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Media Alerts - United States v. Bair--Third Circuit
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November 6, 2013
  United States v. Bair--Third Circuit
Headline: Third Circuit defines ACCA language pertaining to violent felonies committed on occasions different from one another

Area of Law: Criminal Procedure

Issues Presented: Whether the criminal defendant's sentence enhancement under the Armed Career Criminal Act ("ACCA") was proper when one defines what is meant by prior convictions for "violent felon[ies] . . . committed on occasions different from one another. . ."

Brief Summary: In 2011, after participating in the sale of guns, Conrad Clinton Blair pled guilty to two counts of being a felon in possession of a firearm. In 1991, he had pled guilty to four counts of first degree robbery. It was therefore recommended that Blair be sentenced under ACCA, which mandates a minimum 15-year prison sentence for anyone possessing a firearm after three previous convictions for a violent felony committed on occasions different from one another. Blair contested ACCA's applicability. The District Court found that Blair's four 1991 robbery convictions established three separate violent felonies under ACCA. The District Court sentenced Blair under ACCA to 180 months in prison and three years of supervised release. The Third Circuit affirmed the District Court's sentence, finding that at least three of Blair's 1991 robbery convictions qualified under ACCA as violent felonies committed on separate occasions. The Third Circuit held that Pennsylvania's robbery statute is divisible and the District Court correctly looked to the charging documents to determine that Blair was convicted of a violent felony under ACCA. Finally, the Third Circuit concluded that the offenses at issue occurred on separate occasions, affirming the District Court's finding that the 1991 convictions qualified under ACCA as three predicate offenses. Blair's mandatory minimum sentence required by ACCA was thus affirmed.

Extended Summary: This case concerns a criminal defendant's appeal of his enhanced sentencing under ACCA. Conrad Clinton Blair was sentenced to the mandatory minimum of 180 months in prison after participating in the sale of guns as a felon. The ACCA mandates this sentence for anyone possessing a firearm after "three previous convictions . . . for a . . . violent felony . . . committed on occasions different from one another." 18 U.S.C. § 924(e). . In 1987, Blair had pled guilty to one count of third-degree robbery and one count of armed burglary. In 1991, he had again pled guilty to four counts of first degree robbery. The District Court found that Blair's 1987 convictions were for violent felonies and that the 1991 offenses established "at a minimum" three separate violent felonies under ACCA. On appeal, Blair challenged the applicability of ACCA. He first argued that his 1987 convictions for burglary and robbery did not qualify as ACCA predicate violent felonies. He also contested the District Court's ruling that the 1991 robbery convictions were "committed on occasions different from one another," 18 U.S.C. § 924(e)(1), because he pled guilty to those charges on the same day. Finally, Blair argued that his 1991 robbery convictions were not categorically violent felonies under ACCA.
The Third Circuit concluded that at least three of Blair's 1991 robbery convictions qualified under ACCA as violent felonies committed on separate occasions, thus the 1991 offenses alone would qualify him for ACCA sentencing enhancement. As a result, the Court did not have to consider Blair's 1987 robbery or burglary convictions.

A prior conviction qualifies as a "violent felony" under ACCA if the conviction is for "any crime punishable by imprisonment for a term exceeding one year . . ." that (i)"has as an element the use, attempted use, or threated use of physical force against the person of another," or (ii) "is burglary, arson, or extortion involves use of explosives, or otherwise conduct that presents a serious potential risk of physical injury to another . . . ." 18 U.S.C. § 924(e)(2)(B). Blair was convicted in 1991 under Pennsylvania's first degree felony robbery statute, which has three alternative subsections, making it "divisible." Therefore, the District Court used a modified categorical approach to determine which alternative - one that meets the generic offense definition or one that does not - formed the basis for the conviction. The modified categorical approach allows the sentencing court to consult charging documents to determine which part of the divisible statute was the basis for the conviction and compare it to the generic offense under ACCA. Blair argued that the District Court should have only used his guilty plea to get to the first-degree robbery subsections of the statute, and then the Court should have chosen the least culpable one with no more reference to the charging documents. The Third Circuit disagreed, finding no precedent for the argument that the sentencing court, having begun a modified categorical approach, should stop when it gets to a statutory subsection and decide again whether to proceed with that approach and whether it can consider documents it has already reviewed. The Third Circuit held that the Pennsylvania statute is divisible and the District Court properly looked into the charging documents to determine the convictions were for violent felonies under ACCA.

The Third Circuit rejected Blair's argument that there was insufficient proof that the 1991 convictions were for offenses committed on different occasions. According to the charging documents, the robberies occurred "on or about" October 20, 22, and 23. The District Court, therefore, had sufficient factual matter to conclude his convictions were for at least three robberies that occurred on separate occasions. Finally, the Third Circuit rejected Blair's contention that the enhanced sentence was improper under the Fifth and Sixth Amendments due to impermissible fact finding by the judge. The Third Circuit affirmed that the sentencing court may make a factual finding on both the existence of prior convictions and their characteristics for ACCA purposes.
To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/124427p.pdf (corrected from original post)

Panel (if known): Rendell, Jordan, Greenaway, Jr., Circuit Judges

Argument Date: September 11, 2013

Argument Location:

Date of Issued Opinion: November 4, 2013

Docket Number: No. 12-4427

Decided: Affirmed

Case Alert Author: Shannon Zabel

Counsel: Akin Adepoju, Esq., Renee Pietropaolo, Esq., for Appellant; Rebecca R. Haywood, Esq., Laura S. Irwin, Esq. for Appellee

Author of Opinion: Judge Jordan

Circuit: Third Circuit

Case Alert Supervisor: Professor Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 11/06/2013 09:34 AM     3rd Circuit  

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