United States v. Alfred Tucker

(сodified 1314, 1213, § by requirement “provide the to written 95 Stat. 2018(e)). Secretary verify § the all authorization for amended at 7 U.S.C. filings appropriate agen tax with relevant Second, the statutory history reveals plainly cies refer to tax documents filed ”— redemptions were historically gov- state, local, and

with relevant federal tax 2018(c), §by by erned not entirely but an added). (emphasis authorities. Id. Echo § different section: 7 U.S.C. 2019. See Court, ing we “have stated 1977, Stamp Food Act of Pub.L. No. 95- again presume time and that courts must 113, 1301, 10, (codi- § 913, sec. 91 Stat. legislature says that a in a statute what it 2019). fied as аmended 7 U.S.C. says means and means in a statute what it Thus, Congress apparently expected never there. When the words of a statute are department data, redemption obtain then, unambiguous, this first canon is also generate used to requested spending judicial inquiry complete.” the last: information, authority “under the granted Co., Sigmon Barnhart v. Coal 534 U.S. 2018(c) 2018(c). by [§ U.S.C. ].” 438, 461-62, 122 S.Ct. (2002) (internal omitted); see, quotation 2018(c) Noting history rely- but e.g., Owner-Operator Indep. ing text, plain Drivers on its we Exemp- conclude Ass’n, Inc., v. Supervalu, prevent Inc. 651 F.3d tion 3 cannot Argus from (8th Cir.2011). 857, “piercfing] The in the veil of spending administrative secre- document, cy and ... filing opening] department’s] formation is not a tax so [the light public to the scrutiny.” aetion[s] district court’s “broad umbrella” can Rose, Dep’t Air Force v. spending not shade the information from sunlight. 48 L.Ed.2d 11 (internal omitted). quotation Statutory History B. III. CONCLUSION

Although “the authoritative state text, reverse statutory pro- ment is the We and remand for further legisla Allapattahceedings consistent with history,” Corp. opinion. tive Exxon Mobil this vs., Inc., 546, 568, Ser (2005), 162 L.Ed.2d 502

recognize that the district court relied

part legislative history. on the re While

solving purely this case on textual

grounds, we observe “for those who find useful,”

legislative history United States v. U.S.-,-,

Tinklenberg, 563 (2011), history fairly

this is more support read to

Argus’ position. First, Congress clearly has indicated its America, UNITED STATES public

intent to involve the in counteract- Plaintiff-Appellee ing fraud perpetrated partici- ‍‌‌​​​‌‌​​‌‌​‌‌‌‌​‌‌​‌​‌‌​​​​‌​​‌​​‌​‌‌‌​‌‌‌‌‌​‌‌‍retailers See, pating program. e.g., Food Stamp Commodity Distribution 97-98,

Amendments of TUCKER, Defendant-Appellant. Pub.L. No. Alfred America, States United

Plaintiff-Appellee Defendant-Appellant. Tucker,

Alfred 11-2444, 11-2489.

Nos. Appeals, States Court

Eighth Circuit. 22, 2013.

Submitted Oct. 29, 2014. Jan.

Filed:

Because the elements of the of the Nebraska statute under Tucker was not, case, ordinary convicted do encompass that presents conduct another, portion conviction under that of the stat- predicate ute cannot serve as a conviction purposes. for ACCA We thus vacate Tucker’s sentence and remand for resen- tencing.

I. prior panel opinion Our in this case de- scribes the circumstances of Tucker’s ar- rest and conviction. United States v. Tucker, (8th Cir.2012), 689 F.3d vacated, Nos. (8th Cir. Jan. 11-2444/2489 2013). opinion, We reinstate this ex- cept regarding for its section II.D Tucker’s sentence. applies The ACCA to defendants Waite, Platte, argued, Terrance North being pos who are convicted of a felon in

