United States v. Alfred Tucker
2014 U.S. App. LEXIS 1766
| 8th Cir. | 2014Background
- Tucker was convicted of being a felon in possession of a firearm and received an enhanced ACCA sentence.
- The ACCA requires three prior convictions for a violent felony to trigger the enhancement.
- Tucker’s Nebraska escape conviction was challenged as a potential ACCA predicate under the 'otherwise' clause of § 924(e)(2)(B)(ii).
- The statute (§ 28-912) is divisible, but Tucker was convicted based on unlawfully removing from detention, not failure to return.
- Descamps v. United States later governed whether a statute is divisible for the modified categorical approach; the court ultimately applied it to indivisible circumstances.
- Court vacated Tucker’s sentence and remanded for resentencing in light of the analysis on divisibility and the residual clause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Tucker's Nebraska escape conviction qualify as a violent felony under ACCA? | Tucker—escape can present serious risk depending on mode; some modes are violent. | Escape from secure custody and unsecured custody are indivisible; ordinary case lacks serious risk. | No; the conviction does not qualify as a violent felony under the otherwise clause. |
| Is the Nebraska escape statute divisible for the modified categorical approach? | Statute subdivisible into distinct modes of escape; Parks approach should apply. | Descamps forbids extending divisibility beyond explicit statutory divisions; indivisible here. | Statute is indivisible between secure and unsecured custody for the purposes of ACCA. |
| Should Descamps divisibility be applied to the residual clause of ACCA § 924(e)(2)(B)(ii)? | Descamps guidance should apply to determine whether the ordinary conduct incurs serious risk. | Descamps is limited to enumerated offenses and not the residual clause; its divisibility analysis is inappropriate here. | Descamps divisibility applies; Tucker prevails under the residual clause approach. |
| What is the appropriate consequence for Tucker's sentence given the above rulings? | Court should uphold ACCA enhancements if predicates are valid. | Conviction not a valid predicate; must resen-tence. | Sentence vacated and remanded for resentencing. |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (1990) (introduced the categorical approach for violent felonies)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (divisibility and modified categorical approach limitation)
- Chambers v. United States, 555 U.S. 122 (2009) (failure to report not a violent felony under ACCA)
- James v. United States, 550 U.S. 192 (2007) (categorical approach for residual clause inquiries)
- Sykes v. United States, 131 S. Ct. 2267 (2011) (residual clause; generic sense of violent felony)
- Parks v. United States, 620 F.3d 911 (2010) (modified categorical approach to divisible statutes (pre-Descamps overruling))
- Pearson v. United States, 553 F.3d 1183 (2009) (prior panel decision on escape statutes and ACCA)
- Williams v. United States, 664 F.3d 719 (2011) (Nebraska escape statute interpretation under ACCA analysis)