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Tuesday, July 24, 2012
Ind. Decisions - 7th Circuit decides one Indiana case today, a reversal
In US v. Kirkland (ND Ind., DeGuilio), a 38-page opinion, Judge Ruben Castillo, United States District Court for the Northern District of Illinois, sitting by designation, writes:
Jeffrey Kirkland was convicted of unlawful possession of a firearm by a felon, and based on a finding that he had five “violent felony” convictions, including two drunk driving offenses, the district court sentenced him as an armed career criminal pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”). After the Supreme Court determined that drunk driving is not a “violent felony” as the term is defined in the ACCA, Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), Kirkland filed a petition for relief under 28 U.S.C. § 2255. The district court denied Kirkland’s petition. On appeal, we vacated that judgment and remanded the case with directions for the district court to determine whether Kirkland still qualified as a career criminal absent the two convictions for drunk driving. On remand, the district court concluded that an enhancement of Kirkland’s sentence under the ACCA was still appropriate based on his three remaining convictions for violent felonies.
Kirkland appeals on two grounds: first, that the district court erred in determining that two of Kirkland’s “violent felony” convictions that arose from events on a single day constituted separate predicate offenses under the ACCA, and second, that the district court erred in not admitting Kirkland’s testimony and affidavit at his resentencing hearing. We reverse. * * *
In holding that the government bears the burden of proving by the preponderance of the evidence that a defendant’s prior convictions were “committed on occasions different from one another” under § 924(e)(1), we affirm that “[a] defendant who has the opportunity to cease and desist or withdraw from his criminal activity at any time, but who chooses to commit additional crimes, deserves harsher punishment than the criminal who commits multiple crimes simultaneously.” Hudspeth, 42 F.3d at 1021. Nevertheless, we believe that an ambiguous record regarding whether a defendant actually had the opportunity “to cease and desist or withdraw from his criminal activity” does not suffice to support the ACCA enhancement.
III. CONCLUSION. For the foregoing reasons, we REVERSE the judgment of the district court and REMAND the case for resentencing in accordance with this opinion.
Posted by Marcia Oddi on July 24, 2012 01:09 PM
Posted to Ind. (7th Cir.) Decisions