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February 26, 2018

At just what level of Dante's Inferno does modern ACCA jurisprudence reside?

Dante_s_inferno_by_somnium_maris-d68js14The silly question in the title of this post is my silly reaction to a not-so-silly ruling from a Fourth Circuit panel today flagged for me by a helpful reader.  I will get to that ruling in a minute, but first I must spotlight this website's helpful explanation of the circles of hell set forth in Dante's Inferno:

The Levels of Hell

In Dante's Inferno, Hell is described as having 9 different levels, or circles, each lower than the last.  As one descends into the depths of hell, he comes closer to the 9th circle where Satan himself resides.  Each level of hell is reserved for different types of sinners, and different punishments are inflicted on the damned depending on the nature and severity of their sin.  The greater their sin, the lower the level to which they are condemned to spend eternity.

Notably, the "seventh level of hell is reserved for those who are guilty of violence, whether it be against themselves, property, nature, or other people."  I suppose that would be the fitting level for locating the modern federal court jurisprudence over application of the Armed Career Criminal Act because what is typically debated within this jurisprudence is whether a defendant's prior conviction qualities as a "violent felony." 

But, in referencing Dante's Inferno, I am really thinking about federal criminal practitioners and federal judges who must feel like they are dropping through various levels of hell as they sort through various intricate precedents to try to figure out what is and what is not a "violent felony" for ACCA purposes.  Last week I noted here a big split Fifth Circuit en banc ruling holding that Texas burglary convictions do not serve as predicates for the Armed Career Criminal Act.  Today, it is a Fourth Circuit panel ruling that has my ACCA head hurting; US v. Middleton, No. 16-7556 (4th Cir. Feb. 26, 2018) (available here), gets started this way:

Jarnaro Carlos Middleton was sentenced as an armed career criminal pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e).  Middleton challenges the district court’s determination that his prior conviction for South Carolina involuntary manslaughter qualifies as a violent felony under the ACCA.  Due to the idiosyncrasies of the Supreme Court’s “categorical approach,” the ultimate issue in this case is whether selling alcohol to a minor involves the requisite use of violent force.  We conclude that it does not and reverse.

Critically, there is no suggestion in this opinion that Jarnaro Carlos Middleton's conviction for involuntary manslaughter had anything to do with selling alcohol to a minor.  But a 1992 opinion of the Court of Appeals of South Carolina upholds an involuntary manslaughter conviction involving selling alcohol to a minor, and that fact ends up shaping whether Jarnaro Carlos Middleton faces a 15-year statutory mandatory minimum or a 10-year statutory mandatory maximum for the federal crime of being a felon in possession of firearms and ammunition in violation of 18 U.S.C. § 922(g)(1).  Somewhere Franz Kafka (as well as Dante Alighieri) is blushing.  And if the realities of the majority opinion does not whet your ACCA appetite, Middleton comes with a partial concurrence that starts this way:

The majority concludes that a conviction for South Carolina involuntary manslaughter does not categorically qualify as a “violent felony” under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(i).  While I agree with that conclusion, I hesitate to join the majority’s analysis.  In my view, our recent decisions in In re Irby, 858 F.3d 231 (4th Cir. 2017), and United States v. Reid, 861 F.3d 523 (4th Cir. 2017), undermine the majority’s reasoning that South Carolina involuntary manslaughter can be committed with de minimis force and by simply causing injury without using force.  Nevertheless, I would hold that South Carolina involuntary manslaughter cannot be an ACCA predicate because, although the ACCA force clause requires a higher degree of mens rea than recklessness, an individual can be convicted of involuntary manslaughter in South Carolina based on reckless conduct.  Therefore, while I write separately as to Part II.B, I concur in part and concur in the judgment reversing the denial of habeas relief.


February 26, 2018 at 05:22 PM | Permalink


Thanks for the laugh. I think it's personal. As my husband prepared for the "Mystic" he meticulously read and outlined Dante's Inferno to see his fate. He settled on Circle III as a given, but feared Circle VI - Heresy.

He began to continually explain himself in a strange theological way. It was some comfort to get a new puppy and name it Cerberus and treat him kindly. At least they would be familiar when needed. The bottom line was, no one really cared where he would go - least of all him.

Yeah - we're in one of the 8 circles, I just pick limbo.

Posted by: beth | Feb 26, 2018 6:29:08 PM

Professor Berman, as a sentencing mitigation expert I am still running into many CJA panel defense attorneys who are not up to speed on Mathis and the new sentencing landscape. The way out of this pit, I believe, is to follow the lead of the U.S. Sentencing Commission when they revised the Immigration guideline a couple of years ago, with their focus on the length of the prior sentences instead of their nature. It's much easier to figure out how long a sentence was than what type it is!

It seems nearly impossible for a defense attorney to avoid 2255 issues today. Trying to research every possible predicate is incredibly time consuming, and really, who can predict what a Circuit Court might find? I keep my hair cut really short so I can't pull it out.

Posted by: John D Olive | Feb 27, 2018 10:15:48 AM

Forget 2255 issues. My fear is that --like with immigration issues -- state practitioners might be require to notify their client about whether the state offense qualifies as a crime of violence for ACCA. I know that the Supreme Court appears to be still sitting on a cert petition involving whether my state's burglary statute is a crime of violence (probably for a dissent from the denial of cert). If the nine justice of the Supreme Court can't agree on whether it is a crime of violence, how are local prosecutors and public defenders suppose to figure it out?

Posted by: tmm | Feb 27, 2018 4:15:22 PM

"Midway through the time of our lives I came across a dark wood for the straight path was not before me."
Yeah, definitely this line of caselaw.

Posted by: Andrew | Feb 27, 2018 7:05:37 PM

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