Formal, categorical, but incomplete: The need for a new standard in evaluating prior convictions under the armed career criminal act

Journal of Criminal Law and Criminology

Volumn 98, Issue 4, 2008, Pages 1407-1438

  Lamprecht, Krystle ^a  

^a NORTHWESTERN UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 62549114937     PISSN: 00914169     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (202)

1. 18 U.S.C.§ 924(e) (2006).
2. See, e.g., Ewing v. California, 538 U.S. 11, 19 (2003) (affirming a sentence of twenty-five-years-to-life imprisonment for theft of golf clubs).
3. See, e.g., United States v. Sperberg, 432 F.3d 706 (7th Cir. 2005) (finding defendant to have a criminal "career" consisting of theft of lobster tails from a grocery store, verbal threat to a security guard, and convictions for drunk driving);
4. see also Beverly G. Dyer, Revising Criminal History: Model Sentencing Guidelines §§ 4.1-4.2, 18 FED. SENT'G. REP. 373, 376 (June 2006) ("[ACCA] has been used to sweep in far too many crimes that present a relatively remote risk of the use of physical force or physical injury.").
5. Stephen R. Sady, ACCA Lessons: The Armed Career Criminal Act-What's Wrong with "Three Strikes, You're Out"?, 7 FED. SENT'G. REP. 69, 70 (1994) ("The [ACCA] can strike like a lightning bolt, rather than serve as a rational deterrent.").
6. See infra notes 32-39 and accompanying text (discussing legislative history of ACCA).
7. United States v. Duval, 496 F.3d 64, 84 (1st Cir. 2007).
8. See infra notes 46-58 and accompanying text.
9. See George Fisher, Plea Bargaining's Triumph, 109 YALE L.J. 857, 874 & n.41 (2000) (describing Massachusetts law in the early nineteenth century: "Excepting only those very serious crimes that carried mandatory life or death sentences, none of the typical common-law offenses called for a minimum sentence").
10. U.S. SENTENCING GUIDELINES MANUAL § 1 (2007).
11. 18 U.S.C. § 922(g) (2006) (prohibiting convicted felons from possessing a firearm).
12. The 1986 amendment, enacted as part of the Career Criminal Amendment Act of 1986, Pub. L. No. 99-308, 100 Stat. 459 (Supp. IV 1986) expands the range of qualifying convictions to include any "violent felony or serious drug offense." The 1988 amendment, part of the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690 § 7056, 102 Stat. 4181, 4462 (1988), restricts the scope of qualifying prior convictions by requiring that each of the three prior convictions be based on "distinct" criminal episodes. Derrick D. Crago, Note, The Problem of Counting to Three Under the Armed Career Criminal Act, 41 CASE W. RES. L. Rev. 1179, 1182 (1991). The latter amendment inserted the phrase that the three convictions must have been '"committed on occasions different from one another.'" Id. at 1185.
13. For discussion of the significance of the 1988 narrowing of the range of qualifying convictions, see infra note 37 and accompanying text.
14. United States v. Booker, 543 U.S. 220, 245-46 (2005) (finding that '"the Sixth Amendment is violated by the imposition of an enhanced sentence under the United States Sentencing Guidelines based on the sentencing judge's determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant'" and such mandatory sentencing provisions of the Sentencing Reform Act of 1984, as amended, 18 U.S.C. § 3551 (1984), are "effectively advisory." (quoting Petition for Writ of Certiorari, Booker, 543 U.S. 220 (No. 04-104), pt. I)).
15. 18 U.S.C. § 924(e) (2000).
16. Id. § 924(e)(2)(B).
17. Id.
18. Double jeopardy concerns arise out of the fear that recidivism statutes, such as ACCA, punish a defendant once when she is actually convicted of the crime, and again for the same crime when she is convicted of a subsequent crime. See generally Nathan H. Seltzer, Note, When the Tail Wags the Dog: The Collision Course Between Recidivism Statutes and the Double Jeopardy Clause, 83 B.U. L. REV. 921 (2004) (focusing on California's "three strikes" law, addressing disproportionality of sentencing, Eighth Amendment cruel and unusual punishment concerns, and double jeopardy). However, despite these concerns, courts have consistently upheld the constitutionality of recidivism-enhanced-sentencing statutes. See infra notes 24-26.