NE, appellant. for prior session of a firearm after three con felony. victions for a violent 18 U.S.C. Meisler, argued, Washington, Scott A.C. 924(e). felony felony A violent is a DC, for appellee. “(i) use, attempted has as an element the RILEY, Judge, Before Chief use, physiсal or threatened use of force WOLLMAN, LOKEN, MURPHY, BYE, (ii) another; against person of or SMITH, COLLOTON, GRUENDER, arson, extortion, burglary, involves use SHEPHERD, KELLY, BENTON, and explosives, or otherwise involves con Judges, En Banc. Circuit duct that risk another.” GRUENDER, Judge. Circuit 924(e)(2)(B). To determine whether posses- past qualifies felony, After his conviction as a felon in conviction as a violent firearm, apply “categorical approach,” sion of a Alfred Tucker received we only to fact of convic an enhanced sentence under the Armed which we “look (“ACCA”), statutory Act definition of the ap- Career Criminаl tion and the Taylor United plies guilty possession prior to those felons offense.” prior a firearm who have three convictions 495 U.S. 110 S.Ct. (1990). However, where a See 18 U.S.C. L.Ed.2d 607 felony.

for a violent 924(e). panel After a of this court af- statute of conviction sets out one or more sentence, alternative, firmed his conviction and we elements of the offense granted rehearing en banc to address the statute is considered “divisible” Descamps United prior purposes. whether Tucker’s conviction under a ACCA U.S.-, qualifies Nebraska statute as a vio- (2013). If L.Ed.2d one alternative felony purposes lent of the ACCA. 186 for rehear- petition Tucker’s granted as a violent We qualifies in a divisible statute not, prec- whether that apply ing en banc to consider another does felony, but or- to deter- be overruled. We also categorical approach” edent ‍‌‌​​​‌‌​​‌‌​‌‌‌‌​‌‌​‌​‌‌​​​​‌​​‌​​‌​‌‌‌​‌‌‌‌‌​‌‌‍should “modified of the statute on two issues: supplemental briefing dered mine under which (1) “[T]he Id. the court subdivide the defendant convicted. whether permits sen- pur- textually modified that is indivisible statute limited class of categorical to consult a tencing poses courts the modified documents, jury so, generic such as indictments if approach, and how instructions, which alterna- “walk-away to determine be escape” offense of should the defendant’s questions designed tive formed the basis of were defined. These adopt conviction.” Id. prior help us decide whether to States v. panel of our that Tucker’s court found The district (8th Parks, Cir.2010), 620 F.3d 915 escape under a Nebraska prior conviction non-statutory catego- on the which relied one of the three neces- qualified statute as guard- from a secured and “escape riеs of felony convictions sary predicate violent from an unsecured facility escape ed clause of under “otherwise” determine, facility” through the modi- to 924(e)(2)(B)(ii) § it “involvefd] because whether a con- categorical approach, fied potential a presents conduct that serious custody from under a escape viction for injury to another.” On qualified as a “crime of Missouri statute escape argued Tucker that his was appeal, to the States pursuant violence” “walk-away escape” a that could not merе pro- offender Sentencing Guidelines career present poten- to a serious be considered order, the Subsequent vision.1 to our Su- another, physical injury to simi- tial risk of Descamps in addressed preme Court report lar to an offense of failure to back a court subdivide a statute whether custody to that the Court held indivisible, textually par- that and both is felony pur- not a violent for ACCA was opportunity ties to discuss received poses in Chambers v. United supplemental briefing. in Descamps 122, 127-30, light Descamps, we also directed (2009). rejected The panel whether, if the parties to address relevant prior panel argument Tucker’s based on escape of the Nebraska statute is ... intact holding that “Chambers leaves indivisible, encompassed the conduct holding escape that from precedent our offense, that ordi- the elements of violence,” custody a crime of 689 F.3d at is case, nary risk Pearson, (quoting United States v. person. to another (8th Cir.2009)), which F.3d already the Nebraska stat- applied had to II. issue, (citing ute at see id. United States (8th Williams, Tucker The statute under which 664 F.3d Cir. 2011)). provides convicted as follows: (8th Cir.2010), we use thе same modi- 1. The definition of "crime of violence” for the 807-09 determine wheth- sentencing guidelines provi- fied career offender sion, 4B1.2(a)(2), past qualifies § as a "crime of contains an er a conviction see U.S.S.G. sentencing guidelines. to that violence” under "otherwise” clause similar — U.S.-, 924(e)(2)(B)(ii). Although "separate analy- v. United Marrero Cf. S.Ct. (2013) (remand- necessary that there is no sis” is to ensure ing sentencing guidelines for further distinguish case reason to between these two defi- nitions, Ross, light Descamps). 613 F.3d consideration United States (1) un- tention” and to return to official “fail[ure] if he pеrson A commits following temporary detention leave from official lawfully removes himself for a or granted specific purpose limited to return to official detention or fails 28-912(1). period.” The modified cate- leave following temporary detention gorical approach identify can be used to purpose or limited granted specific which of these alternatives was the basis mean ar- Official detention shall period. for a conviction under 28-912. Of rest, transportation in or detention course, it clear following facility custody persоns any conviction for failure to return to conviction of crime or con- charge or felony. official detention is not a violent persons alleged or found to tempt or for Here, however, dispute there is no for extradition delinquent, be detention Tucker was convicted on the of un- basis detention deportation, or or other lawfully removing himself from official de- but offi- purposes; for law enforcement tention, than a rather failure to return. supervi- cial detention does not include probation parole or constraint sion The statutе is further because divisible incidental to release on bail. pro- the definition of “official detention”

