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7th Circuit reverses ACCA enhancement

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Based on a sparse record of evidence that the District Court could consider in determining whether a man can be sentenced under the Armed Career Criminal Act, the 7th Circuit Court of Appeals found the government didn’t meet its burden to prove two of the man’s previous convictions from events on the same day were separate predicate offenses under the Act.

Jeffrey Kirkland was convicted of unlawful possession of a firearm by a felon and sentenced under the ACCA based on five previous “violent felony” convictions. Two of those included drunk-driving offenses, which later the U.S. Supreme Court determined are not violent felonies under the ACCA. The District Court denied Kirkland’s request for relief, and the 7th Circuit ordered the lower court to take another look at his remaining three convictions to see if he can still be sentenced under the Act.

The federal judge relied only on the charging documents, judgments and plea questionnaires from the burglary and robbery convictions, which both occurred on the same day in 1985. The information did not provide enough detail to determine whether the crimes were committed on “occasions different from one another” as required by the Act.

The judge believed the government met its burden to prove they did, and the burden then shifted to Kirkland to prove otherwise, based on United States v. Hudspeth, 42 F.3d 1015, 1018 (7th Cir. 1994)(en banc). Since Kirkland was not allowed to provide any other information to support his argument based on Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), the District Court found the ACCA applied.

The Circuit judges agreed that Shepard limits what documents a judge can consider in determining whether the prior offenses occurred on separate occasions. But in cases like Kirkland’s, where the evidence is not definitive as to whether the criminal events happened separately from each other, the burden is not on the defendant to prove the events are one occasion.

The burden-shifting scheme mentioned in a footnote in Hudspeth is “no longer tenable because it essentially requires an ACCA enhancement even if the available Shepard-approved documents – the only evidence a sentencing court may consider – is inconclusive as to whether the offenses occurred on separate occasions,” wrote Judge Ruben Castillo, of the Northern District of Illinois, who was sitting by designation.

The more appropriate burden allocation requires the government to establish by the preponderance of the evidence – using Shepard-approved sources – that the prior convictions used for the enhancement were “committed on occasions different from one another,” Castillo continued.

An ambiguous record regarding whether a defendant actually had the opportunity to stop or withdraw from his criminal activity doesn’t suffice to support the ACCA enhancement, the court ruled. The judges remanded for resentencing.

 

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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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