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October 11, 2011

Fourth Circuit provides 100 pages of ACCA's application to indecent liberties

If you cannot get enough of appellate litigation over intricate issues in the definition of a crime of violence under the federal Armed Career Criminal Act — and, really, who can? — then you are going to adore the work of the en banc Fourth Circuit today in US v. Vann, No. 09-4298 (4th Cir. Oct. 11, 2011) (available here). This summary of the disposition and the opinions in Vann provides a small taste of the fun the case potends:

Vacated and remanded by published opinion. A per curiam opinion, in which Chief Judge Traxler and Judges Motz, King, Gregory, Agee, Davis, Keenan, Wynn, and Diaz joined, was issued on behalf of the en banc majority.  Judge King wrote a concurring opinion, in which Judges Motz, Gregory, and Davis joined.  Judge Agee wrote an opinion concurring in the judgment, concurring in the en banc majority opinion, and concurring in the opinion of Judge Keenan.  Judge Davis wrote a concurring opinion.  Judge Keenan wrote a concurring opinion, in which Chief Judge Traxler and Judges Agee, Wynn, and Diaz joined.  Judge Wilkinson wrote an opinion concurring in the judgment.  Judge Niemeyer wrote an opinion concurring in part and dissenting in part, in which Judge Shedd joined.

Got that?  As for the substance prompting all this opinion writing (totalling 100 pages), here is part of the start of the per curiam opinion from the Fourth Circuit majority:

On January 20, 2008, following a domestic altercation, Torrell Vann was arrested in possession of a handgun.  In November of that year, the grand jury returned a single-count superseding indictment charging Vann with violating 18 U.S.C. §§ 922(g)(1) and 924. The indictment also alleged that Vann had at least three previous convictions for ACCA violent felonies, rendering him eligible for the sentencing enhancement provided for in § 924(e)(1).  On December 15, 2008, Vann pleaded guilty to the offense charged, and his sentencing proceedings were scheduled for the following March.

A § 922(g) offense typically carries a statutory maximum sentence of ten years in prison. See § 924(a)(2).  If the accused has three or more previous convictions for ACCA violent felonies, however, he is subject to an enhanced minimum sentence of fifteen years with a maximum of life imprisonment.  See § 924(e)(1). Vann’s presentence investigation report (the "PSR") reflected that he had three previous convictions for violating North Carolina General Statute section 14-202.1 (the "Indecent Liberties Statute" or "Statute") that, according to the probation officer, constituted ACCA violent felony convictions and subjected Vann to the sentencing enhancement....

Vann objected to the district court’s application of the enhancement, asserting that recent Supreme Court and Fourth Circuit decisions undermined the PSR’s contention that his previous convictions were for ACCA violent felonies....

The district court rejected Vann’s characterization of his three previous indecent liberties convictions, concluding that they were for ACCA violent felonies and that he was thus subject to § 924(e)(1)’s sentencing enhancement.  As a result, on March 17, 2009, the court sentenced Vann to the statutory minimum of fifteen years in prison....  A divided panel of this Court affirmed Vann’s sentence....  Upon granting Vann’s petition for rehearing en banc, we vacated the panel opinion.

October 11, 2011 at 03:33 PM | Permalink

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Comments

Don't miss Judge King's really great concurrence. If you care at all about the vagaries of when and whether to apply a categorical or modified categorical approach to evaluating prior sentences under ACCA, it's a must read.

Posted by: FPD | Oct 12, 2011 9:56:40 AM

What is striking is how much time and thought the judges clearly put into their opinions--only to end up with such a muddled mess. Justice Scalia's Sykes dissent is looking more and more appealing. It is fundamentally unfair to base 15 year minimum sentences on a statute so complicated that a circuit court full of judges cannot agree on what it means.

Posted by: Defense Lawyer #34 | Oct 12, 2011 2:29:23 PM

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