1. Armed Career Criminal and Career Offender Enhancements If you can’t avoid them, deflect them.

2. ACCA - mandatory 15 year sentence: Who does it apply to? Defendant must: be adjudicated guilty under 18 U.S.C. § 922(g) (guns and ammunition); have three prior convictions (committed at different times) for either (or combination): “violent felony” “serious drug offense”

3. Career Offender Guideline: Who does it apply to? Defendant must be 18 at time he commits the instant offense; Defendant must be 18 at time he commits the instant offense; The instant offense is a felony “crime of violence” or a “controlled substance offense”; The instant offense is a felony “crime of violence” or a “controlled substance offense”; The defendant has at least two prior felony convictions which are either a “crime of violence” or a “controlled substance offense” (or a combination). The defendant has at least two prior felony convictions which are either a “crime of violence” or a “controlled substance offense” (or a combination).

4. In-depth analysis of ACCA

5. What counts as prior convictions? Age of prior conviction is irrelevant. Age of prior conviction is irrelevant. The prior convictions must have been adjudicated before Defendant committed the present offense. The prior convictions must have been adjudicated before Defendant committed the present offense. Cases consolidated for purposes of sentencing that were committed on different occasions are treated as separate under ACCA. See United States v. Hudspeth, 42 F.3d 1015, 1021 (7 th Cir. 1994)(commission of 3 different burglaries against 3 different victims over the course of 30 minutes). Cases consolidated for purposes of sentencing that were committed on different occasions are treated as separate under ACCA. See United States v. Hudspeth, 42 F.3d 1015, 1021 (7 th Cir. 1994)(commission of 3 different burglaries against 3 different victims over the course of 30 minutes).

6. What counts as prior convictions? Conspiracy, Aiding and Abetting, and Attempts to commit “violent felony” or “serious drug offense” may qualify. Conspiracy, Aiding and Abetting, and Attempts to commit “violent felony” or “serious drug offense” may qualify. Circuit split as to whether juvenile convictions qualify. Circuit split as to whether juvenile convictions qualify. Validity of prior conviction cannot be challenged except where prior was based on the complete denial of the right to counsel. Custis v. United States, 511 U.S. 485 (1994). Validity of prior conviction cannot be challenged except where prior was based on the complete denial of the right to counsel. Custis v. United States, 511 U.S. 485 (1994).

7. 18 U.S.C. § 924(e)(2)(B) defines “violent felony” as: any felony...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, extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

8. 18 U.S.C. § 924(e)(2)(A) defines “serious drug offense” as: (i) an offense under the Controlled Substance Act (21 U.S.C. § 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. § 951 et seq.), or Title 46 Chapter 705, with a maximum term of imprisonment of ten years or more; or (ii) an offense under state law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute with a maximum term of imprisonment of ten years or more.

9. ACCA and Guidelines Statute provides for a minimum of fifteen years. Statute provides for a minimum of fifteen years. Offense level will be the greatest of: Offense level will be the greatest of: Offense level applicable from Chapters Two and Three; or Offense level applicable from Chapters Two and Three; or Offense level from § 4B1.1 (Career Offender), if applicable; or Offense level from § 4B1.1 (Career Offender), if applicable; or 34, if D used/possessed firearm or ammunition in connection with a crime of violence, controlled substance offense, or if the firearm was one described in 26 U.S.C. § 5845(a); 34, if D used/possessed firearm or ammunition in connection with a crime of violence, controlled substance offense, or if the firearm was one described in 26 U.S.C. § 5845(a); or Level 33 otherwise. or Level 33 otherwise.

10. ACCA and Guidelines Criminal history is the greatest of: Criminal history is the greatest of: Criminal history under Chapter Four; Criminal history under Chapter Four; § 4B1.1 (Career Offender), if applicable; § 4B1.1 (Career Offender), if applicable; Category VI, if D used/possessed firearm in connection with crime of violence, controlled substance offense, or firearm was one described in 26 U.S.C. § 5845(a); Category VI, if D used/possessed firearm in connection with crime of violence, controlled substance offense, or firearm was one described in 26 U.S.C. § 5845(a); or category IV otherwise. or category IV otherwise.

