James v. United States

In order to impose the armed career criminal status and issue the mandatory minimum sentence of 15 years under the ACCA, a defendant must have three prior convictions that qualify either as “serious drug offenses” or “violent felonies.” A “violent felony” is defined in 18 U.S.C. § 924(e)(2)(B) as “any crime punishable by imprisonment for a term exceeding one year…that (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion…or otherwise involves conduct that presents a serious potential risk of physical injury to another.”

Both the U.S. District Court and the Court of Appeals for the Eleventh Circuit relied on United States v. Rainey, 362 F.3d 733 (11th Cir. 2004), in holding that attempted burglary qualifies as a “violent felony” for purposes of the ACCA. Brief for Petitioner at 8. In Rainey, the Eleventh Circuit held that an attempt to commit arson constitutes a violent felony. Id. Both lower courts in this case decided that Rainey stood for the proposition that an attempt to commit any felony included in ?924(e)(2(B)(ii) constitutes a violent felony itself. Id.

James first argues that under Taylor v. United States, 495 U.S. 595 (1990), and Shepard v. United States, 544 U.S. 13 (2005), a sentencing court may not engage in fact-finding when deciding whether a previous conviction constitutes a predicate felony under the ACCA. Brief for Petitioner at 12–14. Instead, the court can only rely upon records developed or used in the initial trial of the defendant’s guilt. Id. at 13. Therefore, according to James, the critical question is whether the statutory definition of attempted burglary falls within the ACCA definition of violent felony. Id.

James argues that attempted burglary cannot be equated with burglary for purposes of the ACCA. The elements that must be proven for an attempted burglary conviction fall far short of those necessary to convict a defendant of burglary under Florida law. Brief for Petitioner at 14. One point of distinction, for example, is that under Florida law, burglary requires an unlawful entry, whereas no entry is needed to convict for attempted burglary. Id. at 15. Florida law also treats burglary and attempted burglary differently for punishment purposes. Id. at 16. James argues that these differences make it so that attempted burglary does not come within the definition of “violent felony” by virtue of the enumerated “burglary.”

The government, however, does not try to fit attempted burglary within the meaning of burglary for purposes of the ACCA, but rather argues that attempted burglary is a violent felony because it “presents a serious potential risk of physical injury to another.” Brief for Respondent at 21. By focusing on this “otherwise” clause in the definition of violent felony, the government avoids the burglary/attempted burglary dichotomy that James focuses on. In fact, the government argues that both attempted crimes in general and attempted burglary under Florida law specifically qualify as a violent felony because of the risk that each presents. Id. at 15–21.

The government first argues that when a completed crime poses a serious risk of physical injury, an attempt to commit that crime must present a potential serious risk of physical injury. Id. at 16. The risk associated with attempts, the government argues, is the reason why they are punishable crimes in the U.S. Id. Both the United States Sentencing Commission and Congress, which treats attempted and completed crimes as nearly identical for punishment purposes in the U.S. Code, also seem to agree that attempts pose the same risk of injury as completed crimes. Id. at 18–19. Because of this risk presented by attempts, the government argues that they should be included in the definition of “violent felony” by virtue of the “otherwise” clause.

More specifically, the government argues that the elements necessary for conviction of attempted burglary under Florida law make it so that a serious risk is presented before the attempt can be punishable. Brief for Respondent at 21. While James and the government disagree over how to interpret the interaction between Florida’s attempt statutes generally and burglary law specifically, the government argues that in order to convict for attempted burglary, it must be proved that a direct act be taken toward the unlawful entrance of a dwelling. Id. at 23–25. The government argues that possession of burglary tools and intent to commit the crime are not enough under Florida law without a direct act. Id. at 23. This direct act, therefore, poses the same risk of physical injury as the fulfilled burglary and should be treated the same for purposes of the ACCA. Id. at 30.

James argues that the government’s reasoning, and that of the Eleventh Circuit, creates a per se rule that classifies attempts to commit any of the felonies enumerated in the ACCA as violent felonies. Brief for Petitioner at 12. James points to prior decisions, and the plain language and statutory construction of the ACCA, to show that the statute should not be so broadly read. Id. at 13, 19.

Finally, James argues that judicial fact-finding will arise as a result of the Eleventh Circuit’s opinion because it forces the court to examine the specific elements of the offense to determine whether it presents a potential for serious risk. Brief for Petitioner at 33. Judicial fact finding of this nature, James argues, is impermissible under Taylor and Shepard. Id. at 33–34. While the court is permitted to limit factual findings to the presence or absence of a prior conviction, James argues that it cannot go so far as to establish that the conduct involved in the crime presented a serious risk. Id. at 34. James argues that the per se rule adopted by the Eleventh Circuit decides this critical question at the sentencing stage without the safeguards that a trial affords, raising serious Fifth and Sixth Amendment concerns. Id. at 37. Where such constitutional concerns are presented, James contends that the doctrine of constitutional avoidance should be applied. Id. at 34. The doctrine of constitutional avoidance states that when a statute can be read to have two different meanings, one of which would raise serious constitutional issues and the other would not, the statute should be read to possess the later meaning. Id. at 33. Applying this doctrine would force the court to rule that the ACCA does not include all attempts of the enumerated crimes as “violent felonies.”

To this, the government responds that the Eleventh Circuit did not (and courts following the Eleventh Circuit’s opinion will not) engage in judicial fact-finding by including attempted burglary within the ACCA. Brief for Respondent at 42. The government argues that the cases James uses to make his argument, Jones v. United States, 526 U.S. 227 (1999), and Apprendi v. New Jersey, 530 U.S. 466 (2000), deal with factual findings of the defendant’s conduct. Id. Here, there are no such factual findings, but rather legal determinations meant for a judge, not a jury. Id.

Finally, James argues that where there is doubt as to the application of the ACCA, it should be decided in favor of him, the Petitioner, under the rule of lenity, which states just that. Brief for Petitioner at 39. He argues that the rule applies to penalty provisions in addition to substantive statutes, and so should be imposed here to impose the lesser sentence. Id. The government, however, argues that a much more serious discrepancy must be presented than that which is at issue here in order for the rule of lenity to be invoked. Brief for Respondent at 43.

Despite the constitutional concerns that James raises, this decision will likely come down to statutory construction. Because attempts are covered in a section of the ACCA that is not at issue here, the Court will have to decide whether attempts were purposefully left out of the definition of “violent felony” or whether they were meant to be included in other language. The way this statute will be read will likely depend less on the words in the definition and more on how wide the Court deems their reach should extend.