Wednesday, September 01, 2010

Judge Carnes on the Armed Career Criminal Act

Like him or not; agree with him or not; Judge Carnes is a gifted writer. From United States v. Rainer:
  • This is yet another felon-in-possession case involving yet another variation on the issue of whether a previous conviction qualifies as a “violent felony” for purposes of the enhanced penalties provided in the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1).
  • Rainer’s non-frivolous contention is that the district court erred when it decided at sentencing that he qualified for an enhanced sentence under the ACCA, 18 U.S.C. § 924(e)(1), which applies to a defendant convicted under § 922(g) who has three previous convictions for violent felonies or serious drug offenses.
  • The question is whether “building of Richie’s Shoe Store, Inc.”and “building of, to wit: Whiddon’s Gulf Service Station” in the indictments show that Rainer’s convictions were for burglary of a shoe store and service station, places that fall squarely within the scope of generic burglary.
  • But a vehicle could not be used to carry on the business of a gasoline service station, which is mainly to dispense gasoline for sale. While a shoe store theoretically could be operated out of a vehicle, that possibility is too farfetched to undermine our conviction that Rainer’s two previous convictions were for burglary of a building in the generic burglary sense of the word.
  • The ACCA is part of the real world, and courts should not refuse to apply it because of divorced-from-reality, law-school-professor-type hypotheticals that bear no resemblance to what actually goes on.


Anonymous said...

Carnes couldn't carry Kozinski's jock strap.

Anonymous said...

Love his comment about the reality of things vs hypothetical B.S.