Wednesday, November 21, 2018

Tennessee drug convictions were not “serious drug offenses” for purposes of the Armed Career Criminal Act (ACCA) 

           In United States v. Rockymore, the defendant, Dewayne Rockymore, pleaded guilty to being a felon in possession of a firearm and ammunition. Based on prior convictions for burglary and “three delivery-of-cocaine charges,” the government contended that Mr. Rockymore’s sentence should be enhanced under the ACCA, which requires that an offender have at least three prior convictions “for a violent felony or a serious drug offense, or both.” 18 U.S.C. § 924(e)(1). Mr. Rockymore conceded that his burglary conviction was a “violent felony” and one of his delivery-of-cocaine charges qualified as a “serious drug offense,” but he argued that the other two delivery-of-cocaine convictions did not meet the definition of a “serious drug offense.” The district court agreed and the government appealed. The Sixth Circuit affirmed the district court’s ruling.

          Since the ACCA defines a “serious drug offense” as any controlled substance conviction for which the “maximum term of imprisonment” is ten or more years, the Sixth Circuit looked to Tennessee law to determine the statutory maximum. That required consideration of two sentencing statutes which “work in concert.” The first is what the Sixth Circuit called “the felony-based statute” which classifies felonies and their authorized sentences. Delivery-of-cocaine is a Class C felony which is punishable by a minimum sentence of three years and a maximum sentence of fifteen years.

          The second statute is described as “the range based statute” which uses the offender’s criminal history to narrow the sentencing range. For example, an offender with no criminal record is classified as “Range 1” and if he or she were to commit a Class C felony the sentencing range would be three-to-six years imprisonment. The Sixth Circuit noted that unlike the federal sentencing guidelines, the “specific ranges are mandatory” under Tennessee law.   

          To decide whether the delivery-of-cocaine convictions were “serious drug offenses” under the ACCA, a federal court must consider the felony-based statute and the range-based statute to determine the “maximum term of imprisonment.” The district court did so and concluded that the two delivery-of-cocaine convictions were not ACCA predicates because Mr. Rockymore was a Range 1 offender convicted of two Class C felonies and was subject to a six-year maximum sentence for each.

          On appeal, the government cited Tennessee Supreme Court cases to support its argument that the district court should only have considered the felony-based statute which set out the “maximum term of imprisonment.” The Sixth Circuit found those cases inapposite because they either dealt with the limited power of state courts to review sentences in post-conviction or habeas corpus proceedings or they showed that a defendant could agree in a plea bargain to “a sentence beyond the maximum range.” There is, however, a caveat for a defendant who is in the latter situation.

          In footnote 1 of its opinion, the Sixth Circuit pointed out that Tennessee defendants can agree “to accept a higher sentence than that imposed by the range-based statute so long as it falls within the broader felony-based statute’s authorized sentences.” But, “a defendant like Rockymore is not subject to the broader penalty unless he agrees to a plea-bargained sentence (which waives any objection to his offender classification).” A defendant who agrees in a plea bargain to a higher sentence “would be subject to the ACCA’s enhancement under the broader felony-based statute. But for defendants like Rockymore, the range-based statute provides their maximum sentence.”

          The Sixth Circuit further noted that the government’s interpretation of Tennessee law would make its “statutory scheme ambiguous at best” and the rule of lenity requires that when there are “two equally-persuasive interpretations” of a criminal statute it must be construed in the defendant’s favor.

          The Sixth Circuit concluded that Mr. Rockymore’s delivery-of-cocaine- convictions were not “serious drug offenses” under the ACCA because the “maximum term of imprisonment” for each was six years. He therefore did not qualify for an ACCA sentence enhancement.