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.
