Category Archives: ACCA

U.S. Sentencing Guidelines: Eligibility for Lowered Sentencing Range

Published By Stephen Preziosi

Koons v. United States

U.S. Supreme Court

No. 17-5716

Decided June 4, 2018

Issue:

Whether petitioners qualify for a sentence reduction under § 3582(c)(2) where the sentences were “based on” mandatory minimums and not the Sentencing Guidelines ranges.

Holding:

The Supreme Court held that petitioners do not qualify for sentence reductions under § 3582(c)(2) because their sentences were not “based on” the lowered Guidelines ranges but, rather, they were based on their mandatory minimums and on their “substantial assistance” to the Government.

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Facts:

Five petitioners pled guilty to drug conspiracy charges that subjected them to mandatory minimum sentences under 21 U.S.C. § 841(b)(1). When the District Court calculated their advisory Sentencing Guidelines ranges, the top end of the ranges fell below the mandatory minimums. The court determined that the mandatory minimums superseded the Guidelines ranges and, thus the Guidelines ranges were discarded. However, because of the petitioners’ cooperation with the Government, the court departed downward from the mandatory minimums under 18 U.S.C. §3553(e).

The Sentencing Commission amended the Guidelines several years after the petitioners were sentenced. Among those amendments included a reduction of base offense levels for the same drug offenses for which petitioners were convicted. The petitioners sought sentence reductions under §3582(c)(2), which allows a defendant’s sentence to be reduced if that sentence was imposed based on a sentencing range that was later lowered by the Sentencing Commission. The lower courts held that the petitioners were not eligible for sentence reductions because they failed to demonstrate that their sentences were “based on” the lowered Guideline ranges.

Legal Analysis:

The primary function of the Sentencing Guidelines is to recommend to the judge an appropriate sentencing range by taking into account the seriousness of the offense and the defendant’s criminal history. However, these Guidelines are only advisory and can even be overridden in some cases. For instance, if there is a “mandatory minimum” sentence that must be imposed, the judge must consider the required minimum sentence over the sentencing range provided by the Guidelines where a conflict exists. Here, because the top end of the Guidelines range fell below the mandatory minimum sentences, the district court concluded that the statutorily required minimums superseded the Guidelines ranges for each petitioner, and the advisory ranges were discarded.

For a defendant to become eligible for a sentence within the lowered Guidelines range, the sentence must have been “based on” that lowed advisory range. Quoting Hughes v. United States, ante, at 14, the Court noted that a sentence is “based on” the lowered range when the range “played a relevant part in the framework the sentencing judge used’ in imposing the sentence.” By contrast, when the advisory ranges are tossed aside in the course of determining a sentence, the imposed sentence is not based on a Guidelines range.

The Court concluded that the petitioners’ sentences were not “based on” the lowered Guidelines range because the ranged played “no relevant part” in the district court’s sentencing determination. Therefore, the Court held that the petitioners were not entitled to §3582(c)(2) reductions.

The petitioners also asserted that, because the Guidelines range serves as the starting point for every federal sentencing calculation, all sentences are “based on” the Guidelines ranges. The Court made clear, however, that whether the Guidelines range played a part in the initial calculation is irrelevant and that it is, rather, the role the range played in the eventual calculation that should be considered. The Supreme Court disagreed with the petitioners’ remaining arguments.

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Armed Career Criminal Act and Past Convictions: Mens Rea of Recklessness is not violent.

Published By Stephen Preziosi

Borden v. U.S.

No. 19-5410

US Supreme Court

Decided on June 10, 2021

Issue:

Armed Career Criminal Act and Past Violent Convictions

Whether 1) a defendant is subject to the enhanced sentence under the Armed Career Criminal Act (ACCA) where one of three past convictions has the mens rea of recklessness, and whether 2) that conviction constitutes a “violent felony” under the elements clause 18 USC § 924(C)(3)(A) which qualifies a felony as violent when it “has as an element the use, attempted use, or threatened use of physical violence against the person of another.”

