Columbia Southern Sentencing in The United States Article Review This assignment, an Article Review, will assist you in thinking critically about sentencin

Columbia Southern Sentencing in The United States Article Review This assignment, an Article Review, will assist you in thinking critically
about sentencing in the United States. To begin this assignment, please access
the CSU Online Library and select an article. This article should be from a
professional or scholarly journal. Additionally, the article selected should
be no more than four years old. Upon selecting the article, please complete an Article Review. The review
should include the following,
A summary of the article (1/2-1 page).
Summarize the main points which the author discusses.
Identify the main argument.
This summary should provide background for the analysis you
provide (see below).

An analysis of the article.
This is the most important part of the review and should be
most of your
paper.
In this section, you should show that you not only read the
article, but also
that you are thinking
critically about it.

Think about the following when analyzing this article:

Is the argument clear and organized?
Is evidence presented, more than simply opinion?
Is the argument logical, does it make sense?
Does the argument match with what you know of the topic?

Who is the intended audience?
Is the argument convincing? Why or why not?
Is the argument conventional, controversial, boring,
safe,
etc.?
What suggestions do you have for the author to improve
the
argument? Did
he/she forget to
add any
significant
information (if
so, what)?
Is this useful for those who study this topic? Why and
how?
The completed review should be at least three pages in length (not
including the title and references pages). All sources
used must be cited and referenced according to APA
style. Boston College Law Review
Volume 59
Issue 9 Electronic Supplement
4-26-2018
Incapacitating Dangerous Repeat Offenders (or
Not): Evidentiary Restrictions on Armed Career
Criminal Act Sentencing in United States v. King
Kayleigh E. McGlynn
Boston College Law School, kayleigh.mcglynn@bc.edu
Follow this and additional works at: http://lawdigitalcommons.bc.edu/bclr
Part of the Criminal Law Commons, Evidence Commons, and the Legislation Commons
Recommended Citation
Kayleigh E. McGlynn, Incapacitating Dangerous Repeat Offenders (or Not): Evidentiary Restrictions on Armed Career Criminal Act
Sentencing in United States v. King, 59 B.C.L. Rev. E. Supp. 348 (2018), http://lawdigitalcommons.bc.edu/bclr/vol59/iss9/20
This Comments is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been
accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more
information, please contact nick.szydlowski@bc.edu.
Article 20
INCAPACITATING DANGEROUS REPEAT
OFFENDERS (OR NOT): EVIDENTIARY
RESTRICTIONS ON ARMED CAREER
CRIMINAL ACT SENTENCING IN
UNITED STATES v. KING
Abstract: On March 30, 2017, in United States v. King, the United States Court
of Appeals for the Sixth Circuit held that a sentencing court may not rely on information in bills of particulars for the Armed Career Criminal Act’s differentoccasions inquiry. In so doing, the Sixth Circuit joined the Second, Fourth, Fifth,
Seventh, Tenth, Eleventh, and D.C. Circuits in holding that sentencing courts deciding the different-occasions question may rely only on the evidentiary sources
that the United States Supreme Court approved in Taylor v. United States in 1990
and Shepard v. United States in 2005. In contrast, on January 2, 2014, the United
States Court of Appeals for the Eighth Circuit in United States v. Evans suggested that the Taylor- and Shepard-evidentiary restrictions might not apply to the
different-occasions inquiry. This Comment argues that the Sixth Circuit decided
correctly in King, but also that the court’s decision conflicts with congressional
intent, and thus Congress should amend the act to resolve this conflict.
INTRODUCTION
The Armed Career Criminal Act (“ACCA”) imposes a fifteen-year mandatory minimum sentence on any felon possessing a firearm who previously
committed three violent felony or serious drug offenses on different occasions. 1 By imposing a lengthy mandatory minimum sentence, the ACCA is
intended to help law enforcement reduce the number of dangerous habitual
1
Armed Career Criminal Act, 18 U.S.C. § 924(e) (2012). The felon in possession of a firearm
statute is 18 U.S.C. § 922(g), which makes it unlawful for any person convicted of a crime punishable
by a prison sentence greater than one year to ship, transport, possess, or receive a firearm in interstate
or foreign commerce. Id. § 922(g). To be sentenced under the Armed Career Criminal Act (“ACCA”),
a defendant must not only violate § 922(g) but also have three prior violent felony or serious drug
offenses that qualify as predicate offenses under the ACCA. Id. § 924(e). The ACCA defines “serious
drug offense” as “an offense under the Controlled Substances Act (21 U.S.C. § 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. § 951 et seq.), or chapter 705 of title 46,” with a
maximum sentence of ten or more years, or a state offense “involving manufacturing, distributing, or
possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102
of the Controlled Substances Act (21 U.S.C.§ 802)),” with a maximum sentence of ten or more years.
