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United States v. Shabazz

United States District Court, D. Delaware

October 18, 2017


          David C. Weiss, Acting U.S. Attorney, and Whitney C. Cloud, Assistant U.S. Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wilmington, DE Attorneys for Plaintiff.

          Edson A. Bostic, Federal Public Defender, Eleni Kousoulis, Assistant Federal Public Defender, and Tieffa N. Harper, Senior Litigator, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Wilmington, DE Attorneys for Defendant.


          STARK, U.S. District Judge

         On February 4, 2016, a federal jury convicted defendant Aleem Shabazz ("Shabazz") of four felony counts, relating to straw purchases and unlawful possession of firearms. (See D.I. 53) The parties disputed whether Shabazz's previous convictions under Delaware's second-degree burglary statute subject him to a 15-year mandatory minimum sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e) ("ACCA" or the "Act"). The parties submitted several rounds of briefs on the issue (see D.I. 72, 74, 78, 82, 83, 86), and the Court heard oral argument on April 6, 2017 (see D.I. 81 ("Tr.")) and August 29, 2017 (see D.I. 87 ("Aug. Tr.")).

         At the conclusion of the August hearing, the Court ruled from the bench that ACCA does not apply. The Court indicated that it would issue a written opinion further articulating its reasoning. (See Aug. Tr. at 31-34) This is that opinion.[1]


         In 2010, a Delaware state grand jury indicted Shabazz on a number of felony charges stemming from his involvement in a series of residential burglaries in Wilmington, Delaware. (See D.I. 72-4) On September 20, 2010, Shabazz pled guilty to, among others, Counts I, VIII, and XV, which comprised three charges of second-degree burglary. (See D.I. 72-6) Shabazz spent a little under three years incarcerated before being released on probation. (See D.I. 73 at 10, 24) As a convicted felon, Shabazz could no longer lawfully possess firearms or ammunition. See 18 U.S.C. § 922(g).

         On April 28, 2015, a federal grand jury returned an indictment charging Shabazz with six felony counts. (See D.I. 2) In February 2016, after a four-day trial, a jury found Shabazz guilty of illegally possessing a gun and ammunition, and aiding and abetting straw purchases of firearms, in violation of 18 U.S.C. §§ 922(a)(6) and (g)(1). (See D.I. 53) In preparation for sentencing, the probation office provided the Court and the parties with a Presentence Investigation Report ("PSR"). (See, e.g., D.I. 73) Based on Shabazz's 2010 second-degree burglary convictions, the PSR classified Shabazz as an armed career criminal subject to 18 U.S.C. § 924(e) and USSG § 4B 1.4(a), concluding that, therefore, the Court had to impose at least the ACCA mandatory minimum sentence of 180 months. (See D.I. 73 at 9, 24)

         Shabazz objected under Federal Rule of Criminal Procedure 32(f) to the PSR's application of ACCA. (See D.I. 70) The parties submitted an initial round of briefs (see D.I. 72, 74, 78) and the Court heard oral argument (see Tr.). The Court then continued Shabazz's sentencing hearing, allowed the parties to submit supplemental briefing, and heard additional argument. (See D.I. 82, 83, 86; Aug. Tr.) After carefully considering counsel's arguments, the Court informed the parties at the end of the August 29, 2017 hearing that it would sustain Shabazz's objection, and consequently would not apply ACCA in this case.


         Section 924 of Title 18 of the United States Code reads, in relevant part:

[A] person who violates section 922(g) of this title and has three previous convictions ... for a violent felony . . ., committed on occasions different from one another, . . . shall be . . . imprisoned not less than fifteen years.

