United States v. Robert Lillard
2012 U.S. App. LEXIS 14775
8th Cir.2012Background
- Lillard challenged his sentence under 28 U.S.C. § 2255, invoking Begay v. United States (the ACCA residual clause).
- Prior to his latest conviction, Lillard had attempted robbery, robbery, and possession of a short shotgun.
- The district court held that his prior convictions were violent felonies and imposed the ACCA enhanced sentence; the decision was affirmed previously.
- The central issue is whether Nebraska’s possession of a short shotgun constitutes a violent felony under ACCA § 924(e)(2)(B).
- The court analyzes the residual clause by comparing the offense to the listed offenses and assessing risk in the abstract (generic offense).
- The court ultimately holds that possession of a short shotgun is a violent felony and affirms the district court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is possession of a short shotgun a violent felony under ACCA residual clause? | Lillard argues it is not; risk is not akin to listed offenses. | The offense is roughly similar in kind and risk to the listed offenses. | Yes, it is a violent felony. |
| Does the possession offense match the residual-clause risk by comparison to its closest analog? | Nebraska possession lacks the required purposeful, violent conduct. | The offense is categorically similar in risk to listed offenses. | Yes, it is categorically similar in risk. |
| Is Begay retroactive for § 2255 purposes in this context? | Begay retroactivity applies substantively. | Retroactivity is assumed by government; this issue remains subsumed in analysis. | Retrospective application affirmed for Begay in § 2255 proceedings. |
Key Cases Cited
- Begay v. United States, 553 U.S. 137 (Supreme Court 2008) (defines residual-clause risk by closest analog and requires generic/offense-based analysis)
- James v. United States, 550 U.S. 192 (Supreme Court 2007) (closest-analog approach to residual clause)
- Begay, 553 U.S. at 143, 553 U.S. 137 (Supreme Court 2008) (residual-clause scope includes crimes similar in kind and risk)
- Sykes v. United States, 131 S. Ct. 2267 (Supreme Court 2011) (evaluates risk and promotes considering the offense’s general nature)
- Vincent v. United States, 575 F.3d 820 (8th Cir. 2009) (possession of dangerous weapons linked to violent-felony analysis under ACCA)