Archive | ACCA

Friday, August 13th, 2010

Court Reads the Riot Act

United States v. Johnson, No. 08-5245-cr (2d Cir. August 2, 2010) (Cabranes, Parker, CJJ, Amon, DJ)

In this split decision, the majority held that a conviction for the Connecticut offense of “Rioting at a Correctional Institution” is a “violent felony” under the “otherwise involves” clause of the Armed Career Criminal Act (“ACCA”).

In getting there, the majority looked beyond the statute’s title – which “suggests an obvious answer ” – to examine the conduct that the statute actually proscribes. The Connecticut statute provides that a person is “guilty of rioting at a correctional institution when he incites, instigates, organizes, connives at, causes, aides, abets, assists or takes part in any disorder, disturbance, strike, riot or other organized disobedience to the rules and regulations of such institution.” Connecticut courts have “clarified” the meaning of the statute, holding that it is “specifically directed” at those who lead or plan prison disturbances and …


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Friday, July 10th, 2009

Daye of the Weak

United States v. Daye, No. 08-1012-cr (2d Cir. July 10, 2009) (Miner, Raggi, Livingston, CJJ)

Bruce Daye received an 180-month ACCA sentence. On appeal, he raised challenges to the use of all of his prior convictions as ACCA predicates, and the court sent the case back for further findings.

1. Escape

One of Daye’s prior convictions was for escape, most likely under Vt. Stat. Ann. tit. 13, § 1501. At the time of his federal sentencing, circuit law provided that, categorically, all escape convictions were crimes of violence for ACCA. Thus, although defense counsel objected to the characterization of the escape as a crime of violence, the district court made no findings as to the nature of the escape, which is now dispositive under Chambers v. United States, 129 S.Ct. 687 (2009).

Here, the PSR strongly suggested that Daye’s conviction arose from failing to return from a furlough, rendering it …


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Categories: ACCA, crime of violence, Uncategorized

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No Escape

United States v. Mills, No. 07-0308-cr (2d Cir. June 26, 2009) (Kearse, Sack, Livingston, CJJ) (per curiam)

Gary Mills was convicted of violating 18 U.S.C. § 922(g), and received a 188-month sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (ACCA). But for ACCA, his statutory maximum would have been 120 months’ imprisonment.

On appeal he argued, and both the government and the court of appeals agreed, that under Chambers v. United States, 129 S.Ct. 687 (2009), his Connecticut conviction for first-degree escape was not a violent felony.

The Connecticut statute proscribes a variety of conduct, ranging from escape from a correctional institution (which probably is a crime of violence) to failing to return to a halfway house or from a furlough. Here, at the sentencing hearing, the evidence established that Mills had been released from prison to “transitional supervision.” He lived in a private residence, but was …


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Wednesday, December 17th, 2008

Restoration Drama

United States v. Bullock, No. 07-3059-cr (2d Cir. December 17, 2008) (Jacobs, Minor, Sotomayor, CJJ)

Bullock, a previously convicted felon, was convicted, after a jury trial, of possessing ammunition. He was subject to a fifteen-year mandatory minimum under the Armed Career Criminal Act (“ACCA”), and actually received a sentence of 188 months. On appeal, he argued principally that his prior convictions – three robberies – were not ACCA predicates because his civil rights had been restored. See 18 U.S.C. § 921(a)(20). Specifically, he noted that he had “been off parole for 11 years,” was “entitled to vote,” and that New York law did not restrict his right to possess ammunition.

