Predicate convictions often set the mandatory minimum or maximum sentence (or are elements of) a federal crime. The necessary finding is by the court, not the jury.
Almendarez-Torres v. United States, 523 U.S. 224 (1998).
This inquiry presented in this litigation tool is independent of the use of prior convictions to compute the criminal history or career offender status under the U.S. Sentencing Guidelines. Consult the excellent
Federal Sentencing Guidelines Calculator Web site for those calculations.
The questions that follow identify predicate convictions that enhance sentences, identify the statute that defines the predicate, and note any Supreme Court cases bearing on the definition. An overview is provided in the form of an infographic; click on the image on the right to view it full sized.
Title 8 U.S.C. § 1326 authorizes the felony prosecution of aliens who enter or attempt to enter the U.S. after having been removed or denied admission to the United States. See generally the trialdex
illegal reentry litigation tool.
Title 8 U.S.C. § 1425
authorizes felony prosecutions for persons who procure or attempt to procure, contrary to law, citizenship or naturalization for themselves or other persons.
Title 8 U.S.C. § 1326(b)(1) bumps the maximum sentence for illegal reentry from two to ten years if the removal was subsequent to a conviction for three or more misdemeanors involving drugs, crimes against the person, or a felony.
Subsection 1326(b)(2) increases the maximum sentence to twenty years if removal was subsequent to a conviction for commission of an "aggravated felony" under state or federal law.
Esquivel-Quintana v. Sessions, 137 S.Ct. 1562, 1567 (2017), the Supreme Court held that a conviction under a state statute criminalizing consensual sexual intercourse between a 21-year-old and a 17-year-old did not qualify as sexual abuse of a minor under this statute.
An aggravated felony enhancement for drug trafficking is not extremely consequential, since the same conduct triggers a 12-level increase in the Sentencing Guidelines offense level. See
U.S.S.G. § 2L1.2(b)(1)(B).
Attacks on state predicates sometimes make the claim that a state predicate is not "categorically" an aggravated felony where the underlying statute includes substances that are not included in the CSA. This claim has not been addressed by the Supreme Court.
the firearms offenses described in
21 U.S.C. 5861 (National Firearms Act)
Arguments have been made that, since antique firearms may be exempt under federal law, that a state statute without such an exception may not qualify "categorically." Dicta in
Moncrieffe v. Holder, 569 U.S. 184, 206 (2013), indicates that this argument requires a showing that "the State actually prosecutes the relevant offense in cases involving antique firearms."
The aggravated felony definition includes "a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year."
8 U.S.C. § 1101(a)(43)(G).
The aggravated felony definition includes crimes that involve fraud or deceit in which the loss to the victim or victims exceeds $10,000, or
tax evasion where the revenue loss to the government exceeds $10,000.
8 U.S.C. § 1101(a)(43)(M).
The $10,000 thresholds are not part of the generic crime definition, and consequently need not be an element of the federal or state crime.
Nijhawan v. Holder, 557 U.S. 29, 32 (2009).
Kawashima v. Holder, 565 U.S. 478 (2012), the Court held that violations of
26 U.S.C. §§ 7206(1)and 7206(2) (tax fraud) are categorically crimes involving fraud or deceit. It did not matter that § 7206(1) does not use the terms "fraud" or "deceit."
Title 18 U.S.C. § 117 ("Domestic assault by an habitual offender") provides for a five year sentence for domestic assaults within the special maritime and territorial jurisdiction of the United States, or in Indian country, where the defendant had "final convictions" on two separate occasions in state, federal, or Indian tribal courts for offenses, if subject to federal jurisdiction, that would constitute an:
"Assault" is not defined in the United States Code, so courts apply the common law meaning to the term: an attempt to commit a battery, or an act that puts another in reasonable apprehension of immediate bodily harm.
Commonly charged federal assault crimes are collected at
Title 18 chapter 7 (Assault), but also appear in other chapters, e.g.,
18 U.S.C. 1751(e)
(Presidential and Presidential staff assault).
