ILNews

7th Circuit reverses ACCA enhancement

Back to TopCommentsE-mailPrintBookmark and Share

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.

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Being dedicated to a genre keeps it alive until the masses catch up to the "trend." Kent and Bill are keepin' it LIVE!! Thank you gentlemen..you know your JAZZ.

  2. Hemp has very little THC which is needed to kill cancer cells! Growing cannabis plants for THC inside a hemp field will not work...where is the fear? From not really knowing about Cannabis and Hemp or just not listening to the people teaching you through testimonies and packets of info over the last few years! Wake up Hoosier law makers!

  3. If our State Government would sue for their rights to grow HEMP like Kentucky did we would not have these issues. AND for your INFORMATION many medical items are also made from HEMP. FOOD, FUEL,FIBER,TEXTILES and MEDICINE are all uses for this plant. South Bend was built on Hemp. Our states antiquated fear of cannabis is embarrassing on the world stage. We really need to lead the way rather than follow. Some day.. we will have freedom in Indiana. And I for one will continue to educate the good folks of this state to the beauty and wonder of this magnificent plant.

  4. Put aside all the marijuana concerns, we are talking about food and fiber uses here. The federal impediments to hemp cultivation are totally ridiculous. Preposterous. Biggest hemp cultivators are China and Europe. We get most of ours from Canada. Hemp is as versatile as any crop ever including corn and soy. It's good the governor laid the way for this, regrettable the buffoons in DC stand in the way. A statutory relic of the failed "war on drugs"

  5. Cannabis is GOOD for our PEOPLE and GOOD for our STATE... 78% would like to see legal access to the product line for better Hoosier Heath. There is a 25% drop in PAIN KILLER Overdoses in states where CANNABIS is legal.

ADVERTISEMENT