Holding:

‘Violent’ Requires Purposeful and Knowing Conduct, Excludes Recklessness

The Supreme Court held that 1) a defendant is not subject to the ACCA enhanced sentence where one of three past convictions had the mens rea of recklessness, and 2) that a “violent felony” requires purposeful and knowing conduct for the use of force “against the person of another.”

Facts:

Charles Borden Jr. pled guilty to a felon-in-possession charge and the Government sought an enhanced sentence under ACCA. One of Borden’s past three convictions was for reckless aggravated assault. Borden argued that this offense was not a violent felony under ACCA’s elements clause because a mental state of recklessness suffices for conviction, and that only purposeful and knowing conduct satisfies the clauses’s demand for the use of force “against the person of another.” The District Court disagreed and sentenced Borden as a career offender under ACCA, which mandates a 15-year minimum sentence for persons found guilty of illegally possessing a firearm who have three or more prior convictions for a “violent felony.”

Analysis:

ACCA Elements Clause

The Supreme Court held that the ACCA penalty enhancement kicks in only when three or more past offenses meet the statute’s definition of “violent felony.” An offense qualifies as violent under the elements clause if it “has as an element the use, attempted use, or threatened use of physical force against the person of another.”

Borden argued that the word “against” introduces a conscious object (not the mere recipient) of the force, while the Government argued that “against” instead means “making contact with” and therefore introduces the mere recipient of force rather than its “intended target.” Indeed, dictionaries offer both meanings, “in opposition to” and “in contact with,” depending on context.

The Court held that Borden’s view of the word was correct, as “against another” modifies the “use of force,” which demands that the perpetrator direct his action at, or target, another individual in behavior that is knowing or purposeful. Reckless conduct is not aimed in that prescribed manner, and to treat reckless offenses as “violent felonies” would impose large sentencing enhancements on individuals (such as a reckless driver) far afield from the “armed career criminals” who the ACCA addresses.

Purposeful and Knowing Conduct and the Four Mens Rea

The ACCA elements clause, then, excludes reckless conduct but covers conduct that is knowing and purposeful. Of the four mens rea that give rise to criminal liability (purpose, knowledge, recklessness, and negligence), purpose and knowledge are the most culpable levels in criminal law’s mental-state hierarchy. (U.S. v. Bailey, 444 U.S. 394, 404 (1980)). A person acts purposely when he “consciously desires” a particular result. A person acts knowingly when “he is aware that a result is practically certain to follow from his conduct,” what his affirmative desire.

For example, a person driving his car straight at a reviled neighbored has, in the statute’s language, “Used physical force against the person of another” in a purposeful way. A getaway driver who sees a pedestrian in his path but plows ahead anyway has likewise “used physical force against the person of another.”

Recklessness and negligence are less culpable mental states because they instead involve insufficient concern with a risk of injury. A person acts recklessly when he “consciously disregards a substantial and unjustifiable risk” (Model Penal Code § 2.202(2)(c); see Voisine v. U.S., 579 U.S. 686 (2018)).

For example, a reckless or negligent driver who, late to work, decides to run a red light and hits a pedestrian whom he did not see has not “used physical force against the person of another,” rather, he has consciously disregarded a real risk, thus endangering others. He did not train his car at the pedestrian understanding he will run him over. The reckless driver does not, therefore, come within the elements clause.

Leocal v. Ashcroft

In Leocal v. Ashcroft, 543 U.S. 1 (2004), the Supreme Court held that offenses requiring only a negligent mens rea fell outside a statutory definition relevantly identical to ACCA’s elements clause. That definition, codified at 18 U.S.C. § 16(a) is for the term “crime of violence.” Section 16(a) states that a “crime of violence” means “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”

The Court explained in Leocal that a “crime of violence” suggests a category of “violent, active crimes that cannot be said naturally to include negligent offenses.” That when read against the words “use of force,” the “against” phrase (which the Court held as a “critical aspect” of the definition) “suggests a higher degree of intent” than (at least) negligence” (Id. at 9).