"Sexual abuse" refers to the federal crimes listed in
Title 18, chapter 109A, and any state crimes that are a categorical match, that is,
where the elements of the state crime of conviction include all of the elements of the federal crime.
It also includes "any other offense punishable by a maximum term of imprisonment of 10 years or more" that "has as an element the use, attempted use, or threatened use of physical force against the person of another" (a "force" or "elements" clause), or "that, by its nature, involves a substantial risk that physical force against the person of another may be used in the course of committing the offense" (a
18 U.S.C. § 3559(c)(2)(F)(ii).
The residual clause of paragraph (ii) appears to have been abrogated by
Sessions v. Dimaya, 138 S.Ct. 1204 (2018).
Robbery and "force/elements clause" crimes do not apply where defendants can establish by clear and convincing evidence that the offense involved neither the use nor the threatened use of a dangerous weapon, and that no one suffered
serious bodily injury.
18 U.S.C. § 3559(c)(3).
Arson does not count if defendants can establish by clear and convincing evidence that they reasonably believed that the offense posed no threat to human life, and that in fact it did not. Id.
Substantial bodily injury means "bodily injury which involves (A) a temporary but substantial disfigurement; or (B) a temporary but substantial loss or impairment of the function of any bodily member, organ, or mental faculty."
18 U.S.C. § 113(b)(1).
"Serious bodily injury" means bodily injury which involves a substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
18 U.S.C. § 1365(h)(3).
Note that this "three strikes" definition of "serious drug offense" has the same name, but is more narrowly defined than the "serious drug offense" definition at
18 U.S.C. § 924(e)(2)(A) (Armed Career Criminal Act).
The maximum sentence for naturalization fraud is ten years, fifteen years if the defendant has two prior naturalization fraud convictions, twenty years if the offense was committed to facilitate a drug trafficking crime, and twenty-five years if the offense was committed to facilitate an act of international terrorism.
18 U.S.C. § 1425.
Title 18 U.S.C. § 3592(c)(2) defines "[p]revious conviction of violent felony involving firearm" as "a Federal or State offense punishable by a term of imprisonment of more than 1 year, involving the use or attempted or threatened use of a firearm (as defined in [18 U.S.C. § 921]) against another person."
Title 18 U.S.C. § 3592(c)(3) and (d)(1) define a statutory aggravating factor where the defendant has been previously convicted of another federal or state offense resulting in the death of a person, for which life imprisonment or a sentence of death was authorized by statute.
Title 18 U.S.C. § 3592(c)(4) defines a statutory aggravating factor
in homicide death penalty cases for "other serious offenses." It requires that the "defendant has previously been convicted of 2 or more Federal or State offenses, punishable by a term of imprisonment of more than 1 year, committed on different occasions, involving the infliction of, or attempted infliction of, serious bodily injury or death upon another person."
Title 18 U.S.C. § 3592(d)(2) defines a statutory aggravating factor
in drug offense death penalty cases for "other serious offenses." It requires that the
"defendant has previously been convicted of two or more Federal or State offenses, each punishable by a term of imprisonment of more than one year, committed on different occasions, involving the importation, manufacture, or distribution of a controlled substance (as defined in section 102 of the Controlled Substances Act
(21 U.S.C. 802)) or the infliction of, or attempted infliction of, serious bodily injury or death upon another person.
Title 18 U.S.C. § 3592(c)(10) ("two felony drug offenses") establishes a statutory aggravating factor where the the defendant "has previously been convicted of 2 or more State or Federal offenses punishable by a term of imprisonment of more than one year, committed on different occasions, involving the distribution of a controlled substance."
This is not the same thing as the broader definition of "felony drug offense"
in former 21 U.S.C. § 802(44) (replaced by "serious drug felony," defined in
§ 802(57) in 2018). However, the two statutes define a felony using the same language, so the decision in
Burgess v. United States, 553 U.S. 124 (2008) (§ 802(44) case holding that a state drug offense that is "punishable by imprisonment for more than one year" qualifies as a "felony drug offense" for purposes of the federal drug recidivist sentencing statutes, even if state law classifies that offense as a misdemeanor), would be persuasive authority in a § 3592(c)(1) case.
