Whether attempted burglary is a felony that presents a serious potential risk of physical injury to another person, and thus is subject to the 15-year mandatory minimum sentencing requirements for violent felonies under 18 U.S.C. § 924(e).
Alphonso James was convicted four times between 1997 and 2003: once for attempted burglary, twice for drug offenses, and the last time for illegal possession of a firearm. At the sentencing for his firearm offense the government argued that under the Armed Career Criminal Act a 15 year mandatory minimum sentence should be applied because James had three prior convictions for a violent felony and serious drug offenses. James is contesting the classification of attempted burglary as a violent felony, and the issue is now before the U.S. Supreme Court. The government argues that attempted burglary presents a serious potential risk of physical injury to another person and thus fits one of the statutory definitions of a violent felony. James argues that determining whether his attempted burglary presented the specified risk would require the court to conduct impermissible fact-finding in opposition to the Court’s rulings in Taylor v. United States and Shepard v. United States. James also makes a statutory construction argument to support the exclusion of attempted burglary from the definition of a violent felony. Both the District Court for the Middle District of Florida and the Eleventh Circuit ruled that attempted burglary was a violent felony. If the Supreme Court upholds those rulings, more felons will be subject to this federal modified “three strikes” rule, thus adding fuel to the national debate about mandatory minimums and increasing prison populations.
Questions as Framed for the Court by the Parties
Whether the Eleventh Circuit erred by holding that all convictions in Florida for attempted burglary qualify as a violent felony under 18 U.S.C. ? 924(e), creating a circuit conflict on the issue.
In June of 1997, Alphonso James, Jr. was convicted of attempted burglary in violation of Florida Statute §§ 810.02 and 777.04 in a Florida State Court. Brief for Petitioner at 5. James was then convicted in January of 1998 for trafficking illegal drugs in violation of Florida Statute § 893.135, also in a Florida state court. Id. James was again convicted in June of the same year for trafficking cocaine by possession of 200 to 400 grams of cocaine under the same statute. Id.
On January 31, 2003, James was stopped for traffic violations. Id. After smelling marijuana in the car, the officer searched the vehicle and found a handgun and ammunition. Id. James was arrested and charged with Possession of a Firearm and Ammunition by a Convicted Felon as an Armed Career Criminal pursuant to 18 U.S.C. §§ 922(g) and 924(e). Id. James pled guilty to the charges. Id.
At sentencing, the government argued for the court to increase James’s sentence to the mandatory minimum of 15 years imposed by the Armed Career Criminal Act (“ACCA”). Brief for United States in Opposition at 2. The ACCA (codified at 18 U.S.C. § 924(e)) states that any person who violates 18 U.S.C. § 922(g) and “has three previous convictions…for a violent felony or a serious drug offense, or both…shall be imprisoned not less than fifteen years.” 18 U.S.C. § 924(e). Without this career criminal status, James’s guideline sentencing range was 51 to 71 months. Brief for Petitioner at 5.
James argued that his 1997 conviction for attempted burglary did not constitute a “violent felony” under the ACCA, and that his June 1998 conviction for trafficking cocaine was not a “serious drug offense.” Brief for Petitioner at 5. The District Court for the Middle District of Florida, although agreeing with the government that James’s attempted burglary conviction was a “violent felony,” found that his second drug offense did not amount to a “serious drug offense.” Brief for United States in Opposition at 3. Thus, James’s criminal history contained only two qualifying offenses, one short of the number necessary to trigger the ACCA’s mandatory minimum. The district court judge sentenced James to 71 months in prison, followed by 36 months of supervised release. Brief for United States in Opposition at 3.
The U.S. Court of Appeals for the Eleventh Circuit, however, reversed the district court, finding that James’s June 1998 conviction for trafficking cocaine fell within the broad definition of “serious drug offense” and therefore was a predicate conviction under the ACCA. U.S. v. Alphonso James, Jr., 430 F.3d 1150, 1156 (11th Cir. 2005). The court likewise held that James’s attempted burglary conviction was a “violent felony,” bringing the tally to three predicate offenses under the ACCA. Id. at 1157. The Eleventh Circuit remanded the case with directions to sentence James under the ACCA. Id. at 1152.
The scope of the term “violent felony” has created a conflict among Courts of Appeals. See Dalia Hatuqa, James, Alphonso, Jr. v. U.S., Medill – On the Docket, June 13, 2006. Other circuits, such as the Ninth and Fifth have held that attempted burglary was not a “violent felony” under the ACCA. See id. Because of this division, the Supreme Court has granted certiorari on the issue of whether the Eleventh Circuit erred by holding that all convictions for attempted burglary qualify as a violent felony under 18 U.S.C. § 924(e).
