Armed Career Criminal and Armed Career Criminal and Career Offender Career Offender EnhancementsEnhancements

If you can’t avoid them, If you can’t avoid them,

deflect them.deflect them.

ACCA - mandatory 15 year ACCA - mandatory 15 year sentence:sentence:

Who does it apply to?Who does it apply to?

Defendant must:

be adjudicated guilty under 18 U.S.C. § 922(g) (guns and ammunition);

have three prior convictions (committed at different times) for either (or combination):

“violent felony” “serious drug offense”

Career Offender Guideline:Career Offender Guideline:Who does it apply to?Who does it apply to?

Defendant must be 18 at time he commits the instant Defendant must be 18 at time he commits the instant offense;offense;

The instant offense is a felony “crime of violence” or a The instant offense is a felony “crime of violence” or a “controlled substance offense”;“controlled substance offense”;

The defendant has at least two prior felony convictions The defendant has at least two prior felony convictions which are either a “crime of violence” or a “controlled which are either a “crime of violence” or a “controlled substance offense” (or a combination).substance offense” (or a combination).

In-depth analysis In-depth analysis of ACCAof ACCA

What counts as prior What counts as prior convictions?convictions?

Age of prior conviction is irrelevant.Age of prior conviction is irrelevant.

The prior convictions must have been adjudicated The prior convictions must have been adjudicated beforebefore Defendant committed the present offense. Defendant committed the present offense.

Cases consolidated for purposes of sentencing that were Cases consolidated for purposes of sentencing that were committed on different occasions are treated as separate committed on different occasions are treated as separate under ACCA. under ACCA. SeeSee United States v. HudspethUnited States v. Hudspeth, 42 F.3d , 42 F.3d 1015, 1021 (71015, 1021 (7thth Cir. 1994)(commission of 3 different Cir. 1994)(commission of 3 different burglaries against 3 different victims over the course of burglaries against 3 different victims over the course of 30 minutes).30 minutes).

What counts as prior What counts as prior convictions?convictions?

Conspiracy, Aiding and Abetting, and Attempts Conspiracy, Aiding and Abetting, and Attempts to commit “violent felony” or “serious drug to commit “violent felony” or “serious drug offense” may qualify.offense” may qualify.

Circuit split as to whether juvenile convictions Circuit split as to whether juvenile convictions qualify.qualify.

Validity of prior conviction cannot be challenged Validity of prior conviction cannot be challenged except except wherewhere prior was based on the complete prior was based on the complete denial of the right to counsel. denial of the right to counsel. Custis v. United Custis v. United StatesStates, 511 U.S. 485 (1994)., 511 U.S. 485 (1994).

18 U.S.C. § 924(e)(2)(B) defines “violent felony” as:

any felony...that

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another;

or

(ii) is burglary, arson, extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(A) defines “serious drug offense”

as: (i) an offense under the Controlled

Substance Act (21 U.S.C. § 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. § 951 et seq.), or Title 46 Chapter 705, with a maximum term of imprisonment of ten years or more; or

(ii) an offense under state law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute with a maximum term of imprisonment of ten years or more.

ACCA and GuidelinesACCA and Guidelines Statute provides for a Statute provides for a minimumminimum of fifteen years. of fifteen years.

Offense level will be the greatest of:Offense level will be the greatest of:

Offense level applicable from Chapters Two and Offense level applicable from Chapters Two and Three; orThree; or

Offense level from § 4B1.1 (Career Offender), if Offense level from § 4B1.1 (Career Offender), if applicable; orapplicable; or

34, if D used/possessed firearm or ammunition in 34, if D used/possessed firearm or ammunition in connection with a crime of violence, controlled connection with a crime of violence, controlled substance offense, or if the firearm was one described substance offense, or if the firearm was one described in 26 U.S.C. § 5845(a);in 26 U.S.C. § 5845(a);

or Level 33 otherwise.or Level 33 otherwise.

ACCA and GuidelinesACCA and Guidelines Criminal history is the greatest of:Criminal history is the greatest of:

Criminal history under Chapter Four;Criminal history under Chapter Four;

§ 4B1.1 (Career Offender), if applicable;§ 4B1.1 (Career Offender), if applicable;

Category VI, if D used/possessed firearm in Category VI, if D used/possessed firearm in connection with crime of violence, controlled connection with crime of violence, controlled substance offense, or firearm was one substance offense, or firearm was one described in 26 U.S.C. § 5845(a);described in 26 U.S.C. § 5845(a);

or category IV otherwise.or category IV otherwise.

