Author: Chris Gant, Associate Member, University of Cincinnati Law Review
“Minority Report” is a futuristic science fiction film in which crime is thwarted before it takes place.[1] In the film, a specialized police department, “Precrime,” apprehends would-be murderers before the murder is committed. Clairvoyant “Precogs” indicate that someone will commit a murder and Precrime apprehends the would-be murderers. This sci-fi notion of preventing crime has found reality in modern law. Preventing crime is part of the rationale behind the Armed Career Criminal Act (ACCA). The ACCA imposes longer prison sentences on criminals with criminal histories in order to prevent future harm.[2] In Johnson v. United States, a case to be argued in front of the Supreme Court on April 20, 2015, the Court must determine what constitutes a “violent felony” under the ACCA, and in the process will clarify a circuit split on this issue. Furthermore, the Court’s decision will significantly impact individuals in situations similar to that of defendant Johnson across the country, whose prison sentences depend on the scope of what is considered a “violent felony.” The Eighth Circuit has decided that possession of a short-barreled shotgun is a violent felony, but the Supreme Court should reverse this decision and hold that mere possession of a short-barreled shotgun is not a violent felony.
The ACCA
The ACCA imposes a minimum fifteen-year sentence on felons with three or more prior convictions for “violent” felonies.[3] Violent felonies are defined in 18 U.S.C. § 924(e)(2)(b)(i) and (ii)—subsections of the ACCA—as crimes in which the criminal used, attempted to use, or threatened the use of physical force against the person of another.[4] Violent felonies include burglary, arson, extortion, crimes that involve the use of explosives, or crimes that otherwise involve conduct that presents a serious potential risk of physical injury to another.”[5]
Supreme Court Precedent
In United States v. Begay, Larry Begay pled guilty to unlawful possession of a firearm in violation of 18 U.S.C § 922(g)(1). Begay had twelve prior convictions for driving under the influence (DUI). A DUI is a felony punishable by a prison term of one year or more on the fourth occurrence.[6] The judge stated that “three felony DUI convictions involve conduct that presents a serious potential risk of physical injury to another.” Therefore, Begay had three or more “violent” felonies and received the minimum sentence of fifteen years in prison for this fourth DUI.[7]
On appeal, the Supreme Court, using a “categorical” approach, examined the offense on the letter of the law and not in terms of how an individual offender might have committed it on a particular occasion.[8] The Court found that a DUI is not analogous to the violent crimes defined in the ACCA, such as burglary, arson, and crimes involving explosives.[9] The Court stated that ACAA crimes involve purposeful, “violent,” and “aggressive” conduct.[10] In contrast, a DUI is a strict liability offense and outside of the intended scope of violent felony clause of the ACCA.[11]
Johnson v. United States
In 2012, Samuel Johnson was arrested and charged with possession of a firearm with an enhancement for being an armed career criminal in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Johnson had three prior felony convictions.[12] The district court found his past convictions to be “violent felonies,” and he was sentenced to the minimum 180 months in prison.[13] The district court acknowledged that the penalty would have been half or two-thirds of this sentence in the absence of the prior felonies. Johnson argued, among other things, that the court erred in classifying his possession of a short-barreled shotgun—one of his previous crimes—as a violent felony.[14]
Rather than applying the categorical approach from Begay, the Eighth Circuit followed the analysis of its own precedent in United States v. Lillard.[15] In Lillard, the court stated that a short shotgun poses potential risks of physical injury to another, and therefore, “possession of a short shotgun is a violent felony.”[16] The court concluded that possession of a short shotgun is “substantially similar” to the listed ACCA offenses.[17] However, the Eighth Circuit’s finding is contrary to at least three other circuit courts’ rulings.[18] Further, the Eighth Circuit disregarded the Supreme Court’s “categorical approach” analysis in Begay, and so its decision should be overturned when the Supreme Court hears Johnson’s appeal.
