Wednesday, February 04, 2009

Non-Forcible Statutory Rape Not "Violent Felony" Under ACCA

US v. Thornton: Thornton was convicted of being a felon in possession of a firearm and body armor and sentenced under the Armed Career Criminal Act. At his initial sentencing, the district court identified four qualifying prior convictions. On remand from the Fourth Circuit, the district court concluded that two of those convictions were not "separate" offenses and that Thornton therefore had three qualifying prior convictions. One of those convictions was a Virginia conviction for "carnal knowledge of a minor" without the use of force. Thornton argued that the Virginia conviction was not a "violent felony" as defined by the Act. The district court disagreed and reimposed the ACCA sentence.

On appeal, applying the analysis from the Supreme Court's recent decision in Begay, the Fourth Circuit reversed the district court. The only issues in dispute where whether the Virginia offense was substantially similar to the offenses listed in the "violent felony" definition and whether it posed a "serious potential risk or physical injury." The Government focused on the risk inherent in the offense, which the court noted "ignores the Supreme Court's reasoning in Begay" that every offense that presents such risks meets the definition of violent felony. The court also rejected the Government's argument that the Virginia offense was similar to the enumerated offenses because it involved "constructive force," based on the inability of the minor to consent. The court noted that the ability to consent cannot change the fact that Virginia enumerates both forcible and nonforcible sexual offenses. To adopt the Government's analysis would be to render that distinction meaningless.

Congrats to the FPD office in Roanoke on the win!


Josiah said...

Great post! I have a Federal Felon in Possession (18 U.S.C. 922(g)) case and the government is seeking an enhancement under the ACCA. One of the predicate offenses is speeding to elude arrest (North Carolina General Statute sec. 20-141.5). The statute doesn't require a specific mens rea and is a misdemeanor unless aggravating factors are present. All of the aggravating factors are either reckless or negligent, but none are willful or wanton. I plan to argue Begay and Thornton. I would be very interested to engage in some dialogue as I draft this argument. Any comment?

Jonathan Byrne said...

Also take a look at Roseboro (, which involves the same analysis with regards to "failing to stop for a blue light" offense in South Carolina. That should also be helpful to you.

Josiah said...

Thanks. Roseboro is definitely on point. I haven't decided yet if it helps or hurts...Not really sure that that analysis actually follows Begay's "categorical approach", but it certainly has language that is useful for my issue. I have really enjoyed your blog and I appreciate your input.