Armed

Legal Practice Tip: Appellate Issues and the Armed Career Criminal Act

Criminal appellate attorneys should be aware of litigation currently working its way through the federal appellate system that may have substantial repercussions on how federal courts treat certain firearm offenses, violent crimes and drug offenses. 
 
Federal law prohibits certain classes of people from possessing firearms. 18 U.S.C. § 922(g). In general, violations of this ban can result in prison sentences of up to 10 years’ imprisonment. 18 U.S.C. § 924(a)(2). The Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), provides that, for offenders with particularly notable criminal histories, this punishment is markedly increased. Specifically, if an offender has sustained three or more earlier convictions – state or federal – for a “serious drug offense” or “violent felony,” he or she will face a minimum prison term of 15 years and a maximum of life. 
 
Originally, the ACCA defined a “violent felony” as: any crime punishable by imprisonment for a term exceeding one year. . . 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, or 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)(B) (2014) (emphasis added). In 2015, the Supreme Court addressed the italicized portion of the ACCA — colloquially known as the “residual clause” due to its general scope — on a challenge claiming that it was unconstitutionally vague. See Johnson v. United States, 135 S.Ct. 2551 (2015). The Court decided the residual clause was unconstitutionally vague and, consequently, unenforceable.
 
Accordingly, courts now consider whether a prior conviction qualifies as a predicate offense under the remainder of the ACCA, i.e., whether the offense of conviction (1) has an element the use or the attempted/threatened use of force (the so-called “use of force clause”); or (2) whether the offense is otherwise specifically listed in the statute (the “enumerated offense” clause). Appellate cases (and by extension, years of custody for a federal appellant) can – and often do – turn on this complex and nuanced analysis.   
 
Appellate advocates may be required to address in federal court whether a decades-old state conviction has “the use of force” as an element. This can present complicated questions. For example, what if a criminal statute sets out alternative elements by which a person may commit a crime, some of which contemplate the use of force, some of which do not? See Mathis v. United States, 136 S.Ct. 2243 (2016). Assuming a defendant is convicted under such a “divisible” statute, how can an attorney show which elements relate to her client’s past conviction? See id.; Shepard v. United States, 544 U.S. 13 (2005). What if a state statute criminalizes the reckless use of force – could this count as a “violent” predicate offense? See United States v. Verweibe, 874 F.3d 258 (6th Cir.  2017).  
 
Alternatively, appellate attorneys should be prepared to argue whether a prior conviction constitutes one of the four remaining enumerated offenses under the ACCA.  Although this seems like a straightforward task, it is anything but. Only those convictions with elements that are identical to, or narrower than, the “generic” crimes in the enumerated offense clause will qualify.
 
The most recent example involves Tennessee aggravated burglary, Tenn. Code Ann. § 39-14-403.  Despite being a “burglary” statute, the United States Court of Appeals for the Sixth Circuit has held that, because the elements listed in the Tennessee Code are broader than those of generic burglary, Tennessee aggravated burglary is not a “violent felony” within the meaning of the ACCA.  See United States v. Stitt, 860 F.3d 854 (6th Cir. 2017). Conversely, a prior conviction for “burglary,” Tenn. Code Ann. § 39-14-402, as a Class D felony, will qualify as a violent felony under the ACCA. United States v. Ferguson, 868 F.3d 514 (6th Cir. 2017). Put another way, the current status of federal law is: in Tennessee, aggravated burglary is not a violent felony, but Class D burglary is. 
 
The ACCA presents some of the most rapidly changing and nuanced criminal appellate issues, and appellate attorneys must be prepared to address them thoroughly. Trial attorneys should keep abreast of them, as well, so that they may appropriately advise their clients about potential significant future consequences. One tip to help stay on top of the developing law: sign up for the 6th Circuit’s free listserv, which will push daily opinions to your e-mail inbox as soon as they are released: http://www.ca6.uscourts.gov/opinions. The TBAToday newsletter also includes all published 6th Circuit opinions the day they are released.
 
The Armed Career Criminal Act is a substantial facet of federal criminal litigation. Despite the shifting legal landscape, one thing is certain: more guidance is coming. The Supreme Court has granted certiorari in Stitt, supra, and it will no doubt weigh in on these and other issues in the months to come. It’s anyone’s guess as to how profoundly the law may change, if at all, as a result. The only thing a skilled appellate advocate can do is be prepared.

— Kyle J. Wilson is the Section Chair for the TBA Appellate Practice Section.
read more »