19. See United States v. Reynolds, 215 F.3d 1210, 1214 (11th Cir. 2000), cert denied, 531 U.S. 1000 (2000) ("[E]very circuit to consider the issue has held that [ACCA's mandatory minimum sentence] is neither disproportionate . . . nor cruel and unusual punishment.");
20. United States v. Conner, 886 F.2d 984, 985 (8th Cir. 1989) (finding that ACCA does not violate Double Jeopardy Clause), reh'g denied, No. 89-1541SI, 1989 U.S. App. LEXIS 16482 (8th Cir. Nov. 1, 1989);
21. United States v. Hawkins, 811 F.2d 210, 217 (3d Cir. 1987) (finding that ACCA does not violate Equal Protection Clause), cert. denied, 484 U.S. 833 (1987);
22. United States v. Greene, 810 F.2d 999, 1000 (11th Cir. 1986) (finding that ACCA does not constitute an ex post facto law), post-conviction proceeding, 880 F.2d 1299 (11th Cir. 1989), reh'g denied, 888 F.2d 1398 (11th Cir. 1989), cert. denied, 494 U.S. 1018 (1990).
23. See Almendarez-Torres v. United States, 523 U.S. 224, 236 (1998) (finding recidivism to be a sentencing factor rather than an element of a separate offense);
24. see also In re Winship, 397 U.S. 358, 364 (1970) ("[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.").
25. See infra discussion accompanying notes 32-39.
26. S. REP. No. 97-585, at 3, 20 (1982).
27. Id. at 62-63.
28. See infra note 43 and accompanying discussion and examples.
29. See generally United States v. Balascsak, 873 F.2d 673 (3d Cir. 1989) (adopting the approach that the three prior convictions should be required to have originated out of separate, distinct criminal episodes, and, additionally, that each conviction and sentence must have been delivered and served prior to the conduct leading to each subsequent conviction, in an attempt to further narrow the class of criminals whose prior convictions qualify them for recidivism sentencing enhancements under ACCA).
30. Parke v. Raley, 506 U.S. 20, 26 (1992).
31. Parke, 506 U.S. at 26.
32. Witte v. United States, 515 U.S. 389, 400 (1995);
33. see Graham v. West Virginia, 224 U.S. 616, 629 (1912) (explaining that the rationale for this distinction is that recidivism "does not relate to the commission of the offense, but goes to the punishment only, and therefore . . . may be subsequently decided.");
34. see also Seltzer, supra note 16, at 933 (discussing the Court's analysis in Witte).
35. Seltzer, supra note 16, at 935-36 (citing Ewing v. California, 538 U.S. 11 (2003), as an example). For a discussion of disproportionate results, see infra notes 68-87 and accompanying text;
36. see also Seltzer, supra note 16, at 946 (arguing that no clear rationale exists for the continued assertion that sentencing enhancements for recidivism do not violate double jeopardy, as the distinction between a sentencing factor and a separate offense is unclear). While some recidivism statutes undoubtedly do not violate double jeopardy, at some point, "the underlying conviction cannot bear the weight of the sentence." Id.
37. See infra notes 68-87 and accompanying text (discussing how prior convictions for minor offenses being used to enhance sentences to ACCA range results in sentences that seem fundamentally unfair, both in terms of the underlying conduct of the instant offense and when considering both the instant offense and the recidivism factor).
38. U.S. SENTENCING COMM'N, MEASURING RECIDIVISM: THE CRIMINAL HISTORY COMPUTATION OF THE FEDERAL SENTENCING GUIDELINES 14 (May 2004), available at www.ussc.gov/publicat/ Recidivism-General.pdf [hereinafter MEASURING RECIDIVISM] (discussing the relationship between sentence length and recidivism) ("The overall trend shows that recidivism has an 'inverted U' shape. Recidivism is comparatively low for the lowest sentences . . . peaks with mid-length sentences . . . then drops for the longest sentences.").
39. See MARVIN E. WOLFGANG ET AL., DELINQUENCY IN A BIRTH COHORT 88 (1972) (finding that, using a sample of 10,000 young males born in Philadelphia in 1945 and examining the criminal conduct committed by that sample, a very small subset (18%) of that group committed over half (51.9%) of the group's criminal offenses); see also supra note 20 and accompanying text.
