[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 4045 Introduced in Senate (IS)]

111th CONGRESS
  2d Session
                                S. 4045

 To amend section 924 of title 18, United States Code, to clarify and 
    strengthen the armed career criminal provisions, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           December 17, 2010

  Mr. Specter introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
 To amend section 924 of title 18, United States Code, to clarify and 
    strengthen the armed career criminal provisions, and for other 
                               purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Armed Career Criminal Sentencing Act 
of 2010''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) Armed career criminals are certain individuals deemed 
        to be particularly culpable and dangerous because of their 
        prior criminal convictions and their possession of a firearm.
            (2) The purpose of section 924(e) of title 18, United 
        States Code, (in this section referred to as ``section 
        924(e)'') has been, and continues to be, to provide certain and 
        severe punishment for these armed recidivist offenders, and 
        also to protect the public from the distinctive risk and acute 
        harms posed by them.
            (3) The requirement of the Supreme Court of the United 
        States under Taylor v. United States, 495 U.S. 575 (1990) and 
        Shepard v. United States, 544 U.S. 13 (2005), that district 
        courts apply a ``categorical approach'' when determining 
        whether certain prior convictions trigger an enhanced sentence 
        under section 924(e), has led to increased litigation and 
        inconsistent sentencing results, placing an onerous burden on 
        the judicial system and rendering the protection of public 
        safety haphazard.
            (4) The ``categorical approach'' prevents Federal judges 
        from looking at reliable evidence of the facts of the 
        qualifying prior convictions and instead only permits Federal 
        judges to review the language of the statute of conviction and 
        certain limited judicial records. The Supreme Court of the 
        United States has said that its reading of section 924(e) in 
        this regard is colored, in part, by concern that to permit a 
        more probing judicial inquiry could raise right-to-jury-trial 
        issues because the sentence enhancement under section 924(e) 
        increases the statutory maximum sentence of 10 years under 
        section 922(g) of title 18, United States Code, to life 
        imprisonment. Under Apprendi v. New Jersey, 530 U.S. 466, 490 
        (2000), a case decided after the date of enactment of the 
        Firearms Owners' Protection Act (Public Law 99-308; 100 Stat. 
        449), which initially added section 924(e), any facts (other 
        than prior convictions) which may be used to increase the 
        sentence of a defendant beyond the statutory maximum sentence 
        must be proven to a jury beyond a reasonable doubt.
            (5) Despite the best efforts of Federal prosecutors to 
        enforce section 924(e) for the safety of the community, there 
        have been numerous instances in which armed career criminals 
        have not been sentenced consistent with congressional intent 
        due to the precedent that has significantly narrowed the 
        applicability of section 924(e) and prevented judges from 
        exercising their historic sentencing discretion and judgment.
            (6) Few statutory sentencing issues have led to such a 
        ceaseless stream of costly and time-consuming litigation at 
        every level of the Federal court system as the determination of 
        whether the broad range of offenses under State and local law 
        qualify categorically as crimes of violence or serious drug 
        trafficking offenses.
            (7) Congress finds that significant disparities in the 
        content and formulation of State criminal law have resulted, 
        under Supreme Court precedent, in the unreasoned divergence of 
        criminal sentences based on fortuities such as differing 
        charging and recordkeeping practices among the 50 States, 
        Federal territories, and thousands of counties and parishes 
        across the United States. In the judgment of Congress, 
        fundamental principles of equality and fair treatment, as well 
        as the imperative of vigorously protecting public safety, 
        require far more uniform administration and implementation of 
        the sentencing provisions under section 924(e).
            (8) Congress further believes that Federal judges should be 
        entrusted to continue their historic role and judgment as 
        sentencing fact finders capable of examining and evaluating 
        reliable evidence to determine if a particular conviction or 
        series of convictions merits enhancement.
            (9) To allow judges to return to their traditional 
        sentencing roles and to make the sentencing judgments 
        traditionally assigned to courts under the Constitution of the 
        United States, this Act lowers the maximum sentence under 
        section 924(e) from life to 25 years, and increases the maximum 
        sentence under section 922(g) of title 18, United States Code, 
        from 10 years to 25 years so that the exercise of the 
        traditional sentencing discretion of the court to enhance a 
        sentence as permitted by section 924(e) for armed career 
        criminals will not increase the statutory maximum sentence and 
        thereby implicate Apprendi principles.
            (10) Because sentences for violations of section 922(g) of 
        title 18, United States Code, by individuals who are not armed 
        career criminals will commonly fall in the range of 10 years or 
        less by operation of the advisory sentencing guidelines and the 
        reasonable judgment of the sentencing courts, Congress does not 
        anticipate that there will be many resulting changes in the 
        length of sentence for those individuals, although the 
        increased statutory maximum will apply.
            (11) To ensure that an inflexible application of section 
        924(e) does not result in overly harsh results, this Act gives 
        prosecutors the discretion to file a notice advising the 
        defendant and the court whether the prosecutor will seek to 
        invoke all, some, or none of the prior convictions of the 
        defendant to trigger the penalty enhancement.

SEC. 3. DEFINITION.

