Preserve This! SCOTUS to decide whether crime that can be committed recklessly can qualify as a “violent felony” under ACCA

Today, the United States Supreme Court granted certiorari in Walker v United States, out of the Sixth Circuit, to decide whether a criminal offense that can be committed with a mens rea of recklessness can qualify as a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. 924(e).

As the petition for certiorari explains, there is a deep and widely recognized conflict in the courts of appeals over that question.

The Tenth Circuit takes the view, like the Sixth Circuit, that offenses that can be committed recklessly can nevertheless qualify as violent felonies under ACCA’s force clause. See, e.g., United States v Hammons (for purposes of determining whether an offense constitutes a valid ACCA predicate, “it makes no difference whether the person applying the force had the specific intention of causing harm or instead merely acted recklessly”).

Make sure to preserve this issue!

News You Can Use: SCOTUS decides more ACCA predicate cases (Part 1)

The Supreme Court recently decided the consolidated cases of United States v. Stitt (and United States v. Sims), No. 17-765, 2018 WL 6439818  (U.S. Dec. 10, 2018). The opinion holds that burglary of a vehicle adapted for overnight accommodation of persons is a generic burglary for purposes of the Armed Career Criminal Act.

The Stitt opinion is another in a line of cases that have asked whether certain burglary convictions qualify as predicate offenses under the Armed Career Criminal Act (ACCA). The defendants in these cases, Victor J. Stitt and Jason Daniel Sims, were each convicted in federal court of unlawfully possessing a firearm, in violation of 18 U. S. C. §922(g)(1). The sentencing judge in each case imposed the mandatory minimum 15-year prison term that the ACCA requires for §922(g)(1) offenders who have at least three previous convictions for certain “violent” or drug-related felonies, §924(e)(1), based in part on burglary convictions.

The Supreme Court has previously stated that burglary of a vehicle is not a valid ACCA predicate. But the narrower question in this case was whether statutes that cover burglaries of vehicles that have been adapted or customarily used for overnight accommodation should qualify as ACCA predicates because they fall within the “generic” definition of burglary.

The categorical approach

Recall that the categorical approach first adopted Taylor v. United States, 495 U.S. 575 (1990), requires courts to evaluate a prior state conviction by reference to the elements of the state offense, rather than to the defendant’s conduct. In other words, you can’t look at the underlying facts of the prior conviction to figure out whether the predicate counts. A prior state burglary conviction does not qualify under the ACCA where “the elements of [the relevant state statute] are broader than those of generic burglary.” Mathis v. United States, 136 S.Ct. 2243 (2016). Burglary statutes that cover vehicles as one possible means of committing the crime are therefore excluded from being predicate ACCA offenses because the statutes are overbroad. See, e.g., Mathis, 136 S. Ct. at 2250. (holding that Iowa statute covering burglary of “any building, structure, [or] land, water, or air vehicle” was overbroad and indivisible and thus did not qualify as an ACCA predicate).

The nitty gritty

Stitt’s prior convictions were for violations of a Tennessee statute that defines “[a]ggravated burglary” as “burglary of a habitation.” Tenn. Code Ann. § 39–14–403(a) (1997). It further defines “[h]abitation” to include: (1) “any structure, including … mobile homes, trailers, and tents, which is designed or adapted for the overnight accommodation of persons,” and (2) any “self-propelled vehicle that is designed or adapted for the overnight accommodation of persons and is actually occupied at the time of initial entry by the defendant.” §§ 39–14–401(1)(A), (B) (emphasis added).

Similarly, Sims’ prior convictions were for violations of an Arkansas statute that prohibits burglary of a “residential occupiable structure.” Ark. Code Ann. § 5–39–201(a)(1) (Michie 1997). The statute defines “[r]esidential occupiable structure” to include:  “a vehicle, building, or other structure: (A) [w]here any person lives; or (B) [w]hich is customarily used for overnight accommodation of persons whether or not a person is actually present.” § 5–39–101(1) (emphasis added).