40. Sentencing categories under the U.S. Sentencing Guidelines show that sentences received under ACCA are of a magnitude typically requiring much higher levels of past recidivism for non-ACCA crimes. MEASURING RECIDIVISM, supra note 29, at 37. In other words, the recidivism risk for the category containing ACCA is significantly lower than for other crimes in the same category, suggesting "that assigning offenders to criminal history category VI, under [ACCA], is for reasons other than their recidivism risk." Id.
41. 134 CONG. REC. 15807(1988).
42. WOLFGANG ET AL., supra note 30;
43. see also Sady, supra note 4, at 69 (noting that sponsors of the bill were influenced by the Wolfgang study).
44. Taylor v. United States, 495 U.S. 575, 581 (1990).
45. Crago, supra note 11, at 1194 (citations omitted).
46. Jill C. Rafaloff, Note, The Armed Career Criminal Act: Sentence Enhancement Statute or New Offense?, 56 FORDHAM L. REV. 1085, 1091 n.42 (1988) (quoting 130 CONG. REC. H101551 (daily ed. Oct. 1, 1984)).
47. 134 Cong. Rec. 15807 ("[ACCA reflects] the need to incarcerate unrehabilitative repeat violent felons for lengthy periods .... It is my view that the only way to deal with such hardened criminals is with stiff prison terms with no prospect for parole.").
48. See Almendarez-Torres v. United States, 523 U.S. 224, 234 (1998) ("'[T]he title of a statute and the heading of a section' are 'tools available for the resolution of a doubt' about the meaning of a statute." (quoting Trainmen v. Baltimore & Ohio R. Co., 331 U.S. 519, 528-29 (1947))).
49. See generally Note, Selective Incapacitation: Reducing Crime Through Predictions of Recidivism, 96 HARV. L. REV. 511 (1982) (discussing various studies evaluating the effectiveness of selective incapacitation).
50. Though not discussed herein, a prior conviction for a "serious drug offense" would also qualify. 18 U.S.C. § 924(e)(1) (2006).
51. Id. § 924(e)(2)(B)(i-ii).
52. Id. § 924(e)(2)(B).
53. For a discussion of overly broad definitions used to "sweep in far too many crimes that present a relatively remote risk of the use of physical force or physical injury," see Dyer, supra note 3, at 376. Crimes that have qualified include tampering with a motor vehicle (United States v. Bockes, 447 F.3d 1090, 1093 (8th Cir. 2006));
54. fleeing and eluding (United States v. Richardson, 437 F.3d 550, 556 (6th Cir. 2006));
55. operating a motor vehicle without the owner's consent (United States v. Lindquist, 421 F.3d 751, 754 (8th Cir. 2005));
56. failure to stop for a blue light (United States v. James, 337 F.3d 387, 390-91 (4th Cir. 2003));
57. and failure to return to a halfway house (United States v. Bryant, 310 F.3d 550, 553 (7th Cir. 2002)). Dyer, supra note 3, at 379 n. 19.
58. See supra text accompanying notes 32-39.
59. Taylor v. United States, 495 U.S. 575, 600 (1990).
60. Taylor, 495 U.S. at 599-602.
61. Id. at 560.
62. See United States v. Corona-Sanchez, 291 F.3d 1201, 1203-04 (9th Cir. 2001);
63. see also United States v. Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir. 2001) (evaluating the text of a statute to determine whether a conviction for a particular crime qualified as a predicate offense);
64. United States v. Casarez-Bravo, 181 F.3d 1074, 1077 (9th Cir. 1999) (explaining that a court must examine the statutory definition of a crime to determine its elements).
65. Taylor, 495 U.S. at 599.
66. See Daniel Doeschner, Note, A Narrowing of the Prior Conviction Exception, 71 BROOK. L. REV. 1333, 1338-39(2006).
67. See In re Winship, 397 U.S. 358, 364 (1970) ("[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.");
68. see also McMillan v. Pennsylvania, 477 U.S. 79, 85-86 (1986) (looking to legislative history to determine whether possession of a firearm was intended to be a sentencing factor that a subsequent court could permissibly consider without violating due process).
69. United States v. Tighe, 266 F.3d 1187, 1196 (9th Cir. 2001).
70. United States v. Alvarez, 972 F.2d 1000, 1005 (9th Cir. 1992).
71. Taylor, 495 U.S. at 598;
72. see also Tighe, 266 F.3d at 1196 (adopting Taylor's definition of generic burglary).
