August 24, 2019

Tenth Circuit: District Court Erred in Treating Defendant’s Prior Convictions as “Violent Felonies” Under ACCA

The Tenth Circuit Court of Appeals issued its opinion in United States v. Bong on Monday, January 28, 2019.

Defendant Troy Bong was convicted of being a felon in possession of a firearm and sentenced to 293 months of imprisonment. Because Mr. Bong had prior Kansas state convictions for robbery and aggravated robbery, the district court found Mr. Bong was subject to an enhanced sentence under the Armed Career Criminal Act (ACCA). Mr. Bong filed a motion to vacate, set aside, or correct his sentence pursuant to § 2255.

The district court granted a Certificate of Appealability (“COA”) on two of Mr. Bong’s grounds for relief, and denied Mr. Bong’s § 2255 motion. On appeal, the Court of Appeals granted a COA on two additional issues.

Mr. Bong first asserted that under Johnson v. United States, his prior convictions did not qualify as violent felonies, and he was therefore improperly sentenced under the ACCA. The district court rejected this argument, and concluded that the elements of robbery under Kansas law incorporated the physical force necessary to constitute a violent offense for purposes of the ACCA.

On appeal, the Court evaluated whether the Kansas robbery statute and the Kansas aggravated robbery statute have as an element the use, attempted use, or threated use of physical force against the person of another, and would thus be violent felonies for purposes of the ACCA. Citing to federal law, the Court of Appeals outlined the meaning of the ACCA’s elements clause as referring to the active, attempted, or threatened employment of violent force—force capable of causing physical pain or injury—against the person of another.

With respect to the Kansas robbery statute, the Court of Appeals first identified the minimum force required by Kansas law to constitute the crime of robbery. The Court found the Kansas state robbery statute may be violated with minimum actual force (i.e., a defendant may be convicted of robbery under Kansas law without using violence or the actual application of force to the person of another). The Court therefore held that the Kansas robbery statute does not qualify as a violent felony under the ACCA, and thus a conviction under the statute cannot serve as a predicate offense for purposes of the ACCA’s sentence enhancement provisions.

In evaluating the Kansas aggravated robbery statute, the Court found that the simple possession of a weapon, rather than the use of a weapon, is a sufficient means of being “armed” for purposes of a conviction under the statute. The Court noted that had the Kansas aggravated robbery statute required the use of a dangerous or deadly weapon, then a conviction under the statute would constitute a predicate offense under the ACCA. However, the Court found that merely being armed with a weapon during the course of a robbery is not sufficient to render the crime a violent crime for purposes of the ACCA.

The Court therefore held that Mr. Bong’s Kansas convictions for robbery and aggravated robbery did not constitute violent felonies for purposes of the ACCA. The Court therefore reversed the district court’s denial of Mr. Bong’s § 2255 motion, and remanded for further proceedings.

Mr. Bong next asserted that his trial and appellate counsel were ineffective for failing to challenge the ACCA sentencing. The district court denied the claim. The Court of Appeals did not address the claim, having already concluded the district court erred in basing Mr. Bong’s ACCA sentence on his prior Kansas robbery and aggravated robbery convictions.

Mr. Bong also asserted his trial counsel was ineffective for failing to investigate the facts of the alleged crime. The district court rejected this claim, finding that Mr. Bong’s § 2255 motion failed to identify any material matters that trial counsel failed to investigate.

The Court of Appeals affirmed in part, finding that the district court properly rejected Mr. Bong’s allegation with one exception. While incarcerated, Mr. Bong allegedly discovered the existence of evidence in support of his argument that the firearm evidence was obtained in violation of his Fourth Amendment rights. The district court did not expressly address the claim in denying Mr. Bong’s § 2255 motion, concluding that it was a new claim and barred by the statute of limitations. The Court of Appeals reversed and remanded for further proceedings with respect to this issue, finding that in rejecting the claim as time-barred, the district court failed to consider the date on which the facts supporting the claim could have been discovered through the exercise of due diligence.

Finally, Mr. Bong contended that the district court erred in dismissing his claim that the prosecution suppressed the evidence Mr. Bong discovered while incarcerated. The district court rejected this claim as time-barred. Citing again to the district court’s failure to consider that Mr. Bong’s § 2255 motion was filed within one year of Mr. Bong’s discovery of the existence of the evidence at issue, the Court of Appeals reversed and remanded for further consideration.

