United States v. Bordeaux

United States Court of Appeals for the Second Circuit · 2018 · Evidence

EvidenceArmed Career Criminal Actviolent felonydifferent occasionsACCA18 U.S.C. § 924(e)violent felonyelements clause

Facts

Bordeaux had three prior Connecticut convictions for first-degree robbery under Conn. Gen. Stat. § 53a-134(a)(4). That subsection covers robbery in which the defendant or another participant displays or threatens the use of what is represented to be a firearm, and it incorporates Connecticut's robbery definition requiring the use or threatened immediate use of physical force for the purpose of accomplishing the larceny. The three prior robberies occurred in Bridgeport on November 24, 2009, at about 10:00 p.m., 10:15 p.m., and 10:55 p.m., at different locations and against different victims. The sites were roughly a half mile apart between the first and second robberies and a little more than a half mile apart between the second and third.

Issue

Whether Connecticut first-degree robbery under § 53a-134(a)(4) qualifies as a violent felony under ACCA's elements clause, and whether Bordeaux's three prior robbery convictions were for offenses committed on occasions different from one another under 18 U.S.C. § 924(e)(1).

Rule

Under ACCA's elements clause, a prior offense qualifies as a violent felony only if the minimum conduct necessary for conviction requires both more than negligent conduct and the use, attempted use, or threatened use of violent force, meaning force capable of causing physical pain or injury to another person. For ACCA's different-occasions requirement, prior convictions count only if they arose from distinct criminal episodes, assessed by considering the time and circumstances of the crimes, including different victims, movement between locations, and whether the defendant had a realistic opportunity for substantial reflection and to end his criminal activity; the court may rely only on Taylor- and Shepard-approved sources in making that determination.

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In Buffalo, Omar Reed pleaded guilty in federal court to being a felon in possession of a firearm. The government relies on a prior New York conviction under a divisible robbery statute, and the plea colloquy shows Omar admitted that during a larceny he told the victim, "I have a gun," to force the victim to hand over a wallet, though he never actually had a gun.

Is the prior robbery conviction most likely a violent felony under ACCA's elements clause?

Explanation. The majority held that a robbery offense qualifies under ACCA when the minimum conduct requires more than negligence and requires the threatened use of violent force. It further held that displaying or threatening the use of what is represented to be a firearm necessarily implies a threat of violence, even if the defendant did not actually possess a firearm. Because Omar's plea establishes that statutory alternative, the conviction counts. (Derived from United States v. Bordeaux (n.d.).)