73. Taylor, 495 U.S. at 591. Compare TEX. PENAL CODE ANN. §§ 30.01-30.05 (1989 and Supp. 1990) (including theft from coin-operated machines and receptacles), with CAL. PENAL CODE ANN. § 459 (West Supp. 1990) (not including theft from coin-operated machines in its definition of burglary).
74. Taylor, 495 U.S. at 591;
75. see MICH. COMP. LAWS § 750.110 (1979).
76. Taylor, 495 U.S. at 591-92 ("[I]n the absence of a plain indication of an intent to incorporate diverse state laws into a federal criminal statute, the meaning of the federal statute should not be dependent on state law." (quoting United States v. Turley, 352 U.S. 407,411 (1957)).
77. In the case of California's wobblers, a judge or prosecutor can decide whether a particular offense is charged as a felony or as a misdemeanor. See infra note 60 and accompanying text. Plea bargaining situations also illustrate this discretion, such as in United States v. Reeves, where one of the defendant's three prior violent felony convictions was classified as a felony rather than a misdemeanor at trial because the plea agreement had provided for such classification. No. CR-05-47-B-W, 2006 U.S. Dist. LEXIS 45721, at *10 (D. Me. July 5, 2006).
78. United States v. Corona-Sanchez, 291 F.3d 1201, 1210 (9th Cir. 2001) (explaining that a court must look to whether a particular crime meets the definition of "violent felony" under federal sentencing law rather than relying on the state's label of that crime).
79. Ewing v. California, 538 U.S. 11, 16-17 (2003) (citing CAL. PENAL CODE ANN. § 17(b)(5), (1) (1999)).
80. Id.
81. See Seltzer, supra note 16, at 924;
82. see also Ewing, 538 U.S. at 16-17 (discussing wobblers).
83. For example, in Lockyer v. Andrade, 538 U.S. 63, 66 (2003), two petty thefts of videos from a Kmart store qualified as felonies due to the defendant's prior burglary convictions, even though each theft totaled less than $100. When charged as felonies, these two theft incidents violated California's three strikes recidivism statute, counting as two of the required three offenses. Id. at 67-68. The defendant was sentenced to life in prison without the possibility of parole for fifty years as punishment for two petty thefts occurring within a two-week period, simply because of recidivism sentencing enhancements. Id. at 66. Although Lockyer concerns only the California three strikes law, a similar situation could arise under ACCA based on the same set of facts and could result in a similarly disproportionate sentence.
84. Leocal v. Ashcroft, 543 U.S. 1, 11 (2004) ("The ordinary meaning of [violent felony], combined with [the statute]'s emphasis on the use of physical force against another person (or the risk of having to use such force in committing a crime), suggests a category of violent, active crimes that cannot be said naturally to include DUI offenses.").
85. Id. (emphasis added). Compare id. with 18 U.S.C. § 924(e)(2)(B)(i) (2006) (requiring "as an element the use, attempted use, or threatened use of physical force against the person of another") (emphasis added).
86. See United States v. McCall, 439 F.3d 967, 972 (8th Cir. 2006) (finding that Missouri's definition of DUI does not constitute a violent felony). Contra United States v. Sperberg, 432 F.3d 706, 708 (7th Cir. 2005) (finding that while Wisconsin treats a DUI offense as a misdemeanor, a DUI conviction with a sentence enhanced by recidivism for previous DUI convictions does qualify as a prior conviction for a violent felony under ACCA).
87. Taylor was decided in 1990. Taylor v. United States, 495 U.S. 575 (1990). The DUI debate illustrated by McCall, Sperberg, and Leocal, discussed supra notes 64-66, for example, took place in 2003-2005 - and has not yet received a definitive resolution from the Supreme Court.
88. Sperberg, 432 F.3d at 708.
89. Id. at 707 (stating that the maximum sentence for a felon possessing a firearm is 120 months, but that because of his three previous "violent felony" convictions, Sperberg was sentenced to 210 months).
90. Sperberg's other conviction was for verbally threatening a security guard while attempting to steal lobster tails from a grocery store. Id. It should be noted that the state court judge imposed a very lenient penalty for this conviction, as "Sperberg had been too drunk and high on other drugs to follow through" with his threats. Id. at 708.