vides several grounds alternative con- viction, in that the detention from which a (5) Except provided subsection defendant removed himself could have section, escape of this is a Class IV “arrest, transporta- been detention in or felony. any facility custody persons tion to for (5) felony a III Escape is Class where: charge under or conviction of crime or (a) was under arrest for The detainee contempt or or persons alleged for found felony on a charge or detained or fol- to delinquent, be detention for extradition lowing conviction for the commission deportation, any or or other detention for offense; of an or purposes,” excepting law enforcement “su- (b) force, threat, employs The actor pervision probation parole or or con- deadly weapon, dangerous or other straint incidental to release on bail.” Id.2 instrumentality escape; to effect the categorical approach The modified can be or distinguish amоng used to the alternative (c) A servant concerned in public de- reasons for “detention” as well—detention persons tention of convicted of crime crime,” for “conviction of detention for a purposely permits facilitates or an es- delinquent,” “found to detention person be facility cape from a detention or from extradition,” case, it “for etc. Id. In this is thereto. transportation on undisputed that Tucker was convicted Neb.Rev.Stat. 28-912. in ... escape the basis of from “detention facility custody persons under pro- The statute is divisible beсause it persons ... crime ... grounds alternative for conviction conviction of vides as In par- ... ... found to be Id. delinquent.”3 from official de- ] remov[al] “unlawful Tucker was convicted of a Class 2. The statute also is divisible in other re- case because spects. example, felony. a For conviction for Class IV 5(b) felony under the use of III subsection "force, threat, Although provides multiple rea- deadly weapon, 3. the statute or other dan- “detention,” parties only gerous instrumentality escape” sons for focused to effect the of a crime and category that would merit consideration as on detention for conviction However, being delinquent. felony. poten- detention after found For a violent such other determining es- categories purposes not whether Tucker’s tial are relevant to instant 924(e)(2)(B)(ii). Tuck- the “otherwise” clause of ticular, plea colloquy for during the conviction, Shepard v. Although Descamps see arose under differ- er’s 13, 16, 125 S.Ct. ent clause of the ACCA—the enumerated (permitting can discern no reason crimes clause—we alia, examine, sentencing court to inter Descamps, аpply not to it here. plea colloquy in deter- transcript of a weigh Court cited three reasons previous character of a convic- mining the against creating, purposes, for ACCA al- tion), factual basis offered as a the State categories expressly ternative estab- that Tucker removed himself plea for the statute, all of underlying lished in the and Rehabilita- from a Youth Treatment analy- apply equal with force to our which running away from a by tion Center First, under the “otherwise” clause. sis gymnasium ... “group returning from such an would conflict with the cottage” near their they getting as were ACCA, three penalizes text of the permission “had not had and that Tucker for, than three com- “convictions” rather campus to be off time.” of, felony. missions a violent See 133 S.Ct. por- that the Second, The Government concedes at 2287. it would invite sentenc- of the statute under which Tucker was tion to make of fact that ing findings courts applies removing to oneself from convicted belong juries properly to Sixth facility, any type of detention from Third, it Amendment. See id. at 2288-89. heavily guarded peniten- and most secured practical wоuld introduce difficulties and relatively community- tiaries to non-secure finding pinning unfairness (often housing based facilities referred felony a violent well certain facts how houses). halfway par- We ordered the underlying collateral to the conviction supplemental briefing ties to submit as to preserved were established and in docu- whether a court could extend the modified purpose. ments created for a different split this basis apply Descamps id. at 2289. We thus nonstatutory categories conviction into Accordingly, portion here. of the stat- guard- “esсape such as from secured and ute under which Tucker was convicted is facility” “escape ed and from an unsecured escape indivisible as between from secure facility,” approach an that had been taken custody escape and from non-secure custo- in of our sister and adopted some circuits dy. We overrule Parks to the extent that by in panel our Parks. it the modified authorizes cate- gorical approach anything to other than