18 U.S.C. § 924(e)(2)(A)(i)–(ii). The ACCA defines “violent felony” as “any crime punishable by
imprisonment for a term exceeding one year . . . that” either includes an element of “use, attempted
use, or threatened use of physical force against [another person]” or “is burglary, arson, or extortion,
involves use of explosives, or otherwise involves conduct that presents a serious potential risk of
physical injury to another.” Id. § 924(e)(2)(B).
348
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Different-Occasions Inquiry Evidentiary Restrictions Cause Absurd Result
349
criminals in society. 2 A sentencing court, however, may apply the ACCA only
if there is sufficient evidence that the defendant committed the three predicate
offenses on different occasions. 3 Congress did not enumerate in the text of the
ACCA the types of evidence that courts may rely upon for this differentoccasions inquiry, so sentencing courts accordingly rely on prior judicial interpretation for guidance. 4
In 2017, in United States v. King, the United States Court of Appeals for
the Sixth Circuit held that a sentencing court cannot rely on a bill of particulars, a list of the charges brought against the defendant, to decide the different-
2
Taylor v. United States, 495 U.S. 575, 581 (1990) (stating that “[t]he [ACCA] was intended to
supplement the States’ law enforcement efforts against ‘career’ criminals”); H.R. REP. NO. 98-1073,
at 1 (1984), as reprinted in 1984 U.S.C.C.A.N. 3661, 3661 (noting that “[t]his bill is designed to increase the participation of the federal law enforcement system in efforts to curb armed, habitual (career) criminals”); James G. Levine, Note, The Armed Career Criminal Act and the U.S. Sentencing
Guidelines: Moving Toward Consistency, 46 HARV. J. ON LEGIS. 537, 545–46 (2009) (explaining that
the ACCA intends to help law enforcement incapacitate dangerous repeat offenders); Brett T. Runyon,
Comment, ACCA Residual Clause: Strike Four? The Court’s Missed Opportunity to Create a Workable Residual Clause Violent Felony Test, 51 WASHBURN L.J. 447, 450 (2012) (noting that the ACCA’s purpose is to assist law enforcement efforts to stop career criminals from reoffending); see also
H.R. REP. NO. 98-1073, at 2 (noting that “[b]oth Congress and local prosecutors around the nation
have recognized the importance of incapacitating [the small group of] repeat offenders [who are responsible for a large number of crimes]”). This Comment uses the terms “career criminal,” “habitual
criminal,” “repeat offender,” and “recidivist” synonymously.
3
18 U.S.C. § 924(e). The government carries the burden of proving at sentencing by a preponderance of the evidence that the defendant committed the prior offenses on different occasions. See,
e.g., United States v. Linney, 819 F.3d 747, 751 (4th Cir. 2016).
4
See 18 U.S.C. § 924(e) (not enumerating the types of evidence allowed under the differentoccasions inquiry). See generally United States v. King, 853 F.3d 267, 271–73 (6th Cir. 2017) (explaining the Supreme Court’s reasoning in Taylor v. United States and United States v. Shepard and
that the same concerns apply to the interpretation of the different-occasions question); United States v.
Dantzler, 771 F.3d 137, 143, 145 (2d Cir. 2014) (explaining that the Supreme Court’s reasoning in
Taylor and Shepard applies to the different-occasions inquiry); Kirkland v. United States, 687 F.3d
878, 883 (7th Cir. 2012) (noting that Shepard’s evidentiary restrictions apply to determining whether
a defendant committed prior offenses on different occasions); United States v. Boykin, 669 F.3d 467,
471 (4th Cir. 2012) (stating that a sentencing court deciding the different-occasions question can consult evidentiary sources approved in Shepard); United States v. Sneed, 600 F.3d 1326, 1333 (11th Cir.