11. 15 Year mandatory minimum

12. In-depth analysis of Career Offender

13. What counts as prior convictions? Cases consolidated for purposes of sentencing may be treated as separate conviction under Career Offender. Cases consolidated for purposes of sentencing may be treated as separate conviction under Career Offender. Aiding and abetting, conspiracy and attempts to commit “crimes of violence” or “controlled substance offenses” count. See U.S.S.G. § 4B1.2. Aiding and abetting, conspiracy and attempts to commit “crimes of violence” or “controlled substance offenses” count. See U.S.S.G. § 4B1.2. The provisions of § 4A1.2 apply (some offenses may be too old to count for purposes of career offender or may not apply for other reasons). The provisions of § 4A1.2 apply (some offenses may be too old to count for purposes of career offender or may not apply for other reasons).

14. USSG §4B1.2 defines “crime of violence” as: …any [felony] that: …any [felony] that: (1) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (1) has as an element the use, attempted use, or threatened use of physical force against the person of another; or is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

15. USSG §4B1.2 defines “controlled substance offense” as: … a [felony] that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense. … a [felony] that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.

16. Career Offender Guideline: How it impacts the sentence No statutory mandatory minimum but... No statutory mandatory minimum but... The offense level is determined according to the instant offense’s statutory maximum: The offense level is determined according to the instant offense’s statutory maximum: Life37 Life37 25 or more34 25 or more34 20 or more32 20 or more32 Criminal History category becomes a VI. Criminal History category becomes a VI.

18. Major differences between ACCA and Career Offender ACCACareer Offender Instant offense of conviction must be under 18 U.S.C. § 922(g). 3 prior convictions required “Violent felony” definition has a broader definition for “burglary”—need not be “burglary of a dwelling” Instant offense of conviction must be “crime of violence” or “controlled substance offense.” 2 prior convictions required “Crime of violence” definition is narrower—requires that the burglary be of a dwelling.

19. D eflect these enhancements by attacking the prior convictions We attack prior convictions by using the Taylor analysis, otherwise known as the categorical approach. We attack prior convictions by using the Taylor analysis, otherwise known as the categorical approach. Taylor v. United States, 495 U.S. 575, 599 (1990). Taylor v. United States, 495 U.S. 575, 599 (1990).

20. What is the categorical approach / Taylor analysis? A system used by courts to determine whether the statute of conviction fits the definition in question – in the case of ACCA: whether the conviction is a “violent felony” or “serious drug offense” ; in the case of Career Offender: whether a prior conviction is a “crime of violence” or a “controlled substance offense.”

21. Brief overview of Taylor v. United States Mr. Taylor pleads to 922(g). Mr. Taylor pleads to 922(g). His priors: robbery, assault, and 2 second degree burglary convictions (1963 and 1971). His priors: robbery, assault, and 2 second degree burglary convictions (1963 and 1971). Missouri had several different statutes for second degree burglaries—some including very broad conduct (such as entry into a booth). Missouri had several different statutes for second degree burglaries—some including very broad conduct (such as entry into a booth). No documentation showing which particular second degree burglary statute Taylor was convicted under. No documentation showing which particular second degree burglary statute Taylor was convicted under. Eight Circuit affirmed the district court and held that “burglary” under 18 U.S.C. § 924(e)’s definition meant “burglary” however a state chose to define it. Eight Circuit affirmed the district court and held that “burglary” under 18 U.S.C. § 924(e)’s definition meant “burglary” however a state chose to define it.

22. Issue before the Court: whether the Missouri second degree burglaries were “violent felonies” under ACCA. Issue before the Court: whether the Missouri second degree burglaries were “violent felonies” under ACCA. Statutes across the country varied as to the type of structure involved and the means of entry. Statutes across the country varied as to the type of structure involved and the means of entry. No single meaning for what constituted “burglary.” No single meaning for what constituted “burglary.” Court did not want state definition to control: “that would mean that a person convicted of unlawful possession of a firearm, would or would not, receive a sentencing enhancement based on exactly the same conduct, depending on whether the State of his prior conviction happened to call that conduct “burglary.” Taylor, 495 U.S. 575, 579 (1990). Court did not want state definition to control: “that would mean that a person convicted of unlawful possession of a firearm, would or would not, receive a sentencing enhancement based on exactly the same conduct, depending on whether the State of his prior conviction happened to call that conduct “burglary.” Taylor, 495 U.S. 575, 579 (1990).

