Armed Career Criminal Enhancement

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Armed Career Criminal and
Career Offender Enhancements
If you can’t avoid them,
deflect them.
ACCA - mandatory 15 year sentence:
Who does it apply to?

Defendant must:

be adjudicated guilty under 18 U.S.C. §
922(g) (guns and ammunition);

have three prior convictions (committed at
different times) for either (or combination):
“violent felony”
 “serious drug offense”

Career Offender Guideline:
Who does it apply to?

Defendant must be 18 at time he commits the instant
offense;

The instant offense is a felony “crime of violence” or a
“controlled substance offense”;

The defendant has at least two prior felony convictions
which are either a “crime of violence” or a “controlled
substance offense” (or a combination).
In-depth analysis of
ACCA
What counts as prior convictions?

Age of prior conviction is irrelevant.

The prior convictions must have been adjudicated before
Defendant committed the present offense.

Cases consolidated for purposes of sentencing that were
committed on different occasions are treated as separate
under ACCA. See United States v. Hudspeth, 42 F.3d
1015, 1021 (7th Cir. 1994)(commission of 3 different
burglaries against 3 different victims over the course of
30 minutes).
What counts as prior convictions?

Conspiracy, Aiding and Abetting, and Attempts
to commit “violent felony” or “serious drug
offense” may qualify.

Circuit split as to whether juvenile convictions
qualify.

Validity of prior conviction cannot be challenged
except where prior was based on the complete
denial of the right to counsel. Custis v. United
States, 511 U.S. 485 (1994).
18 U.S.C. § 924(e)(2)(B)
defines “violent felony” as:




any felony...that
(i) has as an element the use, attempted use, or
threatened use of physical force against the person of
another;
or
(ii) is burglary, arson, extortion, involves the use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.
18 U.S.C. § 924(e)(2)(A)
defines “serious drug offense” as:


(i) an offense under the Controlled Substance
Act (21 U.S.C. § 801 et seq.), the Controlled
Substances Import and Export Act (21 U.S.C. §
951 et seq.), or Title 46 Chapter 705, with a
maximum term of imprisonment of ten years or
more; or
(ii) an offense under state law, involving
manufacturing, distributing, or possessing with
intent to manufacture or distribute with a
maximum term of imprisonment of ten years or
more.
ACCA and Guidelines

Statute provides for a minimum of fifteen years.

Offense level will be the greatest of:




Offense level applicable from Chapters Two and Three; or
Offense level from § 4B1.1 (Career Offender), if applicable;
or
34, if D used/possessed firearm or ammunition in
connection with a crime of violence, controlled substance
offense, or if the firearm was one described in 26 U.S.C. §
5845(a);
or Level 33 otherwise.
ACCA and Guidelines

Criminal history is the greatest of:

Criminal history under Chapter Four;

§ 4B1.1 (Career Offender), if applicable;


Category VI, if D used/possessed firearm in
connection with crime of violence, controlled
substance offense, or firearm was one described in 26
U.S.C. § 5845(a);
or category IV otherwise.
15 Year
mandatory
minimum
In-depth analysis of
Career Offender
What counts as prior convictions?



Cases consolidated for purposes of sentencing may be
treated as separate conviction under Career Offender.
Aiding and abetting, conspiracy and attempts to commit
“crimes of violence” or “controlled substance offenses”
count. See U.S.S.G. § 4B1.2.
The provisions of § 4A1.2 apply (some offenses may be
too old to count for purposes of career offender or may
not apply for other reasons).
USSG §4B1.2
defines “crime of violence” as:



…any [felony] that:
(1) has as an element the use, attempted use, or
threatened use of physical force against the person of
another; or
is burglary of a dwelling, arson, or extortion, involves use
of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
another.
USSG §4B1.2 defines
“controlled substance offense” as:

… a [felony] that prohibits the manufacture,
import, export, distribution, or dispensing
of a controlled substance (or a counterfeit
substance) or the possession of a
controlled substance (or a counterfeit
substance) with intent to manufacture,
import, export, distribute, or dispense.
Career Offender Guideline:
How it impacts the sentence



No statutory mandatory minimum but...
The offense level is determined according to the
instant offense’s statutory maximum:
 Life
37
 25 or more
34
 20 or more
32
Criminal History category becomes a VI.
Major differences between
ACCA and Career Offender
ACCA
Career Offender
•Instant offense of conviction must be
under 18 U.S.C. § 922(g).
• Instant offense of conviction must be
“crime of violence” or “controlled substance
offense.”
•3 prior convictions required
• 2 prior convictions required
• “Violent felony” definition has a broader
definition for “burglary”—need not be
“burglary of a dwelling”
• “Crime of violence” definition is
narrower—requires that the burglary be of
a dwelling.
Deflect these enhancements by
attacking the prior convictions


We attack prior convictions by using the
Taylor analysis, otherwise known as the
categorical approach.
Taylor v. United States, 495 U.S. 575, 599
(1990).
What is the
categorical approach / Taylor analysis?

A system used by courts to determine whether
the statute of conviction fits the definition in
question –
 in the case of ACCA:


whether the conviction is a “violent felony” or
“serious drug offense” ;
in the case of Career Offender:

whether a prior conviction is a “crime of violence”
or a “controlled substance offense.”
Brief overview of
Taylor v. United States





Mr. Taylor pleads to 922(g).
His priors: robbery, assault, and 2 second degree
burglary convictions (1963 and 1971).
Missouri had several different statutes for second degree
burglaries—some including very broad conduct (such as
entry into a booth).
No documentation showing which particular second
degree burglary statute Taylor was convicted under.
Eight Circuit affirmed the district court and held that
“burglary” under 18 U.S.C. § 924(e)’s definition meant
“burglary” however a state chose to define it.




