We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

HE SHOOTS, BUT MISSES…

At some point in his reckless past, Daryl Higdon pumped a few rounds into somebody’s house. The somebody was there at the time, but no one was hurt. Maybe Daryl was a lousy shot. Maybe he was just sending a message. Maybe he didn’t know the house was occupied, and was just being stupid.

Well, we can all agree that whatever else, he was being stupid. But – even if we haven’t shot up the neighbor’s place – who among us hasn’t been stupid once or twice our lives? Or even more?

Years later, when Daryl was caught with a gun (which, as a convicted felon, he was not supposed to have), he was sentenced under the Armed Career Criminal Act. The ACCA requires that a defendant have three prior crimes of violence or controlled substance offenses. Daryl’s three priors (we don’t know what the other two were) included the North Carolina conviction for discharging a firearm into an occupied structure.

Regular readers of this blog know that since Mathis v. United States and Johnson v. United States, a lot of crimes that might intuitively seem to us to be violent are nonetheless not “crimes of violence” as the term is used in the ACCA. Whether busting a few caps into somebody’s castle was a crime of violence is what the 6th Circuit took up last week, and while Daryl may have missed what he was shooting at many years ago, he sure hit the target last week.

The North Carolina crime of discharging a firearm into an occupied structure has as its elements (1) willfully and wantonly discharging (2) a firearm (3) into property (4) while it is occupied, and (5) while having reasonable grounds to believe the property might be occupied. When Daryl got his ACCA sentence, the district court counted the shooting offense as a crime of violence “even if no one was actually struck, [because] the defendant fired a bullet toward a location where he knew or believed another person to be.’”

The 6th Circuit said that was not good enough. The ACCA requires that a prior be “a crime of violence,” not just a violent crime. For Daryl’s prior to be a COV, he just did not have to be reckless. As well, force had to be used “against the person of another.” As to that requirement, the 6th said, “it matters very much whether the person was actually struck.” Otherwise, the appellate court said, “by the government’s logic, a defendant who intentionally fired a gun at someone would be guilty of murder even if he missed.

No matter how reckless Daryl had been in shooting at the house, the Circuit said, because no one was hit, discharging a firearm into an occupied structure was not a crime of violence under the ACCA.

United States v. Higdon, Case No. 17-5027 (6th Cir., Feb. 13, 2018)

– Thomas L. Root