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Eighth Circuit Overlooks Procedural Default, Orders Immediate Release From Excessive ACCA Sentence Based on Prior Sex Offense

by Michael Berk

The U.S. Court of Appeals for the Eighth Circuit reversed the denial of William Anthony Lofton’s 28 U.S.C. § 2255 petition, remanding to the U.S. District Court for the Southern District of Iowa with instructions to vacate his ACCA sentence and immediately release him from custody.

Lofton was convicted in July of 2007 of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Although that charge carried a maximum sentence of 10 years’ imprisonment, at sentencing the district court handed down a 327-month sentence based on five qualifying priors under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), which mandates at least 15 years’ imprisonment where the defendant has a criminal history involving three or more “violent felonies” or “serious drug crimes.”

After the invalidation of the ACCA’s “residual clause” in Johnson v. United States, 135 S. Ct. 2551 (2015), and made retroactive on collateral review in Welch v. United States, 136 S. Ct. 1257 (2016), Lofton sought collateral review of his sentence, claiming that four of those prior convictions — one for theft, one for aggravated criminal sexual abuse, and two for aggravated battery — no longer qualifies as “violent felonies” for purposes of ACCA sentence enhancement. The sentencing record was ambiguous as to whether the district court relied on the now-unconstitutional “residual clause,” which had defined a “violent felony” by its “serious potential risk of physical injury.”

The district court denied § 2255 relief. On appeal, the Government conceded that Lofton’s prior theft conviction no longer qualifies as a violent felony.

The Court explained that while Lofton’s appeal was pending, the Eighth Circuit announced a new standard that requires successive § 2255 claimants to “show by a preponderance of the evidence that the residual clause led the sentencing court to apply the ACCA enhancement.” Walker v. United States, 900 F.3d 1012 (8th Cir. 2018). The Eighth Circuit subsequently applied that standard at the merits stage of a claimant’s initial § 2255 petition. Golinveaux v. United States, 915 F.3d 564 (8th Cir. 2019). 

Whether the standard is satisfied is generally a factual question that the district court must answer by reviewing the record to determine if the sentencing court specified which ACCA clause it relied upon. Walker. If the record is inconclusive, the Court explained that, as per Golinveaux, it “may consider the relevant background legal environment in the first instance to determine if the sentencing court likely relied upon the residual clause.”  

As to his prior sex offense, the Court pointed out that it was neither an “enumerated offense” nor did its elements satisfy the “force clause” of the ACCA. The Court rejected the Government’s claim “that violent force should not be required in the context of criminal sexual abuse” and held that Lofton had shown that the sentencing judge “more likely than not used the residual clause to classify [Lofton’s sex offense] as a violent felony.”

Analyzing the underlying statute, the Court found that the Illinois law Lofton had been convicted under, 720 Ill. Comp. Stat. 5/12-16(c)(1)(i) (1998), was overbroad for ACCA purposes, as it could be violated “by having a child touch him for sexual gratification.” Such activity would not necessarily involve force, pain, or even “lack of consent.” Because it does not require “the use, attempted use, or threatened use of physical force against the person of another,” that statute “on its face cannot qualify as an ACCA predicate,” the Court held.

Although Lofton had not challenged the validity of the drug prior’s qualification, the Court determined that the district court had erred in finding that it met the pertinent definition for a serious drug offense, which requires that the underlying statute provide for “a maximum term of imprisonment of ten years or more.” The Illinois law against delivery of cannabis, Ill. Rev. Stat. 1988, ch. 38, par. 1005-8-1(7), carried a maximum sentence of three years, and so it likewise could not serve as an ACCA predicate.

That brought Lofton’s qualifying priors down from five to only two—and application of the ACCA requires at least three. The Government argued, however, that Lofton was not entitled to relief because he had procedurally defaulted the claim as to the drug crime.

Relying on the plain language of § 2255 (permitting correction of a sentence “in excess of the maximum authorized by law”) and Eighth Circuit precedent, the Court held that Lofton’s sentence—nearly three times the maximum allowed by law for his firearm-possession conviction —represented a “miscarriage of justice,” which had to be corrected “to avoid manifest injustice.” No showing of cause and prejudice was necessary, the Court said, to “excuse” the procedural default under these circumstances.

Lofton had already been punished for longer than the law allowed. Accordingly, the Court ordered that the district court “direct that he be released from custody immediately.” See: Lofton v. United States, 920 F.3d 572 (8th Cir. 2019). 

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