Voisine and Verwiebe Strike Again: Court Denies Rehearing but Notes Circuit Split

James Walker, a convicted felon, found employment managing a rooming house.  One day, he discovered thirteen bullets on the property and removed them for safekeeping.  This resulted in his subsequent indictment by a federal grand jury and his ultimate conviction in 2010 for being a felon in possession of ammunition.  During his sentencing, the District Court held he was subject to the fifteen-year mandatory minimum (180-month) sentence under the ACCA.

After the Supreme Court issued its opinion in Johnson v. United States in 2015, Mr. Walker sought habeas relief by arguing he was not an armed career criminal because several of his prior convictions no longer qualified as "violent" felonies.  The District Court agreed and resentenced him to 88 months imprisonment.  The Government appealed.

On appeal, Mr. Walker argued that his 1982 Texas robbery conviction did not constitute a "crime of violence" because it also included reckless conduct.  In an unpublished opinion, the Court, citing its decisions in Verwiebe and Davis, held that the conviction qualified as  a "violent" felony under the ACCA -- even though it included reckless conduct -- and remanded the case for resentencing.  Judge Stranch issued a concurring opinion criticizing the Court's decision in Verwiebe for improperly expanding upon the Supreme Court's decision in Voisine but holding that the Court was nevertheless bound to existing precedent.

In a recent order, the Court denied Mr. Walker's petition for rehearing en banc, and, unlike its original opinion, agreed to publish its decision. Judges Kethledge, Moore, Stranch, and White would have granted rehearing, however, and Judges Kethledge and Stranch entered separate dissenting opinions.  In their dissents, both judges acknowledged that, prior to Voisine, courts uniformly held that crimes including the reckless use of force did not qualify as violent felonies under the ACCA.  They also agreed that some circuits, including the Sixth Circuit, have incorrectly expanded Voisine's reach, resulting in a circuit split.  Judge Kethledge noted that Voisine construed a different provision -- a "misdemeanor crime of domestic violence" -- and that the Court has incorrectly applied the same construction to the definition of a "violent felony" under 18 U.S.C. § 924(e)(2)(B)(i).

Judge Stranch wrote separately to state that the Supreme Court in Voisine left open the possibility for "divergent" readings of the use of force requirement.  This, she explained, gave the Court an avenue to rehear Mr. Walker's case.

Sadly, Mr. Walker, who is now 65-years old, must return to prison to serve the remainder of his fifteen-year mandatory minimum sentence under the ACCA for possessing thirteen bullets.  His case reminds us that there are divergent opinions about the application of Voisine to the reckless use of force and that defense counsel should continue litigating such issues.

You can find the Court's order here.