2010) (holding that sentencing courts determining whether a defendant committed prior offenses on
different occasions may not rely on police reports because Shepard did not approve police reports as
an evidentiary source); United States v. Thomas, 572 F.3d 945, 950 (D.C. Cir. 2009) (explaining that
the sentencing court should have relied on two indictments and concluded that the defendant committed the prior offenses on different occasions because charging documents are one of the evidentiary
sources that Taylor and Shepard approved); United States v. Fuller, 453 F.3d 274, 279 (5th Cir. 2006)
(explaining that a sentencing court deciding the different-occasions question can rely on only Shepard-approved evidentiary sources); United States v. Harris, 447 F.3d 1300, 1305 (10th Cir. 2006)
(noting that a sentencing court can rely on a presentence report (“PSR”) for the purposes of the different-occasions question only if the PSR complies with Shepard); United States v. Taylor, 413 F.3d
1146, 1157–58 (10th Cir. 2005) (explaining that a sentencing court deciding the different-occasions
question can rely on only evidentiary sources that comply with Shepard).
Boston College Law Review
350
[Vol. 59:E. Supp.
occasions question. 5 In so doing, the Sixth Circuit joined the Second, Fourth,
Fifth, Seventh, Tenth, Eleventh, and D.C. Circuits in holding that sentencing
courts may consider only the evidentiary sources that the United States Supreme Court approved in Taylor v. United States in 1990 and in Shepard v.
United States in 2005. 6 The Eighth Circuit, however, suggested in 2014 in
United States v. Evans that the Taylor- and Shepard-evidentiary restrictions do
not apply to the different-occasions inquiry. 7
This Comment argues that the Sixth Circuit decided correctly in King that
a sentencing court may not rely on bills of particulars to determine whether a
defendant committed prior offenses on different occasions. 8 This Comment
also examines Justice O’Connor’s dissent in Shepard, however, and argues that
evidentiary restrictions on the different-occasions inquiry can lead to an absurd
result in cases like King. 9 Further, this Comment recommends that Congress
amend the ACCA to enumerate the evidentiary sources allowed for the different-occasions inquiry. 10
Part I of this Comment provides an overview of the history of the ACCA,
the Supreme Court’s decisions in Taylor and Shepard, and the facts and procedural posture of King. 11 Part II examines and discusses the circuit split regarding whether the Taylor- and Shepard-evidentiary restrictions apply to the ACCA’s different-occasions inquiry. 12 Finally, Part III argues that the Sixth Circuit
decided correctly in King, but also that Congress should amend the ACCA to
enumerate approved evidentiary sources and thus resolve the conflict between
Supreme Court precedent and Congressional intent. 13
5
King, 853 F.3d at 275–78. A bill of particulars, also called a statement of particulars, is “[a]
formal, detailed statement of the claims or charges brought by a plaintiff or a prosecutor, usu[ally]
filed in response to the defendant’s request for a more specific complaint.” Bill of Particulars,
BLACK’S LAW DICTIONARY (10th ed. 2014). Bills of particulars are governed by Federal Rule of
Criminal Procedure 7(f). FED. R. CRIM. P. 7(f); Bill of Particulars, supra.
6
King, 853 F.3d at 273–74; Dantzler, 771 F.3d at 139; Kirkland, 687 F.3d at 886, 886 n.9;
Boykin, 669 F.3d at 472; Sneed, 600 F.3d at 1332–33; Thomas, 572 F.3d at 950; Fuller, 453 F.3d at
279; Harris, 447 F.3d at 1305; Taylor, 413 F.3d at 1157.
7
See United States v. Evans, 738 F.3d 935, 936–37 (8th Cir. 2014) (per curiam) (noting that the
court has previously rejected Sixth Amendment challenges to the type of evidence that the district
court relies upon for the different-occasions question, and rejecting similar challenges in this case).
8
See infra notes 102–106 and accompanying text.
9
See infra notes 107–121 and accompanying text.
10
See infra notes 126–128 and accompanying text.
11
See infra notes 14–81 and accompanying text.
12
See infra notes 82–98 and accompanying text.
13
See infra notes 99–128 and accompanying text.
