ACCA Cases (chronological) Updated 6/15/11. Supreme Court

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1 ACCA Cases (chronological) Updated 6/15/11 Supreme Court ACCA is triggered by penalty for prior offense at time of sentencing. Defendant had a prior conviction for drug-trafficking under North Carolina law. At the time he committed that offense, the maximum sentence was 10 years. However, by the time defendant was convicted of violating 922(g), North Carolina had reduced the maximum to 30 months. Supreme Court unanimously holds that the determination of whether a defendant's prior state drug conviction is a "serious drug offense" under the Armed Career Criminal Act should be based on "the maximum sentence applicable to his offense when he was convicted of it." McNeil v. U.S., S.Ct., 2011 WL , 79 USLW 4419, June 06, 2011 (NO ). Using a motor vehicle while knowingly or intentionally fleeing from a law enforcement officer after being ordered to stop constitutes a "violent felony" for purposes of the Armed Career Criminal Act. Sykes v. United States, S.Ct., 2011 WL , June 09, 2011 (NO ). Supreme Court defines violent felony to mean offense involving violent force. The Supreme Court, in an opinion by Justice Scalia, held that the Florida felony offense of battery by actually and intentionally touch[ing] another person, in violation of Fla. Stat (1)(a), is not a violent felony. The Court explained that the ACCA s use of the term physical force in its definition of violent felony means violent force or force capable of causing physical or pain or injury to another person. Justice Alito wrote a dissent, which Justice Thomas joined. Johnson v. U.S., 130 S.Ct (Mar. 2, 2010). Failure to report to prison is not a violent felony. Under the Armed Career Criminal Act, 18 U.S.C. 924(e), a defendant convicted of being a felon in possession of a firearm who has three prior convictions for a "violent felony or a serious drug offense" is subject to a mandatory minimum 15-year sentence. A "violent felony" is defined in part as an offense that "involves conduct that presents a serious potential risk of physical injury to another." The Supreme Court, in an opinion by Justice Breyer, held that the Illinois felony of failing to report to a penal institution to serve a sentence is not a "violent felony" within the meaning of the ACCA. Justice Alito wrote an opinion concurring in the judgment in which he urged Congress to amend the ACCA to include a specific list of expressly defined crimes that support the ACCA's sentencing enhancement. Chambers v. U.S., 555 U.S., 129 S.Ct. 687 (2009). The maximum term under ACCA is maximum set by recidivist provision. Under the Armed Career Criminal Act, 18 U.S.C. 924(e), a defendant convicted of possession of a firearm by a convicted felon is subject to a mandatory 15-year sentence if he has three prior convictions for a violent felony or a serious drug offense. A serious drug offense is defined in part to mean an offense for which a maximum term of imprisonment of ten years is prescribed by law. Defendant had three prior drug convictions in Washington. Under Washington law, a first drug offense was 1

2 subject to a five-year maximum sentence, but second and subsequent convictions for drug offenses carried a 10-year maximum. The Ninth Circuit held that the maximum term of imprisonment must be determined without taking the recidivist enhancements into account. The Supreme Court, in an opinion by Justice Alito joined by five other justices, held that the maximum term of imprisonment for defendant's state drug convictions was the 10-year maximum set by the state recidivist provision. U.S. v. Rodriguez, U.S., 128 S. Ct. (May 19, 2008). Felony DUI is not a violent felony. The Armed Career Criminal Act, 18 U.S.C. 924(e), provides that a defendant convicted of possession of a firearm by a convicted felon is subject to a mandatory 15-year sentence if he has three prior convictions for a violent felony. That term is defined to mean an offense that is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. Defendant had 12 prior New Mexico convictions for driving under the influence of alcohol. Under New Mexico law, the fourth such conviction is a felony punishable by more than one year in prison. The Supreme Court held that New Mexico's felony DUI law does not define a violent felony under the ACCA. In an opinion by Justice Breyer, the Court reasoned that even if felony DUI involves conduct that presents a serious risk of physical injury to others, it is too unlike the other crimes listed in the definition to qualify as a violent felony. Begay v. U.S., 553 U.S., 128 S. Ct. (April 16, 2008). ACCA exemption does not apply to offender who never lost civil rights. The Armed Career Criminal Act, 18 U.S.C. 924(e), provides that a defendant convicted of possession of a firearm by a convicted felon is subject to a 15-year mandatory minimum sentence if he has three prior convictions for "violent felonies." A state-law misdemeanor may qualify as a "violent felony" if it carries a maxi-mum sentence of more than two years. A prior conviction that otherwise constitutes a violent felony does not qualify if the defendant "has had [his] civil rights restored" for the conviction. The Supreme Court unanimously held that the ACCA's exemption for convictions for which the offender's civil rights have been restored does not apply to defendants who did not lose their civil rights upon conviction. Accordingly, defendant's mis-demeanor conviction counted as a violent felony. Logan v. U.S., 552 U.S., 128 S.Ct. 475 (2007). Attempt offense may be "violent felony" under ACCA. Under the Armed Career Criminal Act, 18 U.S.C. 924(e), a defendant who has three prior convictions for a "violent felony" or a "serious drug offense" is subject to a 15-year mandatory mini-mum sentence. The term "violent felony" is defined in part to include a felony that "involves conduct that presents a serious potential risk of physical injury to another." Defendant argued that an attempt offense never presents a serious potential risk of physical injury to another and there-fore can never qualify as an attempt offense. The Supreme Court held, however, that Congress did not intend to limit the ACCA to completed offenses and that an attempt offense could satisfy the definition of "violent felony." James v. U.S., U.S., 127 S.Ct (2007). Supreme Court clarifies categorical approach and holds attempted burglary is a "violent felony" under ACCA. The Armed Career Criminal Act, 18 U.S.C. 924(e), defines the term "violent felony" to include a crime punish-able by more than a year that is "burglary" or "otherwise 2

