Armed Career Criminal Act (18 U.S.C. 924(e)):An OverviewCharles DoyleSenior Specialist in American Public LawJuly 29, 2015Congressional Research

Armed Career Criminal Act (18 U.S.C. 924(e)): An OverviewSummaryThe Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e), requires imposition of a minimum15-year term of imprisonment for recidivists convicted of unlawful possession of a firearm under18 U.S.C. 922(g), who have three prior state or federal convictions for violent felonies or seriousdrug offenses.Section 924(e) defines serious drug offenses as those punishable by imprisonment for 10 years ormore. It defines violent felonies as those (1) that have an element of threat, attempt, or use ofphysical force against another, (2) that involve burglary, arson, or extortion, or (3) that constitutecrime similar to burglary, arson, or extortion under the section’s “residual clause.” TheSentencing Commission recommended that Congress consider clarifying the statutory definitionsof the violent felony categories. Thereafter in Johnson v. United States, the Supreme Courtdeclared the residual clause unconstitutionally vague and thus effectively void.Otherwise, constitutional challenges to the application of §924(e) have been largely unsuccessful,regardless of whether they were based on arguments of cruel and unusual punishment, doublejeopardy, due process, grand jury indictment or jury trial rights, the right to bear arms, or limitson Congress’s legislative authority.Congressional Research Service

Armed Career Criminal Act (18 U.S.C. 924(e)): An OverviewContentsIntroduction. 1Predicate Offenses . 1Serious Drug Offenses . 3Violent Felonies . 4Constitutional Considerations . 5Due Process . 5Legislative Authority . 6Second Amendment . 6Apprendi and Its Progeny . 7Eighth Amendment . 8Double Jeopardy . 9AppendixesAppendix. 18 U.S.C. 924(e)(text) . 10ContactsAuthor Contact Information. 10Congressional Research Service

Armed Career Criminal Act (18 U.S.C. 924(e)): An OverviewIntroductionIn the case of a person who violates section 922(g) of this title and has three previous convictions byany court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, orboth, committed on occasions different from one another, such person shall be fined under this title andimprisoned not less than fifteen years. 18 U.S.C. 924(e)(1)Section 922(g) outlaws the possession of firearms by felons, fugitives, and various othercategories of individuals.1 The Armed Career Criminal Act (ACCA), quoted above, visits a 15year mandatory minimum term of imprisonment upon anyone who violates §922(g), having beenconvicted three times previously of a violent felony or serious drug offense.2 Its provisions aremost often triggered by felons, with three qualifying prior convictions, found in possession of afirearm. More often than not, the prior convictions are for violations of state law.Congress directed the United States Sentencing Commission to report on the impact on thefederal criminal justice system of mandatory minimum sentencing provisions like Section924(e).3 As part of its study, the commission solicited the views of federal trial judges. Almost60% of those responding to a Sentencing Commission survey indicated that they considered§924(e) mandatory minimum sentences appropriate.4Predicate OffensesSection 924(e) begins with unlawful possession of a firearm (“a person who violates section922(g)”). The triggering possession offense need not itself involve a drug or violent crime.5Section 924(e)’s 15-year mandatory minimum term of imprisonment instead flows as aconsequence of the offender’s prior criminal record (“three prior convictions . referred to insection 922(g)(1) . for a violent felony or a serious drug offense”).6 Not all violent felonies orserious drug offenses count. Section 922(g)(1) refers to “crime[s] punishable by imprisonment fora term exceeding one year.” That term is defined in turn to exempt certain convictions, principallythose which have been overturned, pardoned, or otherwise set aside as a matter of state law.71The disqualified categories cover felons, fugitives, drug addicts, mental defectives, unlawful aliens, dishonorablydischarged members of the Armed Forces, individuals who have renounced their U.S. citizenship, those under adomestic violence restraining order, and those convicted of misdemeanor domestic violence, 18 U.S.C. 922(g)(1)-(9).2Section 924(e) appears in its entity as an Appendix