Kristen Annunziato
The Armed Career Criminal Act (ACCA) of 1984 proscribes strict penalties for felons found in possession of a firearm. If the felon has a criminal record of at least three prior convictions for “violent felonies,” they are subjected to a mandatory minimum sentence of fifteen years imprisonment with a potential maximum of life behind bars for repeat offenders. 18 U.S.C.A. §924(e)(1)(West 2006); 18 U.S.C.A. §924(c)(1)(C)(ii)(West 2006). The statute, which was passed as part of the Reagan-era criminal law overhaul, has perplexed federal courts for decades. See Sykes v. United States, 564 U.S. 1 (2011); James v. United States, 550 U.S. 195 (2007); United States v. Mayer, 560 F.3d 948 (9th Cir. 2009); Johnson v. United States, 135 S.Ct. 2551 (2015). At the heart of the multifaceted debate surrounding the act’s interpretation lies one brief question: what exactly is a violent felony?
Defining a “Violent Felony”
Under the ACCA, a “violent felony” is one that is punishable by at least one year imprisonment and “(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 use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C.A. §924(e)(2)(B)(West 2006). It is notable that while the act enumerates a few crimes as “violent” in the second half of this definition, it seems to gloss over some of the more obvious choices for a violent crime—aggravated assault or battery, for example. The last clause of the ACCA, known as the residual clause, was perhaps intended to capture some of these more noticeable violent actions. In order to determine whether a prior conviction falls within this definition of “violent”, the court must assess the statute under which the defendant was prosecuted categorically. Taylor v. United States, 495 U.S. 575, 602 (1990).
Under the categorical approach, courts cannot consider what the defendant actually did to incur a prior conviction. Id. Instead, the court can only consider what the statute defendants were convicted under said and decide whether the “ordinary case” of crimes prosecuted under this statute meet the definition of a violent felony as proscribed by the ACCA. Id. The courts must base their analysis solely on what the statute the defendants were convicted under said. Id. at 600, 601. The categorical approach is preferred to a fact-specific analysis because such an approach theoretically promotes fairness and consistency in the application of the law. Id. at 601.
After the decision in Taylor, the Supreme Court reviewed the residual clause five times in an effort to define a framework for assessing prior convictions to determine if they categorically constituted “a serious potential risk of physical injury” 18 U.S.C.A §924(e)(2)(B)(West 2006), in the “ordinary case.” Taylor, 495 U.S. at 602. The Court struggled to outline a standard that could apply to all statutes, from vehicular flight from law enforcement, Sykes, 564 U.S. at 4 to attempted burglary, James, 550 U.S. at 195, 196. The Circuit Courts faced similar difficulty. In one instance, the Ninth Circuit suggested a variety of judicial risk assessment models, from statistical analysis to expert evidence, and discarding them in the same sentence. Mayer, 560 F.3d at 952.
After these failed attempts to discern a cognizable standard of application, the Court threw up its hands and struck the entire residual clause as unconstitutionally vague in Johnson, 135 S.Ct. at 2557-60. The majority notably referenced the heft of inconsistent case law on this topic as proof of the clause’s vagueness. Id. at 2560. (“This Court is not the only one that has had trouble making sense of the residual clause. The clause has ‘created numerous splits among the lower federal courts,’ where it has proved ‘nearly impossible to apply consistently.’” citing Chambers v. United States 555 U.S. 122, 133 (2009)). The Court found that the clause had to be struck because its ill-defined parameters violated notions of due process by “den[ying] fair notice…and invit[ing] arbitrary enforcement”. Johnson,135 S.Ct. at 2557.
Collateral Review Under Johnson
In the wake of Johnson, which the Supreme Court later decided should be applied retroactively on collateral review, federal courts received an onslaught of petitions for post-conviction relief under 28 U.S.C.A. § 2255 with defendants arguing that sentences handed down under the residual clause should now be considered unconstitutional. See Welch v. United States, 136 S.Ct. 1257, 1264, 1265 (2016) (finding that Johnson constituted a substantive rule and should, therefore, be applied retroactively). This has, in turn, sparked greater scrutiny of the “force clause” – without the statute’s catch-all provision, defendants and prosecutors alike are scrutinizing what it means to have “as an element the use, attempted use, or threatened use of physical force.” 18 U.S.C.A. §924(e)(2)(B)(1)(West 2006).