The circuit disagreed. Restoration of civil rights has three components – the right to vote, the right to serve on a jury, and the right to hold elective office. The court agreed that Bullock’s rights to vote and hold office …


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Friday, November 14th, 2008

False Promise

United States v. Buie, 07-0258-cr (2d Cir. November 13, 2008) (McLaughlin, Leval, Pooler, CJJ)

For a drug conviction to be an ACCA predicate, it must be of an offense “for which a maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii). David Buie pled guilty to a drug offense in New Jersey that carried a ten-year statutory maximum, but at his plea hearing the judge promised that he would not sentence Buie to more than eight years: “The [eight-year] plea bargain is the maximum. I could go under. I can’t go over.” The court of appeals rejected Buie’s argument that this promise took the conviction out of ACCA, noting that “Supreme Court precedent … requires that we look to the definition of the offense established by the state legislature.” Moreover, this is not the type of situation where a court looks “beyond …

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Tuesday, August 19th, 2008

It Depends Upon What the Meaning of the Word “Is” Is

United States v. Darden, No. 06-4567-cr (2d Cir. August 15, 2008) (Cardamone, Pooler, CJJ, Keenan, DJ)

Under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”), a felon-in-possession of a firearm or ammunition faces a fifteen-year mandatory minimum sentence (the maximum is life) if he has at least three prior convictions for felony crimes of violence and/or “serious” drug offenses. The statute defines “serious” drug offenses as those for which the maximum penalty that “is prescribed” is ten years or more.

These four consolidated appeals all arose from the application of this definition to defendants whose past convictions were for New York State Class C or Class B (first offender) drug felonies. Until 2005, the maximum penalty for such offenses was more than ten years. Effective January of 2005, the state reduced the maximum penalty for such offenseses to less than ten years, but the amelioration is not retroactive.…

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Friday, May 2nd, 2008

Youthful Indiscretion

United States v. Parnell, No. 06-4551-cr (2d Cir. April 23, 2008) (Winter, Straub, Sack, CJJ) (per curiam)

In this case, the court again holds that a New York youthful offender adjudication (a “y.o.”) – here, it was for attempted burglary in the second degree – must be included in the defendant’s criminal history score under the sentencing guidelines and, where applicable, can trigger the “career offender” enhancement.

There is nothing new or surprising about this. What is interesting about this case is its strong dicta that a y.o is not a predicate under the Armed Career Criminal Act (ACCA). Indeed, the circuit cites with approval United States v. Fernandez, 390 F. Supp.2d 277 (S.D.N.Y. 2005) (litigated and won by this very blogger), which so held, and notes that, here, the district court followed Fernandez in declining to sentence Parnell under ACCA, a sentence, not incidentally, that the government did not …


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Wednesday, February 27th, 2008

Risky Business

United States v. Lynch, No. 05-6048-cr (2d Cir. February 27, 2008) (Calabresi, Raggi, Hall, CJJ)

David Lynch received a 15-year sentence under the Armed Career Criminal Act (ACCA) and appealed. In an opinion that covered no new ground, the circuit affirmed. It held (again) that New York State convictions for attempted burglary in the third degree (N.Y. Penal Law §§ 110/140.20) and criminal possession of a weapon in the second degree (N.Y. Penal Law § 265.03) both involve “conduct that presents a serious potential risk of physical injury to another.”

For the attempted burglary, the court reaffirmed its decision in United States v. Andrello, 9 F.3d 247 (2d Cir. 1993) (per curiam), and also noted that a recent Supreme Court case, James v. United States, 127 S.Ct. 1586 (2007), held that attempted burglary is an ACCA predicate.

Similarly, in United States v. Danielson, 199 F.3d 666 (2d Cir. 1999) (per …


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Friday, November 2nd, 2007

The Good Shepard

United States v. Rosa, No. 05-3621-cr (2d Cir. October 30, 2007) (Kearse, Sack, CJJ, Mills, DJ)

The Armed Career Criminal Act (ACCA) requires increased penalties for defendants in federal gun possession cases who have three prior convictions for serious drug offenses or “violent felonies.” This case concerns the “categorical approach” to determining whether a prior conviction resulting from a guilty plea was to an offense that qualified as a “violent felony.”

In 1991, Rosa pled guilty to robbery in the first degree, an offense he committed when he was 15, in violation of N.Y. Penal Law § 160.15(4), which makes it an offense to commit a robbery and display “what appeared to be” a firearm. The government contended that this conviction was an ACCA predicate as an “act of juvenile delinquency … involving the use or carrying of a firearm.” Two other ACCA predicates were not in dispute.

The district …


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