ACCA Defense

Section 922(g) of the United States Criminal Code outlaws the possession of firearms by felons, fugitives, and various other categories of prohibited individuals.  The Armed Career Criminal Act (ACCA), quoted above, visits a 15-year mandatory minimum term of imprisonment upon anyone who violates § 922(g), having been convicted three times previously of a violent felony or serious drug offense. The ACCA's provisions are most often triggered by felons, with three qualifying prior convictions, found in possession of a firearm. More often than not, the prior convictions are for violations of state law.


In 2009, Congress directed the U.S. Sentencing Commission (the Commission) to report on the impact on the federal criminal justice system of mandatory minimum sentencing provisions like ACCA's § 924(e). As part of its study, the Commission solicited the views of federal trial judges. Almost 60% of those responding to a Commission survey indicated that they considered § 924(e) mandatory minimum sentences appropriate. In 2021, the Commission reported a reduction in the already infrequent number of convictions under the ACCA, which it suggested may have been attributable to ACCA-generated litigation "regarding which convictions under federal and state statutes qualify under the Act."

A hand gripping another person's wrist, suggesting a struggle. Dimly lit setting.

Predicate Offenses

The ACCA proscription in § 924(e) begins with a violation of § 922(g), that is, with possession of a firearm by a felon, fugitive, or other person whose possession the section prohibits. The triggering possession offense need not be accompanied by a drug or violent crime. Section 924(e)'s 15-year mandatory minimum term of imprisonment instead flows as a consequence of the offender's prior criminal record ("three prior convictions . . . referred to in section 922(g)(1) . . . for a violent felony or a serious drug offense"). Not all violent felonies or serious drug offenses count. Section 922(g)(1) refers to "crime[s] punishable by imprisonment for a term exceeding one year." That term is defined in turn to exempt certain convictions, principally those which have been overturned, pardoned, or otherwise set aside as a matter of state law.


Each of the violent felonies or serious drug offenses that do count must have been committed on different occasions. The Supreme Court explained in Wooden v. United States that the word "occasion" ordinarily means "an event, occurrence, happening, or episode." The Court continued, "Wooden committed his burglaries on a single night, in a single uninterrupted course of conduct. The crimes all took place at one location, a one-building storage facility with one address. Each offense was essentially identical, and all were intertwined with the others." Thus, the Court ruled that the prior conviction of a defendant who burglarized a storage facility and then broke into ten individual units within the facility counted as one occasion, not ten, for purposes of § 924(e).


Section 924(e) most often owes its frequent appearance on the Supreme Court's docket to an interpretative tool known as the "categorical approach." The categorical approach asks whether Congress intended to treat a defendant's prior conviction as a predicate offense. The approach does so by inquiring whether the elements of the statute of prior conviction are the same or less inclusive than the federal standard under the ACCA. For instance, was § 924(e) meant to apply to a conviction under a state arson statute which covers more conduct than Congress contemplated when it designated "arson" as a predicate offense? The question turns on whether it can clearly be established from the elements of the statute of conviction that the defendant was convicted of "generic arson," that is, arson as understood in § 924(e).


When the prior conviction is for an offense other than one enumerated in § 924(e), the analysis becomes a matter of comparing the elements of the prior offense with the descriptive clause of § 924(e). For example, a prior conviction may serve as predicate under the elements clause (i.e., the conviction is for a "crime that has as an element the use . . . of physical force . . .") only if the statute of conviction is no more inclusive, that is, only if the offense necessarily involves the defendant's use of physical force within the meaning of the statute.

Serious Drug Offenses

Section 924(e) defines serious drug offenses as those violations of state or federal drug law punishable by imprisonment for 10 years or more.23


To qualify as a "serious drug" predicate offense under the ACCA, a prior state offense must (1) involve the (a) manufacture, (b) distribution, or (c) possession with intent to distribute; (2) a controlled substance as defined in the Controlled Substances Act; and (3) be punishable by imprisonment for a maximum of ten years or more.


Application of the ACCA depends upon that definition as the categorical standard rather than upon a "generic" controlled substance offense. The standard is measured by the reach of the statute of conviction compared to the reach of the controlled substance statute at the time of conviction. Conviction under a statute which carries a 10-year maximum for repeat offenders qualifies, even though the maximum term for first-time offenders is five years. It is the maximum permissible term which determines qualification, even when discretionary sentencing guidelines may call for a term of less than 10 years, or when the defendant was in fact sentenced to a lesser term of imprisonment. To qualify as a predicate drug offense, the crime must have been at least a 10-year felony at the time of conviction for the predicate offense.


As long as the attempt or conspiracy was punishable by imprisonment for 10 years or more, the term "serious drug offense" includes attempts or conspiracies to commit a serious drug offense. Additionally, there is no need to prove that the defendant knew of the illicit nature of the controlled substance involved in his predicate serious drug offense, as long as the serious drug offense satisfied the 10-year requirement and, in the case of a state law predicate, involved the manufacture, distribution, or possession with intent to distribute a controlled substance.

Violent Felonies

The assessment of whether a past crime constitutes a violent felony for purposes of § 924(e) is more complicated than whether a drug offense is a serious drug offense for such purposes. The task involves an examination of "how the law defines the offense and not ... how an individual offender might have committed it on a particular occasion." Section 924(e) identifies three varieties of "violent felonies": (1) offenses in which the use of physical force is an element; (2) offenses of the burglary/arson/extortion class; and (3) offenses under the now inoperable residual clause.


Physical force. The physical force category consists of those offenses that have "as an element the use, attempted use, or threatened use of physical force against the person of another." "Physical force" here means "violent force—that is, force capable of causing physical pain or injury to another person." Thus, the category does not include convictions for failure to report for periodic imprisonment under an Illinois statute, nor mere intentional touching of another, as under the Tennessee statute, nor reckless conduct, but it does include convictions for the threatened use of violent force.


Burglary, et al. The second variety of violent felony predicates consists of the enumerated crimes of burglary, arson, extortion, or the use of explosives. As noted earlier, whether a prior conviction qualifies as a conviction for burglary, arson, extortion, or use of explosives depends upon whether the crime of conviction—as evidenced by the statutory elements, indictments, jury instructions, or comparable court records—matches the generic description of one of those offenses.


Residual clause. The Supreme Court had previously held that the crimes found in the residual clause (crimes that "otherwise involve conduct that presents a serious potential risk of physical injury to another") were only those similar to the enumerated crimes of burglary, arson, extortion, and the use of explosives, those marked by "purposeful, violent, and aggressive conduct." Then, as discussed below, the Court found the standard in the residual clause unconstitutionally vague, simply too uncertain in its reach to guide those who must honor the clause's prohibition and those who must apply any failure to do so.


ACCA is a devastating charge because of the mandatory minimum sentences. I have had great success attacking the predicate offenses—without the predicate offenses qualifying for ACCA purposes, then the statute cannot apply. Contact me to discuss your case and our ACCA defense services.