This case came out about a month ago, but I think it's worth noting.
United States v. Johnson, No. 11-5769 (6th Cir. Feb. 20, 2013) (for publication). Panel of Judges Boggs, White, and Black (S.D. Ohio).
Denial of suppression motion affirmed (traffic stop).
Use of Kentucky stalking conviction as violent felony for ACCA purposes affirmed.
I'm a little pressed for time, so I won't go into the suppression issue. Nothing earth shattering.
Prior Conviction:
* Kentucky first-degree stalking (Chapter 508 of Kentucky Penal Code, Ky. Rev. Stat. 508.104).
* Stalking---new issue for Sixth Cir., but COA looks to other circuits for guidance here.
* This statute does not necessarily require threatened use of violent force, so doesn't count for ACCA under force provision.
* But counts under serious-potential-risk provision. Potential for confrontation that could result in bodily injury. COA compares stalking to extortion.
Showing posts with label ACCA. Show all posts
Showing posts with label ACCA. Show all posts
Career-Offender Discussion: Misdemeanors, Shepard Documents
Not
a big week for decisions in the 6th Cir.
But
here’s a little career-offender discussion. . . .
United States v. Apodaca, Nos. 11—4342 & 11—4378 (6th Cir. Jan. 23,
2013) (unpublished).
The
first defendant challenged the district court’s finding that he was a career
offender. He argued that his California
conviction for assault with a deadly weapon other than a firearm was not a
felony.
The
sole question on appeal for this defendant was whether the California
conviction for assault with a deadly weapon other than a firearm was a prior
felony conviction for career-offender purposes.
The
Court of Appeals concluded it was such a conviction.
The
California conviction fell under California Penal Code section 245(a)(1): “[a]ny
person who commits an assault upon the person of another with a deadly weapon
other than a firearm . . . shall be punished by imprisonment in the state
prison for two, three, or four years, or in a county jail for not exceeding one
year.”
When
a sentencing court sentences a defendant in accordance with the last option,
the offense is treated as a misdemeanor under California law. Such convictions are termed “wobbler” offenses
because sentencing judges have the option of making the offense a felony or a
misdemeanor, depending on the sentence imposed.
The
defendant argued that his conviction was only a misdemeanor because the court
chose to impose a sentence of 365 days in county jail, which made the
conviction a misdemeanor “for all purposes.”
But the Court of Appeals found otherwise.
Under
the Guidelines, a “prior felony conviction” is a prior adult conviction for an
offense punishable by a term greater than one year, regardless of
whether the offense is specifically designated as a
felony and regardless of the actual
sentence imposed. The Court of Appeals
looked to guideline section 4B1.2’s application note 1. So the designation of
the offense under California
law and the actual sentence imposed were irrelevant. The sole question was
whether the California offense was punishable by a term exceeding one year.
The
defendant tried arguing that the California statute effectively encompassed two
offenses: one that was punishable by a longer term in state prison and one punishable
by county jail for a term “not exceeding one year.” But the Court of Appeals found that the
statute encompassed a single offense: “assault with a deadly weapon . . . other
than a firearm.” And that single offense “shall be punished by imprisonment . .
. for two, three or four years or in a county jail for not exceeding one year.”
The statute provided for multiple punishment options—not multiple offense
options. The single offense was punishable by a term exceeding one year, so it
counts for career-offender purposes.
Even
if the Court were to look more closely at the intent of California law, the
prior offense would not be considered a misdemeanor. The Court found that the
defendant was not sentenced to a misdemeanor sentence; he was sentenced to 365
days in county jail, suspended, credit for 144 days, and five years of
probation. Under California law, when a court suspends a sentence and orders
probation, there is a conviction, but no judgment has been rendered. The
offense here would be regarded as a felony until judgment is
entered.
The
defendant did not argue that a judgment was actually rendered, so the prior
conviction would not be considered a misdemeanor even in California. The
district court did not err in finding that the defendant was a career offender.