3 involves conduct that presents a serious potential risk of physical injury to another." Under Florida law, attempted burglary requires proof of an "overt act directed toward entering or remaining in a structure or conveyance." The Supreme Court held that attempted burglary under Florida law categorically qualifies as a "violent felony" because it poses a serious potential risk of physical injury to another. The Court held that the commission of an offense need not pose the requisite risk of physical injury in every case. Instead, the proper inquiry under the categorical approach is whether the conduct encompassed by the elements of the offense ordinarily presents a serious potential risk to another. James v. U.S., U.S., 127 S.Ct (2007). Supreme Court limits evidence used to determine if prior conviction is generic felony. The Armed Career Criminal Act, 18 U.S.C. 924(e), mandates a 15-year minimum mandatory sentence for defendants convicted of possessing a firearm who have three prior convictions for serious felonies, including burglary. In Taylor v. U.S., 495 U.S. 575 (1990), the Court held that only generic burglaries qualified as predicate felonies under the ACCA and that in determining whether a defendant s prior conviction was a generic burglary, a court could look to statutory elements, charging documents, and jury instructions. In a 5-3 decision, the Supreme Court held that a sentencing court may not look to police reports or complaint applications to determine whether a defendant s earlier guilty plea showed that defendant committed a generic burglary. Instead, a court is limited to the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge. Shepard v. U.S., 544 U.S. 13, 125 S.Ct (2005). Supreme Court bars using 2255 to claim sentence is based on allegedly invalid priors. Affirming the Ninth Circuit s decision in U.S. v. Daniels, 195 F.3d 501 (9th Cir. 1999), the Supreme Court, in a 5-4 opinion written by Justice O Connor, held that except for convictions obtained in violation of the right to counsel a motion under 28 U.S.C cannot be used to challenge a federal sentence on the ground that it was enhanced by an allegedly unconstitutional prior conviction. The majority thus extended the rule of Custis v. U.S., 511 U.S. 485, (1994), which held that a defendant could not collaterally attack prior state convictions during his federal sentencing proceeding. The majority reasoned that a contrary rule would permit an end run around procedural barriers that would preclude the defendant from attacking the prior conviction directly. Justice Scalia concurred, except for a portion of the opinion recognizing that 2255 may be available in rare circumstances. Justice Souter dissented, joined by Justices Stevens, Ginsburg and Breyer. Daniels v. U.S., 121 S.Ct (2001). Supreme Court says felon s right to possess rifles is not restored if handguns are forbidden. Under 18 U.S.C. 922(g)(1), a convicted felon may not possess a firearm. Until 1986, federal law alone determined whether a state conviction counted as a prior felony, regardless of whether the state had expunged the conviction. Dickerson v. New Banner Institute, Inc.,460 U.S. 103, (1983). In 1986, Congress modified this aspect of Dickerson by amending 18 U.S.C. 921(a)(20) to provide that state law governed in determining whether a state conviction counted, adding that convictions for which the defendant s civil rights had been restored did not count unless such... restoration of civil rights expressly provides that the person may not... possess firearms. In the present case, 3

4 Massachusetts law allowed petitioner to possess rifles and shotguns because he had the necessary firearm permit and his felony convictions were more than five years old. However, Massachusetts law forbade him to possess handguns outside his home or business. Nevertheless, he was convicted under 922(g)(1) based on his possession of rifles and shotguns. The Supreme Court affirmed his convictions in a 6-3 opinion written by Justice Kennedy. The court held that any state weapons limitation on an offender activates the uniform federal ban on possessing any firearms at all. This is so even if the guns the offender possessed were ones the State permitted him to have. The court recognized that any reading of the statute creates incongruities, but that [p]ermission to possess one gun cannot mean permission to possess all. Justices Thomas, Scalia and Souter dissented. Caron v. U.S., 524 U.S. 308, 118 S.Ct (1998). Supreme Court limits collateral attack on state convictions used to enhance sentence. Defendant was convicted of possession of a firearm by a felon under 18 U.S.C. 922(g)(1). At sentencing, the judge sentenced him under the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e)(1), because he had three prior state felony convictions. Defendant claimed his prior state convictions were invalid due to ineffective assistance of counsel. The district court refused to entertain this collateral attack, noting that [u]nlike the statutory scheme for enhancement of sentences in drug cases [ 924(e)(1)] provides no statutory right to challenge prior convictions. In a 6-3 opinion written by Chief Justice Rehnquist, the Supreme Court affirmed, holding that with the sole exception of convictions obtained in violation of the right to counsel, a defendant has no right to collaterally attack prior state convictions that are used to enhance his sentence under the Armed Career Criminal Act. The statute focuses on the fact of the conviction and nothing suggests that the prior final conviction may be subject to collateral attack for potential Constitutional errors before it may be counted. Justices Souter, Blackmun and Stevens dissented. Custis v. U.S., 511 U.S. 485, 114 S.Ct (1994). First Circuit ACCA Cases 1st Circuit holds that assault and battery on police officer qualified as violent felony under ACCA. Defendant was sentenced under the Armed Career Criminal Act based in part on the district court's finding that his prior conviction for assault and battery on a police officer (ABPO) qualified as a violent felony. Defendant