Category Archives: Categorical Approach

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.

U.S. Sentencing Guidelines and The Modified Categorical Approach: Sentencing Enhancements and Prior Offenses

Published By Stephen Preziosi

United States v. Mohamed, 920 F.3d 94 (1st Cir. Apr. 3,
2019).

Federal Sentencing Enhancement: First Circuit Court of Appeals and the Modified Categorical Approach

On the government’s appeal, the First Circuit vacated and remanded the defendant’s 37-month sentence for being a felon in possession of a firearm, holding that the district court erred in finding that his prior state conviction in Maine for trafficking 5.7 grams of cocaine base did not qualify as a “controlled substance offense” for purposes of assigning the base offense level at §2K2.1. The court held that that the intent element was not stripped away by Maine’s statutory permissible inference of drug trafficking based the quantity of drugs involved. It noted that there was no evidence that the defendant’s conviction “rested on anything other than his intentional distribution plea.”

Predicate Offense for Federal Sentencing Enhancement

Whether a prior conviction qualifies as a predicate offense under U.S.S.G. § 4B1.1 is a question of law that the First Circuit reviewed de novo.

For 18 U.S.C. § 922(g) and other statutes, the Sentencing Guidelines establish enhanced Base Offense Levels (BOLs) for particular aggravating factors, including when a defendant has been convicted of a prior “controlled substance offense.” U.S.S.G. § 2K2.1(a). A “controlled substance offense” under § 2K2.1(a) “has the meaning given that term in § 4B1.2(b) and Application Note 1 of the Commentary to § 4B1.2,” id. § 2K2.1 cmt. 1: an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance … or the possession of a controlled substance … with intent to manufacture, import, export, distribute, or dispense.

The Modified Categorical Approach

The Supreme Court has held that a sentencing court should use a categorical or modified categorical approach when considering sentencing enhancements based on prior offenses. See, e.g., Mathis v. United States, ––– U.S. ––––, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016); Taylor v. United States 495 U.S. 575, 588, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The categorical or modified categorical approach “applies not just to jury verdicts, but also to plea agreements.” Descamps v. United States, 570 U.S. 254, 262-63, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). 

When taking the modified categorical approach, “a sentencing court looks to a limited class of documents … to determine what crime, with what elements, a defendant was convicted of.”  These are known as Shepard documents (Shepard v. U.S. , 125 S.Ct. 1254) the documents establish that Mohamed’s Maine conviction rested on intentional distribution, to which he pled. The elements of the statute at issue — when taking into account the definitions of “traffick” relevant here, see Me. Stat. tit. 17–A, § 1101(17)(C)-(D) — include intent to distribute. This element is not swept away by the existence of a permissible inference. Again, the statutory elements here closely track the “controlled substance offense” definition in the Guidelines, and include “the indictment, jury instructions, or plea agreement and colloquy.” The First Circuit concluded from these permissible documents that Mohamed’s Maine conviction falls under a provision requiring intent to distribute as an element.

Sentencing Enhancement And The Categorical Approach from Taylor

Author’s Note: In the Guidelines Manual, the Commission lists “crimes of violence” and “controlled substance offenses” as the types of prior convictions that increase the sentencing range for career offenders. Sentencing and appellate courts have interpreted these terms through application of the “categorical approach” mandated by the Supreme Court in Taylor v. United States.  Under the categorical approach, courts must look to the statutory elements of an offense, rather than the defendant’s conduct, when determining the nature of a prior conviction. This form of analysis permits a federal sentencing court to examine only the statute under which the defendant sustained a conviction (and, in certain cases, judicial documents surrounding that conviction) in determining whether the prior conviction fits within a federal predicate definition.

The Shepard documents establish that Mohamed’s Maine conviction rested on intentional distribution, to which he pled. The elements of the statute at issue — when taking into account the definitions of “traffick” relevant here, see Me. Stat. tit. 17–A, § 1101(17)(C)-(D) — include intent to distribute. This element is not swept away by the existence of a permissible inference. Again, the statutory elements here closely track the “controlled substance offense” definition in the Guidelines.

government breached plea agreement

U.S. Sentencing Guidelines: The Categorical Approach and The Crime of Violence Enhancement

Published By Stephen Preziosi

United States v. McCants, 920 F.3d 169 (3d Cir. Apr. 5,
2019).

The Third Circuit affirmed the defendant’s 120-month career offender sentence for being a felon in possession of a firearm and possession with intent to distribute heroin. The court held that the defendant’s two prior state convictions in New Jersey for second-degree robbery qualify as crimes of violence under §4B1.2. It stated that they are predicate offenses under both the elements clause of §4B1.2, because the state definition of “bodily injury” falls within the definition of crime of violence, and under the enumerated offenses clause, because the state statute requires the threat of bodily injury.

The Guidelines define a “crime of violence” as any felony offense under state or federal law that:(1) has as an element the use, attempted use, or threatened use of physical force against the person of another [the “elements” clause], or(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c) [the “enumerated offense” clause].Guidelines § 4B1.2(a).

The Categorical Approach: Determining Whether An Enhancement Is Applicable.

The Third Circuit uses the categorical approach to determine whether a prior conviction is a predicate offense for a crime-of-violence sentencing enhancement. United States v. Ramos, 892 F.3d 599, 606 (3d Cir. 2018). In doing so, we compare the elements of the statute under which the defendant was convicted to the Guidelines’ definition of crime of violence. (quoting United States v. Wilson, 880 F.3d 80, 83 (3d Cir. 2018)).10McCants’s designation as a career offender was based on two convictions under New Jersey STAT. ANN. § 2C:15-1, which provides:a. Robbery defined. A person is guilty of robbery if, in the course of committing a theft, he:(1) Inflicts bodily injury or uses force upon another; or(2) Threatens another with or purposely puts him in fear of immediate bodily injury; or (3) Commits or threatens immediately to commit any crime of the first or second degree.

The sentencing court must look beyond the elements of the statute for this comparison only if it is “divisible” and lists “elements in the alternative, and thereby define[s] multiple crimes.” Mathis v. United States, ––– U.S. ––––, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016). The statute in this case was phrased disjunctively, using “or” to offset subsections (a)(1) through (a)(3). Such a statute is divisible if it lists “elements” of the offense and not “means” of committing that offense. Elements’ are the ‘constituent parts’ of a crime’s legal definition—the things the ‘prosecution must prove to sustain a conviction. Means,” on the other hand, are “various factual ways of committing” a single element.

The Third Circuit Court of Appeals found that subsections (a)(1)–(3) are elements because each requires different proof beyond a reasonable doubt to sustain a second-degree robbery conviction. Under (a)(1),  the prosecutor must prove that the defendant inflicts injury or uses force upon another person. However, the defendant need only threaten or place another person in fear of immediate bodily injury under (a)(2), or threaten to commit another first- or second-degree crime under (a)(3).

Because New Jersey STAT. ANN. § 2C:15-1 lays out alternative elements upon which prosecutors can sustain a second-degree robbery conviction, we hold that the statute is divisible and, therefore, the crime of violence sentencing enhancement is applicable.