For
the second defendant, the issue was one of Shepard
sources and the categorical approach. The government acknowledged that the
sources it produced regarding the prior drug offense were not Shepard sources, but it argued that it did not have to
provide Shepard
documents because the defendant did not
challenge the fact of the prior conviction and the statutory definition was adequate
to determine the nature of the offense.
This
prior conviction was for a violation of a statute that provided that “every
person who possesses for sale any marijuana, except as otherwise provided by
law, shall be punished” in a “county jail for 16 months, or two or three years,”
under the California Health and Safety Code sections 11359 and 1170(h).
There
was no other way to violate the statute. A conviction under that provision is a
controlled-substance offense under section 4B1.1, as it is an offense
“punishable by imprisonment for a term exceeding one year” that prohibits “the
possession of a controlled substance . . . with intent to manufacture, import,
export, distribute, or dispense.” Such a conviction for possession of marijuana
for sale fits this definition.
The
defendant did not challenge the fact of the offense or the specific convicting
statute. He argued only that the government did not prove its case. The
government presented a case summary from California, case “minutes” from
California, a criminal history report from Los Angeles County, and an
indictment to prove the nature of the prior conviction. These were the only
documents regarding the offense and they showed that the defendant was charged
with and pleaded nolo contendre to a violation of California HSC 11359. The Court of Appeals
concluded that the district court did not err in relying on these documents to
show the fact of the prior conviction.
As
to the last challenge that the district court did not understand its sentencing
discretion, the defendant waived his appellate rights.
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.
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.
Escape from a courtroom is not a "violent felony"
Is an escape from custody a violent offense? The courts continue to grapple with this issue, seemingly deciding on a case by case basis whether particular acts constitute aggravating enhancements for sentencing purposes. In the latest case, United States v. Oaks, 11a0312p.06 , the Court remanded for resentencing (for a second time) based upon an Armed Career Criminal Act enhancement. Oaks had a prior conviction for escape, based upon his escape from a courtroom. Oaks had been in custody, and, during a court appearance, ran from the courtroom. The Court held that this Tennessee state offense was not a violent felony for purposes of the ACCA.
Interestingly, the Court seized on suggestion, espoused by the Supreme Court in Chambers v. United States, 555 U.S. 122 (2009), that in analyzing whether an offense is a violent felony, the Court should make a statistical analysis of the offenses, to see how often the offense actually results in violence. The Court noted that historical data showed that where an escape is from "nonsecure custody", such as the courtroom in question, injury only occurs in 1.7% of cases. On this basis, the Court concluded that the prior offense was not a violent felony, and remanded for resentencing.
Interestingly, the Court seized on suggestion, espoused by the Supreme Court in Chambers v. United States, 555 U.S. 122 (2009), that in analyzing whether an offense is a violent felony, the Court should make a statistical analysis of the offenses, to see how often the offense actually results in violence. The Court noted that historical data showed that where an escape is from "nonsecure custody", such as the courtroom in question, injury only occurs in 1.7% of cases. On this basis, the Court concluded that the prior offense was not a violent felony, and remanded for resentencing.
Facilitation of Burglary NOT a Violent Felony
Just a quick note on a good opinion.
United States v. Vanhook, No. 09–5778, 2011 U.S. App. LEXIS 7884 (6th Cir. Apr. 18, 2011). The court considered Tennessee’s offense of facilitating a burglary. The court found that "there remains little question that the act of facilitating the burglary of a building creates a serious risk of violence." The offense may have presented such a risk, but the court found it is not a violent felony for Armed Career Criminal Act purposes because "This is one of the rare cases in which a statute criminalizing ‘knowing’ conduct does not describe conduct sufficiently purposeful to qualify as a violent felony." The court went on to find that its decision was "further buttressed by the fact that facilitation of burglary is not necessarily the type of violent or aggressive crime generally characterized as a violent felony."
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!
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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