argued that the offense could be committed recklessly, and thus did not qualify as a violent felony. The First Circuit disagreed. Here, the ABPO crime had additional elements that the simple assault crime did not, including that the person assaulted must be a police officer engaged in his official duties, and the defendant must know the victim of the assault is a police officer. These additional elements differentiated the mental state required for ABPO from simple assault, and ensured that the conduct criminalized was "purposeful." Moreover, the ABPO crime "nearly always poses a serious risk of actual or potential physical force and the likelihood of physical injury." Law enforcement officers usually carry a weapon, and the assault is likely to provoke a response of decisive force designed to quickly end the matter. This great risk of physical injury is present even if the assault is recklessly done. U.S. v. Dancy, F.3d (1st Cir. Apr. 13, 2011) No

5 1st Circuit says boilerplate charge did not show that Massachusetts simple assault and battery was violent felony. Massachusetts's simple assault and battery statute covers multiple offenses, at least one of which, "harmful battery," qualifies as a violent felony under the Armed Career Criminal Act. Previous First Circuit cases have held that charging language in a state court indictment alleging that defendant "did assault and beat" his victim was sufficient to identify the offense as a harmful battery offense. See U.S. v. Mangos, 134 F.3d 460 (1st Cir. 1998). Based on the recent Supreme Court case of Johnson v. U.S., 130 S.Ct (2010), the First Circuit revisited this issue and held that Mangos's rule that boilerplate charging language alone establishes a violent felony was no longer good law. Further analysis is required, normally including (a) reviewing the documents permitted by Shepard v. U.S., 544 U.S. 13 (2005), and (b) considering whether the conduct described in those documents falls within the force clause or the residual clause of the ACCA. U.S. v. Holloway, F.3d (1st Cir. Jan. 21, 2011) No st Circuit holds that burglary of curtilage of a structure was violent felony. The district court sentenced defendant as an armed career criminal based in part on its finding that his two prior Florida convictions for burglary in the third degree were violent felonies. The First Circuit agreed. It was true that the statute under which defendant was convicted covered more than generic burglary, since the Florida statute includes "curtilage" as part of the definition of "structure." Thus, defendant's convictions were not "generic burglaries" under the ACCA. However, the ACCA also contains an "otherwise" clause, which defines a violent felony as a crime that "otherwise involves conduct that presents a serious potential risk of physical injury to another." Both the Supreme Court and the Eleventh Circuit have held that burglary of the curtilage of a structure under Florida law presents a serious potential risk of physical injury to another for purposes of the "otherwise" clause of the ACCA. See U.S. v. Matthews, 466 F.3d 1271 (11th Cir. 2006) and James v. U.S., 550 F.3d 192 (2007). The district court properly found that defendant's two convictions for third degree burglary under Fla. Stat (a) constituted "violent felonies under the otherwise clause. U.S. v. Pakala, 568 F.3d 47 (1st Cir. 2009). 1st Circuit holds that escape from secure custody was violent felony. Defendant was sentenced as an armed career criminal based in part on the district court's finding that his escape conviction was a violent felony. However, in Chambers vs. U.S., 129 S.Ct. 687 (2009), the Supreme Court ruled that failures to report and escapes from custody, although sometimes grouped together within a single criminal statute, do not belong to the same category of crimes for purposes of the "violent felony" provision of the Armed Career Criminal Act. This eroded First Circuit cases holding that all escape crimes should be treated the same in making the violent felony or crime of violence determination. The court must now identify the category of escape crime applicable to defendant's conviction, and determine whether crimes in that category should be considered ACCA predicate violent felonies. Defendant's indictment revealed that his was not a failure to report crime but an escape from secure custody, by crawling under a fence at a county jail. The First Circuit held that this was a violent felony within the meaning of the ACCA. U.S. v. Pratt, 568 F.3d 11 (1st Cir. 2009). 1st Circuit says charge that defendant "did assault and beat" victim established violent felony. Under Massachusetts law, assault and battery may be of two separate types, "offensive" and 5

6 "harmful." The latter type qualifies as a violent felony under the ACCA. See U.S. v. Holloway, 499 F.3d 114 (1st Cir. 2007). Based on three prior Massachusetts assault and battery convictions, the sentencing court classified defendant as an armed career criminal. The district court relied on charging language that defendant "did assault and beat" the victim to find that each assault and battery conviction was for the "harmful," violent type of assault and battery. The First Circuit affirmed. In four previous cases, the appellate court determined that the "did assault and beat" charging language sufficed to identify the "harmful" brand of assault and battery. Although defendant presented affidavits from both a current and retired clerk in the Massachusetts state court that the "did assault and beat" charging language is used in all assault and battery cases regardless of which type was being charged, the First Circuit found that it was bound by existing precedent. U.S. v. Rivera, 562 F.3d 1 (1st Cir. 2009)(note new Holloway rehearing opinion 2011). 