In order to impose the armed career criminal status and issue the mandatory minimum sentence of 15 years under the ACCA, a defendant must have three prior convictions that qualify either as “serious drug offenses” or “violent felonies.” A “violent felony” is defined in 18 U.S.C. § 924(e)(2)(B) as “any crime punishable by imprisonment for a term exceeding one year…that (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion…or otherwise involves conduct that presents a serious potential risk of physical injury to another.”
Both the U.S. District Court and the Court of Appeals for the Eleventh Circuit relied on United States v. Rainey, 362 F.3d 733 (11th Cir. 2004), in holding that attempted burglary qualifies as a “violent felony” for purposes of the ACCA. Brief for Petitioner at 8. In Rainey, the Eleventh Circuit held that an attempt to commit arson constitutes a violent felony. Id. Both lower courts in this case decided that Rainey stood for the proposition that an attempt to commit any felony included in ?924(e)(2(B)(ii) constitutes a violent felony itself. Id.
James first argues that under Taylor v. United States, 495 U.S. 595 (1990), and Shepard v. United States, 544 U.S. 13 (2005), a sentencing court may not engage in fact-finding when deciding whether a previous conviction constitutes a predicate felony under the ACCA. Brief for Petitioner at 12–14. Instead, the court can only rely upon records developed or used in the initial trial of the defendant’s guilt. Id. at 13. Therefore, according to James, the critical question is whether the statutory definition of attempted burglary falls within the ACCA definition of violent felony. Id.
James argues that attempted burglary cannot be equated with burglary for purposes of the ACCA. The elements that must be proven for an attempted burglary conviction fall far short of those necessary to convict a defendant of burglary under Florida law. Brief for Petitioner at 14. One point of distinction, for example, is that under Florida law, burglary requires an unlawful entry, whereas no entry is needed to convict for attempted burglary. Id. at 15. Florida law also treats burglary and attempted burglary differently for punishment purposes. Id. at 16. James argues that these differences make it so that attempted burglary does not come within the definition of “violent felony” by virtue of the enumerated “burglary.”
The government, however, does not try to fit attempted burglary within the meaning of burglary for purposes of the ACCA, but rather argues that attempted burglary is a violent felony because it “presents a serious potential risk of physical injury to another.” Brief for Respondent at 21. By focusing on this “otherwise” clause in the definition of violent felony, the government avoids the burglary/attempted burglary dichotomy that James focuses on. In fact, the government argues that both attempted crimes in general and attempted burglary under Florida law specifically qualify as a violent felony because of the risk that each presents. Id. at 15–21.
The government first argues that when a completed crime poses a serious risk of physical injury, an attempt to commit that crime must present a potential serious risk of physical injury. Id. at 16. The risk associated with attempts, the government argues, is the reason why they are punishable crimes in the U.S. Id. Both the United States Sentencing Commission and Congress, which treats attempted and completed crimes as nearly identical for punishment purposes in the U.S. Code, also seem to agree that attempts pose the same risk of injury as completed crimes. Id. at 18–19. Because of this risk presented by attempts, the government argues that they should be included in the definition of “violent felony” by virtue of the “otherwise” clause.
More specifically, the government argues that the elements necessary for conviction of attempted burglary under Florida law make it so that a serious risk is presented before the attempt can be punishable. Brief for Respondent at 21. While James and the government disagree over how to interpret the interaction between Florida’s attempt statutes generally and burglary law specifically, the government argues that in order to convict for attempted burglary, it must be proved that a direct act be taken toward the unlawful entrance of a dwelling. Id. at 23–25. The government argues that possession of burglary tools and intent to commit the crime are not enough under Florida law without a direct act. Id. at 23. This direct act, therefore, poses the same risk of physical injury as the fulfilled burglary and should be treated the same for purposes of the ACCA. Id. at 30.
James argues that the government’s reasoning, and that of the Eleventh Circuit, creates a per se rule that classifies attempts to commit any of the felonies enumerated in the ACCA as violent felonies. Brief for Petitioner at 12. James points to prior decisions, and the plain language and statutory construction of the ACCA, to show that the statute should not be so broadly read. Id. at 13, 19.
Finally, James argues that judicial fact-finding will arise as a result of the Eleventh Circuit’s opinion because it forces the court to examine the specific elements of the offense to determine whether it presents a potential for serious risk. Brief for Petitioner at 33. Judicial fact finding of this nature, James argues, is impermissible under Taylor and Shepard. Id. at 33–34. While the court is permitted to limit factual findings to the presence or absence of a prior conviction, James argues that it cannot go so far as to establish that the conduct involved in the crime presented a serious risk. Id. at 34. James argues that the per se rule adopted by the Eleventh Circuit decides this critical question at the sentencing stage without the safeguards that a trial affords, raising serious Fifth and Sixth Amendment concerns. Id. at 37. Where such constitutional concerns are presented, James contends that the doctrine of constitutional avoidance should be applied. Id. at 34. The doctrine of constitutional avoidance states that when a statute can be read to have two different meanings, one of which would raise serious constitutional issues and the other would not, the statute should be read to possess the later meaning. Id. at 33. Applying this doctrine would force the court to rule that the ACCA does not include all attempts of the enumerated crimes as “violent felonies.”