to this report. The ACCA is not to be confused with the federalthree-strikes statute, 18 U.S.C. 3559(c), which establishes a mandatory term of life imprisonment upon a third seriousviolent felony conviction, or with its two-strike counterpart in 18 U.S.C. 3559(e), relating to mandatory lifeimprisonment for repeated child sex offenders.3Section 4713, P.L. 111-84, 123 Stat. 2843 (2009).4United States Sentencing Commission, Results of Survey of United States District Judges: January 2010 throughMarch 2010, Question 1. Mandatory Minimums (June 2010), available at Survey/2010/JudgeSurvey 201006.pdf.5United States v. Raymond, 778 F.3d 716, 717 (8th Cir. 2015).6The sentence is mandatory plea agreements to the contrary notwithstanding, United States v. Symington, 781 F.3d1308, 1313 (11th Cir. 2015), citing, United States v. Davis, 689 F.3d 349, 354 (4th Cir. 2012), and United States v.Moyer, 282 F.3d 1311, 1314 (4th Cir. 2002).718 U.S.C. 921(20)(“The term ‘crime punishable by imprisonment for a term exceeding one year’ does not include(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or othersimilar offenses relating to the regulation of business practices, or (B) any State offense classified by the laws of the(continued.)Congressional Research Service1

Armed Career Criminal Act (18 U.S.C. 924(e)): An OverviewMoreover, those violent felonies or serious drug offenses which do count must have beencommitted on different occasions.8 “[T]o trigger a sentence enhancement under the ACCA, adefendant’s prior felony convictions must involve separate criminal episodes. However, offensesare considered distinct criminal episodes if they occurred on occasions different from one another.Two offenses are committed on occasions different from one another if it is possible to discern thepoint at which the first offense is completed and the second offense beings.”9 Thus, separate drugdeals on separate days will constitute offenses committed on different occasions though theyinvolve the same parties and location.10 The fact that two crimes occurred on a different occasion,however, must be clear on the judicial record; recourse to police records will not do.11The question of whether a defendant’s prior conviction qualifies as a predicate offense becomesmore difficult when the statute of conviction encompasses some misconduct which qualifies as apredicate offense, as well as other misconduct which does not. For instance, does §924(e) applyto a conviction under a state arson statute which covers more than Congress contemplated when itdesignated “arson” as a predicate offense? The question turns on whether it can clearly beestablished from the elements of the statute of conviction, the charging documents, and(.continued)State as a misdemeanor and punishable by a term of imprisonment of two years or less. What constitutes a convictionof such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held.Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rightsrestored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, orrestoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms”);United States v. Sellers, 784 F.3d 876, 881-87 (2d Cir. 2015)(A New York youthful offender conviction set aside as amatter of New York law does not qualify as a predicate offense), citing in accord, United States v. Collins, 61 F.3d1379, 1382 (9th Cir. 1995), and United States v. Clark, 993 F.2d 402, 403 (4th Cir. 1993); and distinguishing, UnitedStates v. Ellis, 619 F.3d 72,75 (1st Cir. 2010)(“‘It was not blatant error for the sentencing court to take [a defendant’s]juvenile adjudication into consideration for the purpose of applying the ACCA’ because ‘juvenile adjudications [underMassachusetts law] are not “set aside” for the purpose of imposing sentence in later criminal proceedings’”).818 U.S.C. 924(e)(1).9United States v. Martin, 526 F.3d 926, 938-39 (6th Cir. 2008)(internal citations omitted); see also, United States v.Archie, 771 F.3d 217, 223 (4th Cir. 2014); United States v. Jenkins, 770 F.3d 507, 509 (6th Cir. 2014)(internal citationsomitted)(Sometimes the issue is a close question. “[I]f say several crimes occurred during a compressed period of timeor in the same place. In such settings, we consider three basic questions in the context of the circumstances of thecrimes. Can we distinguish between the point at which the first offense is completed and the point . the second offensebegins? Could the felon have