1st Circuit says assault and battery with a dangerous weapon was crime of violence. Defendant received an enhanced offense level under 2K2.1(a)(2) based on the court's finding that his prior conviction for assault and battery with a dangerous weapon (ABDW) was a crime of violence. The First Circuit affirmed. The offense "involved conduct that presents a serious potential risk of physical injury to another," under the residential clause of 4B1.2(a)(2). The crime also met the additional requirements set forth in the Supreme Court's recent decision of Begay v. U.S., 128 S.Ct (2008). Begay says that to qualify as a violent felony under the residual clause, the offense must (1) pose a degree of risk that is similar to the degree of risk posed by the enumerated offenses of arson, burglary, extortion and offenses involving the use of explosives, and (2) be similar "in kind" to those offenses, i.e., involve purposeful, violent, and aggressive conduct. Because a defendant must use a dangerous weapon to be convicted of ABDW, the offense poses a risk of injury comparable to the enumerated offenses. ABDW also is a purposeful offense that involves aggressive and violent conduct. U.S. v. Glover, 558 F.3d 71 (1st Cir. 2009). 1st Circuit finds conviction for resisting arrest was "prior felony conviction" under career offender guideline. Defendant was sentenced as a career offender based in part on his prior conviction for resisting arrest, in violation of Massachusetts law. The First Circuit held that the district court properly determined that resisting arrest conviction was a "prior felony conviction" because under Massachusetts law, resisting arrest, a misdemeanor offense, carries a punishment of up to two and one-half years in jail. The fact that 4A1.2(c) cites "resisting arrest" as an example of a misdemeanor or petty offense did not change this analysis. Any ambiguity is resolved by 4A1.2(o), which states that for 4A1.2(c), a "felony offense" means any federal, state, or local offense punishable by death or a term of imprisonment exceeding one year, regardless of the actual sentence imposed." In order for a resisting arrest offense to qualify as a misdemeanor offense for purposes of 4A1.2(c), it would have to be punishable by imprisonment for a term under one year. U.S. v. Almenas, 553 F.3d 27 (1st Cir. 2009). 1st Circuit rules that resisting arrest was crime of violence. Defendant was sentenced as a career offender based in part on his previous conviction for resisting arrest. The First Circuit upheld the district court's finding that resisting arrest qualified as a crime of violence for career offender purposes. One section of the state statute defines the offense as "using or threatening to use physical 6

7 force or violence against the police officer or another." Mass. Gen Laws, ch. 268, 32B(1). This method of resisting arrest fits squarely within the definition of a crime of violence. The second method of resisting arrest involves "using any other means which creates a substantial risk of causing bodily injury to such police officer of another." Mass. Gen Laws, ch. 268, 32B(2). Even after Begay, this second method of resisting arrest qualifies as a crime of violence under the so-called residual cause because it (a) poses a degree of risk roughly similar to the risk posed by the enumerated offenses, and (b) involves purposeful, violent and aggressive conduct. Stiffening one's arm to avoid being handcuffed cannot be characterized as "non-violent," or "non-aggressive." U.S. v. Almenas, 553 F.3d 27 (1st Cir. 2009). 1st Circuit, en banc, requires categorical approach under residual clause to decide if non-residential burglary is crime of violence. In U.S. v. Sawyer, 144 F.3d 191 (1st Cir. 1998), and U.S. v. Fiore, 983 F.2d 1 (1st Cir. 1992), the First Circuit held that a prior conviction for a burglary which is not of a dwelling is per se a "crime of violence'" under the Guidelines. Here, the First Circuit en banc reversed course and rejected the per se rule, holding instead that whether a prior conviction for non-residential burglary is a crime of violence turns on the application of a categorical approach under 4B1.2(a)(2)'s residual clause. In determining whether a prior offense is a violent felony under the ACCA, the Supreme Court has consistently adhered to a categorical approach. The en banc court believed that the Sentencing Commission intended this categorical approach be used in interpreting the career offender guideline, by using identical language to the ACCA in the residual clause and through its commentary. Moreover, other circuits uniformly apply a categorical approach when considering whether non-burglary crimes are included under 4B1.2(a)(2)'s residual clause. U.S. v. Giggey, 551 F.3d 27 (1st Cir. 2008) (en banc). 1st Circuit holds transporting minor for prostitution is categorically crime of violence. Defendant was convicted of interstate transport of a minor for prostitution purposes, and sentenced as a career offender. The First Circuit affirmed, holding that the offense was categorically a crime of violence for career offender purposes. The fact that defendant himself was not involved in sexual contact with the minor did nothing to diminish the risk that force might be used. A prostituted child who is exploited in violation of 2423(a) faces more and greater risks than does a seduced child. The Supreme Court's recent decision in Begay v. U.S., 128 S.Ct (April 16, 2008), did not change this conclusion. Begay, which charted a new course in interpreting the violent felony definition under the ACCA, had to be considered because this circuit reads the ACCA and the almost identical language in the career offender guideline the same. Begay, which held that DUI is not a violent felony, directs a court to focus not only on the degree of risk of harm posed by a particular crime, but whether the crime involves purposeful, violent, and aggressive conduct. The panel acknowledged that the offense here was different from other crimes of violence in that the defendant himself was not necessarily the agent of violence. However, since the risk of harm is so substantial and so easily foreseen by the defendant, there was no basis for distinction. U.S. v. Williams, F.3d (1st Cir. May 7, 2008) No st Circuit holds homicide by negligent operation of motor vehicle is not crime of violence. The district court applied an enhanced offense level based on its finding that defendant's prior Wisconsin 7