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Different-Occasions Inquiry Evidentiary Restrictions Cause Absurd Result
351
I. UNITED STATES V. KING AND THE HISTORY OF THE
ARMED CAREER CRIMINAL ACT
Congress enacted the ACCA in 1984 and subsequently has amended the
statute three times. 14 Congress’ intent in enacting the ACCA was to reduce the
number of armed career criminals in society because these dangerous repeat
offenders are responsible for a significant portion of violent and serious offenses. 15 In Taylor and Shepard, the Supreme Court enumerated the sources
that a sentencing court can rely on to determine whether a defendant’s prior
offenses qualify as ACCA predicates.16 These approved evidentiary sources are
statutory definitions, charging documents, jury instructions, written plea
agreements, transcripts of plea colloquies, and trial judges’ factual findings to
which the defendant agreed. 17 In King, the defendant, Errol Dontes King, pled
14
Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7056, 102 Stat. 4181, 4402 (1988) (codified at 18 U.S.C. § 924(e)(1)); Career Criminals Amendment Act of 1986, Pub. L. No. 99-570,
§ 1402, 100 Stat. 3207, 3207–39 (1986) (codified as amended at 18 U.S.C. § 924); Firearms Owners’
Protection Act, Pub. L. No. 99-308, § 104, 100 Stat. 449 (1986) (codified as amended at 18 U.S.C.
§ 921); Armed Career Criminal Act of 1984, ch. 18, 98 Stat. 1837 (1984) (codified at 18 U.S.C.
§ 1202(a), repealed by Firearms Owners’ Protection Act § 104(b)).
15
Taylor, 495 U.S. at 581; H.R. REP. NO. 98-1073, at 1–2; James E. Hooper, Note, Bright Lines,
Dark Deeds: Counting Convictions Under the Armed Career Criminal Act, 89 MICH. L. REV. 1951,
1952 (1991); Krystle Lamprecht, Comment, Formal, Categorical, but Incomplete: The Need for a
New Standard in Evaluating Prior Convictions Under the Armed Career Criminal Act, 98 J. CRIM. L.
& CRIMINOLOGY 1407, 1411 (2008); Levine, supra note 2, at 545–46; Emily Marano, Comment, The
Need for Sneed: A Loophole in the Armed Career Criminal Act, 52 B.C. L. REV. E. SUPP. 175, 175
(2011), http://lawdigitalcommons.bc.edu/bclr/vol52/iss6/15; Nick Poli, Comment, Three Strikes and
You’re Out . . . Maybe: “Violent Felonies” and the Armed Career Criminal Act in United States v.
Vann, 54 B.C. L. REV. E. SUPP. 201, 203 (2013), http://lawdigitalcommons.bc.edu/bclr/vol54/iss6/16;
Runyon, supra note 2, at 450.
16
United States v. Shepard, 544 U.S. 13, 26 (2005); Taylor, 495 U.S. at 602.
17
Shepard, 544 U.S. at 26; Taylor, 495 U.S. at 602. A charging instrument, also called an accusatory instrument, is “[a]ny of three formal legal documents by which a person can be officially
charged with a crime: an indictment, information, or presentment.” Charging Instrument, BLACK’S
LAW DICTIONARY (10th ed. 2014). The three types of charging instruments are indictments, informations, and presentments. Id. An indictment is “[t]he formal written accusation of a crime, made by a
grand jury and presented to a court for prosecution against the accused person.” Indictment, BLACK’S
LAW DICTIONARY (10th ed. 2014). An information is “[a] formal criminal charge made by a prosecutor without a grand-jury indictment.” Information, BLACK’S LAW DICTIONARY (10th ed. 2014). Indictments and informations are governed by Federal Rule of Criminal Procedure Rule 7. FED. R.
CRIM. P. 7; Charging Instrument, supra. A presentment is “[a] formal written accusation returned by a
grand jury on its own initiative, without a prosecutor’s previous indictment request.” Presentment,
BLACK’S LAW DICTIONARY (10th ed. 2014). Presentments, however, are obsolete in federal courts.
