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Federal appeals courts are coming down on both sides of the fence over whether carrying a concealed weapon constitutes a “violent felony,” and the choice can make a significant difference in prison time for defendants. A split has opened up between the circuits, with the 6th and 8th circuits holding it is not a violent crime, while the 11th and 10th circuits have taken the opposite position. In a Michigan case, the 6th U.S. Circuit Court of Appeals broke with the 11th Circuit in February when it held that the 20-year-old conviction of Oscar Flores for carrying a concealed weapon did not amount to a “violent felony” under the Armed Career Criminal Act. The 6th sided with an earlier decision by the 8th Circuit, in U.S. v. Whitfield, 907 F.2d 798 (1990). Flores was charged in 2001 as a felon in possession of a firearm and a year later the government classed him as an armed career criminal, citing a juvenile conviction for a knife assault in 1970, two drug convictions and the 1987 concealed weapon charge. The question posed to appeals courts is whether carrying a concealed weapon qualifies as a violent felony � in the language of 18 U.S.C. 924(e)(2)(B), that it “presents a serious risk of physical injury to another.” Once convicted of three violent felonies, a defendant can be classified as an armed career criminal raising potential punishment for a felon in possession of a weapon to a minimum of 15 years to life. For a third serious violent felony the penalty rises to a mandatory life sentence. That criminal section identifies burglary, arson, extortion or use of explosives as examples that constitute “serious potential risk of physical injury” and thus are violent felonies. Judge Richard A. Griffin pointed out that the statute provides that “use” rather than possession rises to the level of violent felony. Ranging across map And positions among the circuits range across the map on other aspects of what constitutes a violent crime under the Armed Career Criminal Act. For example, drunken driving does not qualify in the 9th Circuit as violent, while it does in the 7th, 10th and 11th circuits. And prison escape � even failure to report to a halfway house or walking away from minimum security � qualifies to add 15 years to a sentence in nearly all but the 9th Circuit, to the consternation of the 7th Circuit’s Judge Richard Posner, as expressed in a recent ruling. Posner wrote that he would adhere to precedent in a January ruling, but added, “It is an embarrassment to the law when judges base decisions of consequence on conjectures, in this case a conjecture as to the possible danger of physical injury posed by criminals who fail to show up to begin serving their sentences.” U.S. v. Chambers, No. 06-2405. Appeals courts around the country have been issued conflicting rulings on what constitutes a violent felony under the Armed Career Criminal Act, according to William Maynard, a federal public defender in El Paso, Texas, who has written on the topic. “Posner recognized that judges are making conjectures about facts, they are not interpreting the law,” Maynard said. “Given the Sixth Amendment, I don’t know how judges have the power to make those findings of fact.” The U.S. Supreme Court heard arguments in November in a Florida case, James v. U.S., No. 05-9264, on whether attempted burglary poses a danger of physical injury, but has not ruled yet. Two prior high court cases have not ended the dispute over the variety of crimes that could be considered dangerous for purposes of the armed career criminal law. The 11th Circuit, in contrast to the 6th, held in a 2-1 ruling in a Florida case that a juvenile conviction for carrying a concealed weapon qualified for armed career criminal status. U.S. v. Hall, 77 F.3d 398 (1996). As recently as last year, the 11th Circuit has held that carrying a concealed weapon and prison escape were violent felonies under the Armed Career Criminal Act, in unpublished decisions in U.S. Maysonet, 199 Fed. Appx. 791 (2006); and U.S. v. George, 193 Fed. Appx. 869 (2006).

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