The question in McNeill v. United States, decided yesterday, was whether a drug conviction is an ACCA prior based based upon the penalty at the time of conviction in state court or based upon the penalty at the time of the Federal Court trial.

Clifton Terelle McNeill had two two violent felonies on his record at the time he was convicted of possession of a gun and possession of cocaine for sale in Federal Court. He also had six drug offenses. At the time of his conviction on the drug offenses the maximum penalty in North Carolina was ten years. But in 1994, the North Carolina law changed providing a maximum sentence of 38 months. The trial judge ruled that he had three or more serious felonies under the ACCA and sentenced him to 300 months.

The Supreme Court reviewed the language of the ACCA and agreed with the trial court that the determination of whether a crime is a prior under the ACCA is made at time of the original sentencing, not at the time of the conviction of a subsequent crime. As a result the Supreme Court found that the fifteen year minimum applied to McNeill.

Section 18 USC 924(e)(1) states in pertinent part:

In the case of a person who violates section 922(g) of this title and 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, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years

Justice Thomas, for a unanimous Court, held that despite the present tense language of the section the statute should be interpreted as it was written at the time of the original state conviction, not at the time of the subsequent Federal conviction. Since the statute talks about a prior conviction it is necessary to look at the conviction at the time of the original sentencing. Otherwise it is possible that the statute applicable to the prior conviction may have been revoked. Furthermore under North Carolina law the maximum punishment for drug crimes committed prior to 1994 remains ten years.

While this is all good and well certain incongruities appear. If a crime happened the day before the revised North Carolina statute was passed the defendant is facing an ACCA prior while the defendant who was convicted one day later is not. Furthermore by basing the statute on state law a defendant who committed the same offense but lives across the border in South Carolina may not be facing an ACCA mandatory minimum.

In any case, I’m not sure why the Supreme Court granted certiorari in this case. In sentencing McNeill the judge pointed to McNeill’s “long and unrelenting history of serious criminal conduct” in upwardly departing from the Sentencing Guidelines to sentence him to 300 months. Thus it is unlikely that even if the Supreme Court had decided that the mandatory minimum did not apply and remanded the case for resentencing that the trial court would have sentenced McNeill to less than 300 months.

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Johnson was driving a car late at night with two passengers. He was pulled over by an Oklahoma State Highway Patrol trooper after the officer observed him swerving. He was ordered out of the rental car he was driving and into the police car. According to the officer he immediately smelled marijuana on Johnson’s breath. But according to a video it was nine minutes later before he asked Johnson about the marijuana. The officer left Johnson in the patrol car and got the rental contract out of the car Johnson had been driving. He again smelled marijuana in the car.

The trooper decided to search the vehicle. Along with the marijuana he based the search on the vehicle being from out of state; the lessee or owner of the car was not present; the defendant did not know the actual name of one of his companions ; it was very late at night; the passengers had made unusual movements while the officer had been following the car; and the occupants’ plans were vague. A gun was found on the driver’s seat below a blanket. The Tenth Circuit said that the mere fact that there was an odor of marijuana was enough to search the vehicle.

Johnson challenged the search on appeal by showing incongruities between the officer’s testimony and the video tape as well as between the trial court’s findings and the testimony. But the trial court found the officer’s testimony to be credible and barring a major showing to the contrary the appellate court was bound to accept the trial court’s finding of facts and the facts as being most favorable to the winning side (the government) in the trial court. The important thing to remember from this case is that appellate courts have limited powers. Unless the facts, as found by the trier of fact, are unreasonable the appellate court must accept them as true. A few incongruities or challenges to the witness’ credibility cannot change the duty of the appellate court to accept the facts as found by the trier of the facts ¹.

As far as the sentence, Johnson had three prior convictions for either drug offenses or crimes of violence and the trial court had no choice but to sentence him a minimum of fifteen years under the Armed Career Criminal Act.

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Williams asked him for his ID. Gross did not have it on him but he answered the officer’s questions about his name. Williams looked it up and found that Gross was wanted on a warrant for being a convicted felon in possession of a weapon.

Williams arrested Gross on the warrant and took him to the station. Gross was searched and no weapon was found. Gross requested permission to use the rest room. After he left the rest room a gun was found in it. Four days later Gross was informed of the investigation to determine how the weapon got into the jail. He refused to give a DNA specimen. A search warrant was obtained for the specimen. It was positive. He was charged as a career offender ¹ with possessing a weapon by a convicted felon and two months later while in custody he requested to speak with an ATF agent and confessed possession of the gun.

Gross moved to suppress the gun, DNA swab and confession. Both the trial court and the appellate court found the stop to be illegal. It was done without a reasonable suspicion of criminal activity and by blocking the Oldsmobile with the police vehicle. Gross reasonably believed that he was not free to leave. Once a message is conveyed that an individual is not free to leave, it is no longer considered a consensual stop and the detention must be supported by a reasonable suspicion of criminal activity.

Over the last forty years the Supreme Court has limited the exclusionary rule which mandates that illegally obtained evidence be suppressed in criminal proceedings. One way it has limited the exclusionary rule is by extending the circumstances under which “the unlawful conduct has become so attenuated or has been interrupted by some intervening circumstances so as to remove the ‘taint’ imposed upon the evidence by the original illegality.”

In this case the trial court found the gun, DNA, and confession to be so attenuated as not to be caused by the illegal stop. However the appellate court while agreeing with the trial court on the DNA and the confession, disagreed on the gun and ordered it suppressed.

In considering whether evidence is sufficiently attenuated from the illegality to be be admitted the Sixth Circuit looks at three factors: the length of time between the illegal arrest and the discovery of the evidence, intervening acts, and the flagrancy of the official misconduct. The confession, the court found to be admissible, because it occurred two months after the arrest, was initiated by Gross and it occurred after Miranda warnings. The court found the DNA to be admissible since it was obtained pursuant to a judicially authorized search warrant several days after the arrest.

But the court suppressed the gun. The government argued that the gun should be suppressed because it was found after Williams discovered the arrest warrant. But the majority opinion pointed out that if the gun was suppressed, the Fourth Amendment would be voided since any officer, without a reasonable suspicion of criminal activity, could arrest a person. find a warrant and any contraband seized would be admissible.

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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.

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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.

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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.

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