18 U.S.C. § 924(e)(1). The statute further provides that certain offenses "punishable by imprisonment for a term exceeding one year" - including "burglary" - qualify as "violent felon[ies]" under the Act. 18 U.S.C. § 924(e)(2)(B)(ii).[2]

         The Supreme Court has instructed that a prior offense cannot qualify as a "violent felony" under the Act unless its elements are "the same as, or narrower than" the elements of the "generic" versions of the enumerated offenses. Mathis v. United States, 136 S.Ct. 2243, 2247 (2016). To make that determination, courts apply the so-called "categorical approach, " which focuses solely on comparing the elements of the particular crime of conviction with those of its generic counterpart. Id. at 2248. Crimes that punish a broader range of conduct than the "generic" offense are disqualified from being considered violent offenses. Id. The actual facts underlying a given conviction are irrelevant. See Id. at 2251 ("How a given defendant actually perpetrated the crime - what we have referred to as the underlying brute facts or means of commission - makes no difference; even if his conduct fits within the generic offense, the mismatch of elements saves the defendant from an ACCA sentence.") (internal quotation marks and citation omitted).

         Sometimes, a single criminal statute will effectively define multiple offenses that address varying conduct by setting out alternative elements.[3] For these "divisible" crimes, courts are permitted to examine a "limited class of documents" to determine "what crime, with what elements, a defendant was convicted of." Mathis, 136 S.Ct. at 2249. Under this "modified categorical approach, " courts then compare that specific set of elements with the corresponding "generic" offense. Id.

         If the government can show three convictions for violent felonies "committed on occasions different from one another, " ACCA imposes a mandatory minimum sentence of 15 years of incarceration. 18 U.S.C. § 924(e)(1). The U.S. Sentencing Guidelines also provide a minimum baseline offense level of 33 for defendants subject to ACCA. See U.S. Sentencing Guidelines Manual § 4B 1.4(b)(3) (U.S. Sentencing Comm'n 2016).


         Based on Shabazz's three Delaware convictions for burglary in the second degree, the government argues the Court must apply ACCA and sentence Shabazz to the mandatory minimum 15-year term. Shabazz makes three principal arguments in response. He first questions whether the record allows the Court to determine which subsection of the second-degree burglary statute he was convicted of violating. He further contends that the government has failed to prove that the relevant convictions were for offenses committed on three separate occasions. Finally, he argues that his burglary convictions are not ACCA "violent felonies" because they do not fit within the definition of "generic" burglary. After addressing the preliminary issue of whether Delaware's second-degree burglary statute is divisible, the Court will address each of Shabazz's arguments.[4]

         A. Is the Relevant Statute Divisible?

         Shabazz was charged with - and ultimately pled guilty to - violating Title 11, Section 825 of the Delaware Code ("§ 825"). (Compare D.I. 72-4 at Counts I, VIII, and XV with D.I. 72- 72-6) That statute provides, in relevant part:

         A person is guilty of burglary in the second degree when the person knowingly enters or remains unlawfully:

(1) In a dwelling with intent to commit a crime therein; or
(2) In a building and when, in effecting entry or while in the building or in immediate flight therefrom, the person or another participant in the crime:
a. Is armed with explosives or a deadly weapon; or
b. Causes physical injury to any person who is not a participant in the crime.

11 Del. C. § 825(a). The government contends that § 825(a) is divisible, while also conceding that § 825(a)(2) cannot form an ACCA predicate offense. (D.I. 72 at 5) The government contends that Shabazz violated § 825(a)(1) on three separate occasions and is, therefore, subject to ACCA's mandatory minimum.[5]

         Shabazz agrees that § 825(a)(2) cannot support an ACCA enhancement. He further suggests that the question of divisibility is essentially moot, based on his assertion that § 825(a)(1) does not qualify as ACCA predicate either. (See D.I. 74 at 8 (modified categorical approach appropriate "only when a statute defines burglary not. . . overbroadly, but instead alternatively, with one statutory phrase corresponding to the generic crime and another not") (quoting Descamps v. United States, 133 S.Ct. 2276, 2286, (2013)); see also Id. at 14) In other words, Shabazz would have the Court find that neither subsection qualifies as an ACCA predicate and stop there.

         The Court concludes that subsections (1) and (2) define two separate criminal offenses with different elements; they do not "enumerate[] various factual means of committing a single element" of a single offense. Mathis, 136 S.Ct. at 2249. Section 825(a) is, therefore, potentially divisible.

         B. Does the Record Establish Convictions for a Specific ...

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