Firearms Convictions, ACCA Enhancement Affirmed
United States v. Ford, ___ F.3d ___ , 2010 WL 2902747 (10th Cir. 2010) (NM). A jury convicted the defendant of firearm offenses (felon in possession, fugitive in possession, possession of stolen firearms). His guidelines were enhanced for offense characteristics and he was sentenced to a total of 30 years, with the Armed Career Criminal (ACC) enhancement concurrent.
(1) Evidence of Defendant’s escape from prison was res gestae to charges of fugitive in possession of a firearm and possession of a stolen firearm, and not subject to Evid. R. 404(b) analysis. It passed FRE 403 muster.
(2) Guideline enhancement for assaulting an officer during commission of the crime correctly applied. It did not matter that Defendant fired his gun at night 100 feet from the officer attempting to apprehend him, with no proof that he fired at the officer. He knew the person was an officer, and there was a substantial risk of injury in firing a gun at night at close range. Plus, the court could infer Defendant fired at the officer since Defendant was evading arrest. The officer’s fear of bodily harm relates to the assault, not the risk element of the enhancement, and was relevant.
(3) Finally, Defendant’s Kansas conviction of discharging a gun at an occupied dwelling or occupied vehicle (though called aggravated assault in some state court documents, the statute of conviction was the discharging offense) qualifies as a predicate violent felony under the ACCA. It is not a violent felony under 18 USC sec. 924(e)(2)(B)(i) because it does not have as an element the use/threatened/attempted use of physical force against a person of another, because it does not require the offender to know that there is a person inside the dwelling or vehicle. It does fit within the residual clause, and is similar to the enumerated crimes. The risks are similar to those associated with arson. It involves purposeful violent aggressive behavior.
(1) Evidence of Defendant’s escape from prison was res gestae to charges of fugitive in possession of a firearm and possession of a stolen firearm, and not subject to Evid. R. 404(b) analysis. It passed FRE 403 muster.
(2) Guideline enhancement for assaulting an officer during commission of the crime correctly applied. It did not matter that Defendant fired his gun at night 100 feet from the officer attempting to apprehend him, with no proof that he fired at the officer. He knew the person was an officer, and there was a substantial risk of injury in firing a gun at night at close range. Plus, the court could infer Defendant fired at the officer since Defendant was evading arrest. The officer’s fear of bodily harm relates to the assault, not the risk element of the enhancement, and was relevant.
(3) Finally, Defendant’s Kansas conviction of discharging a gun at an occupied dwelling or occupied vehicle (though called aggravated assault in some state court documents, the statute of conviction was the discharging offense) qualifies as a predicate violent felony under the ACCA. It is not a violent felony under 18 USC sec. 924(e)(2)(B)(i) because it does not have as an element the use/threatened/attempted use of physical force against a person of another, because it does not require the offender to know that there is a person inside the dwelling or vehicle. It does fit within the residual clause, and is similar to the enumerated crimes. The risks are similar to those associated with arson. It involves purposeful violent aggressive behavior.
posted by Anonymous at 11:35 AM
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