Link to Eighth Circuit Opinion
The Court of Appeals for the Eighth Circuit reversed the district court’s decision not to sentence a defendant under the Armed Career Criminal Act and held that a conviction for possession of a weapon in a correctional facility qualifies as a violent felony. The Third Circuit has reached the opposite conclusion, but the Eighth Circuit followed the reasoning of the Fifth and Tenth Circuits.
I. Facts and Holding
In January 2009, James Boyce entered a guilty plea after the United States charged him with “possessing a firearm as a convicted felon” under 18 U.S.C. § 922(g).[2] The presentence investigation report (PSR) disclosed Boyce’s three prior felony convictions.[3] Boyce was convicted of manslaughter in 1981 and burglary, kidnapping, and rape in 1990.[4] Since the Armed Career Criminal Act (ACCA) calls for a mandatory minimum sentence of fifteen years if a defendant has “‘three previous convictions by any court…for a violent felony,’” the issue on appeal was whether a 1986 conviction for possession of a weapon in a correctional facility qualifies as a violent felony.[5]In 1986, while Boyce was incarcerated in the Missouri State Penitentiary, prison authorities found him in possession of a makeshift weapon resembling an ice pick that measured over eight inches long.[6] The officers discovered the weapon wrapped in a bandage on Boyce’s arm.[7] Because the PSR failed to characterize the 1986 conviction as a violent felony for purposes of the ACCA, the government objected and argued that “violent felony” encompassed the possession conviction.[8] This would constitute Boyce’s third violent felony conviction and subject him to the mandatory minimum sentence under the ACCA.[9]
The district court concluded that “possession of a weapon in a correctional facility is not a violent felony for purposes of the ACCA” and sentenced Boyce to thirty-seven months in prison.[10] Upon the government’s appeal, the Eighth Circuit reviewed de novo the issue of whether Boyce’s prior conviction qualifies as a violent felony.[11] Specifically, the Eighth Circuit found that the district court erred when it overlooked the distinction between subsections (i) and (ii) of section 924(e)(2)(B).[12]
II. Legal Background
The ACCA requires a minimum fifteen year sentence upon a conviction of being a felon in possession of a firearm when the defendant’s record contains three prior violent felony convictions.[13] Under the statute, a violent felony is a crime punishable by a prison sentence greater than one year that either “(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, extortion, involves the use of explosives or otherwise involves conduct that presents a serious potential risk of physical injury to another.”[14]The United States Supreme Court interpreted subsection (i) of the ACCA in Johnson v. United States.[15] Here, the Supreme Court “explicitly stated that it was not interpreting the residual clause of section 924(e)(2)(B)(ii), since that provision was not raised in the case.”[16] In Johnson, the Court concluded that a violent felony qualified under subsection (i) if the crime had as an element the use of violent, physical force “capable of causing physical pain or injury to another person.”[17] In Boyce, the district court relied on Johnson to conclude that Boyce’s Missouri conviction was not a violent felony because the mere possession of the weapon was not active, physical force.[18]
In Begay v. United States, the U.S. Supreme Court set out the correct two-part test governing the application of the ACCA’s residual clause to a defendant’s prior conviction.[19] In order to qualify as a violent felony, the prior conviction must first “‘present[] a serious potential risk of physical injury to another’” as required by subsection (ii).[20] Second, this clause is limited to convictions that are “roughly similar[] in kind as well as degree of risk posed” to offenses listed in subsection (ii).[21]
There is a circuit split as to whether possession of a weapon in prison is “roughly similar[] in kind as well as degree of risk posed” to the crimes listed in the ACCA. Like the Eighth Circuit, the Fifth and Tenth Circuits concluded that possession of a dangerous weapon by a prisoner substantially increases the likelihood of future violence and typically involves purposeful conduct.[22] Alternatively, the Third Circuit found that possession of a weapon in prison is a passive crime involving possession and does not focus on purposeful, violent conduct.[23] The court drew a distinction between possession—which presents only the possibility of a violent confrontation—and crimes that “affect[], directly and aggressively, the victims involved or their property.”[24] The government argued that the heightened security prison context of the possessory crime rendered it “similar”, but the court determined that the inherent dangers alone could not “transform a mere possession offense into one that is similar to the crimes listed.”[25]
III. Comment
After Boyce, the Eighth Circuit is now in company with the Fifth and Tenth Circuits regarding the residual clause of the ACCA.[26] However, it is worth considering the issue from a different perspective to reveal a possible alternate interpretation of the statute.Is the possession of a sharp object in prison actually similar in kind and degree as burglary, extortion, arson, and the use of explosives? Burglary is essentially entering into a building illegally with the intent to commit a theft or any other crime.[27] Extortion involves obtaining property from another induced by wrongful use of actual or threatened force, violence, or fear.[28] Arson is the malicious burning or exploding of homes and commercial or public buildings.[29] The use of explosives follows closely behind arson—when used in a crime, explosives present substantial danger to a potentially great number of people.[30] When a person commits these acts, regardless of location, he presents a serious potential risk of physical injury to others. Similarly, if an officer of the law sees a person commit these acts, regardless of location, he will arrest that person.
