Prior Record Issues and Updates

1. Non-violent felonies (ACCA and Career Offender)- The Supreme Court has decided a case that dealt with the question of whether a prior conviction is a violent felony in each of the past four sessions.

a) James v. United States, 550 U.S. 192 (2007) (attempted burglary is a violent felony even if, on some occasions, it can be committed in a way that poses no serious risk of physical harm).

b) Begay v. United States, 128 S. Ct. 1581 (2008) – DUI conviction is not a violent felony even though it involves conduct that “presents a serious risk of physical injury to another” (as required by residual clause of the ACCA) because it is unlike the examples provided in the ACCA (burglary, arson, extortion, or crimes involving the use of explosives) and does not involve purposeful, violent, and aggressive conduct.

c) Chambers v. United States, 129 S. Ct. 678 (2009) – Illinois’ crime of failure to report for penal confinement falls outside the scope of ACCA’s “violent felony” definition, even though it falls under an escape statute. The courts must identify the category of escape and whether it is applicable to a violent felony.

d) Johnson v. United States, 130 S. Ct. 1265, 1270 (2010), holding that Florida’s felony battery statute, which requires the “actual and intentional touching” of another person, does not have the use of “physical force” as an element and thus does not constitute a “violent felony” for purposes of the ACCA.

The Florida battery statute had been interpreted by the Florida Supreme Court to include any intentional physical touching, “no matter how slight.” Id. at 1269-70. According to the United States Supreme Court, for purposes of the ACCA, the “physical force” element of “violent felony” requires “violent force.” Id. at 1271. Therefore, because a battery under Florida law, and in most states could be a slight touching, it would not necessarily qualify as a violent felony. Id. at 1272, 1274.

2. Circuit cases that have held the prior conviction was not a violent felony (not exhaustive)

a) Escape – United States v. Mills, 570 F.3d 508 (2d Cir. 2009) (noting escape defined by Connecticut law as including both affirmative escape from custody as well as failure to return to custody); Compare United States v. Pratt, 568 F.3d 11 (1st Cir. 2009)(escape from secure custody is a violent felony within the meaning of the ACCA).

b) Carrying concealed weapon – United States v. Canty, 570 F.3d 1251 (11th Cir. June 11, 2009) Carrying a concealed weapon is not a “violent felony,” such as may be used as predicate conviction to enhance defendant’s sentence under the Armed Career Criminal Act (ACCA)

c) Vehicular homicide felony is not a crime of violence. United States v. Herrick, 545 F.3d 53 (1st Cir. 2008).

d) Reckless endangerment does not fall within the definition of “crime of violence” because it does not involve purposeful conduct. United States v. Gray, 535 F.3d 128 (2d Cir. 2008); United States v. Baker, 559 F.3d 443 (6th Cir. 2009); United States v. Smith, 544 F.3d 781 (7th Cir. 2008)(criminal recklessness)

e) Nonforcible sexual activity is not sufficiently “similar, in kind as well as in degree of risk posed to the examples” of burglary, arson, extortion, and crimes involving explosives. United States v. Thornton, 554 F.3d 443 (2009)(carnal knowledge of a child between 13 and 15); See also United States v. Christensen, 559 F.3d 1092 (9th Cir. 2009)(statutory rape); United States v. Wynn, — F.3d –, 2009 WL 2768496, *1+ (6th Cir. Sep 02, 2009) (sexual battery); U.S. v. Bartee, 529 F.3d 357, 358+ (6th Cir. 2008) (attempted criminal sexual conduct); but see United States v. Daye, 571 F.3d 225 (2d Cir. 2009) (sexual assault of child under 15 involved serious potential risk of injury and likelihood of force)

f) Involuntary Manslaughter, crimes with the mens rea of recklessness do not fall within their scope. United States v. Woods, 576 F.3d 400 (7th Cir. 2009).

g) Fleeing a peace officer in a motor vehicle does not typically “involve conduct that presents a serious potential risk of physical injury to another.” United States v. Tyler, 2009 WL 2835171, (8th Cir. Sep 04, 2009).

h) Resisting a police officer is not crime of violence. United States v. Mosley, 576 F.3d 603 (6th Cir. 2009) amending and superseding U.S. v. Mosley, 567 F.3d 241 (6th Cir. 2009) use of force element is required). See also U.S. v Stinson, 574 F.3d 244 (3d Cir. 2009) Rehearing Granted, Judgment Vacated (Sep 24, 2009). Pennsylvania conviction for resisting arrest was a crime of violence. Here the statute classified the offense as a misdemeanor but carried more than one year in prison used terms that are considered violent, e.g. purposeful, violent and aggressive. See also United States v. Spells, 537 F.3d 743 (7th Cir. 2008), fleeing a police officer is a violent felony for ACCA. However, see United States v. Sykes, 598 F.3d 334 (11th Cir. 2010), fleeing a police officer is not a violent felony.

i) Virginia abduction offense is not a generic kidnapping and therefore not a crime of violence. SeeUnited States v. De Jesus-Ventura, 565 F.3d 870 (D.C. Cir. 2009).

j) Attempts to commit violent felonies are crimes of violence. See U.S. Saavedra-Velazquez, 578 F.3d 1103 (9th Cir. 2009) (attempted robbery) and U.S. v. Rivera-Ramos, 578 F.3d 1111 (9th Cir. 2009)(attempted burglary).

3. ACCA

a) United States v. O’Brien, Supreme Court, 08-1569, 2010 WL 2025204 (May 24, 2010) – The mandatory minimum sentence enhancement under 18 U.S.C. § 924(c)(1) to a 30-year minimum when the firearm is a machinegun is an element of the offense that must be charged and proved to a jury beyond a reasonable doubt, not a sentencing factor that may be found by a judge by the preponderance of the evidence.

b) Granted Petitions to Watch – Abbott v. United States 09-479: (1) Whether the term “any other provision of law” of 18 U.S.C. 924(c) includes the underlying drug trafficking offense or crime of violence; and (2) if not, whether it includes another offense for possessing the same firearm in the same transaction?

Gould v. United States 09-7073: Does a mandatory minimum sentence provided by 18 U.S.C. § 924(c)(I)(A) apply to a count when another count already carries a greater mandatory minimum sentence?

The issue in these cases revolves around whether the consecutive mandatory minimum sentence for a § 924(c) firearms offense applies where another mandatory minimum already applies from an underlying drug or violent offense. The exception clause seems to read “no,” and there is a circuit split on the issue. Petitioner briefs are in as well as a number to amicus briefs, respondent’s briefs are due July 15, 2010 and the case is on the October argument calendar.

4. Prior Convictions and Overt Acts

Drug convictions which became final during time span of charged drug conspiracy could be considered “prior convictions,” as required to enhance sentence for charged drug conspiracy, where defendant had committed overt act in furtherance of the conspiracy after those convictions became final; it was immaterial that prior offenses were considered by probation officer when computing criminal history points and detailing relevant conduct for purposes of compiling PSR. United States v. McCarther, 596 F.3d 438 (8th Cir. 2010).

5. Proof of Prior Convictions at Sentencing

United States v. Jimenez, 08-6435, 2010 WL 1993298 (6th Cir. May 20, 2010) – The Court may examine State Department of Justice Records to determine that prior conviction exists for purposes of calculating criminal history without violating Shepard’s requirement that only court documents may be examined to determine nature of prior conviction for ACCA purposes. Shepard v. United States, 544 U.S. 13, 26 (2005); see also United States v. Dean, 604 F.3d 169 (4th Cir. 2010) (Shepard does not apply to guidelines determinations).