Yes Sir, Attempted Rape is a Violent Felony for ACCA Purposes
Perhaps bolstered by a series of appellate victories, federal inmate Dereck Dawson continues to fight the sentence imposed as a result of a 2003 altercation with his girlfriend and her son. Testimony indicated that during the fight, he hit the girlfriend and pointed a gun at her son. When police arrived, they witnessed him ditching the stolen firearm under an air conditioner.
Dawson was initially convicted and sentenced for being a felon in possession of a firearm and for possessing a stolen firearm. The initial sentence, courtesy of the Armed Career Criminal Act, was 262 months, the low end of the range. A previous appeal, based on Booker, led to a reduced sentence of 180 months.
But Dawson still wasn't satisfied. Then again, who would be? A fifteen year sentence means plenty of time to continue filing appeals.
This time, his ire was directed at the applicability of the ACCA and an erroneous jury instruction about constructive possession of a firearm. The court ruled the latter harmless, as the jury almost certainly convicted on actual possession - an officer witness the firearm disposal.
As for the ACCA challenge, Dawson had four prior offenses. He conceded that a 2001 conviction for aggravated burglary qualified as violent. However, he took issue with the qualification of attempted rape as a violent felony. He also argued that his two 1988 convictions should be counted as one for purposes of ACCA, as they were not committed on separate occasions.
A violent felony for purposes of ACCA must be punishable by a term of imprisonment exceeding one year and must be one of the following:
- Has an element of the attempted, threatened, or actual use of physical force;
- Use of explosives;
- Involves conduct that presents a serious risk of physical injury to another.
Dawson served three years for the attempted rape, so the question is whether the other element is met. For purposes of ACCA, offenses are analyzed categorically, as the offense is typically carried out, not as the offender carried them out. Though rape can be accomplished by fraud, and therefore does not categorically meet the physical force provision, the court held that it meets the residual provision: risk of injury.
Dawson cited a previous Sixth Circuit case that held that assault with intent to commit sexual battery was not a violent ACCA offense. However, under state law, assault is merely putting someone in fear of bodily harm. In addition, the court highlighted the difference between battery and attempted rape. The former involves sexual contact whereas the latter involves unlawful penetration. That precedent, therefore, does not control.
In addition, the court quoted the Tenth Circuit in reasoning that even in rape-by-fraud cases, such situations can easily escalate into violent altercations when the victim becomes aware of the true circumstances. Hence, the risk of physical injury.
Attempted rape, due to the risk of physical injury, is therefore a violent felony for purposes of ACCA and in combination with Dawson's other offenses, qualifies him for the enhanced sentence.
- Dawson v. United States (Sixth Circuit Court of Appeals)
- Eleventh Circuit Upholds ACCA Enhancement for False Imprisonment (FindLaw's Eleventh Circuit Blog)
- Sixth Circuit: Facilitating a Crime Can Be a Violent Felony (FindLaw's Sixth Circuit Blog)
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