To this, the government responds that the Eleventh Circuit did not (and courts following the Eleventh Circuit’s opinion will not) engage in judicial fact-finding by including attempted burglary within the ACCA. Brief for Respondent at 42. The government argues that the cases James uses to make his argument, Jones v. United States, 526 U.S. 227 (1999), and Apprendi v. New Jersey, 530 U.S. 466 (2000), deal with factual findings of the defendant’s conduct. Id. Here, there are no such factual findings, but rather legal determinations meant for a judge, not a jury. Id.
Finally, James argues that where there is doubt as to the application of the ACCA, it should be decided in favor of him, the Petitioner, under the rule of lenity, which states just that. Brief for Petitioner at 39. He argues that the rule applies to penalty provisions in addition to substantive statutes, and so should be imposed here to impose the lesser sentence. Id. The government, however, argues that a much more serious discrepancy must be presented than that which is at issue here in order for the rule of lenity to be invoked. Brief for Respondent at 43.
Despite the constitutional concerns that James raises, this decision will likely come down to statutory construction. Because attempts are covered in a section of the ACCA that is not at issue here, the Court will have to decide whether attempts were purposefully left out of the definition of “violent felony” or whether they were meant to be included in other language. The way this statute will be read will likely depend less on the words in the definition and more on how wide the Court deems their reach should extend.
The ACCA is the federal version of a “three strikes” law. It requires a minimum sentence of 15 years when a person is convicted of certain crimes and has already been convicted of certain crimes three prior times. ? 924(e). This case directly impacts only a very narrow group of people: those who have been convicted of attempted burglary and face possible sentence enhancement under the ACCA. According to statistics released by the Federal Bureau of Investigation (“FBI”), in 2005 over two million burglaries occurred in the United States. See FBI, Crime In the United States Statistics. This accounted for 21.2% of all property crimes. See FBI Burglary Statistics. However only about 6.2% of these were attempts. FBI Burglary Statistics, Table 15. If the Supreme Court rules against James, then other criminals convicted for attempted burglary will also be subject to the ACCA.
The Court’s decision, however, will be one more piece of the larger debate surrounding mandatory minimum sentences. Supporters say that mandatory minimums bring uniformity to criminal law throughout the states and deter crime. See Prosecutor’s Perspective on Three Strikes Law, California District Attorney’s Association, Summer 2004 (Three Strikes White Paper). Detractors say that mandatory minimums create unjust results because they fail to account for differences in circumstances, unnecessarily burden the prison system with low-level offenders, and are racially discriminatory as applied. See Sentencing Issues, Families Against Mandatory Minimums. Both sides have cited statistics to support their positions. Crime rates have fallen significantly over the past decade. See FBI Offense Tabulations. However, the total prison population has steadily been growing over the same period, reaching record highs. USDOJ Prison and Jail Statistics. A decision to add attempted burglary to the list of crimes subject to the ACCA increases the number criminals against whom mandatory minimums will be enforced and thus increases the stakes of the sentencing debate.
Depending on how broadly or narrowly the Court presents its decision, this case may have a significant impact on the mandatory minimum debate as well by allowing or denying discretion to judges in sentencing. This depends on whether the Court chooses a categorical approach or a factual approach to determining whether or not attempted burglary is a crime covered by the statute. In a categorical approach, the Court would only examine the elements of the crime as laid out by statute and determine if it is categorically a crime that creates the potential risk of serious physical injury to another person. This generally has been the approach dictated by the Court’s seminal decision interpreting the ACCA, Taylor v. United States, 495 U.S. 575 (1990). The second approach is to examine the crime as committed by the specific criminal and inquire whether under the particular facts of his case he created such a risk. Because the second is a fact-specific approach, it would allow for greater discretion by the judge to determine whether or not a crime is one involving such a risk and thus whether the ACCA's mandatory minimum sentence should apply. ?
Those who support mandatory minimums generally oppose giving judges much discretion, arguing that it creates inconsistent, arbitrary results. Those who oppose mandatory minimums support discretion as allowing a more flexible justice. Finding that offenses should be analyzed on a case by case basis could potentially reintroduce an element of discretion to the sentencing by allowing judges to determine whether a crime involved a potential risk of serious physical injury.
The Court’s decision in James v. United States will further clarify the definition of a violent felony under the Armed Career Criminal Act, as well as provide guidance on how other attempt crimes should be analyzed under this statute. The resolution of this question will expand or limit the categories of felons subject to this federal mandatory minimum. In a country with falling crime rates but increasing prison populations, the decision has the potential to affect the national debate on approaches to criminal justice.
- Discussing Mandatory Minimum sentences:
- Crime Statistics
- Supreme Court Decisions on Sentencing Guidelines