Tenth Circuit: Plaintiff’s Request for Immediate Release from Federal Custody Denied Under ACCA’s Enumerated Clause

The Tenth Circuit Court of Appeals issued its opinion in United States v. Snyder on Thursday, September 21, 2017.

This case arose from Snyder’s request for immediate release from federal custody on the basis that he had already served more than the maximum sentence allowed by law. Snyder argues that the Supreme Court’s recent decision in Johnson v. United States invalidates his sentence enhancement under the Armed Career Criminal Act (ACCA). The district court denied Snyder’s motion, and the Tenth Circuit Court of Appeals affirmed the denial, concluding that Snyder was not sentenced based on the ACCA’s residual clause that was invalidated in Johnson.

In 2004, Snyder pled guilty to being a felon in possession of a firearm. A presentence report was prepared and concluded that Snyder was subject to an enhanced sentence as an armed career criminal because he had sustained two convictions for burglary of two residences, and had a conviction of a controlled substance offense. Snyder’s argument that his burglary convictions failed to constitute predicate offenses under the ACCA were rejected by the district court.

In 2015, the Supreme Court decided Johnson. Snyder subsequently filed a motion to vacate his sentence for immediate release, asserting that, following the Court’s decision in Johnson, his burglary convictions no longer qualify as predicate offenses under the ACCA, so he is not an armed career criminal, and his enhanced sentence exceeds the maximum authorized by law.

The Circuit first determined whether the district court erred in concluding that Snyder’s motion was not timely.  By the plain language of the statute in question, the statute allows a motion to be filed within one year of the date on which the rights asserted was initially recognized by the Supreme Court. The Circuit concluded that to be timely, a motion need only to invoke the newly recognized right, regardless of whether the facts of record ultimately support the claim, and found that Snyder’s motion did just that.

The court then discussed whether Snyder had overcome the procedural-default rule, which is a general rule that claims not raised on direct appeal may not be raised on collateral review unless the petitioner can show cause and prejudice.

Cause is shown if a claim is so novel that its legal basis was not reasonably available to counsel at the time of the direct appeal. The Supreme Court has stated that if one of its decisions explicitly overrides prior precedent, then, prior to that decision, the new constitutional principle was not reasonably available to counsel, and defendant has cause for failing to raise the issue. The Johnson claim was not reasonably available to Snyder at the time of his direct appeal, and the Circuit found this sufficient to establish cause.

To establish actual prejudice, the Circuit held that Snyder must show that the error of which he complains is an error of constitutional dimensions and worked to his actual and substantial disadvantage. The Circuit found that Snyder has shown actual prejudice through his argument that the ACCA sentence enhancement is invalid after Johnson. The court concluded this by acknowledging that if Snyder is correct, he should have been sentenced to only ten years maximum, not eighteen as he had been sentenced. The sentence of eighteen years would then be unauthorized under law, creating an actual and substantial disadvantage of constitutional dimensions.

The Circuit next discusses the merits of Snyder’s claim. Snyder alleged that the sentence was imposed under an invalid legal theory and that he was, therefore, sentenced in violation of the Constitution. In order to make a determination, the relevant background of the legal environment at the time of sentencing must be evaluated. The Circuit held that the actual facts of record in this matter offered no basis whatsoever for the notion that the sentence Snyder received was based on the ACCA’s residual clause, rather than its enumerated offenses clause. The Circuit found no mention of the residual clause in the presentence report or any other pleading or transcript. Further, given the relevant background legal environment that existed at the time of Snyder’s sentencing, there would have been no need for reliance on the residual clause. The Circuit concluded that Snyder’s claim failed because the court’s ACCA’s determination at the time of sentencing rested on the enumerated crimes clause rather than the residual clause.

The decision of the district court denying Snyder’s motion is AFFIRMED by the Tenth Circuit Court of Appeals.

Tenth Circuit: ACCA Residual Clause Unconstitutional; Case Remanded for Resentencing

The Tenth Circuit Court of Appeals issued its opinion in United States v. Snyder on Monday, July 20, 2015.