After briefing, we ordered howev explicitly portions divisible of statutes. er, rejected such an Descamps. Descamps arose 924(e)(2)(B)(ii) portion that under III. specifically enumerates certain crimes as portion Because Ne violent felonies. 133 S.Ct. at 2281. Be braska statute under which Tucker was cause Tucker’s offense of conviction is not textually convicted is indivisible as be and one of those enumerated crimes does escape custody tween from secure and es requisite not have the element of force 924(e)(2)(B)®, violent-felony custody, from nonsecure we now ex cape under pursuant encompassed determination here is made to amine whether “the conduct felony, analysis dependent cape qualifies conviction is not on the reason for violent specific we do not need to determine the detention. See Part III infra. detention because our reason for Tucker's offense, portion indivisible of ‍‌‌​​​‌‌​​‌‌​‌‌‌‌​‌‌​‌​‌‌​​​​‌​​‌​​‌​‌‌‌​‌‌‌‌‌​‌‌‍the statute can be of the by the elements case, potential security, a serious violated under levels of ordinary presents diverse v. Unit injury present potential to another.” James some of which a serious risk of 192, 208, 127 550 U.S. ed and that do risk others (2007). so, In doing not, say that a we cannot conviction under the crime of convic consider whether we of the statute could be consid- risk of an “inherent” violence presents tion present potential ered to a serious risk of matter,” similar to the categorical “as a injury “ordinary” to another in the case. with the enu risk of violence associated James, 127 S.Ct. 1586. 924(e)(2)(B)(ii)— merated offenses party Neither has offered statistics extortion, arson, crimes in burglary, and suggest how often convictions for unlaw- explosives. Sykes v. United volving use fully removing oneself from official deten- -, escape tion under the Nebraska statute (2011). 2273-74, “[C]om- are based on each these modes or how analysis, inform the monsense” in an injury. often each mode results for committed of injury reliable statistics data, agree the absence of other with fenses, are although dispositive,” “not parties analogous that the statistics for determining whether the con helpful escape federal offenses cited in Chambers of the encompassed by duct the elements 177 reported are instructive. For the fed- offense leaving eral cases based on non- injury. аt 2274. physical See id. custody, reported secure an Here, suggests common sense that re- cases, only three guard- a secured and moving oneself from B (Appendix Opinion 129 S.Ct. 687 significant likelihood facility presents ed Court), tending of the to confirm the con- violence,” akin leading to of “confrontation violating clusion that this mode of the Ne- burglary. See to the risk associated with present does not typically braska statute hand, the other common sense id. On injury to another. More- serious risk of are much if suggests that such risks less over, leaving cases based on non-secure halfway from a “removing one is oneself’ 2.7 often custody occurred about times as house, unconstrained where one is custody. leaving as cases based on secure barriers, often locked doors or escape statis- See id. Given that federal surveillance, no and where no armed nearly three-fourths of con- tics show preventing are tasked with such guards custody removing for oneself from victions circumstances, the departures. those custody leaving are on non-secure based a failure to analogous conduct is more in than two and that occurs fewer custody after authorized report back to cases, say we cannot percent of those leave, in “an individual ... would from a deten- unlawfully removing oneself unlikely, likely, not to call attention seem case, ordinary presents facility, tion by simultaneously en- to his whereabouts injury of the same order potential a risk of violent and unlawful gaging additional the risks associated with magnitude of as 128, conduct.” See offenses enumerated sense thus indi- 129 S.Ct. 687. Common 924(e)(2)(B)(ii). Sykes, § 131 S.Ct. of the statute under cates that the 2273-74. encompasses which Tucker was сonvicted por- under this Accordingly, a conviction conduct that does and conduct that both escape statute does tion of the Nebraska potential risk of present does not a serious felony under the as a violent qualify Because this injury to another. 924(e)(2)(B)(ii).4 lor United “otherwise” clause (1990), decisions in Pear- panel our We overrule adopted categorical ap a “modified Court they to the extent differ son and Williams a con proach” prior to determine whether from this conclusion. burglary, viction was for one of the enu rv. “an constitutes merated offenses: offense 924(e) of a sen ‘burglary1 purposes above, For the reasons discussed statutory if tence enhancement either its Tucker’s sentence and remand for vacate substantially corresponds ‘ge definition resentencing opin- in accordance with this burglary, or the and charging paper neric’ ion. actually required jury jury instructions generic burglary to find all the elements of LOKEN, Judge, concurring in Circuit in order to convict the defendant.” Id. at judgment. Shepard 2143. In v. United adopt I decline to the court’s broad States, 125 S.Ct. — reading Descamps (2005), L.Ed.2d 205 the Court reaffirmed U.S.-, 133 S.Ct. Taylor and defined what state court docu (2013), premature which seems both and ments a federal court consider “to unnecessary proper disposi- to reach the plea guilty determine whether a to bur appeal. tion of this glary by nongeneric a nec defined statute essarily generic admitted elements The Armed Act defines Career Criminal 924(e)(2)(B)(ii). §in offense” enumerated prior qualify classes of convictions that sentencing per- “violent felonies” when Taylor Shepard, Descamps Like being possession a felon in son convictеd proper application concerned of the enu- of a firearm in violation of 18 U.S.C. subpart prior merated crimes to a state statute, § 922(g). One section of the burglary court Massachu- conviction. The 924(e)(2)(B)(ii), has two U.S.C. distinct in Shepard setts statutes at issue were subparts: they (“nongeneric”) overbroad because

