Wake Forest Law Review

handgun-231699_1280

By:  Steven M. Franklin

Yesterday, in U.S. v. Fikes, the Fourth Circuit affirmed the decision by the District Court for the Middle District of North Carolina to classify Mr. Kevin Fikes, Jr., as an armed career criminal.

What Happened?

Mr. Fikes pleaded guilty to possession of a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). The District Court designated Mr. Fikes as an armed career criminal, and thus sentenced him to 180 months in prison.

Is There a Problem?

On appeal, Mr. Fikes contended that the District Court erred in two regards. First, the District Court should not have considered predicate offenses that were neither pleaded in the indictment nor proven to a jury beyond a reasonable doubt to designate him as an armed career criminal. Second, because his predicate offenses were consolidated, the offenses should not have been considered separately to satisfy the armed career criminal enhancement.

No Problem Here, Mr. Fikes

In regard to Mr. Fikes first contention, the Fourth Circuit concluded that the District Court did not err. Even if a conviction is not found by a jury, the fact of a prior conviction nonetheless remains a valid enhancement. The Fourth Circuit also concluded that the District Court did not err in regard to Mr. Fikes’ second contention because predicate offenses do not need to be tried or sentenced separately to be considered “separate offenses” under the armed career criminal enhancement.

The Fourth Circuit Affirms

For these reasons, the Fourth Circuit affirmed the District Court’s decision to classify Mr. Fikes as an armed career criminal.

By: Steven Franklin

Today, in United States v. Carr, the Fourth Circuit held that a defendant can receive the requisite number of Armed Career Criminal Act (“ACCA”) predicate convictions through a consolidated criminal judgment.

A jury found Antoine Charles Carr guilty of possession of a firearm and ammunition by a convicted felon, and possession of cocaine base.  Mr. Carr received a 210-month sentence due to a sentencing enhancement under the ACCA. On appeal, Mr. Carr argued that, because he had multiple convictions that fell under one sentence, he did not have the three predicate convictions necessary for the ACCA to apply.

Under 18 U.S.C. § 924(e)(1), a defendant is considered an armed career criminal if he has “three previous convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another.” Similarly, under the U.S. Sentencing Guidelines Manual  § 4B1.1(a), a defendant will not be considered a career offender unless two of the convictions have sentences that are counted separately.

However, there is no such language under the ACCA. It simply requires three predicate “convictions.” Mr. Carr attempted to argue that “conviction” and “sentence” are materially indistinguishable, but the Court found this unpersuasive and affirmed the trial court’s decision.