Mandatory minimum sentence reversed because prior rape convictions did not qualify as violent felonies under the Armed Career Criminal Act.

In U.S. v. Owens the defendant pled guilty to being a felon in possession of a firearm and his sentence was enhanced because the district court determined his prior convictions under Alabama law for second degree rape and second degree sodomy qualified as a violent crime under the Armed Career Criminal Act (ACCA) which mandates a 15 year minimum sentence for any convicted felon who possesses a firearm after having been convicted of three violent felony or serious drug offenses. The ACCA is a commonly used in Florida federal courts.

A violent felony is defined as a felony which “has as an element the use, attempted use, or threatened use of physical force against the person or another; or is a burglary, arson, or extortion or involves explosives or otherwise involves conduct that represents a serious potential risk of physical injury to another.” The court first examines whether the offense is a violent felony under the elements clause, which provides that the offense has as an element the use of physical force; second, whether the offense is one of the enumerated crimes; and third, whether it is an offense under the residual clause. The residual clause analysis requires the categorical approach: examining the offense in terms of how the law defines the offense and not in terms of how an individual offender might have committed the offense.

Owens had ten convictions for Class B felonies of rape and sodomy in the second degree. Under the Alabama statutes for these offenses, it is a crime to engage in sexual intercourse with a member of the opposite sex who is less than 16 years, so long as the offender is no more than two years older than the victim. The district court enhanced the sentence under the ACCA and imposed a sentence of 293 months relying on the 11th Circuit precedent in U.S. v. Ivory, 475 F.3d 1232, which found these Alabama offenses were violent felonies because they involved the use of physical force against the person of another. In Owen’s first appeal to the 11th Circuit his sentence was affirmed under Ivory.

Subsequently, the U.S. Supreme Court decided in Johnson v. U.S., 130 S.Ct 1265 (2010), that the “physical force” element means “power, violence, or pressure directed against a person or thing” and is not satisfied by mere touching. Following the Johnson ruling, Owen’s petition for writ of certiorari was granted and his conviction was vacated and remanded to the 11th Circuit.

Faced again with Owen’s appeal post Johnson, the 11th Circuit determined the Ivory decision was no longer valid because the Alabama law Class B rape and sodomy statutes do not require any physical force as an element of the offenses. It only requires that the offender is over the age of 16 and engage in sexual intercourse with a person of the opposite sex between 12 and 16 years of age, who lacks legal capacity to consent. (Age of consent in Alabama is 16.) Forcible compulsion is not a required element to prove second degree rape or sodomy so the convictions were not violent felonies under 924(e).