Thursday, February 05, 2009

ACCA and Career-Offender Provisions—6th Cir. Gets Inconsistent


In U.S. v. Hawkins, No. 08–5138 (6th Cir. Feb. 4, 2009), Judges Kennedy, Cole, and Gilman issued a five-page opinion finding that possession of a sawed-off shotgun is a crime of violence under Guideline 4B1.2 and can be used to make a defendant a career offender for sentencing purposes. The court distinguishes U.S. v. Amos, 501 F.3d 524 (6th Cir. 2007), saying Amos was an ACCA case. The court finds that the guidelines and application notes define crime of violence to include possession of a sawed-off shotgun. It finds the Commission’s statement on the issue authoritative.

Problems:

1) Court assumes in a footnote that Congress approves guideline commentary because the Commission is supposed to endeavor to include amendments to policy statements and commentary when it submits amendments to guidelines to Congress.

2) No mention of Begay or U.S. v. Bartee, 529 F.3d 357, 363 (6th Cir. 2008), a case that made it pretty clear that ACCA and CO provisions are "interpreted in a consistent manner." At least, the court should have addressed Begay/Bartee.

3) Court goes into a discussion of guideline commentary and looks at Stinson, concluding that the commentary is authoritative unless it violates the Constitution or a federal statute or is a plainly erroneous reading of the guideline. Seems to give too much weight to guidelines and especially the commentary given the recent case law. And even under such a reading, the commentary at issue contravenes federal statutes setting up the career-offender enhancement and defining crime of violence. These statutes clearly mean to include less conduct than that covered by the commentary. See, e.g., 28 U.S.C. 994(h) and 18 U.S.C. 16. Also check out fd.org’s sentencing resources on deconstructing the career-offender guideline.

There are problems with this opinion and counsel should be ready to fight tenaciously the crime-of-violence/violent-felony battles to cabin this reasoning.

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