15 Year 15 Year mandatory mandatory minimumminimum

In-depth analysis of In-depth analysis of Career OffenderCareer Offender

What counts as prior What counts as prior convictions?convictions?

Cases consolidated for purposes of sentencing Cases consolidated for purposes of sentencing may be treated as separate conviction under may be treated as separate conviction under Career Offender. Career Offender.

Aiding and abetting, conspiracy and attempts to Aiding and abetting, conspiracy and attempts to commit “crimes of violence” or “controlled commit “crimes of violence” or “controlled substance offenses” count. substance offenses” count. SeeSee U.S.S.G. § 4B1.2. U.S.S.G. § 4B1.2.

The provisions of § 4A1.2 apply (some offenses The provisions of § 4A1.2 apply (some offenses may be too old to count for purposes of career may be too old to count for purposes of career offender or may not apply for other reasons). offender or may not apply for other reasons).

USSG §4B1.2 USSG §4B1.2 defines defines “crime of violence” “crime of violence” as:as: ……any [felony] that:any [felony] that:

(1) has as an element the use, attempted use, or (1) has as an element the use, attempted use, or threatened use of physical force against the threatened use of physical force against the person of another; orperson of another; or

is burglary is burglary of a dwellingof a dwelling, arson, or extortion, , arson, or extortion, involves use of explosives, or otherwise involves involves use of explosives, or otherwise involves conduct that presents a serious potential risk of conduct that presents a serious potential risk of physical injury to another.physical injury to another.

USSG §4B1.2 defines USSG §4B1.2 defines “controlled substance offense” “controlled substance offense”

as:as:

… … a [felony] that prohibits the a [felony] that prohibits the manufacture, import, export, manufacture, import, export, distribution, or dispensing of a distribution, or dispensing of a controlled substance (or a counterfeit controlled substance (or a counterfeit substance) or the possession of a substance) or the possession of a controlled substance (or a counterfeit controlled substance (or a counterfeit substance) with intent to manufacture, substance) with intent to manufacture, import, export, distribute, or dispense. import, export, distribute, or dispense.

Career Offender Guideline:Career Offender Guideline:How it impacts the sentenceHow it impacts the sentence

No statutory mandatory minimum but...No statutory mandatory minimum but...

The offense level is determined according The offense level is determined according to the instant offense’s statutory maximum:to the instant offense’s statutory maximum: LifeLife 3737 25 or more25 or more 3434 20 or more20 or more 3232

Criminal History category becomes a VI.Criminal History category becomes a VI.

Major differences between Major differences between ACCAACCA and and Career OffenderCareer Offender

ACCA Career Offender

•Instant offense of conviction must be under 18 U.S.C. § 922(g).

•3 prior convictions required

• “Violent felony” definition has a broader definition for “burglary”—need not be “burglary of a dwelling”

• Instant offense of conviction must be “crime of violence” or “controlled substance offense.”

• 2 prior convictions required

• “Crime of violence” definition is narrower—requires that the burglary be of a dwelling.

Deflect these enhancements by attacking the prior convictions

We attack prior convictions by using We attack prior convictions by using the the TaylorTaylor analysisanalysis, otherwise known , otherwise known as the as the categorical approachcategorical approach..

Taylor v. United StatesTaylor v. United States, 495 U.S. 575, , 495 U.S. 575, 599 (1990).599 (1990).

What is the What is the categorical approach / categorical approach / TaylorTaylor

analysis?analysis? A system used by courts to determine

whether the statute of conviction fits the definition in question – in the case of ACCA:

whether the conviction is a “violent felony” or “serious drug offense” ;

in the case of Career Offender: whether a prior conviction is a “crime of

violence” or a “controlled substance offense.”

Brief overview of Brief overview of Taylor v. United StatesTaylor v. United States

Mr. Taylor pleads to 922(g). Mr. Taylor pleads to 922(g). His priorsHis priors: robbery, assault, and 2 second degree : robbery, assault, and 2 second degree

burglary convictions (1963 and 1971).burglary convictions (1963 and 1971). Missouri had several different statutes for second Missouri had several different statutes for second

degree burglaries—some including very broad degree burglaries—some including very broad conduct (such as entry into a booth).conduct (such as entry into a booth).

No documentation showing which particular second No documentation showing which particular second degree burglary statute Taylor was convicted under.degree burglary statute Taylor was convicted under.

Eight Circuit affirmed the district court and held that Eight Circuit affirmed the district court and held that “burglary” under 18 U.S.C. § 924(e)’s definition “burglary” under 18 U.S.C. § 924(e)’s definition meant “burglary” however a state chose to define it.meant “burglary” however a state chose to define it.

