Eleventh Circuit Determines Treating Alabama Burglary Convictions for ACCA Enhancement Amounts to Plain Error

In United States v. Jones, No. 11-11273, the Eleventh Circuit decided whether an Armed Career Criminal Act (ACCA) enhancement of a defendant’s sentence was proper in light of the Supreme Court decision of Descamps v. United States, 133 S.Ct. 2276 (2013).

In the recent case United States v. Howard, No. 12-15756, 2014 WL 630657 (11th Cir. Feb 19, 2014), the Eleventh Circuit reviewed an ACCA enhancement of a sentence and held that “a conviction under Alabama Code § 13A-7-7 [for third-degree burglary] cannot qualify as generic burglary under the ACCA.” Id. at *9 (citing Descamps, 133 S.Ct. at 2292). Because this case, unlike Howard, did not preserve the issue of whether his Alabama third-degree burglary convictions could be used for ACCA enhancement by objecting to the enhancement in the district court, this case is different than Howard because it must be reviewed for plain error. The ultimate questions include whether treating the use of Alabama convictions for ACCA enhancement purposes is plain error either generally or particularly.

The Eleventh Circuit answered in the affirmative to both of these questions. A defendant can prove plain error by showing four elements: “(1) error, (2) that it is plain, and (3) that affects substantial rights[,]” and the court only correct this error “if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005).

Jones met all four elements to show plain error. First, there was error based on the fact that Jones did not have the qualifying convictions necessary for enhancement under the recent Descamps decision because his convictions under Alabama Code § 13A-7-7 could not qualify as generic burglary under the ACCA (See Descamps, 133 S.Ct. at 2292). Next, the error was plain because an intervening decision by “this Court or the Supreme Court squarely on point may make an error plain[,]” and the Eleventh Circuit found Howard to be an intervening case squarely on point. United States v. Pielago, 135 F.3d 703, 711 (11th Cir. 1998). Third, the plain error affected Jones’ substantial rights because of the difficult burden of showing a “reasonable probability” that he would have received a lesser sentence but for the plain error (See Rodriguez, 398 F.3d at 1299). Lastly, the error affects the fairness of judicial proceedings because Jones was given a mandatory minimum sentence exceeding the maximum statutory sentence that should have been applied by the court. In conclusion, the Court vacated Jones’ sentence and remanded for resentencing without the ACCA enhancement.

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