Title 18 U.S.C. § 3592(c)(12) defines "serious federal drug offenses" as
"violations of title II or III of the Comprehensive Drug Abuse Prevention and Control Act of 1970 for which a sentence of 5 or more years may be imposed or had previously been convicted of engaging in a
continuing criminal enterprise."
Title 18 U.S.C. § 3592(d)(3) ("Previous serious drug conviction") where the
"defendant has previously been convicted of another Federal or State offense involving the manufacture, distribution, importation, or possession of a controlled substance (as defined in section 102 of the Controlled Substances Act
(21 U.S.C. 802)) for which a sentence of five or more years of imprisonment was authorized by statute."
The crime of Transfer of Explosive Materials for Use in a Crime of Violence or Drug Trafficking Crime,
18 U.S.C. § 844(o), is committed where the defendant transfers explosive materials, knowing or having reasonable cause to believe that they would be used to commit
a crime of violence or a drug trafficking crime.
Taylor v. United States, 495 U.S. 575 (1990), the Supreme Court has taken the view that
the crime is not defined by the definition adopted by the State of conviction, id. at 590, or the common-law definition, id. at 596, and does not require "especially dangerous conduct." Id. at 598. The crime definitions are understood in the "generic" sense in which the term is now used in the criminal codes of most States." Id. Courts are to follow a "categorical approach," examining "the fact of conviction and the statutory definition of the prior offense," not the actual facts underlying the conviction. Id. at 602.
We therefore hold that an offense constitutes "burglary" for purposes of a
§ 924(e) sentence enhancement if either its statutory definition substantially corresponds to "generic" burglary, or the charging paper and jury instructions actually required the jury to find all the elements of generic burglary in order to convict the defendant.
Id. See also
United States v. Stitt, 139 S.Ct. 399 (2018) (burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation qualifies as the enumerated violent felony of burglary).
Statutes defining the term "violent crime" typically include a clause that reads
"has as an element the use, attempted use, or threatened use of physical force against the person [or property] of another." Courts call these "force" or "elements" clauses.
The Supreme Court has held that "in the context of a statutory definition of "violent felony," the phrase "physical force" means violent force—that is, force capable of causing physical pain or injury to another person."
Johnson v. United States, 559 U.S. 133, 140 (2010).
Title 18 U.S.C. § 3559(e)(1) calls for a mandatory life sentence for persons convicted of a "federal sex offense" in which a minor is the victim if they have "a prior sex conviction in which a minor was the victim, unless the sentence of death is imposed."
Subsection 3559(e)(3) excludes predicates where the defendant can establish by clear and convincing evidence that the activity was consensual and noncommercial, a misdemeanor, or where no sexual act or activity occurred.
The state predicate definitions differ slightly in wording for each statute, but take this general form: "under the laws of any State relating to aggravated sexual abuse, sexual abuse, abusive sexual [contact] involving a minor or ward, or [sex trafficking] of children, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography." Some of the statutes substitute "conduct" for "contact" and "sexual exploitation" for "sex trafficking."
Prior to December 21, 2018,
21 § 841(b)(1) provided for enhanced sentences for defendants who had been previously been convicted of one or more "felony drug offenses," defined in former
21 U.S.C. § 802(44) as offenses that were "punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant." substances.
Burgess v. United States, 553 U.S. 124 (2008) (state drug offense that is "punishable by imprisonment for more than one year" qualifies as a "felony drug offense" even if state law classifies that offense as a misdemeanor).
The current version of § 841(b)(1) provides for enhancements for:
a "serious drug felony" defined in § 802(57) as a § 3559(c)(2) serious drug felony for which the offender served a term of imprisonment of more than 12 months, and was released from any term of imprisonment within 15 years of the commencement of the instant offense.
a "serious violent felony" defined in § 802(58) as a § 3559(c)(2) serious violent felony for which the offender served a term of imprisonment of more than 12 months; and any offense that would be a felony violation of
18 U.S.C. § 113 if committed in federal jurisdiction, for which the offender served a term of imprisonment of more than 12 months.