8 conviction for motor vehicle homicide was a crime of violence under 4B1.2(a). The First Circuit found that under the Supreme Court's recent decision in Begay v. U.S., 553 U.S. (2008), the offense did not qualify as a crime of violence. Under Begay, the crime at issue must be "roughly similar" in kind, as well as in degree of risk posed, to the crimes listed in the "otherwise" clause (burglary, arson, extortion or crimes involving use of explosives). Begay found that DUI was not a violent felony because it was too unlike the listed examples, even though it was roughly similar in degree of risk. Here, although vehicular homicide met the necessary degree of risk to be a crime of violence, it was not similar in kind to the enumerated offenses. Although it was violent, it was not necessarily aggressive or purposeful. Vehicular homicide involving criminal negligence does not involve the requisite purposeful, intentional or deliberate conduct to be a crime of violence. U.S. v. Herrick, 545 F.3d 53 (1st Cir. 2008). 1st Circuit holds attempted possession of controlled substance was "felony drug offense." A jury convicted defendant of drug charges. The district court found that he was subject to a mandatory minimum life sentence based in part on its finding that "attempt" offenses are felony drug offenses under 21 U.S.C. 841 (b)(1). The First Circuit agreed that attempt-ed possession of controlled substances is a "felony drug offense" under the sentencing enhancement provisions of 21 U.S.C. 841(b)(1). A "felony drug offense" is "an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts con-duct related to narcotic drugs." The classification that Congress built into the Controlled Substances Act sweeps broadly. To "relate" means to show or establish a logical or casual connection. An attempt to possess a controlled substance is, by definition, connected logically and causally to narcotic drugs. Case law supports this interpretation. Courts interpreting the Armed Career Criminal Act, 18 U.S.C. 924(e), have held that attempted possession with intent to distribute qualifies as a "serious drug offense," not withstanding its inchoate character. In addition, the Sentencing Commission includes inchoate offenses in its definition of a "controlled substance offense." U.S. v. Brown, 500 F.3d 48 (1st Cir. 2007). 1st Circuit holds that charging document supported violent felony finding. Defendant pled guilty to being a felon in possession of ammunition. Defendant had three prior Massachusetts convictions for assault and battery. The government argued that the offenses were violent felonies, and defendant should be sentenced under the Armed Career Criminal Act, 18 U.S.C. 924(e), because each conviction was based on a charging document that alleged defendant did "assault and beat" the victim. Defendant claimed that this language was boilerplate that said nothing about the nature of the underlying crime (the Massachusetts statute included both harmful and non-harmful conduct). The district court accepted this position and refused to sentence defendant under the ACCA. The First Circuit reversed, finding defendant's position foreclosed by precedent holding that a Massachusetts charging document that states the defendant "assault[ed] and beat" the victim is sufficient to establish that the conviction was for a violent battery and therefore a "crime of violence" under the guidelines. See, e.g., U.S. v. Estevez, 419 F.3d 77 (1st Cir. 2005). The definitions of "violent felony" in the ACCA and "crime of violence" in U.S.S.G. 4B1.1 are essentially the same, and therefore the court may look to cases dealing with either of them. U.S. v. Holloway, 499 F.3d 114 (1st Cir. 2007)(vacated on re-hearing 2011). 8

9 1st Circuit holds that Massachusetts assault was a crime of violence. The district court applied a 16-level enhancement under 2L1.2(B) (1) based on its finding that his assault conviction, under Mass. Gen Laws ch. 265, 15A, was a crime of violence. The statute contained two subsections. Subsection (b) sets out punishment for anyone who "commits assault and battery upon another by means of a dangerous weapon." Thus, the statutory definition "admits to no interpretation other than a crime that involves the use of physical force against another person." The First Circuit ruled that the district court did not err in relying on the state statutory definition of the crime rather than the face of the complaint to make the crime of violence finding. Although the criminal complaint technically charged defendant with assault and battery with a dangerous weapon against the Common-wealth of Massachusetts, the sentencing court rejected the argument that the complaint did not properly charge defendant with a crime under 15A(b). Since there is no indication that 2L1.2 contemplates collateral attack, the panel would not question the state court's conclusion that defendant was properly convicted under 15A(b). U.S. v. Earle, 488 F.3d 537 (1st Cir. 2007). 1st Circuit holds that indecent assault and battery is violent felony under the ACCA. The district court found that defendant s Massachusetts indecent assault and battery conviction was a violent felony under the ACCA because it was for a crime that presents a serious potential risk of physical injury to another. The First Circuit agreed. The district court found that all violations of the Massachusetts statute were violent felonies, relying on a Second Circuit case holding that a conviction under the particular statute was a crime of violence. Sullivan v. Reno, 228 F.3d 171 (2d Cir. 2000). Although Sullivan involved the definition of a crime of violence in 18 U.S.C. 16, rather than a violent felony under the ACCA, the ACCA s definition of violent felony has been deemed substantively identical to the definition of crime of violence under the guidelines. U.S. v. Leahy, 473 F.3d 401 (1st Cir. 2007). 1st Circuit holds that breaking and entering into steel storage shed was burglary conviction under ACCA. Defendant was sentenced as an armed career criminal under 18 U.S.C. 924(e) based on the district court finding that his prior conviction for breaking and entering a steel storage shed constituted a violent felony. The First Circuit agreed with the finding, and affirmed the ACCA sentencing enhancement. The plea colloquy clearly showed that defendant was convicted under the clause of the statute involving the burglary of other buildings. The types of buildings to which the Rhode Island statute referred, such as bars, stables and sheds, clearly fit within the definition of generic burglary under Taylor v. U.S., 495 U.S. 575 (1990). Defendant was convicted of entering into a steel storage shed, and therefore, the structure was large enough to be entered by a person. This case did not involve any issue about structure not large enough to permit human entry. U.S. v. Bennett, 469 F.3d 46 (1st Cir. 2006). 1st Circuit holds that Maine convictions for unlawful sexual contact were violent felonies under ACCA. Defendant argued that the district court erred in classifying his two 1993 convictions for unlawful sexual contact as violent felonies under the ACCA. 18 U.S.C. 924(c)(1). He argued that because the Maine statute criminalized mere touching, among other things, the offense did not pose a serious potential risk of physical injury. The First Circuit disagreed, rejecting the argument that a sexual offense involving mere touching did not present such a risk. See U.S. v. Sherwood, 156 9

