Sentences under ACCA can be challenged collaterally

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Prisoners can collaterally challenge whether they were properly sentenced under the Armed Career Criminal Act (ACCA).

On May 4, the Seventh Circuit held that the U.S. Supreme Court’s opinion in Begay v. U.S., 553 U.S. 137 (2008), is retroactive. In Begay, the court held that only crimes similar to those enumerated in the ACCA can be considered violent felonies triggering the 180 month mandatory minimum sentence for being a felon in possession of a firearm.

But the ruling is a hollow one for the prisoner involved in the case, Devin Welch — the court held that he still qualifies under the ACCA.

Welch pleaded guilty to a felony in possession of a firearm in 2005 in Illinois federal court. The district court found that he had three prior violent felonies for purposes of the ACCA: two aggravated batteries; aggravated fleeing an officer; and a juvenile adjudication for attempted armed robbery.

He was given the mandatory minimum and lost on direct appeal, raising other issues.

Welch later filed a pro se motion under 28 U.S.C. 2255, arguing that neither the fleeing nor the juvenile adjudication qualify as violent felonies. The motion was denied, and while that appeal was pending, the Supreme Court decided Begay.

The court first held that Begay is retroactive and that Welch would be entitled to resentencing if he is not subject to the ACCA.

As a general rule, new procedural rules are not retroactive, while new substantive rules are.

In the usual case, new substantive rules narrow the elements of a criminal offense, so that conduct previously within the scope of a criminal statute no longer is. The court acknowledged that was not the case with the rule in Begay, which merely affects the length of the sentence.

However, the court found that distinction to be merely one of degree, and that the rule in Begay is substantive nonetheless, and thus, retroactive.

Judge Kenneth F. Ripple explained, “Without the ACCA enhancement, Mr. Welch faced a statutory maximum of 10 years’ imprisonment. With the ACCA enhancement, Mr. Welch faced a statutory minimum of 15 years’ imprisonment. … Such an increase in punishment is certainly a substantive liability.”

However, the court then held that Welch’s conviction for fleeing an officer in a motor vehicle was correctly classified a violent felony.

The court has previously held that, under both Wisconsin and Indiana law, fleeing an officer in a vehicle is a violent felony. The court found that it was under Illinois law as well, even though the statute does not contain any element regarding intent.

The court found that specific intent was implicit in the statute because “fleeing” implies a willful attempt to elude and officer.

Because fleeing an officer in a motor vehicle also endangers others, the court held it was “violent and aggressive” conduct, which still fits within the definition of a “violent felony,” notwithstanding Begay.

The court also held that Welch’s juvenile adjudication for attempted armed robbery is a violent felony, even though in Illinois delinquency proceedings, judges make the findings of fact, rather than juries.

The court found that the rest of the procedural protections that apply in juvenile court — notice, counsel, confrontation, and proof beyond a reasonable doubt — render the adjudications sufficiently liable to be used to enhance a sentence under the ACCA.

Judge Richard Posner dissented in part, concluding that neither the fleeing conviction, nor the juvenile adjudication, can be counted as violent felonies.

Addressing the juvenile adjudication, Posner recited a litany of criticisms of juvenile courts as reasons not to consider them as reliable as criminal convictions: “that lawyers in juvenile courts are overloaded with cases, that they often fail to meet with their clients before entering a guilty plea and often rely on parents and on the child defendant himself to contact witnesses, and that they rarely file pretrial motions.”

Posner added, “Lawyers also appear to be reluctant to appeal juvenile cases and to seek postconviction relief; heavy caseloads, a prevalent view that appeals undermine the rehabilitation process, and an absence of awareness among juveniles of their appeal rights are the likely reasons for this reluctance.”

Posner further also found that the fleeing conviction does not qualify as a violent felony because, “the required mental state is only intent to be free of custody, not intent to injure or threaten anyone.”

David Ziemer can be reached at [email protected].