. It says that anyone who is found guilty of fraud or deceit where the crime necessarily involves a loss of $10,000 is guilty of a crime involving an aggravated felony. For example if there was a crime called Fraud Involving a Loss of Over $10,000 and Mr. Nijhawan was found guilty of it, using the generic or categorical method he would be guilty of an aggravated felony. The problem is there are very few such crimes. In fact, Mr. Nijhawan was found guilty of conspiring to commit mail fraud, wire fraud, bank fraud, and money laundering. The crimes do not list a specific amount of loss. Thus using the generic or categorical method he is not deportable. This leads to the second possible way to define a aggravated felony. It is to look at the specific conduct of the individual. At sentencing on the fraud case Mr. Nijhawan stipulated that the loss was over a 100 million dollars. If you consider the actual conduct Mr. Nijhawan is deportable.

In cases under the Armed Career Criminal Act (ACCA) the courts have used the generic or categorical method. The court noted that in interpreting the ACCA courts have found that it is difficult to go back later, often only on a paper record and use the actual conduct method. Furthermore. The ACCA and Section 1101 list many actual crimes susceptible to to the generic or categoric method.

But the Supreme Court decided to use the actual conduct method. It pointed out that Congress could not have intended to use the generic or categorical methods since so few crimes would be applicable. Furthermore, the language of Section 1101 seems to imply that the conduct method should be used. For example, some offenses are only aggravated felonies if it is not the first conviction for the offense or other offenses are only aggravated felonies if the defendant had a commercial intent. In these cases only the actual conduct method appears to be applicable.

Holding that Section 1101 involves the actual conduct method the Supreme Court upheld the deportation of Mr. Nijhawan who fraudulently obtained over 100 million dollars.