The sentence imposed versus the statutory maximum: repairing the Armed Career Criminal Act.

• Author: Davis, Ethan

Desmond Akil Smith was a twenty-two-year-old star offensive lineman on the Clemson University football team. During his junior year, undercover police officers caught him in a drug bust. In a two-week period, Smith sold marijuana three times to undercover operatives within a half-mile of the Clemson campus. (1) He pleaded guilty to three counts of distributing drugs near a school. (2) Though each of those counts carried a maximum of ten years in prison under South Carolina law, (3) the judge sentenced Smith only to two years' probation. (4) But despite his mild sentence, Smith had committed at least three "serious drug offenses" for purposes of the Federal Armed Career Criminal Act (ACCA) because ACCA-predicate offenses are based upon statutory maximum sentences. (5) If he were to buy and register a firearm at any point in his life, he would become an "armed career criminal" under the ACCA and would face a mandatory minimum of fifteen years in prison. (6)

In contrast to Smith, serious offenders often are not covered by the ACCA. Mark Regopoulos, for example, was the "accused ringleader of a high-level marijuana operation that was based out of a downtown ... pizza shop" near Penn State. (7) As part of a drug bust, Regopoulos was arrested and charged with a dozen counts of drug-related crimes. He pleaded guilty to three felony counts of delivering marijuana. (8) Each count carried a maximum of five years in prison. (9) Regopoulos received 9 to 23.5 months. (10) Yet because the maximum sentence was five years rather than ten for each conviction, none of Regopoulos's offenses constitute ACCA predicates; there is no chance that he would find himself subject to the ACCA's fifteen-year mandatory minimum at some point in the future.

This Comment argues that Congress should repair this defect by amending the Armed Career Criminal Act to define the predicate "serious drug offenses" and "violent felonies" by the sentence actually imposed rather than the maximum an offender could have received. (11) Making this adjustment would ensure that our justice system imposes the most serious consequences on the most culpable offenders, align the ACCA with deportation standards in immigration law and with the Federal Sentencing Guidelines, and reduce the practical difficulties that are built into the present system.

1. BACKGROUND OF THE ARMED CAREER CRIMINAL ACT

   Congress enacted the ACCA in 1984 to address the growing threat to society posed by armed, repeat criminals. The ACCA created a "new federal crime" designed to keep "the most dangerous, frequent and hardened offenders" off the streets. (12) The Act mandates a term of fifteen years to life for a felon in possession of a firearm with three or more prior convictions for serious crimes. (13) The fifteen-year term was designed to "incapacitate the armed career criminal for the rest of the normal time span of his career which usually starts at about age 15 and continues to about age 30." (14)

   The ACCA's fifteen-year minimum is triggered if the defendant has three or more prior convictions for drug distribution offenses or violent felonies. Those so-called "predicate" crimes are defined in part by the longest prison term a defendant could receive for committing the crime, regardless of the sentence actually imposed. (15) To qualify as a "serious drug offense," for example, the statute criminalizing the offense must prescribe a "maximum term of imprisonment of ten years or more." (16) A "violent felony" must be "punishable by imprisonment for a term exceeding one year." (17) Importantly, "the sentences imposed are immaterial." (18)

   Because the sole measure of the offense's seriousness is the maximum term prescribed by law, some offenses that result in probation, low prison terms, or concurrent sentences will trigger the ACCA while some offenses that result in months or years of prison time will not. (19) As a result, many dangerous criminals cannot be charged under the ACCA, while some relatively minor offenders can find themselves facing fifteen years to life.

2. AMENDING THE ARMED CAREER CRIMINAL ACT TO RELY UPON THE SENTENCE IMPOSED

   This Comment proposes amending the Armed Career Criminal Act to redefine "serious drug offense[s]" and "violent felon[ies]" as offenses meeting other ACCA requirements "for which a term of imprisonment of X months or more has been imposed," where X would be some number of months. To avoid narrowing the ACCA's scope, X would have to be lower than ten years for serious drug offenses and lower than one year for violent felonies. (20)

   1. Matching Consequences with Culpability

      If the ACCA's application to an offender were based upon the imposed term rather than on the maximum sentence defined by statute for the crime, the ACCA would more accurately punish the most culpable offenders. To obtain a conviction, a prosecutor must prove only the legal elements of the crime. Those elements reflect state legislatures' judgments about the seriousness of a criminal offense in the abstract. But for any particular crime, a wide range of conduct may satisfy its statutory elements. Correspondingly, the culpability of offenders who commit the same statutory offense may vary. An Oregon college student caught selling two ounces of marijuana, for example, could be charged under the same state law that criminalizes trafficking in four tons of marijuana. (21) As a result, the mere fact of a conviction often fails to reveal whether a particular defendant is a hardened criminal.

      In comparison to the fact of conviction, the length of an offender's sentence is more correlated with his...