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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.

Appeal Waivers: Departures and Variances under the United States Sentencing Guidelines. What’s the difference?

Published By Stephen Preziosi

US v Jacobs

635 F.3d 778

Fifth Circuit Court of Appeals

Decided on March 15, 2011

Issue:

Appealing Upward Variances in Sentencing

Whether an appeal waiver is valid when a defendant receives an upward variance at sentencing when he preserved his right to appeal an upward departure from the Sentencing Guidelines.

Holding:

Appeal Waiver Valid and Enforceable

The Court held that an upward variance and an upward departure are not the same, therefore the defendant’s appeal waiver is valid and his appeal dismissed.

Facts:

Marcus Jacobs pled guilty to possessing stolen mail in violation of 18 U.S.C. § 1708. In his signed plea agreement, Jacobs waived his right to appeal his sentence but preserved his right to appeal an upward departure from the Sentencing Guidelines.


Jacobs’ waiver stated that, “The defendant waives the right to appeal the sentence imposed or the manner in which it was determined. The defendant may appeal only a) the sentence imposed above the statutory maximum; or b) an upward departure from the Sentencing Guidelines which had not been requested by the United States as set forth in Title 18 U.S.C. § 3642(b).”

At sentencing, the district court calculated the advisory Guidelines sentencing range as four to ten months. The Government recommend a sentence of seven months. However, the district court opted to vary upwardly under 18 U.S.C. § 3553(a), citing Jacobs’ extensive criminal history, failure of prior sentences to deter Jacobs from further criminal conduct, and a high risk of recidivism. The court sentenced Jacobs to 36 months in prison.

Jacob appealed, challenging the reasonableness of a sentence that is 260 percent longer than the high end of the Guidelines Range.

Analysis:

‘Departure’ Distinct From ‘Variance’

Jacobs’ plea agreement, which was knowing and voluntary, only allows him to appeal an “upward departure.” Departure refers only to non-Guidelines sentences imposed under the framework set out in the Guidelines. The Guidelines set out a three-part framework for the imposition of sentences: the district court 1) calculates the advisory sentencing range; 2) considers the specific offender characteristics and grounds for departure enumerated in the Guidelines; and 3) weighs the applicable factors in 18 U.S.C. § 3553(a) as a whole. A district court cannot impose a departure unless it first notifies the parties, and it must explain its reasons for doing so.

By contrast, if after completing the Guidelines’ three-step process the district court “imposes a sentence that is outside the guidelines framework, such a sentence is considered a ‘variance.’” The court’s authority to impose a variance is discretionary and stems from 18 U.S.C. § 3553(a).

The Fifth Circuit held that an upward departure and an upward variance are not the same. The plea agreement applies only to “departures,” which has an ordinary, well-settled meaning in the sentencing context. That meaning does not extend to variances such as the one the district court imposed in this case. Therefore, Jacobs’ appeal waiver is valid and does not authorize him to appeal the upward variance he received at sentencing. His appeal was dismissed.

Government Breaches Plea Agreement

Published By Stephen Preziosi

U.S. v. Wilson

841 Fed. Appx. 571

Fourth Circuit Court of Appeals

Decided on January 25, 2021

Unfairly sentenced? Contact an appellate attorney today.

Issue:

Did the Government Breach the Plea Agreement?

Whether the Government breached the plea agreement and is released from its obligations under the plea agreement when at sentence defendant objected to the alleged weight of drugs/narcotics.

Holding:

Government Cannot Breach Plea Agreement

The Fourth Circuit held that the Government cannot unilaterally declare itself released from its plea agreement obligations based on a defendant’s alleged breach; therefore the Government breached the plea agreement when it did not advocate for the downward adjustment at sentencing.

Facts:

Calvin Wilson pled guilty to possession and intent to distribute marijuana and heroin. As part of his agreement, the Government agreed to dismiss one other count on which Wilson had been charged and agreed that a three-level downward adjustment was warranted for acceptance of responsibility under § 3E1.1 of the Sentencing Guidelines. The agreement stipulated that the drug quantity attributed to Wilson  for sentencing purposes would be “at least 3 kilograms but less than 10 kilograms of heroin.”

A probation officer then prepared a pre-sentence investigation report (PSR), which held Wilson accountable for 7.48 kg of heroin, putting Wilson’s base offense level at 32. It also recommended several sentencing enhancements, including a two-level enhancement for obstructing justice which might make any reduction for acceptance of responsibility inappropriate. Without credit for acceptance of responsibility, the PSR identified Wilson’s offense level as 43 with a criminal history score of IV resulting in a sentencing guideline of life imprisonment. Wilson filed written objections to the PSR, namely where the PSR attributed less than .2 kg of heroin to Wilson based on drug sales dating back to 2015. Wilson did not challenge a separate paragraph that attributed to him 7.48 kg of heroin.

