According to the Attorney General, there were three prior crimes of violence. Two of the crimes alleged to be violent are undisputed. The third is based upon Smith's failure to report to an Illinois state penitentiary as required after being convicted of robbery and aggravated battery. The position of the Attorney General is that this failure to appear at the penitentiary constitutes a violent felony under Illinois state law and as a result is seeking a sentence of 188 months pursuant to 18 U.S.C. SEC 924(e).
To be considered a "violent felony" for enhanced sentencing, the offense must first be a "crime punishable by a term of imprisonment exceeding one year," or constitute an act of juvenile delinquency involving the carrying or use of a firearm, knife, or destructive device that would be punishable by a term of imprisonment exceeding 1 year if committed by an adult. 18 U.S.C.A. 924(e)(2)(B), However, 18 U.S.C.A. 921(a)(20) limits the definition of a "crime punishable by imprisonment for a term exceeding one year" by excluding convictions for certain categories of crime, prohibiting the use of particular convictions not considered felonies under state law, and excluding convictions altered by selected state action.
Specifically, 18 U.S.C.A. ...
921(a)(20) provides that certain crimes, including offenses pertaining to antitrust violations, restraint of trade, and other unfair business practices, as well as state offenses labeled misdemeanors and punishable by a term of imprisonment of 2 years or less, are excluded from those "crimes punishable by imprisonment for a term exceeding one year." As applied to this client, the statute also provides that what constitutes a crime punishable by imprisonment for a term exceeding 1 year will be determined by the law of the jurisdiction in which the proceedings were held and that certain convictions--namely those which have been set aside or expunged, instances where a pardon has been issued, or where civil rights have been restored--will not be considered convictions for the purpose of sentence enhancement under 18 U.S.C.A. 924(e)(1) unless these enumerated actions affecting the particular convictions expressly limit the right to ship, transport, possess, or receive firearms. Id.
Under 18 U.S.C. 924(e), the Armed Career Criminal Act (the "ACCA"), a person who violates 922(g) and who has three previous convictions for a "violent felony," a serious drug offense, or both, is an armed career criminal and subject to imprisonment for a period of not less than fifteen years. Under the ACCA, the term "violent felony" means any crime punishable by imprisonment for a term exceeding one year that has an element of physical force or "presents a serious potential risk of physical injury to another." 18 U.S.C. 924(e)(2)(B); United States v. Rainey, 362 F.3d 733, 734 (11th Cir.2004). In determining whether a particular offense falls within this definition, the Supreme Court has directed trial courts to pursue a categorical approach, 'looking only to the statutory definitions