The Court’s logic likewise applies in this case regarding recklessness. It is the pairing of volitional action with the word “against” that produces its oppositional or directed meaning and excludes recklessness from the statute.

Context and Purpose

Furthermore, the Court held that context and purpose remove any doubts regarding the elements clause’s meaning. In Leocal and Johnson v. U.S. the Court’s decisions construed the definitions of “crime of violence” and “violent felony” to mark out a narrow category of violent, active crimes. Those crimes “are best understood to involve not only a substantial degree of force, but also a purposeful or knowing mental state—a deliberate choice of wreaking harm on another, rather than mere indifference to risk” such as murder and rape as opposed to drunk driving.

The classification of reckless crimes as “violent felonies” does not comport with ACCA’s purpose. ACCA sets out to identify and address “the sort of offender who, when armed, might deliberately point the gun and pull the trigger” (Begay, 553 U.S. at 146). The Act discharges that goal by looking to a person’s criminal history. An offender who has repeatedly committed “purposeful, violent, and aggressive” crimes poses an uncommon danger of “using a gun deliberately to harm a victim. (Id. at 145.) However blameworthy, reckless or negligent conduct is “far removed” from the “deliberate kind of behavior associated with violent criminal use of firearms” (Id. at 147). The Supreme Court therefore reversed the judgment, and remanded the case for further proceedings.

Due Process Clause Prohibits Vague Language in Defining a “Violent Felony”

Published By Stephen Preziosi

Johnson v. United States

13-7120

Supreme Court of the United States

Decided: June 26, 2015

ISSUE

Whether an increased sentence under the Armed Career Criminal Act’s (ACCA) residual clause violates the Constitution’s guarantee of due process where the language used in the statute is ambiguous and leaves too much room for interpretation. 

HOLDING

The Court held that the imposition of an increased sentence under the ACCA’s residual clause violates due process because the language used to define a “violent felony” is too vague to be properly enforced. The Act states, “…or otherwise involves conduct that presents a serious potential risk of physical injury to another.” § 924(e)(2)(B).  The statute’s ambiguity brings into question how risk can be estimated and how much risk is takes for a crime to qualify as a violent felony. 

FACTS OF THE CASE

Samuel Johnson has a long history of criminal behavior.  Before pleading guilty to being a felon in possession of a firearm, the FBI began to monitor Johnson’s involvement in a white-supremacist organization that they believed was planning to commit acts of terrorism.  During the investigation, Johnson revealed his plans of attack to an undercover agent and disclosed that he manufactured explosives which he planned to use in the attacks.  He proceeded to showing the agents his AK-47 rifle, serval semiautomatic firearms and over 1,000 rounds of ammunition.       

After Johnson was eventually arrested, the Government attempted to enhance petitioner Johnson’s sentencing under the ACCA.  Under the ACCA, an increased prison sentence is given to a defendant with three or more prior convictions for a “violent felony.” The District Court determined that three of Johnson’s prior offenses, including the unlawful possession of a short-barreled shotgun, qualified as violent felonies under the ACCA and subsequently sentenced him to a 15-years in prison. The Circuit Court affirmed and the Supreme Court later granted certiorari in order to determine whether Minnesota’s offense of unlawful possession of a short-barreled shotgun ranks as a violent felony under the residual clause of the ACCA.  

COURT’S ANALYSIS

The Court held that the imposition of an increased sentence under the ACCA’s residual clause violates due process because the language used to define a “violent felony” is too vague to be properly enforced.  The Fifth Amendment states, “no person shall . . . be deprived of life, liberty, or property, without due process of law.”  In this case the Supreme Court found that the Government is in violation of the Due Process Clause of the Fifth Amendment under a criminal law so vague that it does not give “ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 – 358, 103 S.Ct 1855, 75 L.Ed.2d 903 (1983).  The prohibition of vagueness in criminal statutes is a principle applied not only to statutes defining crime but also to statutes determining sentencing; it is a “well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law…” Connally v. General Costr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (926).

