7.01.2008

8th Cir. Concurrence Notes Split Re "Multi-Factor" Approach to Determination of Prior Conviction's "Similarity" to Offense in Criminal History Statute

Per U.S. v. Leon-Alvarez, 527 F.3d 732 (8th Cir. Jun 10, 2008) (NO. 07-2146):

BRIGHT, Circuit Judge, concurring.


In adhering to the "elements" or "essential characteristics" approach to determine whether a prior conviction has the requisite similarity to an offense in
§ 4A1.2(c)
, we specifically rejected the multi-factor approach employed by the Second and Fifth Circuits:


We thus decline Borer's suggestion that we adopt a multi-factor approach championed by the Fifth Circuit and others, which also considers the underlying facts of the defendant's offense, as well as such matters as a "comparison of punishments imposed for the listed and unlisted offenses, the perceived seriousness of the offense as indicated by the level of punishment, ... the level of culpability involved, and the degree to which the commission of the offense indicates a likelihood of recurring criminal conduct." United States v. Hardeman, 933 F.2d 278, 281 (5th Cir.1991); see also United States v. Martinez-Santos, 184 F.3d 196, 205-06 (2d Cir.1999); United States v. Booker, 71 F.3d 685, 689 (7th Cir.1995). We share the concern of the Fourth Circuit that some of the factors used in these multi-factor tests are vague, subjective, or lacking in unifying principle, such that they "leave the law indeterminate." See Harris, 128 F.3d at 854-55.


Having compared the Second and Fifth Circuit's multi-factor approach with our own, I consider the multi-factor approach to be the fairer method of determining whether a prior conviction is similar to an offense listed in § 4A1.2(c). Criminal history calculations can greatly affect a defendant's sentence, as this case aptly illustrates. Eventually, the circuits' split should be resolved.

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