10 F.3d 219 (1st Cir. 1998). The fact that the Maine statute required at least a three-year spread in age between the perpetrator and the victim heightens the dangers inherent in the conduct and thus, reinforced the conclusion that a violation of the Maine statute entails a serious potential risk of physical injury to another. U.S. v. Richards, 456 F.3d 260 (1st Cir. 2006). 1st Circuit holds that conspiracy to possess cocaine with intent to deliver was serious drug offense under ACCA. Defendant pled guilty to being a felon in possession of a firearm, and was sentenced under the Armed Career Criminal Act, 18 U.S.C. 924(e). He argued that his Rhode Island conviction for conspiracy to violate a state drug law by agreeing to possess cocaine with intent to deliver was not an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance and thus was not a serious drug offense under the ACCA. His argument was based on the fact that under the applicable Rhode Island law, a defendant may be guilty without having committed an overt act. The First Circuit rejected defendant s argument. By using the term involving, Congress captured more offenses than just those that are in fact the manufacture, distribution, or possession with intent to distribute a controlled substance. The word involving has expansive connotations, and includes offenses that are related to or connected with the manufacture, distribution, or possession with intent to distribute a controlled substance. U.S. v. McKenney, 450 F.3d 39 (1st Cir. 2006). 1st Circuit upholds court s refusal to impose below-guideline range sentence. The district court found that defendant was subject to a mandatory minimum sentence of 180 months because he was a career offender under U.S.S.G. 4B1.1(a) and an armed career criminal under 18 U.S.C. 924(e)(1). He also had a guideline range of 188 to 235 months imprisonment. The court considered the possibility of imposing a below-guideline sentence because defendant s parents were drug addicts who had served time in prison during his youth. The court found that these tragic circumstances did not absolve defendant of blame for his crime, and ultimately imposed a 188-month sentence, at the bottom of the advisory guideline range and eight months longer than the minimum sentence mandated by 924(e)(1) and U.S.S.G. 4B1.1(a). The First Circuit affirmed. First, the district court did not improperly treat the guideline as mandatory. The court considered both parties arguments, and concluded that neither side offered a persuasive reason for imposing a non-guideline sentence, and that a sentence at the low end of the guideline range was warranted. The court did not require an extra-ordinary showing to warrant a below-guideline sentence. Rather, the court found there were no clearly persuasive reasons for such a sentence. The sentence was reasonable. The court permissibly considered defendant s childhood in its sentencing calculus, but found that a tragic childhood does not absolve the defendant of blame and that, under the circumstances, defendant s childhood was not a ground for a below guideline sentence. U.S. v. Rivera, 448 F.3d 82 (1st Cir. 2006). 1st Circuit upholds finding that breaking and entering and stalking were separate offenses under ACCA. Defendant challenged his classification as an Armed Career Criminal, contending that his prior convictions for stalking and for breaking and entering derived from conduct committed on the same occasion., and thus should count as only one predicate conviction. Under state law, stalking requires a pattern of conduct or series of acts. However, the record did not indicate that the 10

11 breaking and entering was one of the incidents composing the stalking charge. Defendant offered evidence only that the two crimes took place on consecutive days and had the same victim. Neither of those facts prevented a finding that the crimes occurred on separate occasions. The First Circuit ruled that the district court did not err in concluding that the breaking and entering offense and the stalking offense occurred on two separate occasions and that each could be counted as a separate ACCA predicate conviction. U.S. v. Mastera, 435 F.3d 56 (1st Cir. 2006). 1st Circuit holds that Massachusetts man-slaughter was predicate violent felony under ACCA. Defendant was sentenced under the Armed Career Criminal Act, 18 U.S.C. 924(e), based in part on the court s finding that his prior Massachusetts manslaughter conviction was a violent felony. Defendant argued that the Massachusetts statute did not distinguish between voluntary and involuntary manslaughter, and included offenses that should not be considered violent felonies. The First Circuit held that manslaughter, under Massachusetts law, is a violent felony within the meaning of the ACCA as a matter of law. Under the ACCA, a prior conviction is for a violent felony if the prior offense was punishable by imprisonment for a term exceeding one year [and] involves conduct that presents a serious potential risk of physical injury to another. Under Massachusetts common law, both involuntary and voluntary manslaughter appear to involve conduct that presents a serious, potential risk of physical injury to another. Involuntary manslaughter is an unintentional killing, resulting from wanton and reckless conduct or a battery not amounting to a felony which the defendant knew or should have known endangered human life. U.S. v. Walter, 434 F.3d 30 (1st Cir. 2006). 