Eighth Circuit Vacates 15-Year ACCA Sentence

The Armed Career Criminal Act (“ACCA”) provides for a 15-year mandatory minimum sentence for the unlawful possession of a firearm by a previously convicted felon who has three qualifying prior convictions.  18 U.S.C. § 924(e).  To support an ACCA sentence, a prior conviction must be for “a violent felony, a serious drug offense, or both.”  Id.  Litigation concerning what offenses support and ACCA sentence have focused on the statute’s inclusion of “burglary” in the list of qualifying offenses.  One problem is that there is no uniform definition of the crime of burglary.  In some states, breaking into a car can be classified as a burglary.  To qualify a burglary statute must criminalize “conduct that presents a serious potential risk of physical injury to another.”  The Supreme Court has held that only burglary statutes which criminalize “generic” burglary – unlawful entry into a building or other structure with intent to commit a crime can support an ACCA sentence.  Taylor v. United States, 495 U.S. 575 (1990).  More recently, the Court upheld an ACCA sentence for attempted burglary where the burglary statute in question (the Florida statute) requires proof of an over act directed toward the entry of the building or other structure.  James v. United States, 550 U.S. 192 (2007).  This past October, the Eighth Circuit examined Missouri’s attempted burglary statute in light of the James case, and found it wanting.  Unlike in Florida, a person can be convicted of attempted burglary if he takes any substantial step toward the commission of the offense – including casing the place or obtaining materials to use in the burglary.  The Eighth Circuit has now held that such acts, unlike steps toward actually breaking into a building, are not “conduct that presents a serious potential risk of physical injury to another.”  The court vacated the sentence and remanded for resentencing.  United States v. Reid, 2014 WL 5314563 (8th Cir., Oct. 20, 2014).