23. The Court identified a “generic” definition for burglary that included elements found in the criminal codes of most states. The Court identified a “generic” definition for burglary that included elements found in the criminal codes of most states. Burglary : Burglary : unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime. unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime. To see if Taylor’s convictions qualified as a “burglary” the Court comes up with the categorical approach. To see if Taylor’s convictions qualified as a “burglary” the Court comes up with the categorical approach.

24. Two step approach to categorical approach / Taylor analysis Step 1: categorical approach Step 2: modified categorical approach

25. Step 1: Categorical approach Determine if the statute of conviction is overbroad: Does the statute of conviction include conduct that may not be covered by the definition in question? If a state statute punishes both conduct that is and is not included in the definition in question then the state statute is overbroad.

26. To determine if the statute of conviction is overbroad, courts only look at the fact of conviction; and the statutory definition of the offense (elements of the offense) not at the underlying facts.

27. Taylor’s two second degree burglary convictions were in 1963 and 1971. In those years, Missouri had different statutes for “second degree burglary” : Breaking and entering a dwelling house (Mo. Rev. Stat § 560.045) Breaking and entering a dwelling house (Mo. Rev. Stat § 560.045) Having entered a dwelling house, breaking out of it (Mo. Rev. Stat § 560.050, 560.060) Having entered a dwelling house, breaking out of it (Mo. Rev. Stat § 560.050, 560.060) Breaking an inner door (Mo. Rev. Stat § 560.070) Breaking an inner door (Mo. Rev. Stat § 560.070) Breaking and entering a building, booth, tent, boat or railroad car (Mo. Rev. Stat § 560.075) Breaking and entering a building, booth, tent, boat or railroad car (Mo. Rev. Stat § 560.075) Breaking and entering a bank (Mo. Rev. Stat § 560.080) Breaking and entering a bank (Mo. Rev. Stat § 560.080)

28. Do Missouri’s 2nd degree burglary statutes include both conduct that falls within the definition of violent felony and conduct which does not? Mo. Rev. Stat § 560.075 Breaking and entering Any building…, or any booth or tent, or any boat or vessel, or railroad car… with the intent to steal or commit any crime therein, shall, on conviction, be adjudged guilty of burglary in the second Degree 1) Is it burglary? Are the elements the following: Unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime. 2) Does it “otherwise involve conduct that presents a serious potential risk of physical injury to another?”

29. The court did not know which of those statutes Taylor had been convicted under…was he convicted under a statute that fit the generic definition of burglary or was he convicted of a statute that included conduct that fell outside of it? The court did not know which of those statutes Taylor had been convicted under…was he convicted under a statute that fit the generic definition of burglary or was he convicted of a statute that included conduct that fell outside of it?

30. Based on the several statutes and the lack of documentation showing which statute Taylor was convicted under, how is the court to determine whether Taylor’s convictions: Based on the several statutes and the lack of documentation showing which statute Taylor was convicted under, how is the court to determine whether Taylor’s convictions: fit the definition of “burglary”, or fit the definition of “burglary”, or involved “conduct that presents a serious potential risk of physical injury to another”? involved “conduct that presents a serious potential risk of physical injury to another”? Since Missouri’s second degree burglary statutes may or may not fit the definition in question—some are overbroad—the modified categorical approach is necessary. Since Missouri’s second degree burglary statutes may or may not fit the definition in question—some are overbroad—the modified categorical approach is necessary.

31. Step 2: Modified categorical approach Unlike Step 1, courts look at certain permissible documents to establish whether the conviction in question fits the definition at issue. Unlike Step 1, courts look at certain permissible documents to establish whether the conviction in question fits the definition at issue. Government’s burden to prove that the defendant actually violated the statute in a way that fits the definition of violent felony. Government’s burden to prove that the defendant actually violated the statute in a way that fits the definition of violent felony. Courts can only look at “judicially noticeable documents” to determine if underlying conviction is a violent felony. Shepard v. United States, 544 U.S. 13 (2005). Courts can only look at “judicially noticeable documents” to determine if underlying conviction is a violent felony. Shepard v. United States, 544 U.S. 13 (2005).