1st Circuit says burglaries committed on consecutive days against same victim were discrete ACCA occurrences. The Armed Career Criminal Act, 18 U.S.C. 924(e)(1), provides for enhanced sentences for certain defendants with three prior violent felony convictions committed on occasions different from one another. Defendant argued that the two burglaries he committed at the same warehouse on consecutive days in 1979 were not actually committed on occasions different from one another, because they were merely steps in the commission of single scheme to defraud his employer s insurer, and the victim of both crimes was the same, i.e., his former employer s insurer. The First Circuit disagreed. During the first burglary, defendant escaped detection, waited overnight, and then returned to the warehouse to commit the second burglary. The overnight respite precluded any reasonable inference that [defendant] committed the two burglaries as part of a continuous course of conduct, inasmuch as during the time lapse [defendant] had the opportunity affirmatively to decide whether to initiate another criminal episode. U.S. v. Stearns, 387 F.3d 104 (1st Cir. 2004). 1st Circuit says Blakely did not require jury to determine whether defendant s prior convictions were violent felonies under ACCA. Following oral argument, defendant submitted a letter contending that the Supreme Court s ruling in Blakely v. Washington, 124 S.Ct (2004) provided a ground for vacating his sentence. The First Circuit found no plain error. There were only two findings of fact that could conceivably have triggered Blakely: (1) whether the two burglaries constituted prior convictions for crimes of the type counted under the ACCA; and (2) whether the particular circumstances of these two burglaries suggested that the burglaries were part of a single occasion under the ACCA. As to the former finding, defendant did not dispute that he was 11

12 convicted of the two burglaries, nor that they were violent felonies under the ACCA. Moreover, Blakely does not encompass sentencing enhancements based upon the fact of a prior conviction. The argument about separate occasions under the ACCA was a question of law rather than fact. The facts concerning the two burglaries were undisputed; the only question was whether these undisputed facts prevented the court from treating them as separate occasions as prescribed by the ACCA. U.S. v. Stearns, 387 F.3d 104 (1st Cir. 2004). 1st Circuit holds that aggravated felony is a term of art that includes certain misdemeanors carrying a sentence of one year. Defendant received an eight-level enhancement under 2L1.2(b)(1) for being deported after a conviction for an aggravated felony. The prior conviction was a simple assault for punching a man in the nose. Defendant was sentenced to 12 months of imprisonment, with ten months suspended. Defendant argued that the statutory definition of aggravated felony in 8 U.S.C. 1101(a)(43) was ambiguous because it encompassed crimes traditionally regarded as misdemeanors, as well as felonies, and urged that under the rule of lenity, he should not have been subject to the enhanced penalty provision. The First Circuit found no ambiguity the term aggravated felony in 1101(a)(43) is a term of art that includes within its ambit certain misdemeanors under state law that carry a sentence of at least one year. The pivotal question is not whether a crime is labeled a felony or a misdemeanor under state law, or whether it has conventionally been considered a misdemeanor, but whether the crime meets the explicit definition of aggravated felony under 1101(a) (43)(F). The rule of lenity does not apply simply because a statute requires interpretation. U.S. v. Cordoza-Estrada, 385 F.3d 56 (1st Cir. 2004). 1st Circuit holds that Blakely does not apply to aggravated felony enhancement. The day before oral argument, defendant filed a letter pursuant to Local Rule 28(j), arguing that his sentence was unlawful because Blakely v. Washington, 124 S.Ct (2004) and Apprendi v. New Jersey, 530 U.S. 466 (2000) undermined the Supreme Court s ruling in Almendarez-Torres v. U.S., 523 U.S. 224 (1998), which held that the prior aggravated felony language of 8 U.S.C. 1326(b)(2) refers to a sentencing enhancement, not an element of the offense. The First Circuit found no plain error in defendant s receipt of an aggravated felony enhancement. Blakely did not disturb the distinction between the fact of a prior conviction and other facts that increase the penalty for a crime beyond a prescribed maxi-mum. There was no error in the trial judge s consideration of the prior conviction. U.S. v. Cordoza-Estrada, 385 F.3d 56 (1st Cir. 2004). 1st Circuit holds that drug conviction was serious drug offense under ACCA. Defendant had previously been convicted four times in Massachusetts of possessing cocaine with intent to deliver a crime punishable by imprisonment in the state prison for not more than ten years, or in a jail or house of correction for not more than two and one-half years. Mass. Gen. Laws ch 94C, 32(a). He argued that the four convictions did not constitute serious drug offenses under the Armed Career Criminal Act, 18 U.S.C. 924(e), because they were adjudicated in the state district court, a court which, by statute, cannot impose a sentence of more than two and one-half years. A serious drug offense is defined to include certain drug offenses which carry a maximum sentence of ten or more years. 924(e)(2)(A)(ii). The First Circuit rejected this claim, since under the formal categorical approach used to determine whether a prior offense qualifies as a predicate conviction 12

13 under the ACCA, the sentencing court typically must limit its inquiry to the fact of conviction and the statutory definition of the prior offense. The Massachusetts law in question allowed for a maximum penalty of ten years incarceration, and thus, the offense qualified as a serious drug offense. U.S. v. Moore, 286 F.3d 47 (1st Cir. 2002). 1st Circuit reaffirms that Apprendi does not apply to sentence enhancements based upon prior convictions. Defendant argued that his enhanced sentence under the Armed Career Criminal Act violated Apprendi v. New Jersey, 530 U.S. 466 (2000), because his prior convictions were not alleged in the indictment nor proven independently. The First Circuit rejected this argument, since Apprendi explicitly exempted from its holding sentence-enhancement provisions based upon prior criminal convictions. U.S. v. Moore, 286 F.3d 47 (1st Cir. 2002). 