For example, if a statute can be satisfied through omission, it cannot be said to categorically require “physical force” as an element and therefore cannot be considered violent for purposes of the ACCA. See United States v. Mayo, 901 F.3d 218, 220 (3d Cir. 2018) (PA aggravated assault statute not categorically violent for purposes of the ACCA when also used to prosecute parental neglect). The repeal of the residual clause has also called into question similar provisions elsewhere in the ACCA as well as in unrelated statutes that rely on the same language to define “violent felonies.” 18 U.S.C.A §924(e)(2)(B)(West 2006). The logic is that if this particular residual clause is too vague to be constitutional, surely similar residual clauses suffer the same disease. See Sessions v. Dimaya, 138 S.Ct. 1204, 1211, 1224 (2018) (invalidating residual clause of Immigration and Nationality Act, which defined a crime of violence as “any other offense that is a felony that, by its nature, involves a substantial risk that physical force against a person or property of another may be used”).
Cases Before the Supreme Court This Fall
It is against this convoluted backdrop that the Supreme Court will now consider Stokeling v. United States and the combination cases Stitt and Sims v. United States. All three cases assess whether a defendant’s specific prior convictions can be considered violent for the purposes of the ACCA in the absence of the residual clause. Stokeling asks the Court to consider whether a defendant’s prior conviction for robbery can be considered categorically violent under the force clause when the statute does not specifically require force, but common law has found that it requires overcoming “victim resistance.” See Fla. Stat. § 812.13 (1997); United States v. Stokeling, 684 Fed.Appx. 870 (11th Cir. 2017). The defendant argues that because purse snatchings were prosecuted under the same statute at the time of his conviction and such snatchings require only minimal, if any, force, the statute cannot be considered categorically violent. Id.
Neither, Stitt v. United States or Sims v. United States address the force clause or the residual clause, however, they are argued under the enumerated clause. Both cases, which arise from separate Circuit Courts but will be heard together, argue that a defendant’s prior conviction for burglary cannot fall under the ACCA when their state’s burglary statute does not exactly match the generic definition proscribed by the Court. See United States v. Stitt, 860 F.3d 854 (6th Cir. 2017); United States v. Sims, 854 F.3d 1037 (8th Cir. 2017). Although burglary is enumerated within the ACCA as a violent felony, it is not defined. See 18 U.S.C.A. §924(e)(2)(B)(West 2006). In Taylor, the Court expressly rejected the proposal that “burglary” as enumerated in the ACCA should mean, “‘burglary’ however a state chooses to define it.” Taylor, 495 U.S. at 579. Instead, the Court relied on text from the original version of the ACCA, legislative history and the Model Penal Code to craft a “generic” definition of burglary. Id. at 600, 601.
Under this case, the generic burglary is: “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” Id. at 598. State burglary statutes must match this definition in order to be considered violent under the enumerated clause. Id. at 602. If a statute is broader than this generic definition, it cannot be considered categorically the same. See Mathis v. United States, 136 S.Ct. 2243, 2257 (2016) (“Because the elements of Iowa’s burglary law are broader than those of generic burglary, Mathis’s convictions under the law cannot give rise to an ACCA sentence”). Stitt and Sims ask the Court to consider whether burglary statutes that include units “designed or adapted for the overnight accommodation of persons” within the definition of “structure” are too broad for purposes of the ACCA. United States v. Stitt, 860 F.3d 854, 857 (6th Cir. 2017); See United States v. Sims, 854 F.3d 1037, 1039 (8th Cir. 2017).
All three cases were argued on October 9, 2018. Perhaps their decisions will provide rare clarity to the canon of ACCA interpretation.