    Section 924(e)(2) of title 18, United States Code, is amended--
            (1) by striking subparagraph (B) and inserting the 
        following:
                    ``(B) the term `qualifying offense' means--
                            ``(i) a serious drug offense; or
                            ``(ii) any crime, or any attempt, 
                        conspiracy, or solicitation to commit a crime--
                                    ``(I) that is--
                                            ``(aa) punishable by 
                                        imprisonment for a term of more 
                                        than 1 year; or
                                            ``(bb) an act of juvenile 
                                        delinquency involving the use 
                                        or carrying of a firearm, 
                                        knife, or destructive device 
                                        that would be punishable by 
                                        imprisonment for a term of more 
                                        than 1 year if committed by an 
                                        adult; and
                                    ``(II) that, according to any 
                                reliable evidence--
                                            ``(aa) is burglary, arson, 
                                        or extortion;
                                            ``(bb) has as an element--

                                                    ``(AA) the use, 
                                                attempted use, or 
                                                threatened use of 
                                                physical force, however 
                                                slight, against the 
                                                person of another 
                                                individual; or

                                                    ``(BB) that serious 
                                                bodily injury 
                                                intentionally, 
                                                knowingly, or 
                                                recklessly resulted 
                                                from the offense 
                                                conduct;

                                            ``(cc) involved the 
                                        unlawful manufacture, 
                                        possession, use, sale, 
                                        transfer, importation, or 
                                        distribution of an explosive or 
                                        explosive device, nuclear or 
                                        chemical material, or a weapon 
                                        of mass destruction (as defined 
                                        in section 2332a of title 18, 
                                        United States Code); or
                                            ``(dd) involved conduct 
                                        that, without regard to the 
                                        formal elements of the crime--

                                                    ``(AA) presented a 
                                                serious potential risk 
                                                of bodily injury to 
                                                another; or

                                                    ``(BB) 
                                                intentionally, 
                                                knowingly, or 
                                                recklessly resulted in 
                                                serious bodily injury 
                                                to another; and''; and

            (2) in subparagraph (C), by striking ``a violent felony'' 
        and inserting ``an offense described in subparagraph (B)(ii)''.

SEC. 4. SENTENCING.

    Section 924 of title 18, United States Code, is amended--
            (1) in subsection (a)--
                    (A) in paragraph (2), by striking ``(g),''; and
                    (B) by adding at the end the following:
    ``(8) Whoever knowingly violates section 922(g) shall be fined 
under this title, imprisoned not more than 25 years, or both.''; and
            (2) in subsection (e)(1)--
                    (A) by inserting ``(A)'' before ``In the case of'';
                    (B) by striking ``a violent felony or a serious 
                drug offense, or both'' and inserting ``qualifying 
                offenses'';
                    (C) by striking ``imprisoned not less than fifteen 
                years'' and inserting ``imprisoned for not less than 15 
                years and not more than 25 years''; and
                    (D) by adding at the end the following:
    ``(B)(i) No person who is convicted of an offense under section 
922(g) shall be sentenced to imprisonment for the mandatory minimum 
term of years under subparagraph (A), unless before trial, or before 
entry of a plea of guilty, the United States attorney files an 
information with the court (and serves a copy of such information on 
the person or counsel for the person) stating in writing the previous 
convictions to be relied upon. Except as provided in clause (ii), any 
proceedings under this subparagraph shall be conducted in accordance 
with the procedures under section 411 of the Controlled Substances Act 
(21 U.S.C. 851).
    ``(ii) In determining whether a person shall be sentenced to 
imprisonment for the mandatory minimum term of years under subparagraph 
(A) based on previous convictions, the court--
            ``(I) is not limited to the elements of the statute of 
        conviction and shall consider the facts of the previous 
        conviction as presented in the judicial records of the previous 
        conviction, the presentence report, or any other reliable 
        evidence presented to the court; and
            ``(II) shall determine whether the person has such previous 
        convictions by a preponderance of the evidence.''.

SEC. 5. DIRECTIVE TO UNITED STATES SENTENCING COMMISSION.

    (a) Directive.--Pursuant to the authority under section 994(p) of 
title 28, United States Code, and in accordance with this section, the 
United States Sentencing Commission shall review the Federal Sentencing 
Guidelines and policy statements applicable to an offense described in 
section 924(e)(1) of title 18, United States Code, to reflect the 
amendment made by this Act to section 924(e)(2)(B) of title 18, United 
States Code.
    (b) Requirements.--In revising the Federal Sentencing Guidelines 
and policy statements to reflect the amendment to section 924(e)(2)(B) 
of title 18, United States Code, made by this Act, the United States 
Sentencing Commission shall--
            (1) revise the definition of the term ``crime of violence'' 
        under section 4B1.2 of the Federal Sentencing Guidelines; and
            (2) revise sections 4B1.1 and 4B1.4 of the Federal 
        Sentencing Guidelines to reflect that a sentencing court may 
        consider all reliable evidence presented to make a factual 
        determination whether the prior conviction of a defendant is a 
        qualifying offense, as defined in section 924(e)(2)(B) of title 
        18, United States Code, as amended by this Act.
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