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

THE JUDGE KNOWS BEST

Some people who received Armed Career Criminal Act sentences have gone back to court in the last few years arguing that since Johnson v. United States, their crime is no longer an ACCA predicate. They are disappointed where their district judge peremptorily decides that the Johnson argument doesn’t matter, because the crime still counts under a different ACCA clause.

More than one guy has asked, “Hey, can they do that?”

Last week, the 6th Circuit said, “Yes, they can.”

Tony Potter’s presentence report identified a prior Georgia burglary that put him over the three-violent felony limit for the ACCA. His PSR did not spell out whether the conviction counted as a violent crime under the statute’s enumerated crimes clause, the elements clause, or the residual clause. The district court accepted the PSR and held Tony qualified for an ACCA sentence without specifying why the Georgia burglary counted.

After Johnson, Tony filed a 2255 motion claiming his burglary could no longer be used as a predicate for the ACCA. The district court turned him down, saying the prior counted toward the ACCA under the enumerated crimes clause because it fit the generic definition of burglary. Tony appealed, arguing that the district court was not allowed to now say his prior did not fall under the residual clause if it did not say so at the time he was sentenced.

The 6th Circuit disagreed. It accepted the court’s finding, holding that “it is difficult to think of a better source of information about what happened the first time around” than the judge who sentenced Tony. And Tony’s argument that the Georgia burglary conviction did not meet the ACCA’s definition of “burglary” under Mathis v. United States could be considered. Mathis, the Circuit said, involved an old rule of statutory law, not a new rule of constitutional law, and thus does not open the door for a second collateral attack.

“Nor,” the 6th said, “does Johnson open the door for prisoners to file successive collateral attacks any time the sentencing court may have relied on the residual clause. That approach turns collateral sentencing challenges on their head. Instead of requiring prisoners to prove that they are entitled to relief because they have been incarcerated illegally, Tony’s approach would require the government to prove years later (more than a decade later in this case) that the prisoner’s sentence is lawful. Other courts have rejected this approach.”

So did the 6th Circuit.

United States v. Potter, Case No. 16-6628 (6th Cir. Apr. 17, 2018)

– Thomas L. Root