At the sentencing hearing the Government addressed its motion for “relief from certain obligations under its plea agreement” because, in its view, Wilson materially breached the plea agreement when he objected to the drug-weight attribution. Wilson responded that the objection was not to the drug quantity, but to the timeline, as the PSR had his drug sales activity going back to 2015 instead of 2017. The district court never ruled on the Government’s motion for relief from its plea agreement obligation or made the finding that Wilson breached the agreement. When it came time for sentencing, the Government did not advocate for a downward adjustment for acceptance of responsibility. Without the reduction, the court calculated Wilson’s sentencing guideline consistent with the PSR as life imprisonment. Wilson objected, pointing out the Government’s obligations under the plea agreement. The district court sentenced Wilson to 35 years’ imprisonment. Wilson appealed, contending that the Government breached the terms of the plea agreement by failing to advocate for the downward adjustment.

Analysis:

Government Does Not Declare Breach, a District Court Does

The Government’s sole argument on appeal was that it was freed from its obligations under the plea agreement because Wilson breached the agreement first when he objected to drug attribution quantities to which he had stipulated. But the Fourth Circuit held that the Government cannot breach the plea agreement due to a defendant’s alleged breach. (U.S. v. Simmons, 537, F.2d 1260, 1261 (4th Cir. 1976)). Rather, the Government may be relieved of its obligations under a plea agreement only after a hearing and a district court finding that the defendant has breached (See id; see also U.S. v Cudjoe, 534 F.3d 1349, 1354 (10th Cir. 2008)). The district court never ruled on the Government’s motion and made no mention of relieving it of its plea agreement obligations. Therefore, the Government remained bound to honor its acceptance of responsibility stipulation in full. Its conceded failure to do so constituted a breach. Wilson’s sentence was vacated and remanded for resentencing before a different judge.

Plea agreement breached by the Government? Contact a Federal Appeals Attorney today.

Breach of Plea Agreement and Appeal Waivers

Published By Stephen Preziosi

U.S. v. Franklin

701 Fed. Appx. 575

Ninth Circuit Court of Appeals

Decided on May 11, 2017

Issue:

Government Breaches Plea Agreement at Sentencing

Whether 1) the Government breached the plea agreement where it agreed to recommend a base offense level of 24, but in sentencing applied a base offense level of 26 while entreating the court to “vary downward” from the total offense level, and 2) whether the government’s breach voids the appeal waiver.

Holding:

Government Breach of Plea Agreement Does Not Void Appeal Waiver

The Court held that 1) although the Government did breach the plea agreement, the breach did not affect the defendant’s substantial rights and did not amount to plain error; therefore, 2) his appeal weaver is enforceable. 

Facts:

Andre Franklin appealed his 60-month sentence following a guilty plea to distributing crack cocaine. Franklin argued that the Government breached the terms of the agreement by not recommending that he receive a base offense level of 24 as specified in the agreement. At sentencing, the Government instead recommended that a base level of 26 was “technically accurate” due to “relevant conduct,” where police seized controlled substances and a gun seven days after Franklin’s offense conviction. The Government entreated the court to “vary downward” from the total offense level of 26 and “impose a sentence consistent with the parties’ plea agreement by applying a base offense level of 24.” 

Analysis:

Government Did Breach Agreement

The Ninth Circuit found that in recommending a base offense level of 26, the Government did breach the plea agreement. However, the defendant did not object at the time of sentencing so the court reviewed the issue under a plain error standard of Fed. R. Crim. P. 52(b).

Plain Error Review

To prove his appeal waiver was invalid due to plain error, the defendant must prove “1) error; 2) that was plain; 3) that affected substantial rights; and 4) that seriously affected the fairness, integrity, or public reputation of the judicial proceedings” (U.S. v Whitney, 673 F.3d 965, 970 (9th Cir. 2012)). The Ninth Circuit found that though the Government contravened the guarantees of the plea agreement by representing that the higher base offense level was correct and recommending that the court vary downward from it, the breach did not affect Franklin’s substantial rights. Franklin himself argued for a base offense level of 26 at the sentencing hearing, and that level actually lowered his sentencing range. The Ninth Circuit held that the Government did not, therefore, affect his sentence in a detrimental way. Because Franklin could not show that the Government’s breach affected his substantial rights, he was bound by his appeal waiver and his appeal is dismissed.