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Bralen Lamar Jordan should consider himself lucky. His case was recently remanded back to the lower federal court to be ruled in favor after he convinced the Eighth Circuit that his convictions for domestic battery and aggravated assault were not violent felonies.
How did he do it? Look at the plain language of the law.
In 2014, Jordan, then a convicted felon based on crimes of domestic violence and aggravated assault, was arrested for felony possession of a firearm. Jordan had at least one prior conviction that clearly constituted a violent felony according to the definition set out below. However, he argued that enhancement of his sentence was unjustified because his other felony convictions did not qualify as "violent felonies."
The reason the definition mattered so much was because prosecutors were attempting to paint Jordan as an "armed career criminal" for the purposes of the ACCA -- or Armed Career Criminal Act.
Under the federal Armed Career Criminal Act, criminal courts are given the charge to enhance punitive sentences of no less than fifteen more years against armed defendants who had previously been convicted of violent felonies. But there is more nuance to the law than that. "Violent felony" for purposes of the act can be satisfied in three different ways.
The ACCA Elements
First, a conviction counts as a violent felony if it had an element of "the use, attempted use, or threatened use of physical force against the person of another." Second, convictions of burglary, arson, or extortion or any crime that involves the use of explosives qualifies. This is a general application of the "inherently dangerous felony" doctrine. The last element was later found to be unconstitutional in the case of Johnson v. United States, so its discussion is moot.
A Matter of Semantics
Jordan had one 2002 conviction for trying to use explosives to destroy someone's property. But he argued that ACCA should not apply to his domestic violence and assault charges because they were not violent felonies. How did he figure?
It turns out that the Circuit agreed with him. Look to the language of the statute, the court said. Under Arkansas' Ark. Code Ann. sec. 5-13-204(a)(1), the government must prove that the defendant manifested "extreme indifferent to the value of human life" and "purposefully [e]ngage[d] in conduct that create[d] a substantial danger of death or serious physical injury to another person." The elements do not match up.
Mens Rea to the Rescue
That is to say, the Ark. Statute and the ACCA use different enough language such that the elements are different. That is to say, "the creation of a substantial danger (or risk)" is not the same as intent, attempt or threats. Sure, they involved violence, but not in the way that mattered. The mens rea element is missing in the Arkansas statute.
Logically, this means that one can be convicted for assault in Arkansas without actually having to really address the issue of intentionality. In either case, this one small and seemingly insignificant detail managed to save Jordan a lot of extra time in prison.
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