1st Circuit holds that breaking and entering that did not require criminal intent was not a violent felony. The district court sentenced defendant as an armed career criminal based in part on a Rhode Island conviction for breaking and entering under R.I. Gen. Laws Rhode Island law sets out a graduated series of statutory breaking and entering offense. Defendant was convicted under the least serious among them, which defines the offense as the unlawful breaking and entering of dwelling house. The First Circuit held that did not qualify as a violent felony under the ACCA because it does not include a requirement that the defendant break and enter with intent to commit a crime. More serious breaking and entering crimes in Rhode Island do require criminal intent. See R.I. Gen. Laws to 6, and the statutory crime of burglary, The lack of criminal intent placed outside the realm of a violent felony. The offense also did not fall within 924(e)(2)(B)(ii) s catchall clause, covering crime that otherwise involves conduct that presents a serious risk of physical injury to another. Congress made its own judgment about what subset of breaking and entering offenses presents a serious risk of physical injury to another. Congress chose to single out burglary, and it defined that term to include a criminal intent requirement. U.S. v. Peterson, 233 F.3d 101 (1st Cir. 2000). 1st Circuit says court used wrong analysis in rejecting police reports and complaints. On five prior occasions, defendant pled guilty to breaking and entering under a Massachusetts law that defined the offense to include unauthorized entry into vehicles and vessels or buildings. Under Taylor v. United States, 495 U.S. 575 (1990), the generic definition of burglary under the Armed Career Criminal Act includes only an unlawful entry into a building or other structure, not into a vehicle or vessel. The government presented certified copies of police re-ports and complaint applications to show that defendant broke into buildings, but the district court ruled that consideration of such documents was inconsistent with the categorical approach announced in Taylor. The First Circuit held that the district court used the wrong analysis in rejecting these documents. The inquiry is this: did the defendant and the government both believe at the time defendant entered his pleas that the generically violent crime rather than the generically non-violent crime was at issue. See U.S. v. Harris, 964 F.2d 1234 (1st Cir. 1992). A court s determination of the meaning of a guilty plea can be made on the basis of sufficiently reliable evidence independent of a fact-specific admission. The district court here did not attempt to evaluate the reliability of the police reports and complaints to deter-mine whether the parties believed that 13

14 defendant was entering guilty pleas to breaking and entering a building. On remand, if defendant offers plausible objections to these documents, and the government does not sufficiently respond, then the court may choose not to rely on these documents. U.S. v. Shepard, 231 F.3d 56 (1st Cir. 2000). First Circuit rules it is error for the district court to delve into the facts of defendant s crime as described in the PSR to determine that his prior conviction for statutory rape was a violent felony. In an order denying the government s petition for rehearing, the en banc court clarified circuit law on the enhancement provision in 18 U.S.C. 924(e), as construed by the Supreme Court in Taylor v. U.S., 495 U.S. 575 (1990). First, Taylor s categorical approach applies to determinations made under the otherwise clause. Nonetheless, the First Circuit has been willing to consider statutory rape statutes as if they encompassed different subordinate offenses depending on the ages of the participants, at least where the specific ages can be determined from readily available sources. However, this does not mean a court can consider the circumstances of the particular crime. Second, under Taylor s categorical approach, facts about the predicate crime are pertinent only to identify the offense of which the defendant was convicted. First Circuit cases have approved resort to PSRs, but only to determine the character of the criminal offense for which the defendant was convicted, not to determine whether violence was used. The First Circuit has approved use of the PSR only when the issue is not settled by the indictment, and the conviction was by plea of guilty so no jury instructions are available. Whether resort is proper where the predicate offense was tried remains open for future resolution. U.S. v. Sacko, 178 F.3d 1 (1st Cir. 1999) (en banc). 1st Circuit directs court to take evidence on whether sex is dangerous to 14-year old. The district court sentenced defendant as an armed career criminal based in part on his prior conviction for statutory rape. The Rhode Island statute defined third degree sexual assault as a person over the age of 18 engaging in sexual penetration with another person over the age of 14 and under the age of 16. Since this could cover both violent and non-violent crimes, the district court examined the PSR, which indicated that the crime involved violence. The First Circuit ruled that it was error for the district court to delve into the facts of defendant s crime as described in the PSR. Other cases to address this issue have relied on medical literature and the chronological gap between the ages of the victim and the defendant to reach varying conclusions on whether statutory rape is a crime of violence. The court here was unprepared to say a priori that sex is not physically dangerous for a 14-year old girl. However, the court had no legal basis for the opposite conclusion, since no studies or medical journals were presented for its consideration. Therefore, the court remanded for the district court to take evidence on the issue of whether the crime of sexual penetration of a 14-year old by someone over the age of 18 involves conduct presenting a serious potential risk of physical injury. U.S. v. Sacko, 178 F.3d 1 (1st Cir. 1999) (en banc). 1st Circuit finds insufficient connection between guns and drugs. Police found 65 marijuana plants in a secret compartment in defendant s detached garage. They also found a shotgun and a handgun hidden in a bureau in defendant s bedroom. The district court sentenced defendant as an armed career criminal. Section 4B1.4(b)(3)(A) provides for an enhanced offense level if the defendant possessed the firearms in connection with a controlled substance offense. The First 14