3.14.2007

6th Circuit Weighs in on Circuit Split Re: Whether Carrying a Concealed Weapon Should Count as Violent Felony under ACCA; Sides with 8th Circuit

Per United States v. Flores, --- F.3d ----, 2007 WL 548921 (6th Cir. Feb. 23, 2007):

Oscar Flores was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The government appeals the district court's imposition of a sentence of 100 months of incarceration in connection with Flores's conviction. The government argues that the district court erred in concluding that Flores was ineligible to be sentenced pursuant to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), and in failing to apply enhancements under the Sentencing Guidelines because the jury did not make findings on those matters. For the reasons set forth below, we hold that the district court correctly ruled that Flores's prior conviction for carrying a concealed weapon was not a conviction for a “violent felony” under the ACCA.

The government challenges the district court's determination that Flores's December 9, 1987, conviction for carrying a concealed weapon was not a conviction for a “violent felony” under the ACCA, and that Flores was therefore ineligible for the fifteen-year minimum sentence that the ACCA requires. . . . Both parties have focused their arguments on § 924(e)(2)(B)(ii), debating whether carrying a concealed weapon “involves conduct that presents a serious potential risk of physical injury to another....”

As the district court noted, there is a circuit split on the issue whether a conviction for carrying a concealed weapon “involves conduct that presents a serious potential risk of physical injury to another” such that it should count as a violent felony under the ACCA. In United States v. Whitfield, 907 F.2d 798 (8th Cir.1990), the Eighth Circuit became the first federal appeals court to address this issue. The Whitfield court's discussion of this topic, however, was short and conclusory: ["]Whitfield also claims his conviction of carrying a concealed weapon under Mo.Rev.Stat. § 571.030(1) (1985) is not a violent felony. We agree. Although carrying an illegal weapon may involve a continuing risk to others, the harm is not so immediate as to “present[ ] a serious risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii); see also United States v. Johnson, 704 F.Supp. 1403, 1407 (E.D.Mich.1989) (carrying a concealed weapon is not a violent felony), aff'd per curiam, 900 F.2d 260 (6th Cir.1990).["] Whitfield, 907 F.2d at 800.

In United States v. Hall, 77 F.3d 398 (11th Cir.1996), the Eleventh Circuit reached the opposite conclusion. The Hall court distinguished the crime of carrying a concealed weapon from the crime of possession of a firearm by a felon, which it had previously held was not a violent felony under the ACCA. Id. at 401-02 ( citing United States v. Oliver, 20 F.3d 415, 418 (11th Cir.1994)). The court reasoned that the crime of carrying a concealed weapon entails a greater risk of immediate harm than the crime of being a felon in possession of a firearm; to violate Florida's concealed weapon statute, the weapon must be immediately accessible to the defendant, while a felon may violate the felon in possession statute by possessing a firearm constructively. Id. at 401-02 n. 4.

After careful review of these conflicting cases, and of the parties' briefs, we conclude that the Eighth Circuit's approach in Whitfield is the better-reasoned position, as it is consistent with the text of 18 U.S.C. § 924(e)(2)(B) and our prior interpretations of the ACCA. We, therefore, hold that the crime of carrying a concealed weapon does not involve such “conduct that presents a serious potential risk of physical injury to another” that a conviction under Mich. Comp. Aws § 750.227 should properly be considered a conviction for a violent felony under the ACCA.

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