Daye of the Weak

United States v. Daye, No. 08-1012-cr (2d Cir. July 10, 2009) (Miner, Raggi, Livingston, CJJ)

Bruce Daye received an 180-month ACCA sentence. On appeal, he raised challenges to the use of all of his prior convictions as ACCA predicates, and the court sent the case back for further findings.

1. Escape

One of Daye’s prior convictions was for escape, most likely under Vt. Stat. Ann. tit. 13, § 1501. At the time of his federal sentencing, circuit law provided that, categorically, all escape convictions were crimes of violence for ACCA. Thus, although defense counsel objected to the characterization of the escape as a crime of violence, the district court made no findings as to the nature of the escape, which is now dispositive under Chambers v. United States, 129 S.Ct. 687 (2009).

Here, the PSR strongly suggested that Daye’s conviction arose from failing to return from a furlough, rendering it likely that the conviction is not an ACCA predicate. Since the record is incomplete, however, the court remanded the case to the district court for consideration of whether, under Chambers, Daye’s escape conviction is an ACCA predicate.

2. Sex Abuse of a Minor

Crime of Violence

Daye also had three prior convictions for sexual assault of a child under a Vermont statute that makes it a crime to engage in a “sexual act with another person” who is “under the age of 16.” A “sexual act” includes any physical contact with the sex organs, and any act of genital or anal penetration.

The circuit concluded that engaging in an illegal sex act with a child is a crime of violence under ACCA’s “residual clause,” which covers conduct that “presents a serious potential risk of physical injury to another.” Infliction of a sexual act upon a child by an adult clearly qualifies under this section given that such offenses “typically occur in close quarters,” where the adult is older, stronger and more experienced and is likely to have coerced the child. The court also rejected the view of some other circuits that such conduct is not a crime of violence where the child, unless “particularly young,” professes to consent. The very nature of the conduct, along with the child’s relative physical weakness, will always create a “serious risk that physical injury will result.”

The court also concluded that such conduct is similar in kind to the predicate offenses that are specifically listed in ACCA. The Vermont statute, although it imposes strict liability as to the age of the victim, requires “deliberate and affirmative conduct,” and a child is typically unable to deter an adult from using coercive force.

Different Occasions?

Two of Daye’s sex abuse convictions arose from a single incident in which he took four boys blackberry picking, while the third arose from a separate incident.

An infrequently invoked provision of ACCA requires that the predicate convictions arise from acts “committed on occasions different from one another.” Under circuit precedent, acts are committed on different occasions if they do not stem from the same “criminal episode.” The relevant considerations include whether the victims were different, whether the crimes were committed at different locations and whether they were separated by the passage of time.”

Here, the district court had no occasion to consider whether Daye’s two “blackberry picking” convictions arose from crimes committed on different occasions. The circuit remanded the case for consideration of this question, as well.

Resolution of the issue is clearly important here. If, as seems likely Daye’s, escape conviction is not a crime of violence, and one of his three sex abuse convictions is knocked out because it was committed on the same occasion as another, which also seems likely, then Daye might not be subject to ACCA.