When Anthony Soto-Rivera was arrested, he was in possession of a machine gun. Unfortunately for him, Soto-Rivera was also a felon, making his possession of any firearm, not to mention a machine gun, illegal. He pleaded guilty and was sentenced as a career criminal, under the assumption that being a felon in possession of a firearm is a "crime of violence" for federal career offender sentencing enhancements.
Not so, the First Circuit ruled last Friday. Given the Supreme Court's recent invalidation of the unconstitutionally vague "residual clause" in the Armed Career Criminal Act, the similar language in the federal sentencing guidelines must too fall, meaning the mere possession of a firearm cannot be seen as a crime of violence, the First Circuit found.
Just an Innocuous Machine Gun
The First Circuit spent little time rehashing the circumstances of Soto-Rivera's arrest except to note that he "found himself under arrest" while in possession of a firearm and ammunition. This was not just any firearm, either. It was a machinegun, "a Glock Model 23, .40 caliber modified to shoot automatically more than one shot, without manual reloading, by a single function of the trigger."
Soto-Rivera pleaded guilty to possession of a firearm. Both his plea and sentencing assumed, without explaining, that being a felon in possession of a firearm was a "crime of violence."
Soto-Rivera had twice before been convicted of drug crimes. The third conviction allowed him to be sentenced as a career offender under federal sentencing guidelines. The guidelines' "three strikes" provision allows enhanced sentencing for offenders who have been convicted three times of crimes involving controlled substances and crimes of violence.
As the ACCA Goes, So Too Go the Sentencing Guidelines
However, after Soto-Rivera was sentenced, the Supreme Court invalidated a major provision of the Armed Career Criminal Act, a federal three strikes law which provides mandatory minimum sentences for enumerated crimes as well as any crime that involves "a serious potential risk of physical injury to another." That quoted segment, the ACCA's so-called "residual clause," was "void for vagueness" the Court ruled in last June's Johnson v. United States opinion.
The ACCA's residual clause is almost identical to that found in the sentencing guidelines. According to the guidelines, crimes of violence include things like arson, assault, bombing, or any act which "otherwise involves conduct that presents a serious potential risk of physical injury to another."
On appeal, both sides agreed that Soto-Rivera's conviction couldn't be supported by the guideline's residual clause after Johnson. But, the government argued, it could be supported based on the guideline's commentary, which defined a "crime of violence" as including possession of a machinegun.
The First Circuit was not convinced, however. With the residual clause removed from the guideline's crime of violence definition, the guidelines commentary makes little to no sense -- it lacks the generic "risk of physical injury" phrasing that the commentary reads to encompass the possession of a machine gun.
Further, the First Circuit rejected the idea, expressed by the Eleventh Circuit in an unpublished opinion, that Johnson was limited only to sentences imposed under the ACCA. Since the government had already agreed that Johnson invalidated the residual clause in the sentencing guidelines, the First Circuit refused to entertain such an argument.