Remedying the Armed Career Criminal Act's Ailing Residual Provision

• Jurisdiction: United States,Federal
• Citation: Vol. 33 No. 03
• Publication year: 2010

SEATTLE UNIVERSITY LAW REVIEWVolume 33, No. 3SPRING 2010

Remedying the Armed Career Criminal Act's Ailing Residual Provision

Hayley A. Montgomery(fn*)

I. Introduction

Jeriehmie Franetich is a dangerous man. By the age of twenty-four, he had been convicted of three felonies: drive-by shooting, third-degree assault, and riot.(fn1) On May 24, 2007,(fn2) Mr. Franetich stood before the District Court for the Eastern District of Washington and pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).(fn3) Because Mr. Franetich had three prior felony convictions, he faced a fifteen-year mandatory minimum prison sentence under the Armed Career Criminal Act ("ACCA" or "the Act").

At sentencing, the question before the court was whether Mr. Fra-netich's drive-by shooting conviction qualified as a "violent felony" under the ACCA. Before the Supreme Court's decision in Begay v. United States,(fn4) the answer would have been simple: it qualified. But after Be-gay, which redefined the way courts decide whether certain crimes qualify as violent felonies under the ACCA, the answer is much less clear.

This Comment explores the U.S. Supreme Court's attempt to create a judicial standard for defining the term "violent felony" that embodies the purpose of the ACCA and its ultimate failure to do so. Part II presents a brief background on the ACCA. Part III discusses United States v. James,(fn5) Begay, and United States v. Chambers(fn6)-three recent Supreme Court decisions that suggest the Court's analyses are flawed. Part IV examines opportunities for the Court and Congress to remedy the situation, including a critique of each proposal.

II. The Armed Career Criminal Act's Residual Clause: A Summary

A. History and Purpose

Congress enacted the ACCA in 1984, seeking to protect society from violent habitual criminals by incarcerating them.(fn7) When drafting the legislation, Congress relied on studies showing that a large percentage of violent crimes were being committed by a very small percentage of repeat offenders.(fn8) That is, recidivism rates were high among violent criminals;(fn9) so high, in fact, that one study estimated that career criminals commit two or three burglaries for every robbery they commit.(fn10)

The purpose of the original legislation was "to curb armed, habitual (career) criminals"(fn11) by limiting their access to firearms once they have demonstrated a history of serious, violent behavior.(fn12) When Senator Ar-len Specter introduced his bill on January 26, 1983, he stated: Robberies and burglaries are the most damaging crimes to society. Robberies and burglaries occur with far greater frequency than other violent felonies, affect many more people, and cause the greatest losses. A person is 40 times more likely to be a victim of robbery than of rape. Robberies involve physical violence or the threat thereof, being deliberately directed against innocent individuals. . . . Often-30 percent of robberies-these offenses result in physical injuries; usual-ly-90 percent for robberies-they result in significant financial loss; always they inflict psychological injury. Such crimes force people to live not in freedom, but in fear. Most robberies and burglaries are committed by career criminals.(fn13)

Thus, the ACCA subjected "any convicted felon found guilty of possession of a firearm, who had three previous convictions 'for robbery or burglary" to a fifteen-year mandatory minimum sentence.(fn14) Recognizing that crimes other than robbery and burglary present a similar danger of physical injury, Congress revisited the Act just five months later, this time expanding the range of predicate offenses.(fn15)

Debate ensued as to which crimes should qualify as predicate offenses under the Act. Congress agreed that only violent felonies-those crimes that indicate that a criminal is particularly dangerous when in possession of a firearm-should qualify. While some members of Congress argued that this common goal would be satisfied by a catch-all provision for all crimes that "present a serious potential risk of physical injury to another," others argued that a list of dangerous crimes would be useful.(fn16)

B. Language

In 1986, after vigorous debate, Congress settled on a compromise.(fn17) Under the ACCA, criminals who violate 18 U.S.C. § 922(g)(fn18) after being convicted of three violent felonies or serious drug offenses must serve a mandatory minimum sentence of fifteen years imprisonment.(fn19) The ACCA presently 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 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.(fn20)

The first sub-clause, 18 U.S.C. § 924(e)(2)(B)(i), qualifies violent crimes against another person. This Comment refers to the first subclause as "the physical force provision." The focus of this Comment however, centers on the interpretation of the second sub-clause, 18 U.S.C. § 924(e)(2)(B)(ii), which is hereinafter referred to as "the residual provision."

