ILNews

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. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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