Another ACCA Disappointment

There must be some disturbance in the force causing bad things, or a cloaked Klingon Bird of Prey taking pot shots at us.  :(

United States v. Johnson, Nos. 10-5691/5778 (6th Cir. Apr. 11, 2012) (for publication).

Panel of Judges Keith, Griffin, and Stranch.

Gov cross-appealed when dist ct did not sentence D under ACCA (18 USC 924(e)).  COA agreed with gov, vacated the sentence, and remanded for resentencing.   

Prior at issue: Missouri third-degree assault.  Can involve reckless conduct---not just intentional.  Normally a misdemeanor, but there was a recidivist enhancement here.   

The D was not charged with reckless conduct; the criminal information clarified that the D was charged with intentionally attempting to cause physical injury. 

COA clarified that the residual clause is not meant to be a "catch-all provision."  Also stated that "we must consider whether the prior offense 'conduct is such that it makes more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim.'" 

COA classifies Begay's similar-in-kind test as "of secondary importance under Sykes."  It did, however, still address the test.  The Court also found that the assault offense is exactly the type of conduct that makes it more likely that the offender would use a gun to harm someone.  It shows a capacity for violence. 

While the gov raised the issue, the COA did not address the force clause and the question of whether the assault offense could qualify under that clause. 

The fact that this prior offense involved an attempt was inconsequantial.  Attempts can qualify as violent felonies. 

The D had also appealed, arguing the dist ct, without proper reasoning, ordered his fed and state sentences to be consecutive.  The issue became moot given the ACCA ruling, but the COA did note in footnote one that the dist ct "should expressly consider" the 3553(a) factors and USSG 5G1.3(c) and the relevant commentary in imposing a consecutive sentence. 

ACCA Disappointment: DVs Qualify

United States v. Kearney, No. 10-1532 (6th Cir. Apr. 5, 2012) (published).

Panel of Judges Merritt, Clay, and Sutton.  J. Merritt dissented.

ACCA issue.

Priors were for domestic violence: 93-day misdemeanors under Mich law.  But the max penalty increased for D b/c of a recidivism enhancement.  Statute is the familiar MCL 750.81(2).  Assault or assault and battery. 

COA recognized that touching was enough to sustain a conviction under Mich law.

PSR showed that the offenses involved punching, kicking, and stomping the victim for the first conviction and striking the victim with an unknown object for the second conviciton.  The D did not dispute these allegations. 

Interesting footnote (#4): it's improper to rely on a PSR to determine whether a prior offense counts for ACCA purposes, but COA wouldn't address that issue b/c defense had not objected in dist ct.  COA does cite United States v. Wynn, 579 F.3d 567 (6th Cir. 2009).

Will a prior conviciton enhanced b/c of a recidivism enhancement count for ACCA purposes?  Yes.  COA cites United States v. Rodriquez, 553 U.S. 377 (2008).


The COA cites Johnson v. United States, 130 S. Ct. 1265 (2010).  But it does so in the context of considering recidivism enhancements.  Perhaps it is b/c the nature of the conduct was known, but there is no argument on the level of force required to be an ACCA predicate conviction or any Begay argument regarding the conviction's failure to fit under the residual clause. 

So those avenues remain open. 

(Hey, it's hard to find free pics.  But take it as a pirate exhortation to keep raising these issues!)
J Merritt reads Johnson broadly in his dissent: state misdemeanors enhanced into felonies b/c of a similar prior misdemeanor are not the type of predicate offenses the ACCA contemplates. 

He finds: "Turning misdemeanor domestic abuse statutes into predicate offenses under the federal 15-year statute when the wife or husband violates the local statute twice seems a far cry from the type of recidivism Congress had in mind when it decided to take the sentencing process away from the federal sentencing judge and impose a long mandatory sentence."

He also cites the rule of lenity.