91. United States v. Balascsak, 873 F.2d 673, 680 (3d Cir. 1989) ("The [ACCA] was so narrowly drawn to apply to only the most repetitive and violent and dangerous offender, that a life sentence would be justified in any case that could reasonably be expected to be prosecuted under the [ACCA]." (quoting S. REP. No. 97-585, at 3 (1982))).
92. United States v. Duval, 496 F.3d 64 (1st Cir. 2007).
93. Id. at 83.
94. Under ME. REV. STAT. ANN. tit. 17-A, § 1252(2) (2007), simple assault and battery is a "Class D" misdemeanor, punishable by up to one year in prison. However, under Maine's recidivism offender statute, § 1252 (4-A), Duval's misdemeanor was elevated to a "Class C" offense, increasing the maximum sentence for the same conduct to five years in prison. Duval, 496 F.3d at 80-81.
95. Id. at 81-82.
96. Id. at 82.
97. Id.
98. Id.
99. Id. at 82-83.
100. Apprendi v. New Jersey, 530 U.S. 466, 476 (2000).
101. Almendarez-Torres v. United States, 523 U.S. 224, 243 (1998).
102. Id.;
103. see also Apprendi, 530 U.S. at 489-90 (affirming the reasoning of Almendarez-Torres).
104. Duval, 496 F.3d at 72.
105. Id. Duval was convicted of a single count of being a felon in possession of a handgun, in violation of 18 U.S.C. § 922(g)(1) (2006). A violation of this Section without sentencing enhancements carries a maximum sentence of ten years imprisonment. 18 U.S.C. § 924(a)(2) (2006).
106. See supra notes 68-71 and accompanying text.
107. See supra note 27 (discussing seemingly disproportionate sentences resulting from recidivism).
108. Although it is questionable whether the Duval court would have used such a standard even if it had existed, as the court makes no mention or apparent use of the formal categorical approach to ACCA's substantive elements requirement that has been in existence since Taylor.
109. See also Thomas W. Hillier, Comparing Three Strikes and the ACCA - Lessons to Learn, 7 FED. SENT'G. REP. 78, 78 (1994) (asserting that allowing courts to drift away from the formal categorical approach is a "slippery slope" toward the use of unreliable, inconsistent information in deciding whether to apply ACCA).
110. In addition to the requirement that a prior conviction constitute a "violent felony," such crime must be "punishable by imprisonment for a term exceeding one year." 18 U.S.C. § 924(e)(2)(B) (2006).
111. Taylor was decided in 1990. Taylor v. United States, 495 U.S. 575 (1990). Since then, courts have continued to struggle with, or even dismiss as impossible, the goal of national uniformity in ACCA's application. See, e.g., United States v. Duval, 496 F.3d 64, 83 (1st Cir. 2007) (suggesting that national consistency would require additional congressional action and that perhaps federalism concerns trump national consistency in the eyes of legislators).
112. United States v. Corona-Sanchez, 291 F.3d 1201, 1203-04 (9th Cir. 2001). Although this case concerns the crime of being a deported alien in the United States in violation of 8 U.S.C. § 1326(b)(2) (2000) with possible recidivism enhancement pursuant to 8 U.S.C. § 1326(b)(2) instead of concerning ACCA, the court applies ACCA principles and case law by analogy because the requirement that the predicate offense be punishable by at least one year is the same in both statutes. Corona-Sanchez, 291 F.3d at 1205, 1217.
113. Id. at 1206.
114. Id. at 1208.
115. Id.;
116. see CAL. PENAL CODE § 490 (West Supp. 1990).
117. Corona-Sanchez, 291 F.3d at 1207.
118. Id. at 1208.
119. Id. at 1209 (quoting Apprendi v. New Jersey, 530 U.S. 466, 488 (2000));
120. see also People v. Bouzas, 807 P.2d 1076, 1080 (Cal. 1991) (holding that the same enhancement provision at issue in Corona-Sanchez's earlier offense "is a sentencing factor for the court and not a matter for the jury to consider in relation to the present offense on which the defendant is being tried.").
121. Corona-Sanchez, 291 F.3d at 1209-10.
122. See, e.g., United States v. Duval, 496 F.3d 64, 81-82 (1st Cir. 2007) (discussing the circuit split as to whether a conviction containing a recidivism-enhanced sentence should be atomized into two separate factors, underlying offense and recidivism enhancement, or whether the conviction as stated as a whole in the trial court should be used).