How the Supreme Court Should Rule
Following the Supreme Court’s analysis in Begay, possession of a short-barreled shotgun is not “substantially similar” to the ACCA’s listed crimes. The listed crimes—e.g., burglary, arson, assault—involve purposeful “violent” and “aggressive” conduct, yet the Eighth Circuit ignored the fact that mere possession is neither violent nor aggressive. The ACCA crimes involve active conduct, such as “use” of physical force or “threatening” the use of physical force. Johnson’s possession of the short-barreled shotgun involved no active or aggressive conduct. Possession is in no way similar to the ACCA’s “use” language and therefore is closer to the DUI offense in Begay. Thus, it is incorrect to label mere possession of a short-barreled shotgun a “violent” felony. Under the Supreme Court’s categorical approach from Begay, looking at the possession offense generically, it is clear that illegal possession of a firearm is outside of the ACCA’s intended scope.
The Eighth Circuit’s decision discounts the fact that there is a lawful purpose to possessing a short-barreled shotgun. Gun Owners of America and others submitted an amicus curiae brief in Johnson arguing that Congress has acknowledged lawful possession of a short-barreled shotgun is possible, if it is registered under the National Firearms Act.[19] Further, the short-barreled shotgun is a popular self-defense weapon in America.[20] This demonstrates that the Eighth Circuit erroneously assumed that possession of short-barreled shotguns inherently has an illegal and violent purpose.
Prison Sentences Should Not Be Based on Potential Conduct
Much like the “Precrime” department in Minority Report, the government seeks to prevent injury by keeping violent felons off the streets by imposing longer sentences. However, the Eighth Circuit’s misapplication of the ACCA has resulted in an injustice Johnson’s case. First, the possession crime in question is linguistically distinct from the other charges in the statute found to be violent because it does not mirror the “active” or “use” language of those charges. Further, ownership of a short-barreled shotgun can have a lawful purpose and be legal, and so its mere possession should not be considered a violent felony. Improperly including possession as a violent felony would put past felons in prison twice as long as would otherwise be warranted. Because the government currently lacks the assistance of Precogs, the Supreme Court should prevent the State from attempting to predict the future with a misapplication of the ACCA and hold that possession of a short-barreled shotgun is not a violent felony.
[1] Minority Report (Cruise/Wagner Productions; Blue Tulip Productions; Amblin Entertainment 2002).
[2] Brady Center to Prevent Gun Violence Amicus Curiae Brief 5, Johnson v. United States, 134 S.Ct. 1871 (2014).
[3] 18 U.S.C. § 924(e)(1).
[4] 18 U.S.C. § 924(e)(2)(b)(i) to (ii).
[5] Id.
[6] Begay v. United States, 553 U.S. 137, 140 (2008) citing N.M. Stat. Ann. §§ 66-8-102(G) to (J) (Supp. 2007).
[7] Id. (citing United States v. Begay, 377 F.Supp. 2d 1141 (D.N.M.2005)).
[8] Id. at 141.
[9] Id. at 144.
[10] Id. at 145.
[11] Id. at 146.
[12] United States v. Johnson, 526 F.App’x 708, 709 (8th Cir. 2013). Johnson’s charges included attempted simple robbery, simple robbery, and possession of a short-barreled shotgun.
[13] Pet. Br. at 5, Johnson v. United States, 134 S.Ct. 1871 (2014).
[14] Johnson, 526 F.App’x at 710.
[15] United States v. Lillard, 685 F.3d 773 (8th Cir. 2012).
[16] Id. at 777.
[17] Johnson, 526 F.App’x at 711,
[18] The Sixth, Seventh, and Eleventh circuits have all ruled that possession of a short-barreled shotgun is not a violent felony. See United States v. Amos, 501 F.3d 525 (6th Cir. 2007); United States v. Miller, 721 F.3d 435 (7th Cir. 2013); United States v. McGill, 618 F.3d 1273 (11th Cir. 2010).
[19] Brief for Gun Owners of America, et al. as Amicus Curiae at 3, Johnson v. United States, 134 S.Ct. 1871 (2014).
[20] Id.
