Skip to main content

Under the Modified Categorical Approach, Sentencing Courts May Only Consider the Charging Documents and the Jury Instructions When Determining if a State Offense is a Predicate Offense Under ACCA.

    After pleading guilty to violating 18 U.S.C. § 922(g)(1), Dantey Tucker was sentenced to fifteen years imprisonment based on the sentencing enhancement set forth in the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e).  His classification as an armed career offender was based on one prior state conviction for a violent felony, a conviction for possession of a controlled substance with intent to deliver in violation of 35 PA. STAT. ANN. § 780-113(a)(30), and a conviction for conspiracy to sell drugs in violation of 18 PA. CONST. ANN. §903.  Only the district court’s classification of the prior drug offenses as serious drug offenses was in dispute at sentencing and on appeal.  Specifically, Tucker argued that the district court erred in finding that his two state drug convictions were serious drug offenses within the meaning of the ACCA.  Applying the  “modified categorical approach,” in United States v. Tucker, No 12-1482 (3d Cir., December 21, 2012), the Third Circuit held that the conspiracy charge was not a serious drug offense, but the possession conviction was a serious drug offense because it was based on a finding that the offense involved cocaine. 

    At sentencing, Tucker had argued neither of his prior drug convictions required a factual finding as to what type of drug was involved and therefore did not trigger the ACCA enhancement.  Since the language of the applicable state statutes was broad and not equivalent to a federal predicate offense, Supreme Court precedent -Taylor v. United States, 495 U.S. 575 (1990) and Shepard v. United States, 544 U.S. 13 (2005)- required the sentencing court to apply the modified categorical approach.  This approach allows for a limited inquiry into the elements of an offense that a jury is required to find in order to convict a defendant. In conducting such a review, courts are limited to looking at the charging documents and the jury instructions.    

    The charging document for Tucker’s conviction for possession with intent to distribute (§ 780-113(a)(30)) explicitly listed cocaine as the controlled substance.  The conviction specifically required a finding that he possessed cocaine.  Therefore this prior qualified as a serious drug offense.  Also, since the district court’s finding was consistent with Supreme Court precedent and the modified categorical approach, the Third Circuit rejected Tucker’s argument that the district court’s determination that this was serious drug offense conflicted with the holding in Apprendi v. New Jersey, 530 U.S. 466 (2000), and the Sixth Amendment. 
    However, it was unclear if Tucker’s conviction for conspiracy to sell drugs (§903) was for conspiracy to sell cocaine (which would trigger the ACCA) or conspiracy to sell marijuana (which would not trigger the enhancement).  Applying the modified categorical approach, the Third Circuit reversed the sentencing court’s finding that this prior conviction qualified as a serious drug offense, because neither the Bill of Information nor the jury instructions required the jury to find that the offense involved a conspiracy to sell cocaine in order to convict Tucker.  In fact, the type of drug was never specified in the charging document or jury instructions which simply referred to a “conspiracy to sell drugs.”  The appellate court further found that the district court erred in considering transcripts from the charging conference and sentence hearing, which fell outside what the court was allowed to consider under Taylor.  Also, although the circuit court agreed with the government that the jury most likely convicted Tucker for conspiracy to sell cocaine rather than marijuana, the modified categorical approach does not allow for an enhancement based on speculation.  As such, this prior was not a predicate offense for ACCA enhancement and the case was remanded for sentencing. 


Popular posts from this blog

Double Jeopardy Claim Falls Short on Deferential Habeas Review

In the habeas matter of Wilkerson v. Superintendent Fayette SCI, Nos. 15-1598 & 15-2673, the Third Circuit defers to a state court determination that the defendant’s conviction of both an attempted murder count and an aggravated assault count based on the same altercation did not violate the Double Jeopardy Clause.
The evidence was that during the altercation, the defendant both struck the victim in the head with a gun and shot him in the chest. The Pennsylvania Superior Court upheld consecutive sentences on the theory that the evidence was sufficient to permit a jury to find the striking to support one count and the shooting the other. Despite the jury instructions’ and verdict form’s failure to require each of these discrete findings, the Third Circuit holds that the state court’s reasoning was sound enough to withstand deferential review the AEDPA’s “clearly established Federal law” limitation. “[W]here the jury instructions were merely ambiguous and did not foreclose the jury…

Jurisdiction for revocation of supervised release where revocation also imposed in other District on concurrent case and local Probation Office was not supervising releasee

In United States v. Johnson, 2017 WL 2819210 (June 30, 2017),, the Third Circuit rejected two jurisdictional challenges to a revocation proceeding in one District where the defendant was also concurrently supervised and revoked in another District. For separate federal offenses in the Middle District of Florida and Virgin Islands, Johnson was serving two concurrent terms of supervised release. He was living in and supervised by the Middle District of Florida and had no contact with the Probation Office in the Virgin Islands. He committed a new offense in Florida and the Middle District revoked his supervised release. Johnson challenged revocation proceedings in the Virgin Islands. The Third Circuit found that the Virgin Islands maintained jurisdiction. It joined the Second and Fifth Circuits in finding that concurrent terms of supervised release do not merge: the term of supervised release in the Virgin Islands was not constructively d…

Mailing Threatening Communications is a Crime of Violence and a Judicial Proposal for Reform of the Categorical Approach

In United States v. Chapman, __F.3d__, No. 16-1810, 2017 WL 3319287 (3d Cir. Aug. 4, 2017), the Third Circuit held that mailing a letter containing any threat to injure the recipient or another person in violation of 18 U.S.C. § 876(c) qualifies as a crime of violence for the purposes of the career offender enhancements of the Sentencing Guidelines Manual § 4B1.1(a).The Court acknowledged in a footnote that the analysis is the same for a violation of 18 U.S.C. § 871, threats against the president.

The Court began its analysis by reviewing the definition of “crime of violence” and specifically the meaning of the words “use” and “physical force.”Quoting United States v. Castleman, 134 S. Ct. 1405 (2014), and Tran v. Gonzales, 414 F.3d 464 (3d Cir. 2005), it defined “use” as “the intentional employment of force, generally to obtain some end,” which conveys the notion that the thing used “has become the user’s instrument.” The Court confirmed the definition of “physical force” as “force ca…