United States v. Adam Flores
Opinion
Defendant Adam Alfredo Flores appeals the district court's determination that he
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was subject to an enhanced mandatory minimum sentence of fifteen years under the Armed Career Criminal Act (ACCA),
I. Background
In February 2018, Flores pleaded guilty to one count of being a felon in possession of a firearm in violation of
Because Flores violated
II. Discussion
A. ACCA Enhancement
Flores first argues his juvenile adjudication for Texas aggravated assault is not a "violent felony" for the purposes of an ACCA sentence enhancement.
2
We review the district court's determination that a prior conviction qualifies as a "violent felony" under ACCA de novo.
United States v. Massey
,
A defendant convicted of violating
*684 any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that-(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
To determine whether a prior conviction qualifies as a violent felony under ACCA, we traditionally apply the "categorical approach."
Descamps v. United States
,
We have followed Supreme Court precedent by applying the categorical approach to determine whether a prior adult conviction qualifies as a predicate ACCA offense,
3
but neither the Supreme Court nor our court has yet addressed whether the categorical approach applies to juvenile adjudications "involv[ing] the use or carrying of a firearm, knife, or destructive device" for ACCA enhancement purposes. The Supreme Court has consistently and clearly applied the categorical (or modified categorical) approach in all manner of cases where determination of a prior conviction's status is necessary. Its reasons for applying the categorical approach to adult convictions appear to apply equally to juvenile adjudications: ACCA's "text and history"; the "Sixth Amendment concerns that would arise from sentencing courts making findings of fact that properly belong to juries"; and "the practical difficulties and potential unfairness of a factual approach."
Descamps
,
Using that approach, Flores argues that his juvenile adjudication based on Texas aggravated assault did not categorically involve the use of a knife, a gun, or a destructive device, and thus cannot be a predicate ACCA offense. The United States concedes Flores is correct. 5
Flores was adjudicated as a juvenile delinquent based on aggravated assault under Texas law, which penalizes a person who commits an assault that "(1) causes serious bodily injury to another, including the person's spouse; or (2) uses or exhibits a deadly weapon during the commission of the assault." TEX. PENAL CODE § 22.02(a). For a juvenile adjudication to constitute a predicate offense for an ACCA enhancement, it must "involv[e] the use or carrying of a firearm, knife, or destructive device."
See
The elements of Flores's crime, Texas aggravated assault, covers "a greater swath of conduct than the elements of the relevant ACCA offense."
Mathis
,
B. Base Offense Level Calculation
Flores also claims the district court erred when it determined his base offense level was 24 under U.S.S.G § 2K2.1. Although we are remanding for a resentencing, it makes sense to address this issue since it will arise again at the new hearing. A defendant convicted for being a felon in possession receives a base offense level of
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24 if he committed the offense "subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 2K2.1(a)(2). Flores argues his prior adult Texas convictions should not have counted separately. We review the district court's application of the Sentencing Guidelines de novo and its factual findings for clear error.
United States v. Cisneros-Gutierrez
,
Flores argues his convictions should be consolidated because he was sentenced on the same day, February 12, 2003, for both aggravated robbery and aggravated assault causing bodily injury (Cause No. 02-CR-2120-D), and aggravated assault with a deadly weapon (Cause No. 02-CR-3450-D). The Sentencing Guidelines, however, state that prior "sentences always are counted separately if the sentences were imposed for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense)." U.S.S.G. § 4A1.2(a)(2). Here, Flores was arrested on June 17, 2002, in Cause No. 02-CR-2120, for robbing and assaulting a male victim on May 6, 2002. Flores was then arrested again on October 2, 2002, in Cause No. 02-CR-3450-D, for the aggravated assault of his girlfriend on July 14, 2002. Flores did not provide any evidence to rebut this information, which was provided in the PSR. Therefore, the district court did not err in counting the convictions separately and calculating Flores's base offense level.
The sentence is VACATED, and the case is REMANDED to the district court for a resentencing.
Flores does not challenge his conviction, which remains in place.
Flores also argues his juvenile adjudication suffered from various procedural defects. This argument is foreclosed as an unauthorized collateral attack of a prior conviction in a federal sentencing proceeding.
See
Custis v. United States
,
See, e.g.
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United States v. Espinoza
,
See
United States v. Headbird
,
We are not bound by the Government's concessions, of course, but we note that it would be time-saving and sensible if the Government would examine such concepts before appearing in the district court so that the district court has the benefit of hearing such concessions.
A "destructive device" is defined as any "explosive, incendiary, or poison gas-bomb, grenade, rocket having a propellant charge of more than four ounces, missile having an explosive or incendiary charge of more than one-quarter once, mine[s]" or any combination of these devices or devices like them.
See
This result highlights the difficulties caused by the categorical approach-it is undisputed that Flores's juvenile adjudication stems from an aggravated assault where he caused serious bodily injury by shooting the victim with a firearm. Nonetheless, he will now be treated differently than other juveniles who acted exactly the same way but were convicted under a narrower statute. But, as stated before, in light of precedent, we conclude we must apply the categorical approach, even if it leads to such an unfortunate outcome.
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff - Appellee v. Adam Alfredo FLORES, Also Known as Adam Flores, Defendant - Appellant
- Cited By
- 7 cases
- Status
- Published