123. Id.
124. See supra notes 24-26 and accompanying text.
125. Apprendi, 530 U.S. at 490 ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.");
126. see also Rafaloff, supra note 36, at 1097 (establishing that prior convictions must be proven at trial if they are considered an element of the offense, while sentencing enhancements need only be established at the sentencing hearing).
127. Taylor v. United States, 495 U.S. 575, 600 (1990) ("[ACCA] mandates a formal categorical approach, looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions."). Although § 924(e) mentions "conduct that presents a serious potential risk of physical injury to another," 18 U.S.C. § 924(e)(2)(B)(ii) (2006), the emphasis is still on the need for "three previous convictions by any court referred to in § 922(g)(1) of this title for a violent felony or a serious drug offense." 18 U.S.C. § 924(e)(1) (emphasis added).
128. See Doeschner, supra note 50, at 1356 (discussing the three rationales for the prior conviction exception - that a prior conviction does not have to be proven to a jury: (1) recidivism is a sentencing factor that speaks only to punishment, not to the crime itself (articulated in Almendarez-Torres v. United States, 523 U.S. 224, 234 (1998));
129. (2) a defendant receiving a recidivism-enhanced sentence has already received a jury trial and due process for each conviction at the time that conviction was received (articulated in Jones v. United States, 526 U.S. 227, 248-49 (1999));
130. and (3) the exception for prior convictions does not create a presumption of guilt (articulated in McMillan v. Pennsylvania, 477 U.S. 79, 87 (1986))).
131. See supra notes 68-87 and accompanying text (discussing various cases in which recidivism enhancements to prior convictions qualified those convictions for use under ACCA, when they otherwise would not have met the sentencing requirement).
132. See Jones, 526 U.S. at 256-57 (Kennedy, J., dissenting) ("[H]arm from a crime - including whether the crime, after its commission, results in the serious bodily injury or death of a victim - has long been deemed relevant for sentencing purposes.");
133. see also Almendarez-Torres, 523 U.S. at 230 (naming recidivism as possibly the most common basis for sentence enhancement).
134. See United States v. McCaffrey, 437 F.3d 684, 690 (2006) (holding that even after United States v. Booker, 543 U.S. 220 (2005), not all sentence enhancements must be proven to jury beyond a reasonable doubt). Cf. Doeschner, supra note 50, at 1334 ("[S]entencing courts that broadly interpret the prior conviction exception tend to violate the very rationales that justify it.").
135. United States v. Duval, 496 F.3d 64, 82-83 (1st Cir. 2007);
136. see supra notes 72-86 and accompanying text.
137. Id. at 80-81 (noting that under ME. REV. STAT. ANN. tit. 17-A, § 1252(2) (2007), simple assault and battery is a "Class D" misdemeanor, punishable by up to one year in prison).
138. See Rummel v. Estelle, 445 U.S. 263, 288 (1980) (citing the example of overtime parking violations being used for recidivism sentencing enhancements). Although Rummel stands for the proposition that a life sentence should not result from such violations due to disproportionality, id. at 288 n.11, the Duval sentence enhancement at the state level was not for life, but rather for a maximum of five years, and ACCA only requires that the sentence be punishable by over one year. Therefore, Duval's sentence could conceivably have been increased under the Maine recidivism statute for parking violations in such a way so as to bring such sentence within the scope of ACCA, later subjecting him to fifteen years to life imprisonment. The same result deemed preposterous by the Rummel Court is therefore possible under ACCA through the considerations of sentences for prior convictions that have already been enhanced, without examination of the crimes for which those enhancements were given.
139. See ME. REV. STAT. ANN. tit. 17-A, § 1252(4-A).
140. See Ewing v. California, 538 U.S. 11, 16-17 (2003) (noting that in cases of wobblers, prosecutors have the discretion to charge an offense as either a misdemeanor or a felony);
141. Duval, 496 F.3d at 84 (applying recidivism enhancement at state level for prior misdemeanors);
142. United States v. Fernandez, 121 F.3d 777, 780 (1st Cir. 1997) (holding that state crime of assault may consist of either violent or non-violent conduct);
143. United States v. Reeves, No. CR-05-47-B-W, 2006 U.S. Dist. LEXIS 45721, at *10 (D. Me. July 5, 2006) (recognizing that defendant's prior conviction was tried as a felony due to agreement in plea bargain).
