Triggerman: Maintaining the Distinction Between Deliberate Violence and Conspiracy Under the Armed Career Criminal Act

St. John's Law Review Volume 89, Winter 2015, Number 4 Article 5 Triggerman: Maintaining the Distinction Between Deliberate Violence and Conspiracy Under the Armed Career Criminal Act Elizabeth A. Tippett Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview Recommended Citation Elizabeth A. Tippett (2015) "Triggerman: Maintaining the Distinction Between Deliberate Violence and Conspiracy Under the Armed Career Criminal Act," St. John's Law Review: Vol. 89 : No. 4 , Article 5. Available at: https://scholarship.law.stjohns.edu/lawreview/vol89/iss4/5 This Note is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact . FINAL_TIPPETT 6/28/2016 2:54 PM NOTES TRIGGERMAN: MAINTAINING THE DISTINCTION BETWEEN DELIBERATE VIOLENCE AND CONSPIRACY UNDER THE ARMED CAREER CRIMINAL ACT ELIZABETH A. TIPPETT† INTRODUCTION ............................................................................ 1256 I.  HISTORY AND BACKGROUND ............................................. 1259 A. Circumstances Surrounding the Adoption of the ACCA .......................................................................... 1259 B. The Applicable Law in Determining Whether Conspiracy is a Violent Felony .................................. 1260 1. The Structure of the Relevant Section of the ACCA ..................................................................... 1260 2. Elements of a Conspiracy Offense........................ 1261 C. Determining Whether a Felon Should Be Sentenced Under the ACCA ...................................... 1262 II.  THE DIVISION AMONG THE CIRCUIT COURTS ................... 1263 A. Circuits That Have Held Conspiracy To Commit a Violent Felony To Be a Violent Felony Under the ACCA .......................................................................... 1263 B. Circuits That Have Held Conspiracy To Commit a Violent Felony To Not Be a Violent Felony Under the ACCA .................................................................... 1265 III.  CONSPIRACY CRIMES ARE NOT VIOLENT FELONIES ......... 1267 A. The Purpose of the ACCA Definition of Violent Felony ......................................................................... 1268 B. Application of the Categorical Test and Statutory Interpretation to the ACCA ....................................... 1271 † Editor-in-Chief, St. John’s Law Review; J.D., cum laude, 2016, St. John’s University School of Law. The author would like to thank her family for their support, the Editors and Staff Members of the St. John’s Law Review, and Dean Michael Simons for his valuable guidance in writing this Note. 1255 FINAL_TIPPETT 1256 6/28/2016 2:54 PM ST. JOHN’S LAW REVIEW [Vol. 89:1255 1. Proper Application of the Categorical Test Does Not Include Analysis of the Underlying Crime ... 1271 2. Properly Applying the Categorical Test To Show That Conspiracies To Commit Violent Felonies Are Not Violent Felonies ...................................... 1273 3. Statutory Interpretation of the ACCA Definition of Violent Felony ................................................... 1275 C. Applying the ACCA in Accordance with Realities of Social Needs................................................................ 1276 CONCLUSION................................................................................ 1282 INTRODUCTION On December 8, 2007, Thomas Gore was illegally hunting deer with his son in the woods of eastern Texas, where he was discovered by the police with a loaded Remington rifle.1 Gore was cited for baiting deer and indicted for being a felon in possession of a firearm.2 He had four prior felony convictions: three for drug offenses in 1997 and one for conspiracy to commit aggravated robbery in 1982.3 During the 1982 conspiracy, Gore did not have a firearm and did not participate in the commission of the substantive offense.4 The United States District Court for the Eastern District of Texas found that Gore’s prior convictions qualified for imposition of the fifteen-year mandatory minimum sentence under the Armed Career Criminal Act5 (“ACCA”), a sentence reserved for those convicted of felonious possession of firearms or ammunition who previously were convicted of at least three violent felonies or serious drug offenses.6 Normally, Gore would not have qualified 1 Brief of Appellant Thomas Gore at 2, United States v. Gore, 636 F.3d 728 (5th Cir. 2011) (No. 09-41064), 2010 WL 5778111; Brief for the United States at 3, Gore, 636 F.3d 728 (No. 09-41064), 2010 WL 5778113. 2 Brief for the United States, supra note 1. Gore was also cited for not having a valid driver’s license. Id. 3 Id. at 3–4. Gore received probation for the conspiracy conviction. Brief of Appellant Thomas Gore, supra note 1. Two of Gore’s drug offenses occurred on the same occasion and were considered one offense for ACCA sentencing purposes. Brief for the United States, supra note 1, at 5. 4 Brief of Appellant Thomas Gore, supra note 1. 5 18 U.S.C. § 924(e)(1) (2012); Brief for the United States, supra note 1, at 4. 6 § 924(e)(1). Combining prior serious drug offenses and violent felonies to reach three offenses for sentencing is permitted, but this Note focuses on violent felonies. See id. FINAL_TIPPETT 2015] 6/28/2016 2:54 PM ARMED CAREER CRIMINAL ACT 1257 for the enhanced sentence and would have been sentenced to approximately three years in prison,7 but because the court labeled Gore’s conspiracy conviction as an ACCA violent felony, Gore received a fifteen-year prison sentence.8 The United States Court of Appeals for the Fifth Circuit affirmed Gore’s sentence.9 Gore was not a violent career criminal in any colloquial sense of the term.10 Only one of Gore’s prior convictions was for what the district court considered to be a violent felony, the 1982 conspiracy conviction,11 and Gore was not even armed in connection with the commission of this conspiracy.12 Gore’s situation reveals the devastatingly unjust effect the ACCA mandatory minimum can have on an individual who is not in fact a violent criminal. This Act was drafted to incapacitate recidivists who had proven themselves to be capable of deliberate violence,13 yet here it was used to imprison a reformed father for a mandatory fifteen years.14 Recently, in Johnson v. United States,15 the United States Supreme Court confronted the ACCA definition of violent felony and found one provision, known as the residual clause, to be unconstitutionally vague in violation of the Fifth Amendment Due Process Clause.16 The Court noted that this vague provision created a split of authority among the United States Circuit Courts of Appeals about conspiracy under the residual clause and 7 Brief of Appellant Thomas Gore, supra note 1; Brief for t (...truncated)