(B) felony” prohibited entry “ship, any the term “violent means unlawful into ves- vehicle,” building. sel or as well as a punishable imprisonment crime (O’Connor, J., exceeding year term one that— U.S. at 125 S.Ct. 1254 ... hand, dissenting). the other On the Cali- fornia statute at in Descamps issue (ii) arson, extortion, in- burglary, it require overbroad because “does not explosives, volves use of or otherwise entry way to have been unlawful conduct that involves ‍‌‌​​​‌‌​​‌‌​‌‌‌‌​‌‌​‌​‌‌​​​​‌​​‌​​‌​‌‌‌​‌‌‌‌‌​‌‌‍covers, burglary most laws do.... It to anoth- store, example, shoplifter who enters a er. customer, during like normal business added.) (Emphasis hours.” at 2282. This over- “indivisible,” developed The its inter breadth was the Court con- 924(e)(2)(B)(ii) cluded, § in pretation of in cases and therefore the modified cate- volving subpart, gorical approach Taylor Shepard the first the enumerated In in Tay play crimes clause. thе seminal case of “has no role to this case. The as, holding example, 4. We make no as to the other divisi- tions of “official detention” statute, portions ble of the Nebraska pursuant to an arrest. detention including those based on alternative defini- it occa- particular of offense committed on concern list here does not dispute States, Rather, Chambers v. United 555 U.S. [statutory] elements. sion. alternative 122, 125, 687, 129 S.Ct. 172 L.Ed.2d 484 discrepancy between simple it involves (2009) (failure report); Sykes see v. crime established burglary and the generic — States, -, 131 S.Ct. Penal United U.S. § Code].” thе California [of in (vehicu- (2011) 2267, 2272, dissenting the Agreeing with Id. at 2285. officer); v. flight Begay deci lar from an en banc Ninth Circuit judges in the de 128 S.Ct. Aguila-Montes in United States sion DWI). (felony Oca, (2011), held: 170 L.Ed.2d 490 the Court 655 F.3d 915 entry not an unlawful is generic “Because court, we must of course As circuit element, element, an alternative or emphatic Supreme follow the Court’s that statute is a conviction under generic categorical adherence to the S.Ct. at generic burglary.” never subparts in both of 18 approach 2293. 924(e)(2)(B)(ii). But that is not U.S.C. inquiry. the end of the We must also did not concern the residual Descamps carefully emрloyed examine how the Court subpart involves” of 18 U.S.C. “otherwise 924(e)(2)(B)(ii). Nevertheless, closely most our court this the cases asserts, us. To resembling can discern no the one now before confidently “we Though construing there avoid the ACCA’s harsh sen- apply not to it here.” reason inference, broadly, tencing I enhancement too reasons to draw this good are step Court’s first has been “to choose am so sure it is correct. right category” of offenses and then decide its cat applied The Court first crime, categorized, as so satis- whether clause in approach to the residual egorical felony definition of violent fies ACCA’s 192, 202- James United Chambers, ordinary “in the case.” 1586, 167 L.Ed.2d 532 127 S.Ct. James, 687; at 129 S.Ct. U.S. (2007), the Florida offense which involved In its four at 127 S.Ct. 1586. U.S. determining In attempted burglary. cases, the residual clause Court’s prior defined attempted burglary, as “whether deciding been whether Con- challenge has law, an offense that ‘involves by Florida is generic to include the stat- gress intended conduct definition of utory offense at issue its another,’” cases, In those felony.” two of “violent declared, discussing the tex without Chambers, the state statute Sykes and subрarts: between the two tual differences way that made the offense subdivided employ ‘categorical approach’ “we the modified easy apply it for the Court to to other respect has taken with this Court violations of a nar- categorical approach to 201-02, Id. at offenses under the ACCA.” ordinary universe of crimes row 1586. Since its decision 2271, 2273; Sykes, case. James, badly a rather divided Court has S.Ct. 687. approach in three applied categorical time, The Nebraska This case is different. clause cases. Each other residual “that, оn future