Tuesday, September 28, 2010

NC Indecent Liberties Conviction Can Trigger ACCA

US v. Vann: Vann pleaded guilty to being a felon in possession of a firearm. At the time, he had three prior North Carolina convictions for taking indecent liberties with a child. At sentencing, he objected to the use of those convictions as predicates under Armed Career Criminal Act, arguing that in light of Begay and subsequent Fourth Circuit law, they were not "violent felonies" for ACCA purposes. The district court disagreed and sentenced Vann to a term of 180 months in prison, the minimum required under the ACCA.

On appeal, the Fourth Circuit affirmed, 2-1. Vann argued that a pre-Begay Fourth Circuit case holding that convictions like his were "crimes of violence" under the Guidelines had been abrogated by Begay and that the Fourth Circuit's decision that Virginia's "carnal knowledge without the use of force" statute was not a violent felony post-Begay required the same conclusion with regards to his prior convictions. The court disagreed, noting that the NC statute at issue could be violated in two ways, one of which "requires physical acts against the body of a child," while the other does not. After first determining that Vann committed the offense which required a physical act against the body of a child, the court then concluded that such an offense was a violent felony under the ACCA. It noted the difference between the NC and Virginia offenses was that the later was committed "without the use of force."

Judge King dissented, arguing that the majority was incorrect in concluding that the NC statute set forth two different offenses, that Vann committed one that necessarily required physical acts against a child, and that the offense was a violent felony.

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