Monday, November 24, 2014

More On ACCA: The Reach of the Categorical Approach

We talk about the Armed Career Criminal Act (ACCA) quite a bit. It is the provision that punishes illegal gun possession with a 15-year mandatory minimum if the defendant has 3 or more prior violent felony or serious drug offense convictions. In determining whether a prior conviction qualifies as either of these things, the Supreme Court has instructed courts to use the categorical approach (or a modified version of it). The gist is that, when determining whether a prior conviction is a violent felony (or less often a serious drug offense), courts look only to the elements of the prior offense of conviction and not to the defendant's actual conduct. The approach seeks to avoid "subsequent evidentiary enquiries into the factual basis for the earlier conviction."
This recent Second Circuit decision discusses the contours of the approach. And, in doing so, the Court extends the categorical approach to another ACCA enquiry: whether prior convictions were committed "on occasions different from one another." This is also a requirement under ACCA. It typically comes into play when an individual goes on some sort of a spree (burglary, robbery), and it is unclear whether the crimes committed during that spree were committed "on occasions different from one another." Of note, the holding is consistent with Tenth Circuit precedent (see footnote 3).
Under plain error review, the Court vacated the sentence in this case and remanded for resentencing. It held that the district court relied on improper documents, including statements made in the PSR which drew from, inter alia, "arrest records" and "criminal complaints sworn to by attesting police officers."
It further noted that it is the government's burden to prove that the prior offenses happened on different occasions. "If evidence is not available," the government loses.   
At the end of the decision, the Court offers a nice, four-point summary (we recommend it).
Practically speaking, without police reports and the like, it is likely much more difficult for the government to establish that two close-in-time offenses were committed on different occasions. Especially if the available permissible documents are boilerplate charging documents and judgments. Those documents might lack the necessary detail the government needs to put your client in prison for a really long time. 

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