Sentencing — armed career criminals — burden of proof

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United States Court of Appeals For the Seventh Circuit

Criminal

Sentencing — armed career criminals — burden of proof

The government bears the burden of proof in showing that prior violent felonies were separate predicate offenses.

“In holding that the government bears the burden of proving by the preponderance of the evidence that a defendant’s prior convictions were ‘committed on occasions different from one another’ under § 924(e)(1), we affirm that ‘[a] defendant who has the opportunity to cease and desist or withdraw from his criminal activity at any time, but who chooses to commit additional crimes, deserves harsher punishment than the criminal who commits multiple crimes simultaneously.’ Hudspeth, 42 F.3d at 1021. Nevertheless, we believe that an ambiguous record regarding whether a defendant actually had the opportunity ‘to cease and desist or withdraw from his criminal activity’ does not suffice to support the ACCA enhancement.”

Reversed and Remanded.

11-2507 Kirkland v. U.S.

Appeal from the United States District Court for the Northern District of Indiana, DeGuilio, J., Castillo, J.