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Criminal Practice — Prior Va. Convictions Support ACCA Sentence

U.S. v. Reid (Lawyers Weekly No. 001-148-17, 11 pp.) (Niemeyer, J.) No. 16-4325, June 28, 2017; USDC at Charlotte, N.C. (Cogburn, J.) 4th Cir.

Holding: The 4th Circuit upholds defendant’s sentence enhanced under the Armed Career Criminal Act, on a firearm possession conviction; his three prior convictions under Va. Code § 18.2-55, for knowing and willful infliction of bodily injury on a juvenile-facility employee, were “violent felonies” under the “force” clause of the ACCA, 18 U.S.C. § 924(e)(2)(B)(i).

Force Clause

At sentencing on the conviction of firearm possession as a felon, defendant acknowledged his three prior convictions of violating Code § 18.2-55, but argued that because common law battery is a lesser-included offense of § 18.2-55, the level of injury required to support a conviction under § 18.2-55 was no greater than that required for a common law battery conviction. He contended that § 18.2-55 imposed a harsher penalty for a battery offense because the offense was committed against a correctional facility employee. Defendant reasoned that, because the Supreme Court held in Johnson v. U.S., 559 U.S. 133 (2010), that common law battery is not a violent felony, neither is a § 18.2-55 conviction.

The government contends a conviction under § 18.2-55 is a violent felony under the force clause because the phrase “use of physical force” has been held by the Supreme Court to include force administered even by indirect means, such as by poisoning.

As the parties recognize, the ACCA provides that a person convicted under 18 U.S.C. § 922(g) – as defendant has been – and who has three previous convictions for a “violent felony” committed on different occasions must be sentenced to a mandatory minimum of 15 years in prison. Because the term “physical force” contributes to the definition of a “violent felony,” it is understood to mean violent force – that is, force capable of causing physical pain or injury to another person.

Under the categorical approach, we may not look to the facts underlying the prior conviction but instead must determine whether the state crime of conviction by its elements involves the use, attempted use or threatened use of physical force against the person of another.

To be sure, Virginia courts would likely allow convictions under § 18.2-55 based on indirect applications of force like those defendant posits. But his argument that such indirect means do not involve the use of physical force is foreclosed by the Supreme Court decision in U.S. v. Castleman, 134 S. Ct. 1405 (2014). By applying the combination of Johnson and Castleman, we conclude that ACCA’s phrase “use of physical force” includes force applied directly or indirectly.

Judgment affirmed.

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