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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. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

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