C. United States Sentencing Guidelines

Three years after Congress passed the ACCA, the United States Sentencing Commission (USSC or the Sentencing Commission) developed the United States Sentencing Guidelines (USSG or Sentencing Guidelines).(fn21) Section 2K2.1 of the Sentencing Guidelines sets the base offense level for felons who have unlawfully possessed firearms under 18 U.S.C. § 922(g). Violators of § 922(g) who were previously convicted of a "crime of violence"(fn22) are assigned higher base offense levels, and as a result, higher sentences.(fn23) USSG § 4B1.2(a) defines crime of violence asany offense under federal or state law, punishable by imprisonment for a term exceeding one year, that-(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.(fn24) Obviously, the Sentencing Guidelines' definition of a crime of violence is nearly identical to the ACCA's definition of a violent felony.(fn25) Not surprisingly, courts have interpreted crime of violence and violent felony as interchangeable terms; the case law applies to both. Opinions interpreting the ACCA's violent felony are regularly used to construe the Sentencing Guidelines' crime of violence and vice versa.(fn26) Because the violent felony and crime of violence analysis is the same, the Supreme Court's ACCA decisions are wide-reaching.

III. Supreme Court Precedent: James, Begay, and Chambers

Beginning with Taylor v. United States,(fn27) there are approximately ten U.S. Supreme Court decisions interpreting the ACCA.(fn28) However, only three of these decisions are particularly pertinent to this discussion: James, Begay, and Chambers. Together, these cases demonstrate how difficult it has been for the Supreme Court to fashion a standard that furthers the purpose of the statute-to keep firearms out of the hands of violent career criminals. Furthermore, these cases demonstrate how complicated and opaque ACCA jurisprudence has become and why it is time for Congress to amend the ACCA.

A. James v. United States

Alphonso James, having already been convicted of a felony, pleaded guilty to possessing a firearm.(fn29) James admitted to three prior felony convictions: attempted burglary of a dwelling, possession of cocaine, and trafficking cocaine.(fn30) At issue before the Supreme Court was whether attempted burglary qualified as a violent felony under 18 U.S.C. § 924(e).(fn31)

Florida law defines burglary as "entering or remaining in a . . . structure . . . with the intent to commit an offense therein."(fn32) A person commits the offense of criminal attempt in Florida if she attempts to commit an offense but fails to execute it.(fn33) The parties agreed that even though it was punishable by imprisonment for a term exceeding one year, attempted burglary does not qualify as a violent felony under the physical force provision because it does not have "as an element the use, attempted use, or threatened use of physical force against the person of another."(fn34) Furthermore, it is not one of the specifically listed crimes under the residual provision-burglary, arson, extortion, or use of explo-sives.(fn35)

Thus, the Court was left with the narrow question of whether attempted burglary fell under the ACCA's residual provision, which includes crimes that "otherwise involve[] conduct that present[] a serious potential risk of physical injury to another."(fn36) In answering this question, the Court employed the "categorical approach." Under this approach, courts "look only to the fact of conviction and the statutory definition of the prior offense," and do not consider the "particular facts disclosed by the record of conviction."(fn37) In other words, courts consider whether the elements of the crime present a serious potential risk of physical injury without looking to "the specific conduct of this particular offender."(fn38)

The Court held that attempted burglary, as defined by Florida law...