While Johnson v. United States (previously blogged about here and here) struck the residual clause of the Armed Career Criminal Act (ACCA) as unconstitutionally vague, the enhancement is not dead yet. It still applies if a client has three or more prior convictions that qualify as serious drug offenses; or violent felonies or both because they had as an element the use, attempted use, or threatened use of physical force against the person of another, or were for an offense enumerated in the statute -- burglary, arson, extortion, or involves use of explosives.
Determining whether a defendant has a conviction for an enumerated offense, however, does not end the inquiry into whether the conviction qualifies as a violent felony. If the statute is overly broad, that is, it proscribes conduct beyond the “generic” definition of an enumerated offense, then such a conviction may not always qualify as a violent felony. When a statute is overbroad, the court must use the categorical approach to determine if the conviction qualifies as a violent felony.
For over 25 years, defense counsel have been challenging whether prior offenses are properly counted as ACCA predicates. The Supreme Court jumped into the definitional dogfight in 1990 with Taylor v. United States, where it defined burglary as used in the violent felony definition of the ACCA. Taylor held that “burglary” as used in the ACCA meant a “generic” burglary, that is:
any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.
To make this determination, courts must use the “categorical approach,” which “requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense. The Court clarified that the categorical approach,
[M]ay permit the sentencing court to go beyond the mere fact of conviction in a narrow range of cases where a jury was actually required to find all the elements of generic burglary. For example, in a State whose burglary statutes include entry of an automobile as well as a building, if the indictment or information and jury instructions show that the defendant was charged only with a burglary of a building, and that the jury necessarily had to find an entry of a building to convict, then the Government should be allowed to use the conviction for enhancement.
We therefore hold that an offense constitutes “burglary” for purposes of a § 924(e) sentence enhancement if either its statutory definition substantially corresponds to “generic” burglary, or the charging paper and jury instructions actually required the jury to find all the elements of generic burglary in order to convict the defendant.
Taylor did not end the fight about which prior convictions could be counted as ACCA predicates. What about offenses for which the statute is overly broad and there are no jury instructions? In 2007 the Supreme Court followed up Taylor with Shephard v. United States.
Shepard recognized the “modified” categorical approach, which allows a court to consider additional information, including the charging document to which the defendant pled, a written plea agreement, transcript of the plea colloquy, or any explicit factual finding by the trial judge to which the defendant assented. However, a sentencing court remained prohibited from considering the underlying facts of the conviction. When using the modified categorical approach, a court may only use the permissible documents to determine under what part of a divisible statute the defendant was convicted.
This long, and probably overly complicated introduction, brings us to the Tenth Circuits most recent decision applying the categorical/modified categorical approach, United States v. Ridens. After pleading guilty to being a felon in possession of a firearm, the trial court determined Mr. Ridens was an Armed Career Criminal and sentenced him to 188 months. He appealed the inclusion of a burglary conviction as an ACCA predicate, arguing there was insufficient proof that it was a qualifying burglary.
More specifically, Mr. Ridens challenged the inclusion as a violent felony a 1981 Kansas burglary conviction. In 1981 the Kansas burglary statute was not categorically a violent felony. Mr. Ridens pled guilty in the challenged burglary case, so the Court examined “whether the ‘plea of guilty to burglary defined by a nongeneric statute necessarily admitted [the] elements of the generic offense.’” The charging document to which Mr. Ridens plead charged, in relevant part, that he “unlawfully, willfully, feloniously, knowingly and without authority enter[ed] into a building, to-wit: a residence . . . with the intent to commit a theft or a felony therein.” The Tenth Circuit identified the issue thusly:
Complications may arise when burglary is defined differently and more broadly than that generic definition—that is, the definition is “divisible.” These definitions “set out one or more elements of the offense in the alternative—for example stating that burglary involves entry into a building or an automobile.” At the time of Ridens’s conviction, Kansas defined burglary as “knowingly and without authority entering into or remaining within any building, mobile home, tent or other structure, or any motor vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property, with intent to commit a felony therein.” Accordingly, this burglary conviction “cannot as a categorical matter provide a basis for enhancement under the ACCA.” (internal citations omitted).
The Circuit determined it must use the modified categorical approach to evaluate whether Mr. Ridens prior conviction qualified as a violent felony. While the Kansas burglary statute at the time was overly broad, Mr. Ridens was charged by Information with, and pleaded guilty to “unlawfully, willfully, feloniously, knowingly and without authority enter[ed] into a building, to-wit: a residence . . . with the intent to commit a theft or a felony therein.” The journal described Ridens as having pleaded guilty to the crime “as charged in . . . the Information,” id., further indicates Ridens “necessarily admitted” that he entered a building with the requisite criminal intent.
Because that Riden’s conviction was based on a generically limited charging document”—i.e., one that “narrowed the charges to the generic limit,” -- and, because Ridens pleaded guilty to a charging document that described the elements of a generic burglary conviction, he committed a qualifying violent felony.