feder- Legislature focusing repeated purposes the Court —not escapes all definitions, sentencing al issues—included generic it sense ACCA’s single in a statu- from “official detention” ‘felony’that counts.” other of the word § 28-912. Neb.Rev.Stat. words, tory provision. to a crime as the statute “referfs] escapes from committed,” encompasses provision the defendant That generally not as by eluding security prison its firearm a maximum being sentenced for a federal now (for example, by tunneling prior burglary defendant’s California con guards armed climbing felony” over thе outer wall late viction could be a “violent under or surely that meets the night), at an offense clause. at n. residual 133 S.Ct. 6. in the residual clause— statutory Kennedy’s standard Justice concurrence likewise potential that presents “conduct approached narrowly the issue and ex The to another.” risk of establishing concern a rule pressed about includes so-called Nebraska statute also require redrafting that would extensive offenses, run- “walk-away” such as Tucker criminal statutes. state Id. 2293-94. center, away youth from a treatment ning explained And Justice Alitо’s dissent how predicate I not be agree should could modified be offenses under the residual clause. ACCA that applied to broad state statute has a As neither of these extremes is the “ordi- single, indivisible set of elements. Id. at case,” nary applying rigid divisi- 2299, prior 2302. The Court’s residual Descamps test of results ble/non-divisible ques clause cases have not this addressed excluding either in violent felonies that tion, generally, but more Justice Scalia has include, Congress including intended to criticized these hoc judg cases as “ad non-violent felonies that should be exclud- clarify thаt fail ment[s]” residual prior ed. No residual clause case con- (Scalia, J., Sykes, clause. Supreme fronted the Court with this inter- dissenting). array disparate With this ask, pretive might dilemma. One isn’t that opinions, it seems almost as difficult to just in Descamps what the Court did when predict how the Court will resolve this burglaries, it excluded all California in- anticipate issue as it was to its decision ‍‌‌​​​‌‌​​‌‌​‌‌‌‌​‌‌​‌​‌‌​​​​‌​​‌​​‌​‌‌‌​‌‌‌‌‌​‌‌‍cluding the most violent? From that Booker, United States v. standpoint, may the situations be parallel. (2005). But the textual differences in the two sub- view, In my uncertainty this doctrinal 924(e)(2)(B)(ii) parts may make a dif- does not make the decision in this case merely ference. the Court Descamps, difficult because Tucker must be resen- held that a violation of the California stat- analytical approach gov tenced whatever ute at issue is not the enumerated offense Descamps divisibility analysis erns. If the of generic burglary. The residual clause offenses, I applies agree to residual clause offenses; does not address enumerated with the court that prevail. Tucker must Congress expressly any felony included Likewise, he if prevail must the modified “involves conduct that a seri- cаtegorical it in applied as we ous United States v. governing Parks Thus, another.” there is no enumerated standard because Tucker’s prior conviction escape crime of that a court define easily under Neb.Rev.Stat. 28-912 is generically compare and then to the Ne- categorized as an from an unsecure braska statute. (8th facility. Cir.2010), 620 F.3d signal There is no clear the Court would denied,— .—, cert. U.S decide that this textual difference does not (2011). affect whether the categorical ap- modified approaches There are more radicаl proach applies type this of residual might take intentionally, clause case. No doubt I in- clause, fer, they majority Descamps carefully residual but would also re- quire disposition appeal. the same of this limited its discussion to the enumerated explicitly might persuade majority crimes clause and noted it Justice Scalia presented question with the colleagues whether his the residual clause is Derby v. unconstitutionally vague. See — States, -, U.S. S.Ct. (Scalia, J., 180 L.Ed.2d of four certiora-

