Sentencing Reform and Welch v. United States

Posted by Jessica Carmichael | Feb 09, 2016 | 0 Comments

As we noted before, prison sentencing reform is a major topic among lawmakers across the political spectrum. After years of families and advocates pushing for changes to mandatory minimum sentencing, public opinion is shifting towards a more measured approach. Instead of treating prison sentencing like a math equation based on strict formulas, judges and even prosecutors want to look at each case on an individual basis, with an appropriate response so that the sentence fits the crime. The 11th Circuit case of Welch vs. United States is a current example of how sentencing laws can have a disproportionate effect on the wrong individuals.

Gregory Welch was in his room in an apartment in Broward County, talking on a cell phone, smoking, and minding a baby. Broward County sheriff's deputies came in looking for another person suspected in a convenience store robbery. After officers eventually got Welch to agree to a search of his room, they found a handgun and ammunition (which were not used in the above robbery). Welch was charged as a felon in possession of a firearm under 18 U.S.C. § 922(g)(1).

It is unlawful for a felon to be in the possession of a firearm, which normally carries the maximum penalty of ten years in prison. However, after the Armed Career Criminal Act (ACCA) was passed, possession of a firearm for an individual with three prior convictions for a violent felony or serious drug offense results in a minimum 15-year prison sentence. Although Welch was not engaged in another criminal activity at the time, simply possessing the gun and having three prior convictions was enough to subject him to the heavy minimum sentence.

The problem with making such broad strokes in the language of these mandatory minimum laws is that they are overbroad and do not keep up with the state criminal statutes that continually evolve. That was one basis for Welch's appeal to the Eleventh Circuit Court of Appeals. Specifically, Welch disputed whether his 1996 Florida conviction for a robbery qualified as a “violent felony” under the ACCA.

A Florida Supreme Court decision held that resistance by the victim that is overcome with force is needed to establish the crime of robbery.[1] However, Welch's 1996 conviction involved a “sudden snatching,” which a Florida statute later established as a crime in between larceny and robbery. As such, a sudden snatching may not involve resistance that is overcome with force, to differentiate the crime from a common robbery.

In order to determine whether the crime fell within the category of a “violent felony[2],” the appellate court considered the issue under the residual clause of the ACCA. Part of the ACCA definition of a violent felony includes the catch-all provision, “or otherwise involves conduct that presents a serious potential risk of physical injury to another.” This is known as the residual clause.

The Court of Appeals applied a three-step analysis[3] to see whether the crime would qualify as a violent felony, including how the crime is ordinarily committed; whether it poses a serious potential risk of physical injury; and whether it is similar to the crimes listed under the statute. The court found that a “sudden snatching,” just as with robbery, would involve “a serious risk of physical injury to another,” and concluded that it qualifies as a violent felony under the residual clause of the ACCA.

However, after Johnson vs. United States, the Supreme Court held that imposing an increased sentence under the ACCA residual clause violates due process. Now, Welch is seeking a review of his case before the Supreme Court, with the question of whether Johnson will apply retroactively to cases like his, potentially affecting hundreds of prison inmates. The Supreme Court will be addressing this case in the next couple months, which could have a significant impact on the reach of mandatory minimum sentencing.

[1] Robinson v. State of Florida, 692 So.2d 883,886 (Fla.1997)

[2] 18 U.S.C. § 924(e)(2)(B)

[3] United States v. Harrison, 558 F.3d 1280 (11th Cir. 2009)

About the Author

Jessica Carmichael

Ms. Carmichael was named a Top Lawyer by Washingtonian Magazine and Northern Virginia Magazine. Ms. Carmichael has been responsible for dismissals, acquittals, or reduced charges in many serious cases where her clients were unjustly charged.


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