For the fourth time in five years the Supreme Court has attempted to interpret the residual clause of the Armed Career Criminal Act (ACCA). The ACCA mandates a minimum sentence of fifteen years to anyone charged with possession of a gun who has three prior convictions for either a violent felony or serious drug offenses. The residual clause attempt to define what felonies are considered violent. It reads:

“any crime punishable by imprisonment for a term exceeding one year . . . that . . . is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”

In James it held that a violent felony is one that is comparable to the violence “posed by its closest analog among the enumerated offenses.” In Begay the court ruled that dangerous felonies are “purposeful, violent,and aggressive.” Chambers applies both the “risky-as-the-least-risky test and the “purposeful, violent, and aggressive.” The “risky-as-the-least-risky test compares the risk of violence to the least risky of the named felonies in the residual clause (burglary, arson, or extortion, involves use of explosives). Last week in Sykes v. United States the Supreme Court held that felony vehicle flight is a violent felony for purposes of the ACCA because “[t]he residual clause imposes enhanced punishment for unlawful possession of the firearm when the relevant prior offenses involved a potential risk of physical injury similar to that presented by burglary, extortion, arson, and crimes involving use of explosives.”

The Supreme Court uses a categorical approach when determining if a prior conviction is a violent crime for purposes of the ACCA. By this it means that it does not look at the alleged conduct leading to the conviction to determine if it involved a potential risk of physical injury. Rather it looks at the elements of the crime to make the determination. Sykes was convicted of possession of a firearm by a convicted felon He has at least three prior convictions. Two of the convictions were for robbery. These are clearly violent felonies. But to sentence him under the ACCA to a minimum of fifteen years there must be three prior violent felonies. He also has a prior conviction for vehicular flight to avoid and arrest. The issue before the Supreme Court was whether flight is a crime of violence. Using various statistics the Supreme Court found that it was a crime of violence because the risk of someone getting injured during flight is greater than the risk of physical injury in either arson or burglary, two of the offenses listed in the ACCA.

The problem with this as Justices Scalia and Kagan point out in dissents ¹ is that vehicular flight is not similar to any of the named offenses. Justice Kagan points out that Indiana,like other states, has several different flight offenses. The particular statute under which Sykes was arrested does not require a serious risk of injury. Other sections do. Justice Kagan said that since the normal behavior leading to a conviction under the section of Sykes conviction does not require violence. Therefore convictions under this section should not be considered violent under the ACCA.

Justice Scalia stated that despite all of the efforts to interpret the residual clause, no explanation has been able to clarify the section. The constitution requires that laws “give a person of ordinarily intelligence fair notice” of what behavior violates the law. This is particularly necessary with criminal laws where defendants may be facing a significant loss of freedom. According to Justice Scalia the clause is so vague and impossible to understand that it violates the constitutional standard for notice. He would limit enforcement of the statute to the name offenses. Of course Congress can amend the statute to add additional offense or otherwise make it more clear.

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 Armed Career Criminal Act (ACCA) provides for a minimum sentence of fifteen years for anyone who has three prior serious drug offenses or violent felonies. It defines a serious drug offense as any drug offense for which the maximum punishment is ten years or more in prison, according to state law.

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.

In the predawn hours of November 15, 2007 Cuyahoga Metropolitan Housing Authority Police Officer Eric Williams notice an Oldsmobile legally parked in a housing complex. The engine was running and there was a person in the car but slumped over and barely visible. Williams checked the registration and found no warrants for the owner of the car. He then parked his patrol car, blocking in the vehicle and he approached the window. Demetrion Gross opened up the window to talk to Williams.

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.

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.