September 7, 2011

How The Eighth Circuit Saved Christmas

Legislators like to punish repeat offenders. That's just good politics - "Mike Sloss puts repeat offenders behind bars" sounds better than "Mike Sloss has a balanced policy on recidivism" when put on a bumper sticker.

So it isn't surprising that the Armed Career Criminal Act, located at 18 U.S.C. S 924(e)(1), jacks up the penalties for a person convicted of being a felon in possession of a firearm if the person who is convicted has at least three prior convictions for drug dealing or a violent crime.

In a nod to fairness, though, Congress does require that those prior convictions be committed "on occasions different from one another."

What counts as an "occasion" though? The Eighth Circuit, in United States v. Willoughby, faced exactly that question.

Mr. Willoughby pled guilty to being a felon in possession of a firearm. At sentencing, the district court had to figure out if one of Mr. Willoughby's prior convictions counted as one prior conviction, or as two. He had been convicted of two counts of conduct in the one previous case.

According to the police report in the prior case, an undercover cop went with a confidential information to Mr. Willoughby's house. The affidavit in support of the complaint said that when the officer and CI got there,

Michael Willoughby was sitting in a chair in the northeast corner of the living room. . . . Willoughby was wearing a tan/off white t-shirt and blue jeans. He was also wearing red suspenders hanging down by his legs. These are commonly referred to as ["]braces["] by Neonazi/skinhead groups.

Undeterred by the menacing "braces", the law enforcement officer and the CI asked Mr. Willoughby if they could by drugs. Willoughby left the room to get some drugs.

When Willoughby returned to the living room he had two sandwich bags containing a green leafy substance in his hand. He started to give both to the C/I. I held out my left hand. Willoughby gave one to the C/I then gave one to me. The C/I gave Willoughby the $25 I gave him. I gave Willoughby $50. I smelled the contents of the bag Willoughby gave me. It smelled and looked like marijuana. We immediately left the house.

The district court found that this course of conduct was actually two different "occasions." Because handing the drugs to the undercover cop was a different "occasion" than handing drugs to the CI, this transaction gave rise to two drug offenses. Willoughby was, therefore, determined to be an Armed Career Criminal. As a result, he faced a mandatory minimum sentence of fifteen years.

If Willoughby had handed all the drugs to the CI, perhaps it would have been one "occasion." But that quarter of a second between when the CI took the drugs and when the undercover cop did, Willoughby restarted the "occasion" clock, according to the sentencing judge.

So many "occasions"

This makes me wonder what holidays, and other special "occasions", are like at the district judge's house. Personally, I like special "occasions" because they're a time with family. Hearing of the district court's approach to the term "occasion" in our shared language, though, makes me think that I'm wrong.

Apparently, at Thanksgiving, when I take a piece of turkey, it's a different "occasion" than when I take the mashed potatoes. And there's no "occasion" where I get to eat with my family all gathered together - by the time my dad takes his food, it's already a different "occasion" than when my son did.

No wonder so many people feel lonely around the holidays.

Happily, the Eighth Circuit rejected an interpretation of "occasion" that leads to such isolation.

The Eighth Circuit held that Willoughby's drug dealing was a single "occasion" because "the sale was, in actuality, one 'continuous course of conduct.'"

There are strict limits, though, to what counts as one "occasion" even for the Eighth Circuit. The court of appeals explained

"'[c]rimes occurring even minutes apart can qualify [as separate 'occasions'] if they have different victims,' thereby reflecting a lack of substantive continuity, 'and are committed in different locations,'

As guidance for the holidays, I think that means that if your dad and brother go out to the radial-arm saw in the garage to have a cigar and a glass of cognac, they aren't celebrating the same special "occasion" as the folks inside still finishing off the pecan pie. At least according to the Eighth Circuit.

Though that result, at least, seems consistent with my own intuitions.

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