Short title

This Act may be cited as the

Armed Career Criminal Sentencing Act of 2010

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.

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).

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.

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.