Id. A colloquy is “[a]ny formal discussion, such as an oral exchange between a judge, the prosecutor,
the defense counsel, and a criminal defendant in which the judge ascertains the defendant’s understanding of the proceedings and of the defendant’s rights.” Colloquy, BLACK’S LAW DICTIONARY
(10th ed. 2014). A plea colloquy, specifically, is “[a]n open-court dialogue between the judge and a
criminal defendant, usu[ally] just before the defendant enters a plea, to establish that the defendant
understands the consequences of the plea.” Plea Colloquy, BLACK’S LAW DICTIONARY (10th ed.
2014).
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[Vol. 59:E. Supp.
guilty to being a felon in possession of a firearm, but he argued that the ACCA
did not apply to him. 18 Although King’s prior robbery convictions qualified as
ACCA predicates, he argued that there was insufficient evidence to prove that
he committed the robberies on different occasions for the ACCA. 19
A. The History of the Armed Career Criminal Act
Congress enacted the first version of the ACCA in 1984, codifying the
statute at 18 U.S.C. App. § 1202(a). 20 According to the House Report accompanying the ACCA, the purpose of the Act is to assist law enforcement in reducing the number of armed, career criminals.21 The House Report cited several recidivism studies demonstrating that a limited number of habitual criminals
commit a high percentage of all homicides, rapes, robberies, burglaries, and
other violent serious offenses.22 The ACCA’s mandatory minimum fifteen-year
sentence is directed at separating these dangerous repeat offenders from civilized society for a significant period of time, thus protecting society from their
harms. 23
In 1986, Congress enacted the Firearms Owners’ Protection Act, which
amended the ACCA and recodified the statute at 18 U.S.C. § 924(e). 24 This
amendment only slightly adjusted the statute’s definition of burglary, but five
months later, Congress made more significant changes to the ACCA when it
enacted the Career Criminals Amendment Act of 1986 (“CCAA”). 25 This
amendment changed the ACCA in three ways; most notably, it changed the
definition of predicate offense to “a violent felony or a serious drug offense,”
18
King, 853 F.3d at 268–69; Brief of Plaintiff-Appellee at 6, King, 853 F.3d 267 (No. 15-4192);
Brief of Appellant, Errol King at 5, King, 853 F.3d 267 (No. 15-4192).
19
King, 853 F.3d at 268–69; Brief of Plaintiff-Appellee, supra note 18, at 6.
20
Armed Career Criminal Act of 1984 § 1202(a).
21
Taylor, 495 U.S. at 581; H.R. REP. NO. 98–1073, at 1 (stating “[t]his bill is designed to increase
the participation of the federal law enforcement system in efforts to curb armed, habitual (career)
criminals”); Hooper, supra note 15, at 1952; Lamprecht, supra note 15, at 1411; Levine, supra note 2,
at 545–46; Marano, supra note 15, at 175; Poli, supra note 15, at 203; Runyon, supra note 2, at 450.
22
Taylor, 495 U.S. at 581; H.R. REP. NO. 98–1073, at 1–2.
23
Hooper, supra note 15, at 1953; Levine, supra note 2, at 545; Poli, supra note 15, at 203; see
H.R. REP. NO. 98–1073, at 2 (stating that “both Congress and local prosecutors around the nation have
recognized the importance of incapacitating these repeat offenders,” referring to career criminals).
Congress’s intent to separate armed career criminals from society is consistent with the incapacitation
theory of punishment. See Dawinder Sidhu, Moneyball Sentencing, 56 B.C. L. REV. 671, 678–79
(2015) (stating that the theory of incapacitation is “premised on . . . separat[ing] the offender from
others”). There are four primary theories of punishment—retribution, deterrence, incapacitation, and
rehabilitation. Id. at 677–78. Under the theory of incapacitation, offenders are separated from society,
thus preventing future harm and protecting society. Id. at 678.
24
Firearms Owners’ Protection Act § 104.
25
Anti-Drug Abuse Act of 1986 § 1402; Firearms Owners’ Protection Act § 104; Taylor, 495
U.S. at 582. The Career Criminals Amendment Act of 1986 (“CCAA”) is § 1402 of Section I of the
Anti-Drug Abuse Act of 1986. Anti-Drug Abuse Act of 1986 § 1402.
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Different-Occasions Inquiry Evidentiary Restrictions Cause Absurd Result
353
thus capturing many more offenses than the original definition, which included
only “robbery and burglary.” 26 According to the legislative history, Congress
believed that the origi…
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