John Henry Snyder, II, was driving erratically when an Oklahoma City police officer pulled him over. Upon approaching Snyder’s vehicle, the officer smelled the odor of burnt marijuana. Snyder produced a driver’s license and expired insurance verification and the officer decided to search the vehicle based on the burnt marijuana smell. The officer asked Snyder to exit the vehicle, at which point he attempted to flee and yelled to his passenger to “go with it or leave with it.” Additional officers arrived on scene and searched the vehicle. They found a gun under the driver’s seat, which Snyder admitted was his. Because of his three prior felony convictions, he received the mandatory minimum 15-year sentence required by ACCA.

On appeal, Snyder challenged the district court’s denial of his motion to suppress the firearm, contending the search was illegal. The district court concluded the firearm was admissible because the search fell under the inevitable discovery doctrine—because of his lack of insurance verification and arrest, police would have impounded his vehicle and found the gun on an inventory search. The Tenth Circuit found it did not need to reach the inevitable discovery doctrine because the search was legal based on the marijuana smell alone. The Tenth Circuit noted that it has held repeatedly that marijuana smell is sufficient to establish probable cause, and again held that to be true in this case.

Next, the Tenth Circuit evaluated the reasonableness of Snyder’s sentence under ACCA. Two of his convictions unquestionably fell under ACCA’s strictures since they were serious drug offenses. However, the third conviction for attempted aggravated eluding a police officer fell under ACCA’s residual clause, which the Supreme Court unequivocally held to be unconstitutional in Johnson v. United States, 576 U.S. ___ (2015). The Tenth Circuit remanded for resentencing consistent with Johnson.

The district court’s denial of the motion to suppress was affirmed, but the case was remanded for resentencing.

Tenth Circuit: Generically Limited Plea Document Satisfies ACCA’s Prior Violent Felony Requirements

The Tenth Circuit Court of Appeals issued its opinion in United States v. Ridens on Friday, July 10, 2015.

Ryan Ridens pleaded guilty to being a felon in possession of a firearm and received a mandatory minimum 15-year sentence enhancement under the Armed Career Criminals Act (ACCA) based on three prior violent felony convictions. Ridens challenged one of his convictions, a Kansas burglary for which he pleaded guilty, as not qualifying as a violent felony. The Tenth Circuit found ACCA specifically lists burglaries as violent felonies for purposes of the sentence enhancement. The Tenth Circuit evaluated Kansas’ statutory definition of burglary in existence at the time of Ridens’ guilty plea and found it differed from the generic definition. The Tenth Circuit then applied a modified categorical approach to determine that the charging document in Ridens’ case generically limited the charges. The Tenth Circuit found that the guilty plea to Ridens’ prior burglary offense qualified as a violent felony under ACCA.

The Tenth Circuit affirmed the sentence.

Tenth Circuit: Intrinsic Evidence Not Unfairly Prejudicial Where Necessary to Explain Circumstances of Arrest

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hood on Wednesday, December 17, 2014.

Oklahoma City police were investigating a string of burglaries and knocked at the door of an apartment belonging to the owner of a phone left at a burglary site. Although no one answered, a few minutes later residents of the apartment complex alerted police that someone was running from that apartment. The police caught the runner, Michael Hood, who was wearing a bulky coat despite the warm day and was fumbling in his pockets for something. Concerned that he might have a weapon, the police handcuffed and frisked Hood. He was subsequently indicted on two counts of being a felon in possession, related to the incident at the apartment in March 2012 and a separate incident in June 2012. After a jury trial, he was sentenced to 262 months’ imprisonment.

Hood appealed, arguing first that the police seized the firearm in March 2012 in violation of his Fourth Amendment rights. Hood argued that the officers’ use of weapons and handcuffs was not justified, also asserting that the officers waived the opportunity to argue justification for using force. Hood next argued that, if the court should find excessive force from the March 2012 incident, the conviction from June 2012 should also be vacated since the prosecutor relied heavily on evidence from the March incident to convict on the June incident.

The Tenth Circuit was not persuaded by Hood’s waiver argument. The government responded to Hood’s motion to suppress that the officers’ seizure and detention of Hood was a reasonable Terry stop supported by suspicion of criminal activity, and did not waive their argument. As to whether the use of force was justified, the Tenth Circuit affirmed the district court’s conclusion that it was. Hood argues that it was not reasonable because the officers lacked prior belief that he was dangerous. Although the officers were investigating a different individual, Hood ran from the apartment of the person they were investigating and his behavior was suspicious. The Tenth Circuit found the officers were fully justified in drawing their weapons and ordering him to the ground under these circumstances. Because the Tenth Circuit found no error in the search and seizure, it declined to address the arguments relating to the June 2012 possession conviction.