The residual clause says that any prior conviction can count as a violent felony, even if it does not require violence or attempted violence as an element, if the offense nevertheless “involves conduct that presents a serious potential risk of physical injury to another.”  Thus, non-violent offenses that still have a “serious potential risk” of violence can count. The problem with the clause is that federal judges cannot agree as to what non-violent offenses should “categorically” fit this general definition. 

In Taylor v. U.S., it was held that the ACCA required courts to use a categorical approach when deciding whether an offense “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”  Under this approach, a court determines if a crime qualifies as a violent felony “in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.” Begay, supra, at 141, 128 S.Ct. 1581.

Given this definition, the Court is required to picture the kind of conduct that the crime involves in “the ordinary case” and to judge whether that abstraction presents a serious potential risk of physical injury.  Since the residual clause asks whether the crime “involves conduct” that presents too much risk of physical injury rather than whether the crime “has as an element the use… of physical force,” as part of the definition of a violent felony does, the court must go beyond its task of deciding whether creation of risk is an element of the crime.  Moreover, the inclusion of burglary and extortion preceding the residual clause further confirms the court’s duty to evaluate beyond the chance that the crime will injure someone based on the physical acts that make it up.  The act of extortion or breaking and entering in one’s dwelling does not, in and of itself, normally result in physical injury.  Rather, the extortionist might engage in violence after their demands were made or the burglar might confront a resident of the home after the crime of breaking and entering has already occurred. 

Two Features within the Residual Clause that Make it Unconstitutionally Vague

There are two main features within the residual clause that make it unconstitutionally vague: (I) the uncertainty of how to estimate the risk (II) the uncertainty of how much risk it takes for a crime to qualify as a violent felony. 

With regard to “how to estimate the risk,” courts are challenged by the statute to imagine an “ordinary case” of a crime rather than assess real-world facts or statutory elements.  However, the question of how one goes about deciding what conduct the “ordinary case” of a crime involves is risen.  As United States v. Mayer, 560 F.3d 948 asks are the courts to rely on “ . . . a statistical analysis of the state reporter?  A survey?  Expert evidence?  Google?  Gut instinct?”   The Court presents the example of witness tampering.  In an “ordinary case” would the person tampering with the witness offer a bribe or threaten a witness with violence?  It is inevitable that forcing the courts to imagine an ordinary case would be met with some form of conflict.  The use of “ordinary case” in the statute is not definitive enough to be used as a basis as the use of “asportation” in larceny laws around the country.     

Pertaining to “how much risk it takes for a crime to qualify as a violent felony,” the courts are not being asked to apply a general “serious potential risk” standard to real-world facts; instead they are being asked to apply such a standard to a theory imagined by the judge.  In asking whether the crime “otherwise involves conduct that presents a serious potential risk,” the residual clause further forces the courts to interpret “serious potential risk” considering the four given crimes of burglary, arson, extortion and crimes involving the use of explosives.  These offenses are “far from clear in respect to the degree of risk each poses.” Begay, 553 U.S., at 143, 128 S.Ct. 1581.  For example, does the typical burglar invade an occupied home at night or an unoccupied home during the day?  Does an ordinary extortionist threaten his victim with bodily harm or simply blackmail them with embarrassing personal information? 

Instances of the Residual Clause’s Hopeless Indeterminacy

A combination of the ambiguity from “how to estimate the risk” and “how much risk it takes for a crime to qualify as a violent felony” results in more unpredictability and arbitrariness than the Due Process Clause can handle.  The Court has acknowledged that the failure of “persistent efforts… to establish a standard” provides sufficient evidence of vagueness. United States v. L. Cohen Grocery Co., 255 U.S. 81, 91, 41 S.Ct. 298, 65 L.Ed. 516 (1921).  All four previous cases brought about a different question confirming the residual clause’s hopeless indeterminacy. 

