11th Circuit and the Armed Career Criminal Act (ACCA)

The 11^th Circuit Court recently reversed a sentence based on the ACCA, and the decision was in large part based on what documents can be admitted in determining whether a past conviction is violent or not. Raymond Braun received the ACCA required 15 year sentence for a felon in possession of a firearm because of prior violent felonies. The ACCA requires three prior violent felonies. The government presented five prior convictions, but later conceded that one of the five did not meet ACCA violent felony standards. Of the four remaining, the 11^th Circuit determined that the government failed to prove that two were violent felonies.

During the course of the appeal, SCOTUS declared the residual clause in the ACCA as unconstitutionally vague in Samuel Johnson v United States. Then, SCOTUS explains in Descamps v United States that sentencing courts, when deciding whether a prior conviction is ACCA-violent, may look only to the elements of crime, as opposed to the facts that led to conviction. Of the four prior convictions the government presented, the two questionable convictions were battery on a LEO and aggravated battery on a pregnant woman. Both the appellant and the government agree that the statute for battery on a pregnant woman is “divisible,” and so the Circuit court used applied the modified categorical approach to determine which version of the crime Braun was previously convicted of. Importantly, the Court refused to admit a presentencing report (PSR) from his 2003 conviction because it did not meet the standards established in Shepard v United States, hence the Court “must presume that the conviction rested upon nothing more than the least of the acts criminalized.” In this case, that meant unwanted touching, which under Curtis Johnson v United States does not involve physical force, and so does not qualify as a violent felony. The same standards were applied to the battery on a LEO conviction, and the conclusion was the same. On remand, the government sought to argue that Braun’s prior conviction for resisting arrest with violence met the ACCA standard. The court denied this request as it was irrelevant; the government could not prove the three violent felonies required even if the resisting arrest charge qualified.

If you are interested in the details regarding how and why a PSR can and cannot be used, pages 11 and 12 of the Braun opinion can be accessed here.