Tuesday, March 27th, 2018

Three Robberies in an Hour: Separate Offenses Under the ACCA

Today the Second Circuit held that three robberies committed on the same evening–within the same hour–were “committed on occasions different from one another” within the meaning of the ACCA. See United States v. Bordeaux, 17-486 (2d Cir. 2018) (Cabranes, Raggi, Vilardo (WDNY)). The opinion, available here, also holds that a subsection of Connecticut’s first-degree robbery statute, punishing robberies committed with a firearm, defines a violent felony for ACCA purposes.

The relevant facts of Bordeaux are buried toward the bottom of the opinion, in the analysis section. The defendant and accomplices robbed three different victims on the same night in Bridgeport, CT. The robberies occurred at approximately 10pm, 10:15pm, and 10:55pm on November 24, 2009. The district court “took notice that the distances between the first and second and the second and third robberies were, respectively, “a little less and a little more than one‐half mile.” Slip op. at 14. Thus, the robberies each occurred within about a mile from each other.

The Armed Career Criminal Act (ACCA), applies only where a defendant has been convicted of three prior, violent felonies that occurred “on occasions different from one another.” 18 U.S.C. § 924(e)(1). In determining whether felonies occurred on different “occasions,” courts are permitted to consider only sources approved in Taylor and Shepard, which include “the charging document, written plea agreement, transcript of plea colloquy, [and] analogous materials.” Id. at 13 (quoting United States v. Dantzler, 771 F.3d 137, 139 (2d Cir. 2014)).

Looking to the ordinary meaning of “occasions,” the panel observed that one acceptable usage–not the primary definition, but an acceptable usage–“evokes . . . the totality of circumstances giving rise to an opportunity.” Id. at 11. (That is, one would not simply look to whether events occurred at different junctures to determine whether they occurred on separate “occasions.”) This usage, the panel reasoned, better comports with the legislative history of the ACCA. Congress added the ACCA’s different-occasions requirement after the Solicitor General took the position in a cert. petition that the statute was intended “to apply only to defendants whose convictions had arisen from distinct ‘criminal episodes,’ not to a defendant who had been convicted on several counts for the same event.” Id. at 12. Turning to case law, the panel observed that the Second Circuit has “tried to distinguish between the defendant who simply commits several offenses in a connected chain of events and the defendant who is targeted by ACCA—someone who commits multiple crimes separated by substantial effort and reflection.” Id.

In the abstract, this standard for interpreting “occasions” is sensible. The panel’s application of that standard, however, is surprising. The facts in this case, the panel held, were sufficient to conclude that the defendant committed these offenses “in separate episodes.” Id. at 14. As the panel explained:

The lapse of time between the first and second and the second and third crimes was fairly short, a circumstance that should perhaps favor our treating the three offenses as parts of a single episode. The significant distances between the crimes, however, suggest that Bordeaux had to go to a degree of effort to get from one site to the next. Taken together, the time lapse and the distances provided Bordeaux an opportunity to reflect and change course, if he had wanted to do so.

Id. Moreover, the plea colloquy transcript supports the inference that none of the defendant’s accomplices stayed behind to complete either of the first two robberies while others moved on to rob other victims. See id. at 16.

The impact of Bordeaux can, perhaps, be circumscribed by the clear error standard that governs appellate review of factual determinations. In this case,  the panel concluded that the district court did not clearly err when it found that the robberies took place at distinct times. Id. at 16-17. Presumably, however, a district court could have found that these robberies–which occurred in close temporal and geographic proximity to one another–could have also concluded that they constituted the same “occasion.” According to the panel, the findings in Bordeaux were supported by “significant distance[]” between the crimes and the “degree of effort” required to commit each distinct crime. In the appropriate circumstances, practitioners can highlight these factors–effort and distance–to distinguish the convictions in Bordeaux from those in their case.

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Categories: ACCA, Shepard
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