In James, the Court asked whether “the risk posed by attempted burglary is comparable to that posed by its closest analogy among the enumerated offenses” for which they determined it was which serves only to help with attempted burglary.  The dissent posed the argument: “Is, for example, driving under the influence of alcohol more analogous to burglary, arson, extortion or a crime involving explosives?” Id., at 215, 127 S. Ct. 1586 (Scalia, J., dissenting). 

In Chambers, the Court focused on whether an offender who fails to report to prison is more likely to attack, or physically resist, an arrest which relied heavily on statistical reports prepared by the Sentencing Commission in order to conclude that an offender who fails to report to prison is “significantly more likely than others to attack, or physically resist, an apprehender, thereby producing a ‘serious potential risk of physical injury.”  555 U.S., at 128 – 129, 129 S. Ct. 687.  This took care of a failure to report to prison but what about the many crimes with no comparable reports in existence?  The dissent argued that even statistical studies in existence run the risk of suffering “methodological flaws, be skewed toward rarer forms of the crime, or paint widely divergent pictures of the riskiness of the conduct that the crime involves.”  Sykes, 564 U.S. at ____ _ ____, 131 S.Ct., at 2285 – 2287 (Scalia, J., dissenting).

In Sykes, the Court focused on whether Indiana’s vehicular flight crime constitutes a violent felony which, again, relied heavily on statistics to “confirm the commonsense conclusion that Indiana’s vehicular flight crime is a violent felony.” Id., at ___, 131 S. Ct., at 2274 (majority opinion).  The Indiana statute includes everything from a high-speed car chase a simple failure to stop the car immediately after seeing a police signal.  As the dissent pointed out, common sense is an ineffective tool in determining where along the spectrum an “ordinary case” of vehicular flight would fall.  After all, common sense has not even been able to provide for a consistent standard of the degree of risk the four enumerated crimes possess, and it is unreasonable to expect it to perform any better concerning the many unenumerated crimes.

All three cases failed to create a universal standard to help avoid the risk comparison required by the residual clause from developing into supposition and speculation.  Unlike the aforementioned, in Begay, the Court needed to determine whether drunk driving is qualified as a violent felony under the residual clause.  It found that it is not because it does not “resemble the enumerated offenses ‘in kind as well as in degree of risk posed.’” 553 U.S., at 143, 128 S. Ct. 1581.  Typically, drunk driving does not involve “purposeful, violent and aggressive conduct” Id., at 144 – 145, 128 S. Ct. 1581 as the enumerated crimes do.  Begay, unfortunately, did not help to bring clarity to the meaning of the residual clause; it did not, nor could it, eliminate the need for imagination.  The concept of “aggressive conduct” in far from clear; it ranges from risking an accident by driving recklessly and actually killing people by driving recklessly.

Void for Vagueness (Arguing the Dissent)

The Government and the dissent argued that despite the vagueness in the residual clause there will be straightforward cases because “some crimes clearly pose a serious potential risk of physical injury to another.” post, at 2562 – 2563 (opinion of Alito, J.).  Contrary to their argument, the courts have found that many of the cases deemed easy were in fact more complicated than they seemed.

Take the Government’s example of Connecticut’s offense of “rioting at a correctional institution.”  United States v. Johnson, 616 F.3d 85 (C.A.2 2010). It seems like it would be a violent felony until it is brought to light that Connecticut defines this offense to include taking part in “any disorder, disturbance, strike, riot or other organized disobedience to the rules and regulations” of prison. Conn. Gen.Stat. §53a-179b(a) (2012).  Courts, again, are forced to imagine which the ordinary disorder most closely resembles: is it a full-fledged riot? A food-fight in the prison cafeteria?  Disregarding an order given by a guard? Johnson, 616 F.3d, at 96 (Parker, J., dissenting).