Now consider the possession of a knife. People in our world carry knives daily, some even for the same purpose the court attributed to Boyce’s possession: to indicate that one is “‘prepared to use violence if necessary.’”[31] Indeed, such possession might “create the possibility—even the likelihood—of a future violent confrontation.”[32] However, most Americans would not be comfortable characterizing neighbors that carry knives as “violent and aggressive” and attributing to those people the same qualities as burglars, extortionists, and arsons. Is the passive possession of a knife really the same thing as entering into another person’s home and setting it on fire?
Possession of a knife in prison certainly has the potential to result in dangerous situations. Unfortunately for defendants sentenced under the ACCA in the Fifth, Tenth, and Eighth Circuits, the idle danger of passively carrying a weapon in prison is “roughly similar[] in kind and degree”[33] as other crimes that “affect[] directly and aggressively”[34] actual human victims or their property. The Third Circuit took a different approach that found a meaningful distinction between action and inaction. In Begay, the Supreme Court set a limitation on the residual clause of the ACCA but left the respective circuits to draw their own bright lines. It looks as though the Court may soon need to draw a line of its own.
-Chris Dandurand
[1] No. 10-1886 (8th Cir. 2011). The West reporter citiation is U.S. v. Boyce, 633 F.3d 708 (8th Cir. 2011).[2] Id. at *1.
[3] Id. at *2.
[4] Id.
[5] Id. (quoting 18 U.S.C. § 924(e)(1)).
[6] Id.
[7] Id.
[8] Id.
[9] Id. at *2-3.
[10] Id. at *3.
[11] Id.
[12] Id. at *5. This clause allows for two separate avenues of proving whether a felony at issue will be considered “violent” for purposes of the ACCA. Here, the government argued that the conviction qualified as a violent felony under subsection (ii), the residual clause. Id.
[13] 18 U.S.C. § 924(e)(1).
[14] Id. at § 924(e)(2)(B).
[15] 130 S. Ct. 1265, 176 L. Ed. 2d 1 (2010).
[16] 2011 U.S. App. LEXIS 3809 at *5 (8th Cir. 2011).
[17] Johnson, 130 S. Ct. at 1271.
[18] 2011 U.S. App. LEXIS 3809 at *4-5 (8th Cir. 2011).
[19] 553 U.S. 137 (2008).
[20] Id. at 148. (quoting 18 U.S.C. § 924(e)(2)(B)(ii)).
[21] Id. at 158. As stated above, subsection (ii) includes burglary, arson, extortion or the use of explosives.
[22] United States v. Marquez, 626 F.3d 214, 221 (5th Cir. 2010); United States v. Zuniga, 553 F.3d 1330, 1335-36 (10th Cir. 2009).
[23] United States v. Polk, 577 F.3d 515, 519 (3rd Cir. 2009).
[24] Id.
[25] Id.
[26] Marquez, 626 F.3d at 221; Zuniga, 553 F.3d at 1335-36.
[27] 13 Am.Jur.2d Burglary § 1 (West 2010).
[28] 31A Am.Jur.2d Extortion, Blackmail, and Threats § 1 (West 2010).
[29] 5 Am.Jur.2d Arson and Related Offenses § 1 (West 2010).
[30] 31A Am.Jur.2d Explosions and Explosives § 182 (West 2010).
[31] United States v. Boyce, 2011 U.S. App. LEXIS 3809 at *9 (8th Cir. 2011) (quoting United States v. Zuniga, 553 F.3d 1330, 1335-36 (10th Cir. 2009)).
[32] Id. (quoting Zuniga, 553 F.3d at 1335).
[33] Begay v. United States, 553 U.S. 137, 158 (2008).
[34] United States v. Polk, 577 F.3d 515, 519 (3rd Cir. 2009).