Hood also argued that evidence concerning the burglaries was unduly prejudicial under FRE 404(b)(1) and should have been suppressed. However, this evidence was not admitted to show that Hood acted in accordance with his character; the evidence was admitted as intrinsic evidence. The evidence concerning the burglaries was necessary to explain why the police were at the apartments and why they had heightened suspicion as to Hood. The Tenth Circuit also evaluated for unfair prejudice under Rule 403 and found none. Hood was never named as a suspect in the burglaries, so there was no unfair prejudice in admitting evidence regarding the circumstances of Hood’s arrest.

Finally, Hood argued that a prior conviction for pointing a gun at another person should not count as a violent felony sentence enhancer under ACCA. The Tenth Circuit disagreed. Hood pleaded guilty to pointing a firearm at another person with the intent to injure the other person either physically or through emotional intimidation. The Tenth Circuit noted that using a firearm to threaten another is precisely the sort of violent force proscribed by ACCA.

The Tenth Circuit affirmed Hood’s convictions and sentence.

Tenth Circuit: States Have Wide Latitude to Determine Which Offenses are Serious for ACCA Purposes

The Tenth Circuit Court of Appeals issued its opinion in United States v. Titley on Tuesday, November 4, 2014.

John Ervin Titley pled guilty to being a felon in possession of a firearm. He was sentenced, and his sentence was enhanced due to the provisions of the Armed Career Criminal Act (ACCA), due to his three prior felony convictions. Although Mr. Titley agrees his Missouri armed robbery conviction qualifies for ACCA purposes, he argues that his convictions for possession of marijuana with intent to distribute in Arkansas and unlawful possession of marijuana with intent to distribute in Oklahoma should not qualify because in 19 other states and the District of Columbia those crimes would not have constituted “serious drug offenses.” Mr. Titley argued this violates the Equal Protection clause.

The Tenth Circuit, applying rational basis review, analyzed whether the challenged ACCA provision is rationally related to a legitimate government purpose, and found that it was. ACCA’s purpose is to incapacitate repeat offenders who possess firearms and deter such conduct in others. Mr. Titley does not challenge the purpose, but instead argues ACCA violates equal protection because it does not apply uniformly to similarly situated defendants. The Tenth Circuit found that Congress afforded the states wide latitude in determining which crimes they regarded as serious. Rational basis does not require uniformity.

The sentence was affirmed.

Tenth Circuit: Use of Juvenile Adjudication for Sentencing Under ACCA Did Not Violate Eighth Amendment

The Tenth Circuit Court of Appeals published its opinion in United States v. Orona on Wednesday, July 31, 2013.

Raul Roger Orona, Jr., was convicted of being a felon in possession of a firearm. Based on his status as an armed career offender, he was sentenced to 198 months’ imprisonment under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). At sentencing, the district court concluded that his sentence under ACCA was constitutional, but stated it was persuaded that “defendant has somewhat less culpability” given that one of his predicate offenses occurred when he was a juvenile. Orona appealed.

On appeal, Orona argued that the use of his juvenile adjudication as a predicate offense for ACCA purposes violated the Eighth Amendment’s prohibition against cruel and unusual punishment. The Eighth Amendment bars “the imposition of inherently barbaric punishments under all circumstances” and punishments that are “disproportionate to the crime” committed. Orona did not establish that a national consensus existed against the use of juvenile adjudications to enhance a subsequent adult sentence. The court found that states vary tremendously in the degree to which they permit a prior juvenile adjudication to impact sentencing following a subsequent adult conviction. In the cases cited by Orona, the sentences were imposed for crimes committed while the defendants were young. In this case, an adult defendant faced an enhanced sentence for a crime he committed as an adult.

The court also rejected Orona’s claim that the residual clause of ACCA is unconstitutionally vague. The void-for-vagueness doctrine provides that a penal statute must define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. ACCA defines “violent felony” as including any crime that is “burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Because of the United States Supreme Court’s consistent rejection of Orona’s vagueness argument and the unanimous conclusion of its sibling circuits, the Tenth Circuit held that the residual clause was not impermissibly vague.


