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Armed Career Criminal Act: Violent Felonies And The Residual Provision


Supreme Court of the United States

Alphonso JAMES, Jr.

-v-

UNITED STATES

127 S. Ct. 1586

Decided April 18, 2007.

Issue: Whether the offense of attempted burglary under Florida law, which defines burglary as “entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain”, and defines “attempt” as “a person who attempts to commit an offense prohibited by law and in such an attempt does any act toward the commission of such offense, but fails in the perpetration or is intercepted or prevented in the execution thereof, and is punishable by a prison term exceeding one year”, is a violent felony within the meaning of the residual provision of the Armed Career Criminal Act, which includes crimes that otherwise involve conduct that present a serious potential risk of physical injury to another.

Holding:
Held that:
[1] Attempted burglary under the Florida law is a violent felony under the residual clause of the Armed Career Criminal Act because it presents a risk that is comparable to the risk posed by the completed offense of burglary and therefore satisfies the requirements of §924(e)(2)(B)(ii)’s residual provision.

[2] Attempted burglary as defined by Florida Law is a “violent felony” within the meaning of residual provision of the ACCA

[3] Construing a prior Florida Conviction for attempted burglary as a “violent felony” within the meaning of the ACCA did not raise Sixth Amendment Apprendi issues.

Facts:
James pleaded guilty possessing a firearm after having a felony conviction, contrary to 18 USC §922(g)(1). In this guilty plea James admitted to the three felony convictions listed in his indictment, these included a charge of attempted burglary of a dwelling in violation of Florida state law.
At sentencing James was subject to the ACCA 15-year minimum sentence guidelines, because of his prior convictions. James then objected on the grounds that his attempted burglary conviction did qualify as a “violent felony”, and he did not therefore have the three prior convictions required by the ACCA and his sentence should reflect this. The District Court held that attempted burglary was a violent felony.

Legal Analysis:
A felon convicted for possession of a firearm faces an ordinary prison sentence of upto 10 years for an ordinary offense under §924(a)(2). The Armed Career Criminal Act §924(c)(1) imposes a mandatory minimum sentence of 15 years for an offender with three prior convictions “for a violent felony or a serious drug offense.”

The ACCA defines “violent felony” as “any crime punishable by imprisonment for a term exceeding one year” that:
(i) has as an element the use, attempted use, or threatened use of physical force against the person or another; or
(ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. 18 USC §924(c)(2)(B)

The clause at issue in this case is 18 USC §924(c)(2)(B)(ii)

At the time of James’ conviction Florida defined the crime of burglary as “entering or remaining in a structure or conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter and remain.”
Criminal attempt was defined by Florida statute as “A person who attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such offense, but fails in the perpetration or is intercepted or prevented in the execution thereof.”

The parties agree that attempted burglary does not meet the definition of a “violent felony” under clause (i) of the ACCA, as it does not have an element of physical force involved. It also does not qualify as one of the named crimes within clause (ii).
The question therefore before the court is whether attempted burglary as defined by Florida Law, falls within the ACCA residual provision within clause (ii) for crimes that “otherwise involve conduct that presents a serious potential risk of physical injury to another.”
The common attribute of the named offenses within clause (ii) is that these offenses, while not technically crimes against the person, nevertheless create significant risks of bodily injury, or confrontation that might result in bodily injury.
This was noted in the judgment in Taylor:
”Congress thought that certain general categories of crimes, namely burglary, arson, extortion, and the use of explosives – so often presented a risk of injury to persons, or were so often committed by career criminals, that they should be included in the enhancement statute even though, considered solely in terms of their statutory elements they do not necessarily involve the use or threat of force against a person.”

The inclusion by Congress of a broad residual provision within clause (ii) indicates that it did not intend the preceding enumerated offenses to be an exhaustative list of the types of crimes which might present a serious risk of injury to others and which would therefore merit status as a predicate offense for the purposes of ACCA recividist provision §924(e). There is nothing within the language of the statute which indicates that Congress intended to limit the eligibility of these crimes to those which were completed as opposed to attempted.

The ACCA was amended by Congress in 1986 in order to expand the range of predicate offenses. The 1986 amendments added the current language at issue in this case within clause (ii), defining as violent felonies those which are “burglary, arson or extortion, involve use of explosives or otherwise involve conduct that presents a serious potential risk of physical injury to another.” There is no undertaking by Congress to specifically exclude attempt offenses from the scope of the residual provision of §924(e)(2)(B)(ii).

The court used the approach of considering whether James’ conviction and the elements of the prior offense (rather than the facts of the crime within this specific case) made it one which could be justified in being included within the residual position. Florida statute law contains a broad definition of attempted burglary, requiring only that the defendant take “any act toward the commission” of burglary. However the Florida Supreme Court has narrowed the application of this in practice, to requiring only an “overt act directed toward entering or remaining in a structure or conveyance”, and more than merely preparation. Florida’s lower courts have subsequently consistently applied this approach.

The fundamental question which is therefore at issue in this case is whether “overt conduct directed toward unlawfully entering or remaining in a dwelling, with the intent to commit a felony therein” is “conduct that presents a serious potential risk of physical injury to another” in line with the ACCA guidelines.
It is appropriate to consider whether the offense of attempted burglary presents a comparable risk to that of completed burglary- the closest relevant offense within the ACCA enumerated offenses.
The principal risk of physical injury presented by the offense of burglary is the risk of the perpetrator being involved in a violent confrontation with an innocent third party whilst the offense is taking place. This potential risk is comparable to the risk of a third party discovering a perpetrator during an attempted burglary, albeit outside the property rather than inside it.
Historically every Court of Appeal with a law similar in scope to Florida has held that the offense of attempted burglary qualifies as a “violent felony” under clause (ii)’s residual provision. (There is one contrary case, however this involved attempt laws that were satisfied by non-aggressive preparatory conduct).
The court discussed the difficulty in generalizing the likelihood of a serious potential risk of harm to categories of crimes, as there will be exceptions to these generalisations. However the court ruled that as long as an offense is of a type that, by its nature, presents a serious potential risk of injury to another, it will satisfy the requirements §924(e)(2)(B)(ii)’s residual provision.
The offense in question: attemped burglary as per Florida law and as construed in Jones- “an overt act directed toward entry of a structure” satisfies these requirements.
The court confirmed that in determining whether attempted burglary qualifies as a violent felony under §924(e)(2)(B)(ii), it had engaged in statutory interpretation by using the categorical approach of examining the elements of attempted burglary as found within Taylor, rather than looking at the individual facts within this particular case. There are therefore no sixth amendment issues surrounding this case.

The judgment of the Court of Appeals for the Eleventh Circuit was affirmed.