ceased his criminal conduct after the first offense and withdrawn without committing thesecond? And did the offenses take place in different residences or business locations?”); United States v. Weeks, 711F.3d 1255, 1261 (11th Cir. 2013)(internal citations and quotation marks omitted)(“To satisfy the ACCA’s differentoccasions requirement, a defendant must have at least three prior convictions for crimes that are temporally distinct. Solong as the predicate crimes are successive rather than simultaneous, they constitute separate criminal episodes forpurposes of the ACCA”); United States v. Chappell, 704 F.3d 551, 552 (8th Cir. 2013)(internal citations and quotationmarks omitted)(“Under the ACCA, each distinct criminal episode—as opposed to a continuous course of conduct—is aseparate predicate offense, regardless of the date of the convictions or the number of trials or pleas resulting in thoseconvictions. And we have indicated that a criminal offense is a distinct criminal episode when it occurs in a differentlocation and at a different time”).10United States v. Ross, 569 F.3d 821, 823 (8th Cir. 2009).11United States v. Tucker, 603 F.3d, 260, 266 (4th Cir. 2010)(“Here, the district court relied on the PSR’s [ProbationService’s Presentence Report] recitation of the facts about the burglaries, but the PSR relied on the police incidentreport, which is not allowed .”); see also, United States v. Dantzler, 771 F.3d 137, 149-50 (2d Cir. 2014); UnitedStates v. Weeks, 711 F.3d 1255, 1260 (11th Cir. 2013); United States v. Sneed, 600 F.3d 1326, 1332-333(11th Cir. 2010),each citing, Shepard v. United States, 544 U.S. 13 (2005).Congressional Research Service2

Armed Career Criminal Act (18 U.S.C. 924(e)): An Overviewcomparable records that the defendant was convicted of “generic arson,” that is, arson asunderstood in §924(e).12There is “no authority to ignore [an otherwise qualified] conviction because of its age or itsunderlying circumstances. Such considerations are irrelevant . under the Act.”13 Moreover,application of Section 924(e) provides no opportunity to challenge the validity of the underlyingpredicate offenses.14Serious Drug OffensesThe section defines serious drug offenses as those violations of state or federal drug lawpunishable by imprisonment for 10 years or more.15 Conviction under a statute which carries a10-year maximum for repeat offenders qualifies, even though the maximum term for first-timeoffenders is five years.16 It is the maximum permissible term which determines qualification, evenwhen discretionary sentencing guidelines called for a term of less than 10 years,17 or when thedefendant was in fact sentenced to a lesser term of imprisonment.18 To qualify as a predicate drugoffense, the crime must have been at least a 10-year felony at the time of conviction for predicateoffense.19As long as the attempt or conspiracy was punishable by imprisonment for 10 years or more, theterm “serious drug offense” includes attempts or conspiracies to commit a serious drug offense.2012United States v. Gatson, 776 F.3d 405, 410 (6th Cir. 2015)(internal citations omitted)(“Section 924(e) specificallylists arson as a violent felony. But not every felony that a state labels as arson fits §924(e)’s definition of arson. Instead,we ask whether Gatson’s offense comports with the ‘generic contemporary meaning’ of arson. Thus, like every othercourt to consider the question, we conclude that generic arson embraces the intentional or malicious burning of anyproperty”).13United States v. Moody, 770 F.3d 577, 580 (7th Cir. 2014), citing inter alia, Shepard v. United States, 544 U.S. 13,15-17 (2005).14Custis v. United States, 511 U.S. 485, 487 (1994)(“a defendant has no such right (with the sole exception ofconvictions obtained in violation of the right to counsel) to collaterally attack prior convictions”); Daniels v. UnitedStates, 532 U.S. 374, 378-82 (2001); United States v. Coleman, 655 F.3d 480, 485 (6th Cir. 2011); United States v.Greer, 607 F.3d 559, 565 (8th Cir. 2010); United States v. Dean, 604 F.3d 169, 174-75 (4th Cir. 2010); United States v.Covington, 565 F.3d 1336, 1345 (11th Cir. 2009); United States v. Buie, 547 F.3d 401, 403-404 (2d Cir. 2008); UnitedStates v. Krejcarek, 453 F.3d 1290, 1297 10th Cir. 2006).1518 U.S.C. 924(e)(2)(A)(“the term ‘serious drug offense’ means - (i) an offense under the Controlled Substances Act(21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 