dissenting from the denial at might Thomas

ri Justice petitions). majority

long persuade last Jersey, v. New Apprendi

protections 147 L.Ed.2d

530 U.S. (2000), sentenc apply should to ACCA Descamps, See

ing enhancements. (Thomas, J., concurring); at 2294-95

Shepard,

(Thomas, J., concurring). Or Court’s “nearly impossible” with the

frustration applying

task of clause, combined with con

to the residual inaction, might

tinuing congressional adopt completely

prompt the Court approach.

new (Alito, J.,

133-34, concur 129 S.Ct. 687 predict I not venture to how

ring). do its next residual clause will decide premature it is simply

case. I conclude Descamps beyond the enu

broadly apply boundaries of that deci

merated-offense prior ruling our

sion when decide this case. properly

Parks would reasons, I

For these concur sen- decision to vacate Tucker’s

court’s resentencing. and remand for

tence

Ricky SPAULDING, Plaintiff-

Appellant

CONOPCO, Defendant-Appellee. INC.

No. 12-3966. Appeals,

United States Court

Eighth Circuit. Sept. 2013.

Submitted: 29, 2014.

Filed: Jan.

Case Details

Case Name: United States v. Alfred Tucker

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jan 29, 2014

Citation: 740 F.3d 1177

Docket Number: 11-2444, 11-2489

Court Abbreviation: 8th Cir.