The Second Circuit Counts to Three: How One Defendant Became a Career Criminal Over the Course of an Hour
In United States v. Bordeaux, 17-486-cr (Cabranes, Raggi, Vilardo), the Second Circuit held that the defendant’s three prior Connecticut state convictions for first-degree robbery—all of which took place during a single night—satisfied the requirements for conviction under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The opinion confirms that a conviction under Connecticut’s first-degree robbery statute constitutes a “violent felony” within the meaning of the ACCA and continues the majority approach to interpreting the “different occasions” requirement of the Act—which places the greatest emphasis on whether a defendant had time to contemplate his actions between the incidents giving rise to his prior convictions. Much is at stake for the defendant: a conviction under Section 924(e) carries with it a mandatory consecutive 15-year term of imprisonment.
Aldric Bordeaux was convicted of one count of unlawful possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and ACCA, 18 U.S.C. § 924(e), after entering a guilty plea. In his plea agreement, Bordeaux reserved his right to argue that the ACCA, which imposes a 15-year mandatory minimum sentence for certain repeat offenders, was not applicable based on his criminal history. After hearing argument on the issue, the District Court held that Bordeaux’s three prior convictions for first-degree robbery met the requirements for imposing the mandatory minimum sentence under the ACCA. On appeal, Bordeaux argued that first-degree robbery under the Connecticut General Statutes does not constitute a “violent felony” within the meaning of the ACCA, and that his three prior convictions did not occur on “different occasions” such that they should be counted individually to satisfy the requirements of the ACCA.
The Court’s opinion began by addressing the question of whether first-degree burglary under Connecticut law constitutes a “violent felony” within the meaning of the ACCA. Pursuant to the Act, the fifteen-year mandatory minimum is only applicable if the defendant has been convicted three times of committing “a violent felony or a serious drug offense.” The statute defines a violent felony as a crime which has as an element the use, attempted use, or threatened use of physical force.
When determining whether a particular conviction qualifies as a “violent felony,” a court must first identify the elements of the statute forming the basis of conviction and determine what is the minimum criminal conduct necessary for conviction under the statute. Where the statute lists alternative ways in which a defendant may commit the offense, a court must look to a limited class of records, such as the indictment or plea colloquy, to determine under which prong of the statute the defendant was convicted. The minimum conduct required to convict a defendant under the relevant statute must include: (1) an intent to use, attempt to use, or threaten to use physical force, and (2) the use, attempted use, or threatened use of “violent force”—i.e., force capable of causing physical pain or injury to another person—in order to count as a violent felony. If the statute punishes mere negligent conduct, however, it is not a violent felony.
Applying this standard, the Court determined based on Bordeaux’s plea colloquy that he had been convicted under Conn. Gen. Stat. § 53a-134(a)(4), which punishes as first-degree robbery the display or threatened use of a firearm during the commission of a robbery. The general definition of robbery under Connecticut law punishes a defendant who, in the course of committing a larceny, uses physical force “for the purpose of” preventing resistance or compelling the owner of the property to deliver it to the defendant. After reviewing these definitions, the Court concluded that Bordeaux’s first-degree robbery convictions constituted violent felonies. First, the Court held that Connecticut’s general definition of robbery included an intent element—force used for a particular purpose—such that it did not punish mere negligent conduct. Second, the Court held that the first-degree robbery statute under which Bordeaux was convicted required the use of violent force, because the mere display of a firearm is capable of causing physical harm. The Court found that this was so even though a defendant can be convicted under the statute based on verbal threats alone—without actually possessing a firearm—because a verbal threat to use a firearm constitutes the threatened use of violent force within the meaning of the ACCA. Given this ruling, the Court declined to decide whether Connecticut’s generic definition of robbery necessarily requires the use of “violent force.”
Having concluded that Bordeaux’s prior convictions were violent felonies, the Court next turned to the question of whether they occurred on different occasions such that they could be counted as three separate convictions under the ACCA. Pursuant to Second Circuit precedent, prior convictions are committed on different occasions only if the defendant committed the offenses in “distinct criminal episodes.”
The Court looked to both the text and legislative history of the ACCA to apply this standard. First, the Court noted that the plain meaning of “occasion,” as defined by the Oxford English Dictionary is “the totality of circumstances giving rise to an opportunity.” Next, the Court reviewed the legislative and statutory history of the Act, explaining that the ACCA was intended to protect the public from career criminals whose “full-time occupation is crime for profit.” The Court also noted that although the original text of the statute did not include language requiring the prior convictions to have occurred on different occasions, Congress amended the statute to add this requirement after the ACCA was applied to a defendant who was convicted of six counts of robbery for simultaneously robbing six people at a restaurant.
With this background in mind, the Court explained that the ACCA represents an attempt to distinguish between defendants who commit several offenses in a single chain of events and defendants who commit offenses over a long period of time, separated by time for reflection, and to punish the latter category of defendants more severely. Thus, in determining whether convictions occurred on different occasions, courts must look to whether the defendant committed different crimes at different times, whether the defendant committed the crimes against different victims, and whether the defendant committed the crimes by going to the effort of travelling from one place to another. In analyzing these facts, the court is limited to a review of the same set of approved sources described above, i.e., the charging document, the written plea agreement, the transcript of the plea colloquy, and analogous materials.