32. Judicially noticeable documents: Judicially noticeable documents: If conviction obtained through jury trial: If conviction obtained through jury trial: charging document and jury instructions. Taylor v. United States, 495 U.S. 575, 599 (1990). charging document and jury instructions. Taylor v. United States, 495 U.S. 575, 599 (1990). If bench trial: If bench trial: judge’s formal rulings of law and findings of fact. judge’s formal rulings of law and findings of fact. Shephard v. United States, 544 U.S. 13, 19 (2005). Shephard v. United States, 544 U.S. 13, 19 (2005).

33. If case was resolved by way of plea agreement: If case was resolved by way of plea agreement: Charging document (not alone). United States v. Skyes, 598 F.3d 334, 339 (7 th Cir. 2010). Charging document (not alone). United States v. Skyes, 598 F.3d 334, 339 (7 th Cir. 2010). Signed plea agreement. United States v. Taylor, 630 F.3d 629, 633 (7 th Cir. 2010). Signed plea agreement. United States v. Taylor, 630 F.3d 629, 633 (7 th Cir. 2010). Transcript of plea colloquy. United States v. Fife, 624 F.3d 441, 445 (7 th Cir. 2010). Transcript of plea colloquy. United States v. Fife, 624 F.3d 441, 445 (7 th Cir. 2010). Judgment of conviction. Mata-Guerrero v. Holder, 627 F.3d 256, 260 (7 th Cir. 2010). Judgment of conviction. Mata-Guerrero v. Holder, 627 F.3d 256, 260 (7 th Cir. 2010).

34. What cannot be included for purposes of the modified categorical approach: What cannot be included for purposes of the modified categorical approach: police reports police reports PSR PSR Witness statements Witness statements Rap sheets Rap sheets

35. In Taylor’s case, the Court did not have any judicially noticeable documents that would show that Taylor was convicted under a qualifying statute, so case was vacated and remanded. In Taylor’s case, the Court did not have any judicially noticeable documents that would show that Taylor was convicted under a qualifying statute, so case was vacated and remanded.

36. Practice Tips In conducting a Taylor analysis, it is critical to evaluate the statute of conviction as it existed at the time of the defendant’s prior offense. In conducting a Taylor analysis, it is critical to evaluate the statute of conviction as it existed at the time of the defendant’s prior offense. Do not just look at the current version of the statute as it might have been amended. Do not just look at the current version of the statute as it might have been amended. Order records. Order records. Taylor/ categorical approach can be used in many other settings: e.g., child pornography statutes, felon in possession U.S.S.G., §1326 statutes/ U.S.S.G., § 924(c).

37. Conclusion Remember : Remember : 1. Do not go by State’s label for the crime. 1. Do not go by State’s label for the crime. 2. Do not go by the underlying facts. 2. Do not go by the underlying facts. 3. Look at the particular statute your client got convicted under and the cases interpreting that statute. 3. Look at the particular statute your client got convicted under and the cases interpreting that statute. 4. Read the particular enhancement definition very carefully. 4. Read the particular enhancement definition very carefully.

38. Training Branch, Office of Defender Services Resources for CJA Panelists

39. WWW.FD.ORG Resources Resources Training Materials and Videos Training Materials and Videos Select Topics in Criminal Defense Select Topics in Criminal Defense Sample Memos and Briefs Sample Memos and Briefs Supreme Court Advocacy Program Supreme Court Advocacy Program National Litigation Support Team National Litigation Support Team Call Us! Hotline# Call Us! Hotline# 202-502-2900 or 800-788-9908 202-502-2900 or 800-788-9908

40. Training Where can you go? Where can you go?  FD.org Resources Resources List of Training Events List of Training Events Fills Up Fills Up By Group (CJA, AFD’s, Both) By Group (CJA, AFD’s, Both) Financial Aid Available Financial Aid Available On Line Videos On Line Videos Call Us Call Us 202-502-2900 or 800-788-9908 202-502-2900 or 800-788-9908

41. Other Fd.org Resources Employment Employment Panel Rep’s Panel Rep’s Local FD’s Local FD’s Search Function Search Function

42. Immigration/Padilla National Immigration Justice Center Contacting NIJC’s Defenders Initiative Contacting NIJC’s Defenders Initiative defenders@heartlandalliance.org defenders@heartlandalliance.org Call: 312-660-1610 Call: 312-660-1610

43. Thank you!