7th Circuit reverses ACCA enhancement

Based on a sparse record of evidence that the District Court could consider in determining whether a man can be sentenced under the Armed Career Criminal Act, the 7th Circuit Court of Appeals found the government didn’t meet its burden to prove two of the man’s previous convictions from events on the same day were separate predicate offenses under the Act.

Jeffrey Kirkland was convicted of unlawful possession of a firearm by a felon and sentenced under the ACCA based on five previous “violent felony” convictions. Two of those included drunk-driving offenses, which later the U.S. Supreme Court determined are not violent felonies under the ACCA. The District Court denied Kirkland’s request for relief, and the 7th Circuit ordered the lower court to take another look at his remaining three convictions to see if he can still be sentenced under the Act.

The federal judge relied only on the charging documents, judgments and plea questionnaires from the burglary and robbery convictions, which both occurred on the same day in 1985. The information did not provide enough detail to determine whether the crimes were committed on “occasions different from one another” as required by the Act.

The judge believed the government met its burden to prove they did, and the burden then shifted to Kirkland to prove otherwise, based on United States v. Hudspeth, 42 F.3d 1015, 1018 (7th Cir. 1994)(en banc). Since Kirkland was not allowed to provide any other information to support his argument based on Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), the District Court found the ACCA applied.

The Circuit judges agreed that Shepard limits what documents a judge can consider in determining whether the prior offenses occurred on separate occasions. But in cases like Kirkland’s, where the evidence is not definitive as to whether the criminal events happened separately from each other, the burden is not on the defendant to prove the events are one occasion.

The burden-shifting scheme mentioned in a footnote in Hudspeth is “no longer tenable because it essentially requires an ACCA enhancement even if the available Shepard-approved documents – the only evidence a sentencing court may consider – is inconclusive as to whether the offenses occurred on separate occasions,” wrote Judge Ruben Castillo, of the Northern District of Illinois, who was sitting by designation.

The more appropriate burden allocation requires the government to establish by the preponderance of the evidence – using Shepard-approved sources – that the prior convictions used for the enhancement were “committed on occasions different from one another,” Castillo continued.

An ambiguous record regarding whether a defendant actually had the opportunity to stop or withdraw from his criminal activity doesn’t suffice to support the ACCA enhancement, the court ruled. The judges remanded for resentencing.