Thursday, October 28, 2010

ACCA Footnote that Sheds New Light on Juvenile Adjudications

An interesting, unpublished decision came out on October 18, 2010, dealing with prior juvenile adjudications and the ACCA. In United States v. Laferriere, No. 09--1369 (6th Cir. Oct. 18, 2010), the panel of Judges Kennedy, Rogers, and Kethledge addressed the Shepard inquiry as it relates to juvenile adjudications.

The defendant challenged the district court's determination that he qualified for the ACCA sentencing enhancement and 15-year mandatory minimum. One of the prior offenses used to invoke the enhancement was a juvenile adjudication for "assault with intent to rob---armed." The Court rejected the defense's two main arguments, but it decided, on its own, to remand the case for a third, and interesting, reason. (The defense argued 1) that the order of juvenile disposition was ambiguous as to the adjudication, and 2) that the judicial determination that the defendant had been adjudicated of the offense violated Apprendi.)

The Court concluded that "[w]hile Laferriere's primary arguments on appeal lack merit, he is nonetheless entitled to resentencing because of a particular requirement of the ACCA. Laferriere's conviction of armed assault with intent to rob cannot be counted as a sentence-enhancement predicate offense under the ACCA because the evidence fails to establish that the conviction was for a crime that actually involved the use or carrying of a firearm, knife, or destructive device, as required for an act of juvenile delinquncy."

Juvenile adjudications must involve a firearm/knife/destructive device to count as violent felonies for ACCA purposes. Shepard governs to prove whether or not the offense did involve such a weapon.

Under Michigan law, one could be convicted of armed assault with intent to rob by using a toy gun, a finger, an object hidden in a bag, other objects to simulate a weapon, a bike chain, etc. In this case, there was "no indication on the order of disposition that Laferriere conceded possessing an actual firearm." The charge involving possession of a firearm had not been sustained. Because of the age of the adjudication, the plea transcript was not available to review. The Court stated that "[w]ithout proof that a firearm . . . was involved, this conviction is meaningless for ACCA purposes."

The Court found it could remand because the error was plain and the Court could raise the issue in the interest of justice, even though the issue had not been raised on appeal.

The interesting note comes in footnote 3. The charging petition for the offense mentioned "a 'sawed-off shotgun,' [but] the language of the charge ('an article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, a sawed off shotgun') does not preclude the possibility of an article that merely looks like a shotgun." This note provides real food for thought about what the Shepard documents actually show!

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