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FIFTEEN YEAR SENTENCE UNDER THE ACCA MANDATED BY THE SEVENTH CIRCUIT
The Armed Career Criminal Act (ACCA) provides for a fifteen year minimum sentence for anyone who has three prior convictions for crimes of violence or serious drug offenses. yesterday we wrote about United States v. McNeill in which the Supreme Court recently discussed the serious drug offense section of the law. Today we will look at United States v. Burnett in which the Seventh Circuit Court of Appeals, Monday, discussed the violent crime section of the law.
Albert Burnett has five convictions murder, attempted murder (twice), aggravated
battery, and domestic battery–all violent felonies.
In 1988 he was convicted of two counts of attempted murder and he was sentenced on August 18, 1988 in both cases. He was then convicted in a murder case and in January of 1994 his maximum imprisonment on the attempted murders was completed but he was still serving time on the murder case. He was paroled from the murder conviction in April 1997, and that term of parole expired in April 1999. At some point after that he was convicted of aggravated battery.The ACCA states:
“[w]hat constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, ex- pungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.”
After completing his parole in the murder and aggravated battery cases he received a letter informing him that his civil rights had been reinstated but neither letter mentioned the continuing obligation not to possess a gun. The primary question before the Seventh Circuit was whether the letter received by Burnett after he was released from parole of the murder case also covered the attempted murder cases. If it covered all three cases then his only serious felony case applicable to the ACCA mandatory minimum was the domestic violence. The Seventh Circuit ruled that it didn’t. The letter gave a date for the completion of parole and that date was the date that his parole terminated in the murder case. As a result the Seventh Circuit held that it did not apply to the attempted murder cases.
But the logic of this is hard to find. They could not have sent a similar letter after he completed his parole on the attempted murder cases because he was still on parole in the murder case. Furthermore, as a matter of law he had completed his maximum sentence on the attempted murder cases. Therefore his civil rights were reinstated on all three cases after he completed his parole on the murder case and the fact that he only got one letter shows only the efficiency of the system. If this is the case he would not have a fifteen year mandatory minimum. But the Seventh Circuit saw it otherwise.
This goes to prove the old maxim: “bad facts make bad law.” Here is a man with a serious problem with violence. Despite the fact that the state failed to comply with the Federal law requiring any letter reinstating his civil rights to specifically state that despite the reinstatement the law prohibited Burnett from possessing a gun, the Seventh Circuit wanted to put him away for as long as possible in order to prevent further acts of violence. Therefore it found a way to require that he be incarcerated for at least fifteen years. The problem is that many people without his history of violence will also be incarcerated for lengthy periods of time due to this bad precedent.
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SUPREME COURT FINDS FLORIDA BATTERY NOT A VIOLENT CRIME FOR ARMED CAREER CRIMINAL PURPOSES
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.
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