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An En Banc Fourth Circuit Remands On An Armed Career Criminal Act Case

The Fourth Circuit doesn’t issue many published opinions. When it does publish, though, it publishes a lot.

The Fourth Circuit yesterday issued an en banc opinion in United States v. Vann. Here’s the description of who wrote what:

A per curiam opinion, in which Chief Judge Traxler and Judges Motz, King, Gregory, Agee, Davis, Keenan, Wynn, and Diaz joined, was issued on behalf of the en banc majority. Judge King wrote a concurring opinion, in which Judges Motz, Gregory, and Davis joined. Judge Agee wrote an opinion concurring in the judgment, concurring in the en banc majority opinion, and concurring in the opinion of Judge Keenan. Judge Davis wrote a concurring opinion. Judge Keenan wrote a concurring opinion, in which Chief Judge Traxler and Judges Agee, Wynn, and Diaz joined. Judge Wilkinson wrote an opinion concurring in the judgment. Judge Niemeyer wrote an opinion concurring in part and dissenting in part, in which Judge Shedd joined.

That’s seven separate opinions, for a court that only has fourteen active members (and Judge Allyson Duncan didn’t participate in the appeal). The opinions total 100 pages in length.

fig4_7The question in Mr. Vann’s case is a commonly occurring one. If a person is convicted of having a firearm after being convicted of a felony, the person faces a statutory maximum penalty of 10 years. See 18 U.S.C. § 922(g). If however, the person has three separate prior convictions for drug distribution offenses or crimes of violence, then the statutory maximum becomes life in prison, and there is a mandatory minimum of 15 years that applies.

The enhancement is called the Armed Career Criminal Act, and I’ve written about it here and here and here.

Mr. Vann’s case presents a frustrating and common problem with the Armed Career Criminal Act. State laws aren’t defined as crimes of violence for federal purposes. The states kind of make their own criminal laws, and tend not to modify them to make later federal sentencings easier. Moreover, when folks are resolving a state case, they tend to resolve it for that case only, so everyone can go on about their business and on to the next case. So, sometimes, the records aren’t sparkling clear as to how things were resolved.

Mr. Vann was convicted of being a felon in possession of a firearm. He had three prior convictions under North Carolina’s Indecent Liberties Statute. The statute has two prohibitions:

(a) A person is guilty of taking indecent liberties with children if, being 16 years of age or more and at least five years older than the child in question, he either:

(1) Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire [“subsection (a)(1)”]; or
(2) Willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years [“subsection (a)(2)”].

If Mr. Vann violated section (a)(1), it isn’t a crime of violence (necessarily); if he violated (a)(2), it is.

The trouble is that Mr. Vann entered a guilty plea in the state case to an indictment that accused him of both (a)(1) and (a)(2). So, is that a plea to the lesser of the two, or the more serious of the two? Or both?

Judge Niemeyer, in dissent, said that when a person pleads to an indictment that alleges Y and Z, the person pleads to both charges. This is familiar enough to anyone who has taken an intro to logic class in college.

But, natural language is funny, and not always a friend to the logician. To walk down a path not directly related to Mr. Vann, as the University of California, Irvine’s logic wiki points out,

It’s also worth noting that some English sentences carry some meaning that is not captured in Propositional Logic. For example, the sentence ‘Jane Austen died and was buried in Winchester Cathedral in 1817’ can be translated as P [and] Q (where P stands for ‘Jane Austen died’ and Q stands for ‘Jane Austen was buried in Winchester Cathedral in 1817’). Now, since P [and] Q and Q [and] P are logically equivalent, they mean the same thing. However, the English sentence ‘Jane Austen was buried in Winchester Cathedral in 1817 and died’ implies that she was buried alive!

Whew! That’s a good one.

Back to Mr. Vann. The question before the court of appeals was this – When a person pleads guilty to an indictment, are they pleading guilty to all parts of it, or can they be pleading guilty to the bare minimum that satisfies an offense charged in the indictment?

The en banc opinion of the court of appeals determined that they are pleading guilty to the bare minimum.

As the appeals court held,

That Vann’s predicate charging documents properly use the conjunctive term ‘and,’ rather than the disjunctive ‘or,’ does not mean that Vann ‘necessarily’ pleaded guilty to subsection (a)(2). Similarly, in trials by jury, it has been established that a defendant convicted under a conjunctively charged indictment cannot be sentenced — in the absence of a special verdict identifying the factual bases for conviction — to a term of imprisonment exceeding the statutory maximum for the ‘least-punished’ of the disjunctive statutory conduct.

Because a finding of guilt that is ambiguous between two is read to mean that the person is guilty of the least significant offense for jury purposes, it is read the same way for a plea.

pixy