In both cases, the District Courts found the state statutory crimes fell within the scope of the word “burglary” in the Armed Career Criminal Act and consequently imposed that statute’s mandatory sentence enhancement. In both cases, the relevant Court of Appeals held that the statutory crimes did not fall within the scope of the word “burglary,” vacated the sentence, and remanded for resentencing. The Government sought certiorari in both cases in part because of a circuit split that included an old Tenth Circuit case, United States v. Spring, 80 F.3d 1450, 1462 (10th Cir. 1996), which held that such burglary convictions would qualify as ACCA predicates.

The upshot

The Supreme Court surveyed state statutes from 1986 and earlier and determined that “a majority of state burglary statutes covered vehicles adapted or customarily used for lodging.” Stitt, 2018 WL 6439818, at *4. As a result, such burglary convictions were included within the definition of “generic burglary.” In so doing, the Supreme Court reversed the decisions below of the Sixth and Eighth Circuits, and also abrogated contrary precedent in the Fourth and Ninth Circuits. See United States v. White, 836 F.3d 437, 446 (4th Cir. 2016); United States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc). Justice Breyer wrote the opinion for a unanimous Court.

Takeaways

  • Burglary convictions/statutes that cover vehicles plain and simple are still out, but statutes that cover vehicles “adapted for overnight accommodation of persons” will now qualify as ACCA predicates—as long as they are not overbroad and indivisible in some other way.
  • For a refresher on the categorical approach, see Mathis v. United States, 136 S.Ct. 2243 (2016), available here.
  • Remember: burglary convictions are NEVER crimes of violence under the career offender provisions of the Guidelines (this case affects only potential ACCA clients).

 

 

News You Can Use: Tenth Circuit Holds Kansas Aggravated Robbery Isn’t a Violent Felony

In United States v. Bong, the Tenth Circuit held that Kansas aggravated robbery isn’t a violent felony for purposes of the Armed Career Criminal Act. Mr. Bong was convicted of being a felon in possession of a firearm and sentenced to more than 24 years in prison. He was sentenced under the ACCA based on at least seven prior convictions that the district court believed qualified as violent felonies: three Kansas simple robberies, three Kansas aggravated robberies, and one Kansas attempted robbery. On appeal, Mr. Bong argued that none of those prior convictions qualified as violent felonies that could trigger the ACCA, and the Tenth Circuit agreed.

By statute, Kansas defines robbery as “the taking of property from the person or presence of another by threat of bodily harm to his person or the person of another or by force.” The statute defining aggravated robbery defines that offense as “a robbery committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person during the course of such robbery.” At first blush, these statutes would seem to qualify as violent felonies. But a closer look revealed that they don’t qualify.

 Although the Kansas statutes seem to require force, the Kansas Supreme Court has interpreted them to require no such thing. In one case, the Kansas Supreme Court held that mere purse snatching constitutes robbery and, in a different case, held that mere possession of a weapon (absent use or brandishing) can elevate a robbery conviction to aggravated robbery.

Based on the Kansas Supreme Court’s interpretation of its robbery statutes, the Tenth Circuit held that Mr. Bong’s prior convictions did not count as violent felonies. First, as to simple robbery, the “mere snatching of a purse” — “without any application of force directly to the victim” and “without any resistance by or injury to the victim” — “falls short of the ‘violent force’ required” to qualify as a violent felony under the ACCA. Bong, Slip op. at 19-20. Second, as to aggravated robbery, “nothing about [a] defendant’s mere possession of a firearm (or another deadly weapon) would . . . necessarily cause[] the crime to involve” the use, attempted use, or threatened use of violent force required to trigger the ACCA. Id. at 23-24.

 

TAKEAWAYS

 1. Robbery offenses that can be committed by mere purse snatching don’t qualify as violent felonies under the ACCA (and likely don’t qualify as crimes of violence under the sentencing guidelines).

 2. Offenses that require simply possessing a weapon, as opposed to using or brandishing a weapon, don’t qualify as violent felonies under the ACCA (and likely don’t qualify as crimes of violence under the sentencing guidelines).

3. Even when an offense sounds like it would be a violent felony or crime of violence (Aggravated Robbery With a Deadly Weapon!), it may not qualify. Even when the statute defining an offense sounds like it defines a violent felony or crime of violence, it may not qualify. You must always look to see how the state courts have construed the statute.