Issue before the CourtIssue before the Court: whether the Missouri second : whether the Missouri second degree burglaries were degree burglaries were “violent felonies” “violent felonies” under under ACCAACCA. .

Statutes across the country varied as to the type of Statutes across the country varied as to the type of structure involved and the means of entry.structure involved and the means of entry.

No single meaning for what constituted “burglary.” No single meaning for what constituted “burglary.”

Court did not want state definition to control: “that would Court did not want state definition to control: “that would mean that a person convicted of unlawful possession of a mean that a person convicted of unlawful possession of a firearm, would or would not, receive a sentencing firearm, would or would not, receive a sentencing enhancement based on exactly the same conduct, enhancement based on exactly the same conduct, depending on whether the State of his prior conviction depending on whether the State of his prior conviction happened to call that conduct “burglary.” happened to call that conduct “burglary.” TaylorTaylor, 495 U.S. , 495 U.S. 575, 579 (1990). 575, 579 (1990).

The Court identified a “generic” definition The Court identified a “generic” definition for burglary that included elements found for burglary that included elements found in the criminal codes of most states.in the criminal codes of most states.

Burglary Burglary : : unlawful or unprivileged entry into, or unlawful or unprivileged entry into, or

remaining in, a building or structure, remaining in, a building or structure, with intent to commit a crime.with intent to commit a crime.

To see if Taylor’s convictions qualified as To see if Taylor’s convictions qualified as a “burglary” the Court comes up with the a “burglary” the Court comes up with the categorical approach.categorical approach.

Two step approach to categorical approach / Taylor analysis

Step 1: categorical approach

Step 2: modified categorical approach

Step 1: Categorical approach

Determine if the statute of conviction is overbroad:

Does the statute of conviction include conduct that may not be covered by the definition in question?

If a state statute punishes both conduct that is and is not included in the definition in question then the state statute is overbroad.

To determine if the statute of conviction is overbroad, courts only look at

the fact of conviction; and

the statutory definition of the offense (elements of the offense)

not at the underlying facts.

Taylor’s two second degree burglary convictions were in Taylor’s two second degree burglary convictions were in 1963 and 1971. In those years, Missouri had 1963 and 1971. In those years, Missouri had different statutes for “second degree burglary” :different statutes for “second degree burglary” :

Breaking and entering a dwelling house (Mo. Rev. Stat § Breaking and entering a dwelling house (Mo. Rev. Stat § 560.045)560.045)

Having entered a dwelling house, breaking out of it (Mo. Rev. Having entered a dwelling house, breaking out of it (Mo. Rev. Stat § 560.050, 560.060)Stat § 560.050, 560.060)

Breaking an inner door (Mo. Rev. Stat § 560.070)Breaking an inner door (Mo. Rev. Stat § 560.070) Breaking and entering a building, Breaking and entering a building, booth, tent, boat or railroad booth, tent, boat or railroad

car (car (Mo. Rev. Stat § 560.075)Mo. Rev. Stat § 560.075) Breaking and entering a bank (Mo. Rev. Stat § 560.080)Breaking and entering a bank (Mo. Rev. Stat § 560.080)

Do Missouri’s 2nd degree burglary statutes Do Missouri’s 2nd degree burglary statutes include include bothboth conduct that falls within the conduct that falls within the definition of definition of violent felonyviolent felony and conduct and conduct which does not?which does not?

Mo. Rev. Stat § 560.075

Breaking and entering Any building…, or any booth or tent, or any boat or vessel, or

railroad car… with the intent

to steal or commit any crime therein, shall,

on conviction, be

adjudged guilty of burglary in

the second Degree

1)1) Is it burglary? Are the elements the Is it burglary? Are the elements the following: Unlawful or unprivileged following: Unlawful or unprivileged entry into, or remaining in, a entry into, or remaining in, a building building or structureor structure, with intent to commit a , with intent to commit a crime.crime.

2)2) Does it “otherwise involve conduct that Does it “otherwise involve conduct that presents a serious potential risk of presents a serious potential risk of physical injury to another?”physical injury to another?”

The court did not know which of The court did not know which of those statutes Taylor had been those statutes Taylor had been convicted under…was he convicted convicted under…was he convicted under a statute that fit the generic under a statute that fit the generic definition of burglary or was he definition of burglary or was he convicted of a statute that included convicted of a statute that included conduct that fell outside of it?conduct that fell outside of it?

