Thursday, November 07, 2013

After Descamps v. United States, Circuit Holds, Modified Categorical Approach Unaltered and Almendarez-Torres Undead

In United States v.Conrad Clinton Blair, No. 12-4427, the Court rejects an expansive reading of the Supreme Court’s recent decision in Descamps v. United States, 133 S. Ct. 2276 (2013). Instead, the Circuit holds, a district court considering whether predicate offenses were committed on different occasions may rely on information in the charging and plea documents regardless of whether that information was integral to an element necessarily found in support of the prior convictions.

Conrad Blair pled guilty in 1991 to four counts of first-degree felony robbery in violation of Pennsylvania law. His conviction on each count was entered on the same day. In his subsequent federal prosecution, the issue was whether this record triggered a mandatory minimum 15-year sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e). That sentence is required when the defendant has “three previous convictions … for a … violent felony … committed on occasions different from one another.”

Blair first contended that the plea documents from his 1991 case left open the possibility that none of the counts could be deemed an ACCA predicate because he could have been convicted under 18 Pa. Cons. Stat. Ann. § 3701(a)(1)(iii), which provides that a person is guilty of robbery if, in the course of committing a theft, he “commits or threatens to commit any felony of the first or second degree…” Since not all felonies of the first or second degree involve violence, this variety of Pennsylvania robbery would not be a “violent felony” within the meaning of ACCA. The Court rejected this argument based on a line at the bottom of each charging document labeled “felony committed or threatened,” on which appeared in Blair’s case the words “aggravated assault.” Reading “each charging document and guilty plea as a whole,” the Court concluded that these materials made it “clear” that Blair admitted to a robbery whose elements constituted a violent felony.

The Court also rejected Blair’s argument that the charging and plea documents could not be relied upon to conclude that each of the 1991 robbery counts was for an offense committed on a different occasion. Although the charging documents stated that the alleged robberies had been committed on three different dates, Blair submitted that this specification could not be consulted for purposes of the ACCA enhancement because the dates were not integral to any particular element of the offense. Accordingly, it could not be said that the commission of any robbery on the specified date was necessarily found by the court in adjudging Blair guilty as charged. See Descamps, 133 S. Ct. at 2288 (“[T]he only facts the court can be sure [were admitted or found by the jury] are those constituting elements of the offense — as distinct from amplifying but legally extraneous circumstances.”). That being so, Blair argued, the dates were not properly consulted in application of the “modified categorical approach” expounded in Descamps.

The Third Circuit rejected this argument under Almendarez-Torres v. United States, 523 U.S. 224 (1998), which held that “the fact of a prior conviction” is exempt from the usual rule that any fact essential to greater punishment must be charged in the indictment and found by the jury on proof beyond a reasonable doubt. Almendarez-Torres, the Court instructed, “has not been narrowed and remains the law.…  Descamps and [Alleyne v. United States, 133 S. Ct. 2151 (2013)] do nothing to restrict the established exception under Almendarez-Torres that allows judges to consider prior convictions.”  Stating that “the date of an offense is integral to the fact of a prior conviction,” the Court held that the question of whether predicates were committed on “different occasions” is subject to determination by a judge based on factual matter in the charging documents.  In Blair’s case, the listing of different dates, victims, and locations for the separate robbery counts was sufficient to support the conclusion that the predicates were committed on different occasions.

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