oftitle 46, for which a maximum term of imprisonment of ten years or more is prescribed by law; or (ii) an offense underState law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlledsubstance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802), for which a maximum term ofimprisonment of ten years or more is prescribed by law”).16United States v. Rodriquez, 533 U.S. 377, 380 (2008). The record must make it clear, however, that the defendantwas subject to any recidivist provision needed to reach the 10-year threshold, United States v. Lockett, 782 F.3d 349,352-53 (7th Cir. 2015)(Rodriquez requires the government to provide evidence from the record that the defendant wasin fact subject to the enhanced recidivist penalties that could elevate his sentence past the ten-year mark”).17United States v. Rodriquez, 533 U.S. at 390; United States v. Mayer, 560 F.3d 948, 963(9th Cir. 2009).18United States v. Buie, 547 F.3d 401, 404 (2d Cir. 2008); United States v. Williams, 508 F.3d 724, 728 (4th Cir. 2007);United States v. Henton, 473 F.3d 467, 470 (7th Cir. 2004).19McNeill v. United States, 131 S.Ct. 2218, 2220 (2011); Rivera v. United States, 716 F.3d 685, 688-89 (2d Cir. 2013).20United States v. Trent, 767 F.3d 1046, 1057 (10th Cir. 2014), citing in accord, United States v. Bynum, 669 F.3d 880,887 (8th Cir. 2012); United States v. Williams, 488 F.3d 1004, 1009 (D.C. Cir. 2007); and United States v. McKinney,450 F.3d 39, 44 (1st Cir. 2006).Congressional Research Service3

Armed Career Criminal Act (18 U.S.C. 924(e)): An OverviewBy the same token, there is no need to prove that the defendant knew of the illicit nature of thecontrolled substance involved in his predicate serious drug offense, as long as the serious drugoffense satisfied the 10-year requirement and, in the case of state law predicate, involved themanufacture, distribution, or possession with intent to distribute a controlled substance.21Violent FeloniesThe assessment of whether a past crime constitutes a violent felony for purposes of §924(e) ismore complicated than whether a drug offense is a serious drug offense for such purposes. Thetask involves an examination of “how the law defines the offense and not . how an individualoffender might have committed it on a particular occasion.”22 Violent felony predicates under§924(e) come in three varieties: offenses in which the use of physical force is an element;offenses of the burglary/arson/extortion class; and offenses under the residual clause, that is,offenses comparable to the burglary/arson/extortion class of offenses.23Physical force. The physical force category consists of those offenses that have “as an elementthe use, attempted use, or threatened use of physical force against the person of another.”24“Physical force” here means “violent force - that is, force capable of causing physical pain orinjury to another person.”25 Thus, it does not include state convictions for intentional touching ofanother, such as the Florida statute in Johnson,26 but it does include convictions for the threateneduse of violent force.27Burglary et al. The second variety of violent felony predicates consists of the crimes of burglary,arson, extortion, or the use of explosives.28 As noted earlier, whether a prior conviction qualifiesas a conviction for burglary, arson, extortion or use of explosives depends upon whether the crimeof conviction—as evidenced by the statutory elements, indictments, jury instructions, orcomparable court records—matches the generic description of one of those offenses.29Residual clause. The Supreme Court had previously held that the crimes found in the residualclause (crimes that “otherwise involve .”) were only those similar to the enumerated crimes ofburglary, arson, extortion and the use of explosives, those marked by “purposeful, violent and21United States v. Smith, 775 F.3d 1262, 1226-227 (11th Cir. 2014).22Begay v. United States, 553 U.S. 137, 141 (2008).2318 U.S.C. 924(e)(2)(B)(“the term ‘violent felony’ means any crime punishable by imprisonment for a term exceedingone year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device thatwould be punishable by imprisonment for such term if committed by an adult, that - (i) has as an element the use,attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion,involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury toanother”). The Supreme Court in Johnson v. United States, 135 S.Ct. 2