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THERE’S REAL LIFE… AND THEN, THERE’S THE LAW
Richard McFee fired a gun into somebody’s house while the somebody was there. McFee, who unsurprisingly had a felony record, was subsequently convicted of being a felon in possession of a firearm under 18 U.S.C. Sec. 922(g)(1). Because the district court found he had three prior convictions for crimes that qualified as Armed Career Criminal Act (ACCA) predicates (either drug offenses or crimes of violence), it gave him 15 years in prison.
Rich appealed, arguing that one of his priors, a conviction under Minn. Stat. Sec. 609.713, subd. 1 for making terroristic threats, does not qualify as an ACCA predicate offense. Now, to the average Joe or Jane on the street, a felony for making terroristic threats sounds plenty violent, and they might reasonably think that a guy who was convicted of terroristic threats and then later shot up someone’s house shouldn’t be too surprised at a 15-year sentence. But the problem is that Joe and Jane are thinking about real life, and not the law.
Such is the state of the law – at least with respect to the federal definition of a crime of violence. It may have started with a guy named Curtis Darnell Johnson: in his 2009 case, the Supreme Court held that the “physical force” needed for a violent crime had to “violent force – i.e., force capable of causing physical pain or injury to another person.” That was followed by Descamps v. United States in 2013, where the Court held that the previous-used “modified categorical approach does not apply to statutes… that contain a single, indivisible set of elements.” Another Johnson came along two years later, one Samuel Johnson, in whose case the Supreme Court ruled the residual clause of the ACCA unconstitutional. And, finally, last summer, the Court ruled in Mathis v. United States that district courts must parse alternatively-phrased state statutes “to determine whether the listed items are elements or means.” If they find elements, the statute is not divisible, and the court may not inquire into the facts of the case. That threshold inquiry is limited to state court interpretations and a plain-text reading of the statute.
The decisions have been coming at a fairly rapid clip, not just from the Supreme Court but from courts of appeal as well. If a state statute sweeps more broadly than does the common law – (for example, state make the act or breaking into a car to rip off a radio “burglary,” but at common law, a burglary had to be of a structure) – then conviction under it will not necessarily count for ACCA purposes, regardless of the facts underlying a defendant’s conviction. Courts are applying Mathis to find that state burglaries are not burglaries for ACCA purposes and that state drug trafficking statutes are not drug trafficking for ACCA purposes. They’re applying Curtis Johnson along with Descamps and Mathis to conclude that strong-arm robberies are not violent. And Samuel Johnson is leading courts, for example, to find that manslaughter is not a violent crime.
It’s only going to get more widespread, too, if the Supreme Court rules in Beckles v. United States that the Samuel Johnson decision applies to Sentencing Guidelines “career offenders” and in Lynch v. Dimaya that the case applies to the term “crime of violence” used elsewhere in the criminal and immigration law codes. Those decisions will be handed down before this Supreme Court term expires in June 2017.
For now, it seems that nothing means what it used to mean. Just ask the 8th Circuit. Last week, it agreed with Richard McFee that making terroristic threats was not a violent crime under the ACCA.
Minnesota’s terroristic threats statute makes it a crime to “threaten, directly or indirectly, to commit any crime of violence with purpose to terrorize another… or in a reckless disregard of the risk of causing such terror.” Minn. Stat. Sec. 609.713, subd. 1. A “crime of violence” is defined by a separate statute, Sec. 609.1095, which sets out a list of crimes that qualify as “violent crime[s]” in Minnesota. Some of the crimes, the Court said, qualify as ACCA predicate offenses and some do not. Thus, “a Minnesota terroristic threats conviction thus is not an ACCA predicate offense under the categorical approach.”
However, if the statute is divisible, the Court said, it could look at Rich’s state court proceeding to see what it is that he really did. “A list of alternative elements in the offense is divisible,” the Court explained, “but a list of alternative means is not. The elements of a crime are what the jury must find beyond a reasonable doubt to convict the defendant; and at a plea hearing, they are what the defendant necessarily admits when he pleads guilty. The specific facts underlying a prior conviction, however, are mere real-world things – extraneous to the crime’s legal requirements.”
The 8th concluded that the Minnesota terroristic threats statute’s definition of ‘crime of violence’ is not divisible. “The fact that the definition of ‘crime of violence’ is contained in a separate section of the Minnesota criminal statutes thus provides textual support for the conclusion that the term ‘crime of violence’ is intended to be an element of the crime and that the list of violent crimes in Minn. Stat. Sec. 609.1095, subd. 1 contains alternative means by which that element may be committed.” Also, Rich’s indictment for the state case, the Court noted, charged him with ‘wrongfully and unlawfully directly or indirectly threaten[ing] to commit a crime of violence, with purpose to cause, or in reckless disregard of the risk causing terror in another.’ “Since the charging document used the single umbrella term of ‘crime of violence’ without specifying the particular crime threatened, the record suggests that the prosecution was only required to prove that McFee threatened a “crime of violence” but not the particular crime he threatened.”
The Circuit concluded that the phrase “to commit any crime of violence” is an element of the Minnesota terroristic threats statute, Minn. Stat. Sec. 609.713, subd. 1, and that the separate definition of ‘crime of violence’ in Sec. 609.1095, subd. l(d), lists means by which that element is met. The element ‘to commit any crime of violence’ is not divisible. Because Minnesota’s definition of ‘crime of violence’” is broader than the ACCA requirement that a prior conviction have ‘as an element the use, attempted use, or threatened use of physical force against the person of another,” the prior conviction cannot count for an ACCA enhancement.
United States v. McFee, Case No. 16-1304 (8th Cir. Nov. 17, 2016)