Based on the several statutes and the Based on the several statutes and the lack of documentation showing which lack of documentation showing which statute Taylor was convicted under, how statute Taylor was convicted under, how is the court to determine whether Taylor’s is the court to determine whether Taylor’s convictions:convictions:

fit the definition of fit the definition of “burglary”,“burglary”, or or

involved involved “conduct that presents a serious “conduct that presents a serious potential risk of physical injury to another”? potential risk of physical injury to another”?

Since Missouri’s second degree burglary Since Missouri’s second degree burglary statutes may or may not fit the definition in statutes may or may not fit the definition in question—some are overbroad—the question—some are overbroad—the modified modified categorical approach categorical approach is necessary.is necessary.

Step 2Step 2: : Modified categorical approachModified categorical approach

Unlike Step 1, courts look at certain Unlike Step 1, courts look at certain permissible documents to establish whether permissible documents to establish whether the conviction in question fits the definition the conviction in question fits the definition at issue.at issue.

Government’sGovernment’s burden to prove that the burden to prove that the defendant actually violated the statute in a defendant actually violated the statute in a way that fits the definition of way that fits the definition of violent felonyviolent felony..

Courts can only look at Courts can only look at “judicially noticeable “judicially noticeable documents”documents” to determine if underlying to determine if underlying conviction is a conviction is a violent felonyviolent felony. . Shepard v. United Shepard v. United StatesStates, 544 U.S. 13 (2005). , 544 U.S. 13 (2005).

Judicially noticeable documents:Judicially noticeable documents:

If conviction obtained through jury If conviction obtained through jury trialtrial: : charging document and jury instructions. charging document and jury instructions.

Taylor v. United StatesTaylor v. United States, 495 U.S. 575, 599 , 495 U.S. 575, 599 (1990).(1990).

If bench trialIf bench trial:: judge’s formal rulings of law and findings judge’s formal rulings of law and findings

of fact. of fact. Shephard v. United StatesShephard v. United States, 544 U.S. 13, 19 , 544 U.S. 13, 19

(2005).(2005).

If case was resolved by way of If case was resolved by way of plea plea agreementagreement::

Charging document (not alone). Charging document (not alone). United States United States v. Skyesv. Skyes, 598 F.3d 334, 339 (7, 598 F.3d 334, 339 (7thth Cir. 2010). Cir. 2010).

Signed plea agreement. Signed plea agreement. United States v. United States v. TaylorTaylor, 630 F.3d 629, 633 (7, 630 F.3d 629, 633 (7thth Cir. 2010). Cir. 2010).

Transcript of plea colloquy. Transcript of plea colloquy. United States v. United States v. FifeFife, 624 F.3d 441, 445 (7, 624 F.3d 441, 445 (7thth Cir. 2010). Cir. 2010).

Judgment of conviction. Judgment of conviction. Mata-Guerrero v. Mata-Guerrero v. HolderHolder, 627 F.3d 256, 260 (7, 627 F.3d 256, 260 (7thth Cir. 2010). Cir. 2010).

What What cannotcannot be included for be included for purposes of the purposes of the modifiedmodified categorical categorical approach:approach:

police reports police reports

PSRPSR

Witness statementsWitness statements

Rap sheetsRap sheets

In Taylor’s case, the Court did not In Taylor’s case, the Court did not have any judicially noticeable have any judicially noticeable documents that would show that documents that would show that Taylor was convicted under a Taylor was convicted under a qualifying statute, so case was qualifying statute, so case was vacated and remanded.vacated and remanded.

Practice TipsPractice Tips In conducting a In conducting a TaylorTaylor analysis, it is critical analysis, it is critical

to evaluate the statute of conviction as it to evaluate the statute of conviction as it existed existed at the time of the defendant’s prior at the time of the defendant’s prior offense.offense.

Do not just look at the current version of the Do not just look at the current version of the statute as it might have been amended. statute as it might have been amended.

Order records.Order records. Taylor/ categorical approach can be used in

many other settings: e.g., child pornography statutes, felon in possession U.S.S.G., §1326 statutes/ U.S.S.G., § 924(c).

ConclusionConclusion RememberRemember::

1. Do not go by State’s label for the crime.1. Do not go by State’s label for the crime.

2. Do not go by the underlying facts.2. Do not go by the underlying facts.

3. Look at the particular statute your client got 3. Look at the particular statute your client got convicted under and the cases interpreting that convicted under and the cases interpreting that statute.statute.

4. Read the particular enhancement definition 4. Read the particular enhancement definition very carefully.very carefully.

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