United States v. Hammons
2017 U.S. App. LEXIS 12151
| 10th Cir. | 2017Background
- In 2004 Britt Hammons pleaded guilty in federal court to being a felon in possession of a firearm; his prior criminal history included three convictions under Oklahoma’s drive-by shooting statute, Okla. Stat. tit. 21, § 652(B) (1992).
- At Hammons’ original federal sentencing the ACCA enhancement was applied based on the now-invalidated residual clause; after Johnson, Hammons moved under 28 U.S.C. § 2255 to vacate the ACCA enhancement.
- On collateral review the district court held § 652(B) nevertheless qualifies as an ACCA "violent felony" under the elements clause (crime must have as an element the use of physical force against another).
- § 652(B) criminalizes using a vehicle to facilitate the intentional discharge of a firearm, crossbow, or "other weapon" in conscious disregard for others’ safety; the statute does not require the defendant personally fire the weapon.
- The Tenth Circuit applied the categorical approach, considering whether the least conduct criminalized by § 652(B) necessarily involves the use of physical force against another.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 652(B) has as an element the use of physical force against another under ACCA elements clause | Hammons: statute can convict merely for operating a vehicle while another fires, so defendant may not personally "use" force | Government: statute’s elements include the intentional discharge of a weapon (even if by another), which satisfies the elements clause | § 652(B) contains the element of the intentional discharge of a weapon, so it meets the elements clause |
| Whether § 652(B)’s mens rea ("conscious disregard") is only recklessness and thus insufficient | Hammons: "conscious disregard" is recklessness and insufficient to qualify as use of force | Government: statute also requires use of vehicle to facilitate the intentional discharge (specific intent); Voisine clarifies reckless, deliberate endangerment can qualify | Court: § 652(B) requires deliberate facilitation of an intentional discharge (and Voisine supports that volitional or reckless deliberate conduct can satisfy use-of-force), so mens rea suffices |
| Whether the phrase "other weapon" permits conviction for non-forceful means (e.g., chemical delivery) that would not involve physical force | Hammons: "other weapon" could include devices that harm without physical force, defeating categorical match | Government: statute requires the weapon be "discharged," a physical action; Oklahoma courts construed statute as punishing willful use of force | Court: "discharge" plus state-court interpretations and realistic probability test foreclose speculative non-forceful weapons; statute necessarily involves physical force |
Key Cases Cited
- Descamps v. United States, 133 S. Ct. 2276 (categorical approach for predicate offenses)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (look to the least conduct criminalized; avoid unrealistic hypotheticals)
- Johnson v. United States, 135 S. Ct. 2551 (struck down ACCA residual clause)
- Voisine v. United States, 136 S. Ct. 2272 (reckless, deliberate endangerment can constitute "use" of physical force)
- United States v. Hernandez, 568 F.3d 827 (purposefully discharging a firearm toward others satisfies elements clause)
- Burleson v. State, 46 P.3d 150 (Okla. Crim. App. construing § 652(B) as requiring specific intent and characterizing the offense as against the person)