We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
SCOTUS TAKES ANOTHER SWIPE AT ACCA
The Supreme Court last Thursday further limited the types of offenses that constitute crimes of violence for purposes of the Armed Career Criminal Act. In a 5-4 ruling in favor of the prisoner in Borden v. United States, the majority (if you can call it that) ruled that crimes that can be committed through recklessness rather only through specific intent are not crimes of violence.
Justice Elena Kagan wrote an opinion that was joined by Justices Stephen Breyer, Sonia Sotomayor, and Neil Gorsuch. Justice Clarence Thomas did not join Kagan’s opinion but concurred in the result. So for you math-inspired people, that makes the final tally on the decision 4-4-1. At the Supreme Court, the fact that five Justices agreed with the result makes that result the winner. However, it can complicate figuring out what opinion as to how the Court got there is in the majority. That’s the Marks v. United States problem, boys and girls, and that is a topic for another time.
For now, we’re focusing on Borden. The case involved the definition of “violent felony” set out in 18 USC § 924(e)(2)(B)(i), defined as any felony that “has as an element the use, attempted use, or threatened use of physical force against the person of another.”
The defendant, Chuck Borden, pled guilty to an 18 USC § 922(g)(1) felon-in-possession charge, which the district court enhanced under the ACCA to a statutory minimum of 15 years, The defense argued the ACCA did not apply because one of the three priors relied on by the district court was a Tennessee conviction for reckless aggravated assault. That crime can result from reckless conduct – a lower legal standard than “purposefully or knowingly” assaulting someone. Chuck argued that only purposeful or knowing conduct can meet ACCA’s definition of “violent felony.” Mere recklessness, he argued, does not qualify.
The decision turned on the meaning of “physical force against the person of another.” The government argued that “against” had a meaning similar to “I tripped and fell against the guy ahead of me in line,” suggesting referring to one body contacting another. That way, if you were driving recklessly, and careened into a busload of nuns, the crime would be an ACCA predicate, because you employed physical force against a busload of “anothers.”
The majority, however, agreed with the defendant that “against” means something more. “The phrase ‘against another,’ when modifying the ‘use of force,’ demands that the perpetrator direct his action at, or target, another individual,” the opinion holds. “Reckless conduct is not aimed in that prescribed manner.”
Justice Thomas concurred, but did so not because of the definition of “against.” Instead, he argued that the phrase “use of physical force” is limited to intentional acts designed to cause harm.
The immediate question raised by Borden is whether current prisoners can use it to attack now-illegal sentences. Because the decision does not make a ruling on constitutional law, it will not be retroactive under 28 USC 2255(f)(3). However, it probably is attackable under 28 USC 2241, relying on the § 2255(e) “saving clause.”
Ohio State University law prof Doug Berman said in his Sentencing Law and Policy blog, “I am truly making a wild guess here, and I am eager to hear from folks in the field about whether they agree that only hundreds of sentences may be potentially disrupted by Borden or if in fact it could end up being thousands. Whatever the exact number, as I will explain in a future post, every ACCA defendant with a viable Borden claim should be thankful for the First Step Act making ‘compassionate release’ motions available to bring directly to court.”
Borden v. United States, Case No 19-5410, 2021 U.S. LEXIS 2990 (June 10, 2010)
Sentencing Law and Policy, How many federal prisoners might now be serving illegal sentences after Borden? (June 11, 2021)
SCOTUSBlog.com, Court limits definition of “violent felony” in federal gun-possession penalty (June 10, 2021)
– Thomas L. Root