Reestablishing a Knowledge Mens Rea Requirement for Armed Career Criminal Act "Violent Felonies" Post-Voisine

By Turner, Jeffrey A. | Vanderbilt Law Review, October 2019 | Go to article overview

Reestablishing a Knowledge Mens Rea Requirement for Armed Career Criminal Act "Violent Felonies" Post-Voisine


Turner, Jeffrey A., Vanderbilt Law Review


Introduction

The situation is not difficult to imagine. Police officers make a routine traffic stop on the Francis Scott Key Bridge, which spans the border between Virginia and Washington, D.C. During a legal vehicle search, police recover an unregistered firearm. Upon searching the individual's criminal history, the police find that he has three prior felony arrests: two Ohio burglary convictions1 and a Tennessee aggravated assault conviction.2 Since the individual violated 18 U.S.C. 922(g), which prohibits felons from possessing firearms, the city prosecutor refers the case to the federal government.3 But which federal prosecutor's office should the case be referred to-Washington, D.C. or Virginia? The decision is critical. If the prosecution occurs in Virginia, the defendant faces a maximum sentence of ten years in prison and could receive no jail time at all.4 But if the prosecution occurs in the District of Columbia, the defendant faces a minimum sentence of fifteen years in prison.5 What explains this dichotomy? How could the defendant's prospective jail time depend solely on which side of the border he is arrested?

The answer lies in a two-year-old circuit split over the scope of the U.S. Supreme Court's decision in Vaisine v. United States6 and the meaning of a "violent felony."7 If the defendant's three prior convictions each count as "violent felonies," the individual can be charged under the Armed Career Criminal Act ("ACCA"), which has a fifteen-year mandatory minimum sentence.8 If he has less than three "violent felony" convictions, however, then he can only be charged under the regular possession statute, which has a ten-year maximum penalty and no mandatory minimum.9

Over the last two years, the federal circuit courts have disagreed on which offenses count as "violent felonies." Offenses that can be committed with a "reckless" mens rea (that is, mental state) cannot serve as predicate violent felonies in the U.S. Court of Appeals for the Fourth Circuit, which includes Virginia.10 Since a reckless mens rea is sufficient for an aggravated assault conviction in Tennessee,11 the defendant has only two ACCA-qualifying convictions in the Fourth Circuit (the two burglary convictions)12 and therefore can be charged only under the regular possession statute. On the other hand, federal courts in Washington, D.C., bound by U.S. Court of Appeals for the D.C. Circuit precedent, consider reckless offenses to be violent felonies.13 Accordingly, in Washington, D.C., the exact same Tennessee aggravated assault conviction counts as the defendant's third qualifying violent felony, and he faces a fifteen-year mandatory minimum sentence as an "armed career criminal."

Before proceeding, a few key terms require definitional clarity: (1) violent felony, (2) recklessness, (3) categorical approach, and (4) modified categorical approach.

"Violent felony," as defined in 18 U.S.C. 924(e)(2)(B)(i), is any crime punishable by a year or more in prison that "has as an element, the use, attempted use, or threatened use of physical force against the person of another."14 Every year, thousands of criminal defendants face enhanced sentencing, additional penalties, and possible deportation under statutes with this or similar language.15

"Recklessness" is a level of culpability that a criminal defendant must have to be convicted of a particular crime.16 A person acts recklessly if he "consciously disregards a substantial and unjustifiable risk that the material element exists or will result from [his] conduct."17

The term recklessness is a pseudo-creation of the Model Penal Code ("MPC").18 The MPC supports a categorized approach to criminal liability: it (1) separates a crime's elements into categories19 and (2) enumerates four levels of mens rea, or "mental states," that attach to each material element of a crime.20 The four mental states, in order of increasing culpability, are negligence, recklessness, knowledge, and purpose. …

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