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Eighth Circuit Holds Prior Felonies Are Not ACCA Predicates
Mar 23rd, 2014

The highly technical determination of whether prior felony convictions are predicates for Armed Career Criminal (ACCA) enhancements have yielded two notable cases from the Eighth Circuit lately, due to the Supreme Court’s recent decision in Descamps v. United States, which clarified that “sentencing courts may not apply the modified categorical approach when the crime of which the defendant was convicted has a single, indivisible set of elements.” These cases include:

United States v. Bankhead, issued on February 12, 2014 (published): 15-year ACCA conviction reversed under Deschamps because the Illinois statute under which Bankhead was convicted as a juvenile of armed robbery was indivisible regarding the type of dangerous weapon carried, and under the categorical elements-based inquiry, this juvenile crime of conviction did not correspond to the narrower ACCA requirement. Notably, the plea agreement estimated a sentence of 10 years, and the district court offered Bankhead his plea back when the PSR uncovered his juvenile conviction and deemed him an armed career criminal.

United States v. Tucker, issued on January 29, 2014 (en banc and reversing prior panel decision): Tucker’s prior conviction under Nebraska escape statute did not qualify as a violent felony for purposes of the Armed Career Criminal Act because, applying Deschamps, the portion of the Nebraska statute under which Tucker was convicted is textually indivisible as between escape from secure custody and escape from non- secure custody, and the elements of that portion do not, in the ordinary case, encompass conduct that presents a serious potential risk of physical injury to another.

See also United States v. Boose, issued on January 16, 2014 (published): Boose’s prior Arkansas conviction for first-degree battery was not a crime of violence under the force clause of the career offender guideline because the crime can be violated by reckless driving. Boose’s conviction was also not a crime of violence under the residual clause because it is not similar in kind or degree of risk to the enumerated crimes. Boose therefore lacked the two predicate crimes of violence needed to qualify as a career offender. Case remanded for resentencing. The Court added that “[b]ecause the record demonstrates the government had a full and fair opportunity to present its evidence regarding whether the first-degree battery conviction qualified as a crime of violence, there is no reason to allow the government to expand the record on remand.”




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JaneAnne Murray is a criminal defense lawyer in Minneapolis.

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