While it may seem like the Court’s opinions suggest that a vague provision is constitutional merely because there is some conduct that clearly falls within the provision’s grasp, the holding squarely contradict this.  Take L. Cohen Grocery Co. for example.  A law prohibiting grocers from charging an “unjust or unreasonable rate” was deemed void for vagueness, although charging someone a thousand dollars for a pound of sugar would definitely be considered unjust and unreasonable. L. Cohen Grocery Co,, 255 U.S., at 89, 41 S.Ct. 298.  Similarly, in Coates, a law prohibiting people on sidewalks from “conducting themselves in a manner annoying to persons passing by” was deemed void for vagueness despite the fact that spitting in someone’s face would surely be annoying.  Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971).        

Intent for “Remaining-in” Burglary Extends Beyond the Doorway

Published By Stephen Preziosi

Quarles v. United States

No. 17-778

U.S. Supreme Court

Decided June 10, 2019

ISSUE

Whether “remaining-in” burglary occurs only if a person has the intent to commit a crime at the exact moment he or she first unlawfully remains in a building or structure, or whether it occurs when a person forms the intent to commit a crime at any time while unlawfully remaining in a building or structure.

HOLDING

The U.S. Supreme Court held that “remaining-in” burglary occurs when the defendant forms the intent to commit a crime at any time while unlawfully remaining in the building or structure.

FACTS OF THE CASE

Petitioner Quarles pled guilty to being a felon in possession of a firearm under 18 USC § 992(g)(1) and qualified for enhanced sentencing–a 15 year minimum–under the Armed Career Criminal Act (ACCA) because he had three prior “violent felony” convictions under §924(e). 

However, during sentencing, Quarles claimed one of his three prior felony convictions, third degree home invasion, did not qualify as burglary, a violent felony under §924(e), and thus he was not subject to enhanced sentencing. Quarles argued that the Michigan statute, under which he was convicted, was broader than the generic definition of burglary set forth by the Supreme Court’s decision in Taylor v. United States, 495 U.S. 575.

The District Court rejected Quarles’ argument and sentenced him to 17 years in prison. The Sixth Circuit affirmed the District Court’s decision and the U.S. Supreme Court granted Quarles certiorari.


COURT’S ANALYSIS

The opinion, delivered by Justice Kavanaugh, required the Court to determine whether the Michigan home invasion statute swept too broadly to qualify as generic burglary as set forth by the Supreme Court’s decision in Taylor v. United States. Specifically, this issue called into question whether the intent to commit a crime must take place a) upon first entering or b) at any time the person remains in the building or dwelling to qualify as generic burglary.

Under the Michigan statute, third degree home invasion occurs when a person “breaks and enters a dwelling or enters a dwelling without permission and, at any time while he or she is entering, present in, or exiting the dwelling, commits a misdemeanor.” Mich. Comp. Laws Ann. §750.110a(4)(a) (West 2004) (emphasis added). In Taylor, the Supreme Court interpreted generic burglary to include “remaining-in” burglary (Taylor at 599), but the question of when the intent must occur remained.

Quarles argued that the intent to commit a crime must occur at the exact moment a person enters a building illegally to constitute burglary under §924(e). Although the Court agreed with this interpretation, it pointed out that Quarles failed to distinguish between a burglary predicated on unlawful entry and a burglary predicated on unlawful remaining. In the latter category, the Court concluded, intent may be formed at any point a person remains in the dwelling or building–not only upon entering. The Court further determined that to exclude the intent to commit a crime while remaining in the structure for purposes of defining generic burglary “would make little sense in light of Congress’ rationale for specifying burglary as a violent felony.”

Generic remaining-in burglary, therefore, occurs when intent is formed at any point a person unlawfully remains in a building or structure. The state law in this case substantially corresponded to generic burglary, and Quarles’ conviction qualified as a violent felony under §924(e) for purposes of enhanced sentencing.