Tenth Circuit: Neither Savings Clause Nor Suspension Clause Alter Sentencing of Petitioner

The Tenth Circuit published its opinion in Abernathy v. Wandes on Monday, April 8, 2013.

Petitioner Gary Abernathy was convicted in 2001 of being a felon in possession of a firearm and was sentenced as an armed career criminal under the Armed Career Criminal Act (“ACCA”) because he had three qualifying ACCA convictions. Consistent with Eighth Circuit precedent at that time, the district court determined that Mr. Abernathy’s previous conviction for a “walkaway” escape was a qualifying conviction under the ACCA.

Several years after Mr. Abernathy’s conviction appeared to be final, the Supreme Court decided Chambers v. United States, 555 U.S. 122 (2009), which held that an escape conviction based on a failure to report (or to return) to a penal facility falls outside the scope of the ACCA’s definition of a violent felony and therefore cannot serve as a qualifying ACCA conviction.

Mr. Abernathy filed a § 2241 petition to challenge his sentence. Mr. Abernathy sought to use the so-called “savings clause” contained in § 2255(e), which permits a federal prisoner to proceed under § 2241 when the remedy under § 2255 is “inadequate or ineffective to test the legality of his detention.” Applying the Fifth Circuit’s savings clause test, the district court held that Mr. Abernathy could not meet the “actual innocence” prong of that test because being “actually innocent” of an enhanced sentence is “not the sort of actual innocence that could justify a determination that the remedy available pursuant to Section 2255 in his criminal case is inadequate or ineffective.” Without reaching the merits of Mr. Abernathy’s Chambers claim, the district court dismissed his § 2241 petition.

After the district court’s decision, however, the Tenth Circuit decided Prost v. Anderson, 636 F.3d 578 (10th Cir. 2011), which set forth a different savings clause test than the one that the district court applied when it dismissed Mr. Abernathy’s petition. Under Prost, access to § 2241 through the savings clause turns solely on whether the remedy provided by § 2255 is “inadequate or ineffective” to test the legality of Mr. Abernathy’s detention.

Abernathy appealed the dismissal of his petition. Mr. Abernathy argued that: (1) Chambers rendered illegal the enhancement of his sentence under the ACCA; (2) he had no adequate or effective remedy under § 2255 and, therefore, its savings clause allowed him to apply for relief under § 2241; and (3) were the Tenth Circuit to deny him access to relief via the savings clause, such a denial would violate the Suspension Clause.

Savings Clause

First, the Court addressed whether Abernathy could demonstrate that he met the requirements of § 2255(e)’s savings clause. Mr. Abernathy had to demonstrate that § 2255’s remedy was “inadequate or ineffective” by showing that the legality of his detention could not have been tested in his initial § 2255 motion. Mr. Abernathy maintained that he could carry this burden because he could not have tested his argument that his escape conviction did not qualify as an ACCA predicate offense in his initial § 2255 motion.

The Tenth Circuit disagreed. The plain language of the savings clause does not authorize resort to § 2241 simply because a court errs in rejecting a good argument, even if the court’s error on the merits happens to be induced by preexisting circuit precedent. Mr. Abernathy cannot make an inadequate-or-ineffective argument because it could have been tested in his initial § 2255 motion. It should not matter that courts likely would have rejected Mr. Abernathy’s Chambers argument in his § 2255 proceeding.

Suspension Clause

Second, Mr. Abernathy argued that denying him the opportunity to proceed under § 2241 violated the Constitution’s Suspension Clause.

The Suspension Clause states that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. Const. art. I, § 9, cl. 2.  Neither the Supreme Court nor the Tenth Circuit had ever addressed this specific issue.

Reviewing for plain error, the Tenth Circuit determined that it was not clear or obvious under well-settled law that barring Mr. Abernathy from proceeding under § 2241 raised concerns under the Suspension Clause.

Even if it were settled that the Suspension Clause protects the writ as it exists today, it is still unclear whether precluding Mr. Abernathy from proceeding under § 2241 would implicate the Suspension Clause. It is well established that the Suspension Clause does not prohibit the “substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person’s detention.” For purposes of the Suspension Clause, § 2255 would have been an adequate and effective substitute for the writ.

Accordingly, the Tenth Circuit AFFIRMED the district court’s dismissal of Mr. Abernathy’s § 2241 habeas petition.