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February 20, 2018

Split en banc Fifth Circuit holds that Texas burglary convictions do not serve as predicates for federal Armed Career Criminal Act

I long ago gave up trying to keep up with all the intricate litigation and jurisprudence in circuit courts dealing with predicate offenses that can trigger the severe mandatory minimum sentences of the Armed Career Criminal Act.  But every so often, a big ACCA ruling comes down the pike, and today is one of those days as an en banc Fifth Circuit, splitting 8-7, has decided Texas burglary convictions cannot serve as an ACCA predicate.  The majority ruling by Judge Higginbotham in US v. Herrold, No. 14-11317 (5th Cir. Feb. 20, 2018)  (available for download below), gets off to this interesting start and then summarizes its holding 30+ pages later:

Three decades ago, Congress set the courts upon a new course for the sentencing of federal defendants, moving away from a long-in-place system that gave wide discretion to federal judges to impose sentences from nigh no prison time to effective life sentences.

But this discretion was not so wide in practice as in appearance — the judge’s sentence gave way when the prisoner left the court for prison.  The total time served by the prisoner was on his arrival determined in the main by a parole commission.  The commission determined release dates, and in a rough and crude way — relative to the work of the Sentencing Commission — anticipated the system now in place by using a scoring system that looked in part to a defendant’s criminal history.  In response to charges from the Left of disparate and from the Right of anemic sentencing, and thus with the support of both ends of the political spectrum, Congress shifted the focus to a defendant’s individual circumstances on the one hand and mandatory minimum sentences tailored to particular crimes on the other.  With much work from its newly erected Sentencing Commission, nourished by reflection, essential empirical study, and judges tasked with applying its regulations, this reform effort appears to now be understood by bench and bar, enjoying a measure of well-earned credibility.  Yet its relatively calibrated system of adjustments struggles with rifle-shot statutory efforts deploying an indeterminate calculus for identification of repetitive, sentence-enhancing conduct that add on to the sentence produced by the guidelines, such as the Armed Career Criminal Act. In setting a federal criminal sentence the district judge looks, in part, to both the number and type of a defendant’s prior convictions, a task complicated by the statute’s effort to draw on criminal conduct bearing differing labels and boundaries set by the various states.  Today, we continue to refine our efforts....

To summarize, the burglary provisions encoded in Texas Penal Code §§ 30.02(a)(1) and (3) are indivisible. Texas Penal Code § 30.02(a)(3) is nongeneric because it criminalizes entry and subsequent intent formation rather than entry with intent to commit a crime.  For these reasons, Herrold’s ACCA sentence enhancement cannot stand. We VACATE and REMAND to the district court to resentence him in accordance with our decision today. 

A lengthy dissent authored by Judge Haynes provides a succinct account of why this ruling is a big deal (and could be SCOTUS bound):

The majority opinion upends years of well-settled law. Just over a year ago, this court confirmed that Texas Penal Code § 30.02(a) is a divisible statute, and the Supreme Court denied certiorari.  United States v. Uribe, 838 F.3d 667 (5th Cir. 2016), cert. denied, 137 S. Ct. 1359 (2017). The effect of the majority opinion, in addition to unsettling established precedent, is to render all burglary convictions in the second-most populous state in the country nullities as far as the ACCA is concerned.  That is no small thing. In just a single year, Texans reported 152,444 burglaries, all of which now escape the ACCA’s reach. See TEX. DEP’T PUB. SAFETY, CRIME IN TEXAS 2015 6 (2015), http://www.dps.texas.gov/crimereports/15/citCh2.pdf.  From this misguided determination, I respectfully dissent.

Download Herrold slip op

February 20, 2018 at 06:09 PM | Permalink


This opinion illustrates perfectly how Federal sentences get ratcheted up:

1. An opinion applyies the most lenient interpretation of a law to apply a more lenient punishment in particular cases.

2. People notice that career criminals are getting off. That makes them angry. So Congress passes a much tougher law, i.e. the ACCA.

3. An opinion such as this one applies the most lenient possible interpretation of that law.

4. People notice that and are angry again. Therefore congress, at some time in the future, will pass an even tougher law.

repeat ad infinitum

Posted by: William Jockusch | Feb 21, 2018 10:53:53 PM

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