Having set forth this standard, the Court then reviewed the facts of Bordeaux’s criminal history. Each of his three prior convictions arose from robberies of different victims that occurred within the space of an hour on a single night. Bordeaux committed the first robbery at approximately 10:00pm on November 24, 2009. He then travelled approximately half a mile to commit a second robbery at approximately 10:15pm. Finally, he travelled another half a mile to commit the third and final robbery at approximately 10:55pm. Although the District Court reviewed a police report—an impermissible source—to determine the time between the first and second robberies, the Court found that this error was harmless because there was sufficient information in the plea colloquy from which this timing could be inferred.
Based on the above facts, the Court concluded that each of Bordeaux’s three robberies occurred on a different occasion, such that they should count as three separate convictions under the ACCA. Although it acknowledged that only a short amount of time passed between the robberies, the Court found that the amount of distance between each crime scene was indicative of a degree of effort on the part of Bordeaux to commit each successive robbery. The Court held that taken together, the time lapse and distance would have provided Bordeaux an opportunity to reflect and end his crime spree if he had wished to do so.
The Court also rejected Bordeaux’s argument that the government failed to prove that the first robbery had ended before the second began, because one of his accomplices could have stayed behind to guard the first set of victims. Relying on the plea colloquy, the Court found there was sufficient evidence to infer that none of Bordeaux’s accomplices had stayed behind at any of the crime scenes because each of the victims was able to call the police shortly after each robbery took place. The Court therefore affirmed Bordeaux’s conviction under the ACCA.
This decision is notable as an example of the expansive interpretation the majority of courts apply to the “different occasions” requirement of the ACCA. Although the Court noted that the ACCA was intended to punish defendants who lead a life of crime, the panel ultimately concluded that Bordeaux’s conduct during one hour of a single evening, years prior to his instant conviction, was sufficient to qualify him as a career criminal. This is because the Court placed the greatest emphasis on whether Bordeaux had an opportunity to reflect and change course between each robbery. The Court’s ruling is consistent with the approach in the majority of circuits, where defendants have similarly been found to be career criminals under the ACCA based on convictions arising out of a single day’s conduct. See, e.g., United States v. Hudspeth, 42 F.3d 1015 (7th Cir. 1994) (holding that the defendant’s three convictions for burglarizing three adjacent stores over the course of a single half hour occurred on different occasions).
Several commentators have criticized this approach, and argued that courts should place a higher burden on the government to establish that same-day convictions occurred on different occasions. See Jenny W.L. Osborne, One Day Criminal Careers: The Armed Career Criminal Act’s Different Occasions Provision, 44 J. Marshall L. Rev. 963 (2011), available at https://repository.jmls.edu/cgi/viewcontent.cgi?article=1034&context=lawreview (calling for Congressional action to incorporate an intervening arrest requirement similar to the sentencing guidelines); Carl Gunn, When Are Two or Three Convictions Just One?, Hanging Out with Carl Gunn Blog (Feb. 17, 2015), http://www.kmbllaw.com/when-are-two-or-three-convictions-just-one/ (comparing the ACCA to the Career Offender Guidelines, which require an intervening arrest in order to count prior convictions in the same charging document separately). This would harmonize the treatment of prior convictions under Guidelines Section 4A1.2(a)(2), which provides that “[p]rior sentences always are countered separately if the sentences were imposed for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense).” If there is no intervening arrest, and if the prior sentences resulted from offenses contained in the same charging instrument, then the sentences are treated as a single sentence. This rule is more true to the animating purpose behind the “different occasions” provision: to “target  . . . someone who commits multiple crimes separated by substantial effort and reflection.”
Some other commentators have also pointed out that it is anomalous for the Supreme Court to have retained the prior-conviction exception to Apprendi v. New Jersey, 520 U.S. 466 (2000). This exception actually predates Apprendi, in the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998) which held that a sentencing enhancement based on a prior conviction was not subject to the Sixth Amendment requirement for a jury to determine the fact beyond a reasonable doubt. These commentators have called for the question of prior convictions and their relatedness to be decided by the jury, just as drug quantity under 21 U.S.C. § 841(b)(1) is decided by the jury. See Carl Gunn, Who Gets To Decide When Two or Three Convictions Are Just One?, Hanging Out with Carl Gunn Blog (Feb. 24, 2015), http://www.kmbllaw.com/who-gets-to-decide-when-two-or-three-convictions-are-just-one/ (suggesting that the Supreme Court should apply its ruling in Apprendi to the ACCA and require a jury to find the facts necessary to determine whether prior convictions should be counted separately, but conceding that this argument has been rejected by several circuits).
Despite this criticism, courts have been reluctant to abandon the majority approach to the “different occasions” requirement of the ACCA, and it will likely require Congressional intervention in order to stop the application of this statute to defendants’ whose prior convictions occurred over a short period of time. This and other “three-strikes” laws were passed in a different political and penological environment, and while there may still be some defendants for whom the added punishment or deterrent value can be justified, the enhancement here seems inconsistent with the notion that the ACCA is meant for defendants who commit new crimes after “reflection.” This defendant engaged in one evening of armed robbery rather than a longer “life of crime” but he will nevertheless receive the 15-year mandatory minimum sentence for an “armed career criminal.”
-By Jacqueline Bonneau and Harry Sandick
 Judge Lawrence J. Vilardo, of the United States District Court for the Western District of New York, sitting by designation.