There is a practice in federal jurisdictions where sometimes the Government will seek an additional 15-year sentence enhancement for a defendant due to prior convictions under the Armed Career Criminal Act (ACCA).
Yet the Government does not always submit its own verified proof of prior convictions to the court, relying instead exclusively on the Presentencing Report, or PSR, prepared by the United State Probation, not the U.S. prosecuting Attorney.
So Let’s Start At The Beginning To Understand This Issue
18 U.S.C. § 922(g) prohibits certain persons from shipping, transporting, possessing, or receiving a firearm or ammunition while subject to prohibition from doing so, most commonly because of a prior conviction for a felony offense.
18 U.S.C. § 924(e) requires a 15-year mandatory minimum penalty be imposed on offenders convicted of violating section 922(g) and who have three previous convictions for a violent felony or serious drug crime.
A prior conviction qualifies as a “violent felony” under the ACCA if it “has as an element the use, attempted use, or threatened use of physical force against the person of another.”
18 U.S.C. § 924(e)(2)(B)(i). “Physical force” means “violent force—that is, force capable of causing physical pain or injury to another person.” United States v. Johnson, 559 U.S. at 140 (2010).
Ordinarily, courts use the “categorical approach” to decide if a defendant’s prior felony conviction was for a crime of violence. See, e.g., United States v. Jonas, 689 F.3d 83, 86 (1st Cir. 2012). Under this approach, the conviction counts as one for a crime of violence if the elements of the conviction fit the guidelines’ definition of a crime of violence. Id. at 86–87.
Otherwise, the conviction does not count, no matter what the facts show the defendant actually did in committing the crime—even, that is, if those facts show he acted violently. Id. at 86.
This focus on the elements of the conviction—rather than the underlying conduct—fits with the text of the Sentencing Guidelines, which makes the base offense level for the felon-in-possession offense turn on prior “convictions of … a crime of violence,” not on prior conduct. U.S.S.G. 2K2.1(a)(2), (3) (emphasis added); see Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 2287, 186 L.Ed.2d 438 (2013).
And this approach also ensures present sentences are not based on documents that could be old, might be uncertain or disputed, and may contain factual allegations the defendant did not contest at the time for any of a number of reasons unrelated to the accuracy of the allegations. Descamps, 133 S.Ct. at 2289.
What Does This All Mean?
It means that when the Government seeks to imprison a defendant for an additional 15 years for past convictions, the Government bears the burden of proving the existence of the prior convictions, and that the prior convictions qualify under the categorical analysis.
So How Does This Work In Practice?
Usually, the Government indicates that it is seeking the 15-year ACCA enhancement, and at sentencing, the Government must carry its burden of showing that the defendant is subject to the ACCA.
Prior to sentencing, United States Probation (not the U.S. Attorneys prosecuting the case) prepares a Presentencing Report, commonly referred to as the PSR. More often than not, the Government relies on the PSR’s description of the prior convictions, and does not submit its own proof of the prior convictions.
This practice should be prohibited.
In some federal jurisdictions, it is prohibited, even where a defendant does not object at sentencing, and even where the defendant does not argue on appeal that the defendant does not actually have 3 requisite priors.
For these courts, this practice constitutes per se plain error, without requiring a showing of prejudice.
- See, e.g., United States v. Reyes, 691 F.3d 453, 460 (2nd Cir. 2012) (concluding, without explanation, that the district court’s failure to sua sponte investigate the documents of conviction led to an erroneously elevated offense level)
- United States v. Castillo–Marin, 684 F.3d 914, 927 (9th Cir. 2012) (same)
- United States v. Pearson, 553 F.3d 1183, 1186 (8th Cir. 2009) (same) (partially overruled on other grounds by United States v. Tucker, 740 F.3d 1177, 1184 (8th Cir. 2014)).
- United States v. Bonilla–Mungia, 422 F.3d 316, 321 (5th Cir. 2005) (vacating and remanding without discussing prejudice)
In other jurisdictions, the Government’s failure to introduce actual evidence is only problematic if a defendant can show prejudice.
Usually prejudice is established where the defendant can show he or she does not actually possess 3 prior qualifying convictions.
- See, e.g., United States v. Serrano-Mercado, United States v. Serrano-Mercado, 784 F.3d 838, 848 (1st Cir. 2015) (cert. denied, 137 S. Ct. 812, 196 L. Ed. 2d 599 (2017)) (holding defendant could not satisfy plain error because he failed to allege during sentencing or on appeal that he was not convicted of the priors referenced in the PSR)
- United States v. Zubia–Torres, 550 F. 3d 1202, 1208-10 (10th Cir. 2008); United States v. Williams, 358 F. 3d 956, 966-67 (D.C.Cir. 2004)
- United States v. Ransom, 502 Fed. Appx. 196, 198-201 (3d Cir. 2012) (unpublished)
The jurisdictions that prohibit blind reliance on the PSR to carry the Government’s burden of proof under the ACCA have it right.
The Government makes the initial decision to seek ACCA enhancement. The ACCA is clear that prior “convictions” justify the extremely punitive enhancement provided in the ACCA.
Requiring anything less than proof of a conviction contravenes the spirit and the language of the statute.
It also strains the resources of already-overworked public defenders and court-appointed counsel. See, e.g., Serrano-Mercado, 784 F.3d at 857–58 (J. Lipez, dissenting)
(“At the same time, it is an unfortunate reality that many claims such as Serrano’s come to us on plain error review. Criminal defendants often must rely on court-appointed counsel who, faced with a myriad of trial and sentencing issues, predictably overlook some of them. The extremely high hurdle to post-conviction relief based on ineffective assistance of counsel means that such a remedy is uncertain at best.”).
It is the Government’s burden to establish that a prior conviction is an appropriate basis for enhancement. Too much is at stake to excuse the Government from introducing what it should already have in its possession when it decides to seek an enhancement.
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