Monday, December 22, 2014

More on the Armed Career Criminal Act

We discussed one aspect of United States v. Hood yesterday. The second aspect of the decision involves Mr. Hood's status as an Armed Career Criminal. The district court determined that he so qualified. Unlike the recent stories in other Circuits, which we shared last week, this one ends badly for the defendant: the Tenth Circuit affirmed.
In particular, the Court held that a prior Oklahoma conviction for pointing a firearm at a person qualified as a violent felony under the Armed Career Criminal Act (ACCA) because it included an element of threatened physical force. Or, at least the particular conviction in this case qualified as a violent felony.
The Oklahoma statute at issue criminalized a broad swath of conduct, from pointing a loaded firearm at another individual with the intent to shoot, to pointing an unloaded firearm at another individual as a prank. The Court noted that some violations of the statute would not qualify as a violent felony (we think; the Court stated that some violations "would not require a threatened use of physical force," so we take from this statement that those types of violations would not qualify as violent felonies). But, based on the charging document, and using the modified categorical approach, Mr. Hood's conviction qualified as a violent felony. This was so because the charging document alleged that Mr. Hood pointed the gun at another person "for the purpose of threatening and intimidating him." A violent felony is a conviction that has "as an element the . . . threatened use of physical force against the person of another." So, the key word here is "threatened," and the key fact is the use of a firearm. The Court is clear: "Using a firearm to threaten another is precisely the kind of threatened 'violent force' that the Supreme Court has told us the ACCA proscribes."
The Court was unconcerned that, based on the charging document, Mr. Hood might have threatened the use of a firearm with the intent to cause mental or emotional intimidation, and not physical injury. Because the use of the firearm was done in a threatening manner, it was irrelevant what injury Hood intended to inflict. So says the Court. In other words, an element involving the use, or threatened use, of physical force asks what the defendant did, not what the defendant intended to do. And, according to this decision, whenever a defendant is convicted of pointing a gun at another person in a threatening manner, the conviction qualifies as a violent felony.

We note that the charging document alleged that the defendant knowingly pointed the gun at another individual. This is not a case of recklessness or negligence.
We also note some understanding between the parties that the defendant pleaded guilty to the allegations in the charging instrument. We say this because, with charge bargaining a not-that-rare-of-a-thing, it is important to verify that your client actually pleaded guilty to the facts alleged in the charging document (and not to some other different, but legally sufficient, facts). The decision is unclear as to whether the government also produced a judgment or some other document confirming a plea to the charging document, but we will assume so in light of language in the decision.

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