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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. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  2. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

  3. to answer your questions, you would still be practicing law and its very sad because we need lawyers like you to stand up for the little guy who have no voice. You probably were a threat to them and they didnt know how to handle the truth and did not want anyone to "rock the boat" so instead of allowing you to keep praticing they banished you, silenced you , the cowards that they are.

  4. His brother was a former prosecuting attorney for Crawford County, disiplined for stealing law books after his term, and embezzeling funds from family and clients. Highly functional family great morals and values...

  5. Wondering if the father was a Lodge member?

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