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Federal Criminal Appeals: The Armed Career Criminal Act and Determining Separate Offenses



United States vs. Brown, Jan. 5, 2011. 629 F.3d 290

Issue: Whether the district court erred by failing to treat two prior drug convictions as a single Armed Career Criminal Act (“ACCA”) predicate offense under the ACCA, see 18 U.S.C. § 924(e)(2)(A). And whether the District Court erred when it treated the assault charge as a violent felony for sentencing purposes under the ACCA.

Holding: The Second Circuit Court of Appeals held that the district court committed no error when it held that Defendant’s two prior Connecticut drug offenses were separate offenses under Armed Career Criminal Act, and defendant’s prior Connecticut assault offense was a “violent felony” under Armed Career Criminal Act.

Facts: Brown was arrested after he sold a confidential informant a handgun and a half-ounce of cocaine base. Brown pleaded guilty pursuant to a plea agreement to the first count of that indictment, which charged him with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Brown and the government disagreed about whether Brown’s prior convictions subjected him to the ACCA’s mandatory minimum sentence, and this issue remained contested at sentencing.

First, Brown pleaded guilty to two counts of “assault on a peace officer” Brown admitted to “assault[ing] the guards,” id. at 70, and the court accepted his plea. Brown was sentenced to two on current terms of seven years’ imprisonment.

Second, Brown pleaded guilty to “sale of hallucinogen/narcotic” he had twenty-nine rocks of crack cocaine concealed in his pants.

Third, Brown pleaded guilty to another drug violation as well as to a charge of criminal possession of a pistol.

These offenses took place while Brown was awaiting sentencing for the prior violation. Brown was sentenced on the charges arising from both the May and November 2000 arrests to concurrent terms of ten years’ imprisonment, with execution suspended with three years left to serve, and three years’ probation.

Legal Analysis: The district court found that Brown’s criminal history subjected him to an enhanced sentence under the Armed Career Criminal Act (“ACCA”), 18

U.S.C. § 924(e), and sentenced him principally to 180 months’ imprisonment, the minimum sentence provided by that statute.

Brown claimed that the district court improperly counted two of his prior drug convictions as separate ACCA predicate offenses. And he contends that the district court erred by treating his prior conviction for assaulting two corrections officers as a “violent felony” within the meaning of the ACCA.

The Court addressed the defendant’s challenges to the district court’s finding that these prior convictions justified an enhanced sentence pursuant to the Armed Career Criminal Act, which requires that persons who are convicted of violating 18 U.S.C.§ 922(g) and who “ha[ve] three previous convictions … for a violent felony or a serious drug offense, or both, committed on occasions different from one another” be sentenced to at least fifteen years’ imprisonment. 18 U.S.C.§ 924(e)(1).

The Circuit Court reviewed de novo questions of law relating to a district court’s application of the ACCA, but applied clear error review to a district court’s factual findings regarding the nature of a prior offense. See United States. Rosa, 507 F.3d 142, 151 & n. 8 (2d Cir.2007); United States v. Houman, 234 F.3d 825, 827 (2d Cir.2000).

This argument is addressed to the ACCA’s requirement that two offenses must be “committed on occasions different from one another” in order to be counted as separate ACCA predicate convictions. Id. § 924(e)(1).

Prior cases have held that “two convictions arise from conduct committed on different occasions if they do not stem [ ] from the same criminal episode.” United States v. Daye, 571 F.3d 225, 237 (2d Cir.2009) (alteration in original) (quoting United States v. Rideout,3 F.3d 32, 34 (2d Cir.1993)) “Considerations relevant to this determination include whether the victims of the two crimes were different, whether the crimes were committed at different locations, and whether the crimes were separated by the passage of time.”   The Court concluded that two breaking-and-entering convictions were properly treated as separate for purposes of the ACCA when these convictions were “for offenses committed against different victims separated by at least twenty to thirty minutes and twelve to thirteen miles.”

Here, while Brown was sentenced for the two drug offenses on the same day, the conduct underlying these offenses was separated by several months, involved distinct arrests, and took place at different locations. The Court affirmed the district court’s conclusion that these two offenses were “committed on occasions different from one another” and therefore were properly counted as two separate ACCA-qualifying convictions.

Brown also challenges his conviction for assaulting corrections officers as a “violent felony” under the ACCA. “We review de novo the District Court’s conclusion that a prior offense is a violent felony.”

The ACCA defines the term “violent felony” to mean: 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 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.

In considering whether a particular offense qualifies as a violent felony under the ACCA’s residual clause The inquiry is framed “in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion,” Not every conceivable factual offense covered by a statute must necessarily present a serious potential risk of injury before the offense can be deemed a violent felony,”  

The Second Circuit held that whether an offense qualifies as a conviction for a violent felony under the ACCA’s residual clause has two separate aspects.

First, ask whether the offense is similar “in kind” to the enumerated offenses that precede the residual clause—i.e., burglary, arson, extortion, and the use of explosives—in that the offense in question “typically involve[s] purposeful, violent, and aggressive conduct.”

Second, ask whether the offense is similar ‘in degree of risk posed’ to those enumerated offenses.” Compare the degree of risk posed by the offense of conviction to that presented by the enumerated felonies. The Supreme Court has framed this inquiry as “whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another.” Here, a conviction for assaulting an employee of the department of correction requires that the victim suffer physical injury. Because this offense involves the certainty of “injury to another,” it follows that this second prong of the “violent felony” analysis was satisfied.

For the foregoing reasons, the Second Circuit concluded that Brown’s conviction for assault of corrections officers qualifies as a violent felony under the ACCA and that his two drug convictions qualify as separate “serious drug offense[s]” thereunder. The district court therefore did not err in imposing an enhanced sentence pursuant to the ACCA.