Sunday, February 07, 2010

Case o' The Week: A Sentencing Septimana Infaustus: Terrell-ible Decision on ACCA Residual Clause

Is a prior burglary of a vending machine a "crime of violence" that triggers the draconian mandatory-minimum and guidelines of the Armed Career Criminal Act? It can be in the Ninth, thanks to a very disappointing decision in United States v. Terrell, 2010 WL 347914 (9th Cir. Feb. 2, 2010), decision available here.

Players: Decision by Judge Bybee, joined by Judges Tashima and Graber.

Facts: Terrell was convicted of being a felon in possession of a gun. Id. at *1. The indictment alleged he had previously been convicted of three felonies:

i. an Arizona Second Degree burglary,

ii. an Arizona sexual assault, and

iii. a second-degree burglary in Missouri.

(Ed. note: Curious that the priors were alleged in the indictment).

The district court found Terrell to fall within the Armed Career Criminal Act (ACCA), which raised his stat-max from ten to fifteen years. Id. He was sentenced to 188 months. Id. at *2.

Issue(s): “Terrell argues that the district court erred in imposing an enhanced sentence under the ACCA, contending that his prior felony convictions do not qualify as ‘violent felonies.’” Id.

Held: 1. Sexual Assault: “[W]e hold that Terrell’s prior sexual assault conviction qualifies as a ‘violent felony’ under the ACCA’s residual clause because it involves conduct that presents a serious potential risk of physical injury to another . . . and is roughly similar to the enumerated offenses in that it typically involves purposeful, violent, and aggressive conduct.” Id. at *6 (internal quotations and citations omitted).

2. Burglary: “We hold that, although Terrell’s prior burglary offenses do not fit within the enumerated offenses, they do fit within the residual clause.” Id. at *7.

3. ACCA? “Because the district court correctly held that Terrell had been convicted of at least three ‘violent felonies’ at the time he committed his felon in possession offense, we affirm the district court’s decision to enhance Terrell’s sentence under the ACCA.” Id. at *10.

Of Note: Terrell has sparked much debate among defense experts as to what exactly is wrong with the opinion. Among other problems with the case is Judge Bybee’s expansive reading of the Supreme Court’s Begay opinion and the ACCA residual clause, particularly as it applies to state burglary crimes. Id. at *10. He interprets Begay to mean that “a state burglary offense is almost always at least ‘roughly similar’ to generic burglary, even if the state offense is somewhat broader.” Id. (emphasis added).

To get there Judge Bybee concludes that because there’s a risk of violent confrontation during an Arizona Second Degree burglary, it is “similar to” an “enumerated” burglary in the ACCA statute. That’s all well and good, except that this Arizona statute also defines “burglary” as breaking into a vending machine. Id. at *6. Is “burglaring” Doritos really the type of “violent criminal” that Congress had in mind when passing the ACCA?

Terrell casts the categorical net so broadly that it rends Taylor irrelevant – any state statue named the same as an enumerated ACCA crime will be deemed “close enough.” Terrell’s take on Begay will sweep many undeserving defendants into the ACCA’s fifteen-year mandatory minimums (and even higher guidelines): the case deserves en banc review.

How to Use: Undaunted, CJA appellate attorney Dan Drake has just begun to fight and has been hitting up the defense bar for ideas for his en banc petition. Preserve challenges to ACCA enhancements despite Terrell. There is much afoot in the Ninth on these issues (see below), and Terrell will hopefully not be the last word on the issue.

For Further Reading: Busy and bad describes this week in the Ninth. In the notorious Ressam case, Judge Alarcon weighed-in on a terrorism sentence and inadvertently created a bevy of defense opportunities for sentencing appeals. See 2010 WL 347962 (9th Cir. Feb. 2, 2010). As dissenting Judge Fernandez quipped, the broader impact of the case will make the day it was delivered a, “dies infaustus.” Id. at *37 (an “unlucky day.”)

And in another blow, on February 3rd the Ninth granted the government’s petition for rehearing en banc in Aguila-Montes de Oca, that wonderful Judge Thompson decision that excluded California burglaries as “crimes of violence” for the illegal reentry guidelines. See blog here.

Image of the vending machine from .

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at



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