Monday, November 10, 2014

And more on ACCA . . .

As a  follow-up on Dan's ACCA post last week, remember that some Kansas felony drug ACCA-supporting convictions  may no longer qualify after Brooks:

1) For a prior drug felony conviction to support an ACCA enhancement (statutory text after the jump), it had to have been subject to a ten-year or higher maximum sentence. That is, at the time the defendant was sentenced on the prior, the sentencing court could have imposed a ten-year sentence or more. If it falls short of that, it doesn't support an ACCA enhancement.

2) The maximum penalty that can be imposed on a Kansas drug felony conviction is based on the sentencing grid,  specifically the box or range of penalties that applied to the defendant. This is based on the Tenth Circuit's decision in U.S. v. Brooks.

 3) Looking at the Kansas state court judgment for the prior drug conviction, if the top of the penalty range is less than 120 months, the felony drug conviction does not count for ACCA. About half of the grid falls below 120 months.  

Then you are back to a ten-year ceiling instead of a 15-year floor.

And, as promised, Johnson v. US was argued at the Supreme Court last week, transcript here. The question is whether possession of a short-barreled shotgun is a violent felony. For one interesting take on the argument, go here. This is the fifth time in seven years that the Court has struggled with the term "violent felony" under ACCA, and this fuels the question of whether the Court will finally admit the statute is void for vagueness, as Scalia has argued.

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18 USC 924(e)
(1) In the case of a person who violates section 922 (g) of this title and has three previous convictions by any court referred to in section 922 (g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922 (g).
(2) As used in this subsection—
(A) the term “serious drug offense” means—
(i) an offense under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46 for which a maximum term of imprisonment of ten years or more is prescribed by law; or
(ii) an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law;
(B) the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, 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 use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another; and
(C) the term “conviction” includes a finding that a person has committed an act of juvenile delinquency involving a violent felony.

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