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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. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

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