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Sixth Circuit Holds That North Carolina Offense of Shooting Into Building Is Not A Violent Felony For ACCA
In Higdon v. United States, No. 17-5027, the Sixth Circuit held that an inmate’s prior conviction for discharging a firearm into an occupied structure was not a crime of violence.
Higdon pled guilty to being a felon in possession of a firearm. The district court found that Higdon was an Armed Career Criminal based, in part, on a prior 1984 conviction for discharging a firearm into an occupied structure, in violation of N.C.Gen. Stat. § 14–34.1 (1981). Higdon’s 15-year sentence was handed down before Johnson v. United States (2015). After the Supreme Court’s decision in Johnson, Higdon filed a 2255 motion arguing that his North Carolina prior conviction could no longer be used as a predicate “violent felony.”
On appeal, the Sixth Circuit noted that an offense is a “violent felony” if it has as an element the use, attempted use, or threatened use of physical force against the person of another. The court then turned to the North Carolina statute as it read in 1984:
Any person who willfully or wantonly discharges or attempts to discharge:
(1) Any barreled weapon capable of discharging
shot, bullets, pellets, or other missiles at a muzzle
velocity of at least 600 feet per second; or
(2) A firearm
into any building, structure, vehicle, aircraft, watercraft, or other conveyance, device, equipment, erection, or enclosure while it is occupied is guilty of a Class H felony.
The courts interpret that statute to have four different elements: (1) willfully and wantonly discharging (2) a firearm (3) into property (4) while it is occupied.
The Sixth Circuit found that there had not been an argument that these elements involved the “attempted” or “threatened” use of physical force against another, noting that the bullet can miss everyone in the building, and no physical force can be applied to the person of anyone and it would still qualify as a violent offense. Accordingly, the Sixth Circuit held that the offense fails to satisfy the “force clause” of 18 U.S.C.§ 924(e)(2)(B)(i).
The government argued (and the district court held) that even if no one was actually struck, the defendant fired a bullet toward a location where he knew or believed another person to be. The district court believed that was enough but the standard is that force be used “against the person of another.” However, the Sixth Circuit found that description might have satisfied the requirement of “recklessness,” but it did not meet the requirement that the force be used “against the person of another” which is the standard of 18 U.S.C. § 924(e)(2)(B)(i).
Without the required number of predicate offenses, Higdon’s ACCA sentence was no longer valid. As such, the Sixth Circuit reversed the district judgment and remanded the case back for re-sentencing. No. 17-5027.