Monday, July 30, 2012

Begay error correctable under 2255!!

Okay, okay - I know it is an unpublished case, but it is still big news, and helpful.  In Kirk v. United States, the Court remanded a case for resentencing where the defendant complained that he was not an Armed Career Criminal.  The defendant originally pled guilty in 2005, and was sentenced under the ACCA to 190 months.  After Begay came out, Kirk filed a 28 U.S.C. section 2255 petition, alleging that his counsel was ineffective for failing to raise a Begay type claim. 

On appeal, the Government conceded that under Begay and its progeny, one of Kirk's previous convictions did not qualify under the ACCA.  Although the Government did not admit that this constituted ineffective representation, the Government did submit that resentencing under the 0-10 (non ACCA) statutory range was appropriate.

Judges Sutton, Griffin and White agreed.  The Court found that "As a result of his erroneous classification as an armed career criminal, Kirk received a sentence of 190 months, well above the 120-month statutory maximum that would otherwise apply to his felon-in possession conviction. 18 U.S.C. § 924(a)(2). This sentence—one 'that the law cannot impose upon [Kirk]'—undoubtedly represents a miscarriage of justice, making relief under § 2255 appropriate."  The Court remanded for resentencing.

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