Wednesday, October 15, 2014

Cert Grant: Johnson v. United States

Continuing with the series on cert grants for the October 2014 term, Johnson v. United States presents a short but complex issue: "Whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act."

This is another in a long line of cases struggling to define violent crimes. ACCA requires three prior, separate and distinct (see note below) convictions for certain enumerated offenses -- burglary, arson, extortion, or use explosives -- or a felony "that presents a serious potential risk of injury to another," also known as the residual clause. The question is whether possession of a short-barreled shotgun falls within this residual clause.  

Begay v. US, which held that DUI is not a violent crime, directs that crimes falling within the residual clause must be roughly similar to the enumerated crimes, both in kind and in degree of risk pose. The crime should be "purposeful,  violent and aggressive conduct." The Government and Amicus present empirical data about the dangerous nature of crimes committed with short-barrreled shotguns, but Johnson counters with the elements of the crime -- this is mere possession, not criminal use.  

Scheduled for argument November 5. The Minnesota FPD is counsel for Mr. Johnson.

Note: the Tenth Circuit law on "separate and distinct" crimes is particularly bad. In  US v. Tisdale, the defendant's prior convictions, used to support ACCA, included three burglary convictions. He broke into a mall one evening, and successively burglarized two businesses and a post office. Same night, one case with three counts, sentenced together, but for ACCA purposes, these were three "separate and distinct" convictions that qualified Tisdale for a 15-year mandatory minimum sentence.

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