May 24, 2019

Tenth Circuit: Mandate from Appellate Court Did Not Limit Lower Court’s Discretion to Rely on a Different Offense to Sentence Petitioner as Armed Career Criminal

The Tenth Circuit Court of Appeals issued its opinion in United States v. Shipp, Jr. on Wednesday, June 1, 2011.

The Tenth Circuit affirmed the district court’s decision. Petitioner was convicted of possessing a firearm after a felony conviction; at sentencing, he was classified as an “armed career criminal” pursuant to the Armed Career Criminal Act (ACCA), based upon three predicate state convictions for violent felonies or serious drug offenses. Petitioner then filed a pro se motion to vacate, set aside, or correct his sentence, arguing that the district court erred in relying upon a “walkaway” escape conviction; when that motion was denied, he applied for a Certificate of Appealability (COA) with the Tenth Circuit.

About two weeks after applying for a COA, the Supreme Court decided Chambers v. United States, 129 S. Ct. 687, 691-93 (2009), “holding that the Illinois crime of failure to report for penal confinement falls outside the ACCA’s ‘violent felony’ definition.” The Tenth Circuit concluded that Petitioner’s escape conviction for failure to report does not qualify as a violent felony under Chambers and that he was entitled to retroactive application of Chambers on collateral review. Accordingly, the Court reversed the district court’s denial of his motion and remanded with instructions to correct Petitioner’s sentence in light of Chambers, by resentencing him without the ‘armed career criminal’ classification.” However, the district court substituted another qualifying offense to again sentence Petitioner under the ACCA, which Petitioner claims was counter to the Tenth Circuit’s mandate rule that he be sentenced without that classification.

The Tenth Circuit disagreed with Petitioner. The Court found that its mandate rule did not completely foreclose the application of the ACCA classification, but simply foreclosed the ACCA classification based on the escape conviction. The mandate did not limit the district court’s discretion to rely on a different predicate offense to sentence Petitioner as an armed career criminal.

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