Eleventh Circuit Court of Appeals - Published Opinions

Wednesday, August 09, 2006

Wade: Pre-indictment conduct not basis for acceptance denial

In U.S. v. Wade, No. 05-12518 (Aug. 4, 2006), the Court affirmed in part and reversed in part a sentence imposed on a defendant convicted of unlawful possession of a firearm in violation of 18 U.S.C. § 922(g).
The Court rejected the defendant’s argument that a prior Georgia conviction for attempted burglary should not count as a "violent felony" for purposes of qualifying as an Armed Career Criminal under 18 U.S.C. § 924(e) and the Guidelines criminal history provisions. The Court pointed out that Wade conceded that his attempted burglary resulted from an attempt to kick in the door of a residence to commit a theft, conduct which creates a potential risk of physical injury sufficient to qualify as a "violent felony." The Court noted that it had reached a similar result in a prior case involving attempted burglary under Florida law.
The Court, however, agreed with the defendant that the district court erred when it denied him a two-level acceptance of responsibility sentence reduction, despite his timely guilty plea, because the defendant unlawfully possessed a firearm a few months after being arrested on state charges for the same unlawful possession offense, involving a different firearm. The Court noted that this conduct predated the indicment in the federal case. The relevant period for assessing acceptance of responsibility for a federal offense is post-federal indictment, not post-arrest on state charges. The Court noted the lost incentive to plead guilty if pre-indictment conduct could be a ground for denying the sentence reduction. The Court vacated the sentence, and remanded for resentencing, noting that the resentencing would take place under the new post-Booker regime.