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PAIR OF STATE SEX OFFENSES NOT VIOLENT UNDER ACCA

Two different circuits invalidated two sex state sex offenses as violent predicates triggering the Armed Career Criminal Act.

The 8th Circuit held that the Illinois offense of aggravated criminal sexual abuse is “facially overbroad” and thus cannot count as an ACCA “crime of violence” predicate. Sexual conduct is defined in the statute as “any intentional or knowing touching or fondling by the victim or the accused…” The Circuit ruled, “Because a defendant can violate this statute by having a child touch him for sexual gratification, an act that does not necessarily require “the use, attempted use, or threatened use of physical force against the person of another,” the statute on its face cannot qualify as an ACCA predicate.”

Meanwhile, the 6th Circuit ruled that Clancy Lowe’s 1985 Tennessee rape conviction could not be a crime of violence, because rape by “force or coercion” included unlawful sexual penetration by someone with “parental, custodial, or official authority over a child less than fifteen (15) years of age.” Such a penetration could be committed without any force or coercion, or even with a willing child under 15. Thus, it could not be a “crime of violence,” and Clancy’s ACCA sentence was thrown out.

Lofton v. United States, 2019 U.S. App. LEXIS 10103 (8th Cir. Apr. 5, 2019)
Lowe v. United States, 2019 U.S. App. LEXIS 9944 (6th Cir., Apr. 4, 2019)

– Thomas L. Root