144. Duval, 496 F.3d at 84.
145. E.g., id. ("It would be unusual if a court could not consider Duval's conviction as a felony for ACCA when Maine law would recognize it as such for state-law purposes.").
146. See infra Part III.C.3.
147. Carlton F. Gunn, Reconsidering Prior Convictions: So Many Crimes, So Little Time: The Categorical Approach to the Characterization of a Prior Conviction Under the Armed Career Criminal Act, 7 FED. SENT'G. REP. 66 (1994).
148. Id. at 66.
149. See supra Part III.B.1.
150. See Duval, 496 F.3d at 83 (discussing sentencing differences among the states and their effects on the application of ACCA).
151. Id. at 81-82 (describing a current split in the circuits over whether a recidivism sentencing component should be atomized from the underlying offense when considering whether the sentence available would qualify the prior conviction as a predicate offense under ACCA; the following circuits atomize: First, Ninth, and Eleventh; the following circuits use the actual sentence imposed: Fourth, Fifth, and Seventh).
152. ME. REV. STAT. ANN. tit. 17-A, § 207(3) (2006).
153. MASS. GEN. LAWS ch. 265, § 13A(a) (2008).
154. Duval, 496 F.3d at 83 ("Congress implicitly accepted such inconsistencies in the application of the ACCA because it was concerned about federalism and wanted to preserve the state's role in defining, enforcing, and prosecuting essentially local crimes . . . .").
155. See H.R. REP. No. 98-1073, at 5, reprinted in 1984 U.S.C.C.A.N. 3661, 3665. One of the rationales for ACCA-type sanctions was the alleviation of the difficulties "encountered by Federal courts in applying State robbery and burglary laws in Federal prosecutions." Id.
156. S. REP. No. 98-190, at 20 (1983).
157. Taylor v. United States, 495 U.S. 575, 582 (1990).
158. Id.
159. Id. at 591-92.
160. See supra Part III.C.2 (citing examples of non-uniformity even after Taylor).
161. See supra notes 99-100 and accompanying text (describing the current circuit split regarding consideration of prior sentencing enhancements).
162. See, e.g., United States v. Duval, 496 F.3d 64, 83-84 (1st Cir. 2007).
163. See Duval, 496 F.3d at 84 ("If Congress finds fault in the pattern of inconsistent sentences mandated by the ACCA, it is within its power to amend it.").
164. See supra notes 41-42 (defining the "substantive elements requirement" and the "sentencing requirement" of ACCA).
165. Or, if not completely independent of state law, the analysis would at least apply state law in a more, if not completely, consistent manner nationwide.
166. See supra notes 32-39 and accompanying text.
167. See generally MEASURING RECIDIVISM, supra note 29 (discussing the relationship between sentence length and recidivism).
168. See Sady, supra note 4, at 70 (suggesting that ACCA is so "loosely written" and unnecessarily broad that reaching a result consistent with its purpose is the exception rather than the rule). Subsequent amendments have helped to narrow ACCA in the ways Sady suggests, but courts' application continues to suffer the problems mentioned.
169. MEASURING RECIDIVISM, supra note 29, at 14.
170. Id.
171. In other words, an overly broad interpretation of ACCA requirements results in uncertainty as to what constitutes a triggering event. Foreseeability is a prerequisite to deterrence, for a criminal cannot be deterred from something of which they have no knowledge.
172. MEASURING RECIDIVISM, supra note 29, at 37;
173. see also supra note 31 (citing statistics showing those labeled recidivists under ACCA are actually at a much lower risk for recidivism than others grouped in the same criminal history category).
174. See, e.g., United States v. Balascsak, 873 F.2d 673, 682 (3d Cir. 1989) ("These are the people who have demonstrated, by virtue of their definition, that locking them up and letting them go doesn't do any good. They go on again, you lock them up, you let them go, it doesn't do any good, they are back for a third time. At that juncture we should say, 'That's it; time out; it is all over. We, as responsible people, will never give you the opportunity to do this again.'" (citing Armed Career Criminal Act: Hearing on H.R. 1627 and S. 52 Before the Subcomm. On Crime of the House Comm. On the Judiciary, 98th Cong., 2d Sess. 6 (1984) (statement of Stephen Trott, Assistant Attorney General, Criminal Division))).
