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The Armed Career Criminal Act: Three “Categorically Similar” Strikes and You’re Out?

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Attorney Jason Chan

267 North Beacon Street, Suite 3
Boston MA 01235


Phone: 781-343-1DUI (781-343-1384)
Fax: 617-226-7986

Many states have codified a version of the well-known “three strikes” rule for criminal convictions.  There is also a federal statute, the Armed Career Criminal Act (ACCA), which establishes sentencing enhancements for defendants with three convictions of certain types of offenses.  The ACCA, which was passed in 1984, requires a 15-year minimum sentence on federal defendants with three prior convictions for a “violent felony” or “serious drug crime.”  Under the statute, a “violent felony” is defined as follows:

any crime punishable for a term exceeding one year . . . involving the use or carrying if a firearm, knife, or destructive device . . . that: (i) has as an element the use, attempted use, or threatened use of physical force against the person of another [the force clause]; 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 [the residual clause].

The difficulty in applying this statute is that each state’s criminal code is different and none have been amended or modified to fit within the ACCA’s definitions.  As one article recognizes:

figuring out which state convictions count as ACCA predicates has consumed — and continues to consume — an enormous amount of judicial time and effort. A few lines of statutory text have generated a marvelously intricate, uncertain, and ever-changing body of jurisprudence.

Another difficult question is, how do sentencing courts determine if a felony is sufficiently “violent” to prompt heightened sentencing under the ACCA?  In a very recent First Circuit Court of Appeals case, United States v. Carrigan, the defendant pled guilty to one count of being a felon in possession of a firearm and sentenced under the ACCA to 15 years.  He appealed, arguing inter alia, that based on his prior convictions he did not qualify as an armed career criminal. Carrigan’s prior convictions, all occurring in Massachusetts, included armed robbery, resisting arrest, assault with a dangerous weapon, two convictions for assault and battery on a police officer and assault, and battery with a dangerous weapon.

In affirming the sentence, the First Circuit used the categorical approach employed in United States v. Richards.  Under this approach:

All convictions under a given state law are either in or out; the courts are not to engage in a defendant-by-defendant inquiry into the details of who did what.

In an 11th Circuit ruling, Williams v. Warden issued on April 11, 2013, the court stated that only those “crimes that are roughly similar, in kind as well as in degree of risk posed, to the [enumerated crimes] themselves,” which requires a determination of whether the crime involves “purposeful, violent, and aggressive conduct.” In Williams, the defendant’s sentence was increased from 10 years to more than 24 years through application of the ACCA.  This sentence was affirmed.

However, the United States Supreme Court issued a ruling in Des,camps v. United States on June 20, 2013, just one month before the ruling in Carrigan, holding (issued on July 19, 2013), which essentially held that that the modified categorical approach does not apply to state criminal offenses where there is only one way to commit the crime.  In that situation, the court need not look beyond that definition. If the statute can be violated in a way that does not meet the definition of a violent felony under the ACCA, then the court is required to look at the record.


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