An Indiana man convicted of at least four felonies could receive a lesser sentence after the 7th Circuit Court of Appeals ruled Friday that only two of the felonies met the requirements for mandatory minimum sentencing spelled out in a 2015 U.S. Supreme Court decision.
Daniel Portee was sentenced in 2010 to 15 years in prison under the Armed Career Criminal Act for his conviction of possession of firearm by a convicted felon. Portee previously had been convicted of armed robbery in Illinois in 1983, plus Indiana convictions of robbery in 1990, pointing a firearm in 2000 and intimidation in 2006.
Portee argued none of his convictions qualified as a violent felony while the government claimed all the offenses did; three qualifying offenses are required to sentence an offender under ACCA.
“We conclude two felony convictions proposed by the government do not satisfy the ACCA, so we reverse and remand,” Senior Judge Daniel Manion wrote for the panel in Daniel Portee v. USA, 18-1034.
The decision in Johnson narrowed the elements of what could be considered a violent crime.
“So, after Johnson, a felony is a ‘violent felony’ for ACCA purposes only if it satisﬁes the ACCA’s elements clause (‘has as an element the use, attempted use, or threatened use of physical force against the person of another’) or if the ACCA speciﬁcally enumerates it as a violent felony,” Manion wrote.
Under that reading, the panel found neither Portee’s prior intimidation nor pointing a firearm conviction qualified as violent felonies for purposes of ACCA.
“We conclude two (charges) do not support application of the ACCA. Therefore, we have no occasion to address the other two,” Manion wrote, reversing and remanding to the Northern Indiana District Court. “This opinion, of course, does not limit the district judge’s ability on remand to consider the full panoply of Portee’s criminal history under 18 U.S.C. § 3553(a).”