175. See United States v. Corona-Sanchez, 291 F.3d 1201, 1204 (9th Cir. 2001) (describing two methodologies employed to define the generic offense under the formal categorical approach: if a traditional, common law crime exists for a particular offense, the prior conviction is defined "in terms of its generic, core meaning"; if no traditional common law crime exists, the plain meaning of the statutory words are used).
176. See Taylor v. United States, 495 U.S. 575, 598 (1990) (declaring the elements of generic crime of burglary to include "an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime").
177. See Fisher, supra note 8, at 874 & n.41 (describing Massachusetts law in the early nineteenth century: "Excepting only those very serious crimes that carried mandatory life or death sentences, none of the typical common-law offenses called for a minimum sentence").
178. Corona-Sanchez, 291 F.3d at 1210.
179. A narrow reading of the prior conviction exception allows the court only to consider the fact of the existence of the prior conviction itself instead of any facts that may be incidental to that conviction. Doeschner, supra note 50, at 1371-72. The only determinations of fact the court must then make are that the prior conviction exists and that it belongs to the defendant. Id.
180. See, e.g., Corona-Sanchez, 291 F.3d at 1209 (describing felonies "with reference to the offense, rather than separate sentencing enhancements").
181. See supra note 57 and accompanying text (discussing the need for independence from state law in application of federal law).
182. See supra notes 126-28 and accompanying text.
183. See discussion of random (lightning bolt) applicability, supra note 4.
184. In addition to variations among states, the problems of wobblers would still exist under this standard because the federal sentencing court is still looking to state law for determining eligibility under the federal law; see, e.g., Ewing v. California, 538 U.S. 11, 30-31 (2003) (applying California's three strikes law, rather than ACCA, but with the same result that a wobbler constitutes one of three prior felony convictions).
185. See supra Part III.D.1.
186. See Taylor v. United States, 495 U.S. 575, 588-89 (1990) (discussing the need for a generic definition of the offense that is not dependent upon state definitions).
187. See supra note 145.
188. See Taylor, 495 U.S. at 598.
189. Id. ("Congress meant by 'burglary' the generic sense in which the term is now used in the criminal codes of most States." (citing Perrin v. United States, 444 U.S. 37, 45 (1979);
190. United States v. Nardello, 393 U.S. 286, 289 (1969))). If Congress meant the definition of crimes enumerated in ACCA should be determined using a national average, it follows that the sentences for such crimes should also arise from a similarly uniform source.
191. The Taylor Court did not seem bothered by this question of practicability, suggesting that definitions of crimes could be determined by national averages. Maximum penalties, being numerical, are in fact much more conducive to averaging than the elements of an offense would be. See Taylor, 495 U.S. at 598.
192. See U.S. SENTENCING GUIDELINES MANUAL (2007).
193. OFFICE OF PUBLISHING AND PUBLIC AFFAIRS, UNITED STATES SENTENCING COMMISSION. AN OVERVIEW OF THE UNITED STATES SENTENCING COMMISSION 1 (2005), http://www.ussc.gov/generalAJSSCoverview-2005.pdf.
194. See United States v. Booker, 543 U.S. 220, 253 (2005) ("Congress'[s] basic goal in passing the Sentencing Act was to move the sentencing system in the direction of increased uniformity.").
195. See supra notes 120-23 (discussing variance among states in maximum penalties available for assault convictions).
196. U.S. SENTENCING GUIDELINES MANUAL § 2A2.3(a)(1).
197. See id. ch. 5, pt. A.
198. MEASURING RECIDIVISM, supra note 29, at 37.
199. Id.
200. U.S. SENTENCING GUIDELINES MANUAL ch. 5, pt. A.
201. See 28 U.S.C. § 994 (2000 & Supp. V 2005) (listing the duties and procedural requirements of the Sentencing Commission in promulgating guidelines).
202. See Taylor v. United States, 495 U.S. 575, 591-92 (1990) ("[I]n the absence of a plain indication of an intent to incorporate diverse state laws into a federal criminal statute, the meaning of the federal statute should not be dependent on state law." (quoting United States v. Turley, 352 U.S. 407, 411 (1957)).