Judges uphold finding that past burglaries were not single criminal episode

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The 7th Circuit Court of Appeals dismissed a defendant’s argument that his three previous convictions of burglary should be treated as a single criminal episode for purposes of the Armed Career Criminal Act.

James Elliott was arrested after police found a loaded gun on him, which is illegal because he has six previous felony convictions. He was indicted on a felon-in-possession charge and the government sought to enhance his sentence under the ACCA based on three burglary convictions. Elliott maintained that the burglaries – which took place over the course of five days – should be considered a single criminal episode and that a jury should decide whether the burglaries were committed on different occasions from one another.

The District Court rejected both of Elliott’s claims, pointing to Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998), as to the court’s authority to make determinations regarding Elliott’s criminal history. Chief Judge Philip Simon also cited the 7th Circuit’s en banc decision in U.S. v. Hudspeth, 42 F.3d 1015, 1019-22 (7th Cir. 1994). In Hudspeth, there is a bright-line rule distinguishing simultaneous crimes from sequential ones. Simon sentenced Elliott to 180 months.

In United States of America v. James Elliott, 11-2766, the appellate judges affirmed the District Court, noting that the 7th Circuit and other courts have construed Almendarez-Torres to allow a District Court to make a finding for purposes of the ACCA as to whether a defendant committed three or more violent felonies or serious drug offenses on different occasions.

“The district court committed no error in finding that Elliott’s burglaries occurred on different occasions for purposes of the ACCA. The burglaries occurred on different days and involved different residences and victims. Under any plausible construction of the statute’s different-occasions language, the burglaries constituted distinct criminal episodes,” Judge Ilana Diamond Rovner wrote. “Reconsideration of the approach that this court adopted in Hudspeth would not lead to a different result on the facts of this case. To the extent that the statute produces results that are perceived as unjust, the problem is one for Congress to fix rather than this court.”



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  1. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.