Issue before the Court: whether the Missouri second degree
burglaries were “violent felonies” under ACCA.
Statutes across the country varied as to the type of structure
involved and the means of entry.
No single meaning for what constituted “burglary.”
Court did not want state definition to control: “that would mean that
a person convicted of unlawful possession of a firearm, would or
would not, receive a sentencing enhancement based on exactly the
same conduct, depending on whether the State of his prior
conviction happened to call that conduct “burglary.” Taylor, 495
U.S. 575, 579 (1990).


The Court identified a “generic” definition for
burglary that included elements found in the
criminal codes of most states.
Burglary :


unlawful or unprivileged entry into, or
remaining in, a building or structure, with
intent to commit a crime.
To see if Taylor’s convictions qualified as a
“burglary” the Court comes up with the
categorical approach.
Two step approach to categorical
approach / Taylor analysis


Step 1:
 categorical approach
Step 2:

modified categorical approach
Step 1: Categorical approach

Determine if the statute of conviction is overbroad:


Does the statute of conviction include conduct that
may not be covered by the definition in question?
If a state statute punishes both conduct that is and is
not included in the definition in question then the state
statute is overbroad.

To determine if the statute of conviction is
overbroad, courts only look at



the fact of conviction; and
the statutory definition of the offense
(elements of the offense)
not at the underlying facts.
Taylor’s two second degree burglary convictions were in
1963 and 1971. In those years, Missouri had
different statutes for “second degree burglary” :




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Breaking and entering a dwelling house (Mo. Rev. Stat §
560.045)
Having entered a dwelling house, breaking out of it (Mo. Rev.
Stat § 560.050, 560.060)
Breaking an inner door (Mo. Rev. Stat § 560.070)
Breaking and entering a building, booth, tent, boat or railroad
car (Mo. Rev. Stat § 560.075)
Breaking and entering a bank (Mo. Rev. Stat § 560.080)
Do Missouri’s 2nd degree burglary statutes include
both conduct that falls within the definition of
violent felony and conduct which does not?
Mo. Rev. Stat § 560.075
Breaking and entering
Any building…, or any
booth or tent, or any
boat or vessel, or railroad
car… with the intent to
steal or commit any
crime therein, shall, on
conviction, be adjudged
guilty of burglary in the
second Degree
1)
2)
Is it burglary? Are the elements the
following: Unlawful or unprivileged entry
into, or remaining in, a building or structure,
with intent to commit a crime.
Does it “otherwise involve conduct that
presents a serious potential risk of physical
injury to another?”

The court did not know which of those
statutes Taylor had been convicted
under…was he convicted under a statute
that fit the generic definition of burglary
or was he convicted of a statute that
included conduct that fell outside of it?

Based on the several statutes and the lack
of documentation showing which statute
Taylor was convicted under, how is the
court to determine whether Taylor’s
convictions:



fit the definition of “burglary”, or
involved “conduct that presents a serious
potential risk of physical injury to another”?
Since Missouri’s second degree burglary
statutes may or may not fit the definition in
question—some are overbroad—the modified
categorical approach is necessary.
Step 2:
Modified categorical approach



Unlike Step 1, courts look at certain permissible
documents to establish whether the conviction in
question fits the definition at issue.
Government’s burden to prove that the
defendant actually violated the statute in a way
that fits the definition of violent felony.
Courts can only look at “judicially noticeable
documents” to determine if underlying
conviction is a violent felony. Shepard v. United
States, 544 U.S. 13 (2005).

Judicially noticeable documents:

If conviction obtained through jury trial:
 charging
document and jury instructions.
Taylor v. United States, 495 U.S. 575, 599 (1990).

If bench trial:
 judge’s
fact.
formal rulings of law and findings of
Shephard v. United States, 544 U.S. 13, 19 (2005).

If case was resolved by way of plea agreement:




Charging document (not alone). United States v.
Skyes, 598 F.3d 334, 339 (7th Cir. 2010).
Signed plea agreement. United States v. Taylor, 630
F.3d 629, 633 (7th Cir. 2010).
Transcript of plea colloquy. United States v. Fife, 624
F.3d 441, 445 (7th Cir. 2010).
Judgment of conviction. Mata-Guerrero v. Holder,
627 F.3d 256, 260 (7th Cir. 2010).

What cannot be included for purposes of
the modified categorical approach:

police reports

PSR

Witness statements

Rap sheets

In Taylor’s case, the Court did not have
any judicially noticeable documents that
would show that Taylor was convicted
under a qualifying statute, so case was
vacated and remanded.
Practice Tips

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
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In conducting a Taylor analysis, it is critical to
evaluate the statute of conviction as it existed at
the time of the defendant’s prior offense.
Do not just look at the current version of the
statute as it might have been amended.
Order records.
Taylor/ categorical approach can be used in
many other settings: e.g., child pornography
statutes, felon in possession U.S.S.G., §1326
statutes/ U.S.S.G., § 924(c).
Conclusion

Remember:

1. Do not go by State’s label for the crime.

2. Do not go by the underlying facts.


3. Look at the particular statute your client got convicted
under and the cases interpreting that statute.
4. Read the particular enhancement definition very
carefully.
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