United States v. Coleman, No. 10-3205 (6th Cir. Aug. 24, 2011) (to be published). Panel of Judges Cole, Rogers, and Sargus (S.D. Ohio).
Defendant sentenced under the ACCA. Had three prior third-degree burglary convictions out of Ohio (one was an attempt).
Court found that "Because the burglary or attempted burglary of an 'occupied structure' creates a risk of physical injury that is similar to the risk posed by generic burglary, the offense is categorically violent under the residual 'otherwise' clause of § 924(e)(2)(B)(ii)." This decision is disappointing for a number of reasons.
1) The Court even says the sentence was "harsh on the facts of this case." After the defendant was arrested b/c of a domestic dispute, police found an unloaded, dilapidated firearm frame in the defendant's pocket. There was no trigger assembly and the frame could not be made readily operable. Unfortunately, it was still a firearm under 921(a)(3)(B).
2) The Ohio statute proscribes non-generic burglary. And the Shepard documents did not shed light on the nature of the burglaries at issue. But the Court found that these prior convictions fit under the "otherwise clause" of the ACCA. The Court looked to a Tenth Circuit case considering the same statute: United States v. Scoville, 561 F.3d 1174, 1180-81 (10th Cir. 2009). (Begay was 2008.)
3) The Court looked to pre-Begay cases to support its conclusions, including United States v. Lane, 909 F.2d 895, 902 (6th Cir. 1990), and United States v. Fish, 928 F.2d 185, 188 (6th Cir. 1991). I once had entertained the naive hope that these cases could be reconsidered after Begay. But the Court closed that door here. (The door has been closing for a while. See United States v. Skipper, 552 F.3d 489, 493 (6th Cir. 2009).)
4) The Court conducted the Begay similar-in-kind-and-degree-of-risk analysis and found the requirements met.
5) The Court also rejected the idea that attempted burglary should not qualify, citing James.
6) The Court cited Sykes to find that purposeful, violent and aggressive conduct need not be a statutory element of the offense in question for the latter to qualify as an ACCA predicate conviction.
7) The Court also reiterated that defendants cannot collaterally attack state convictions at their federal sentencings.
