CA1: The First bends to use adoptive admissions to put someone under the ACCA

USA v. Miller, 05-2763.  This guy plead guilty, and was sentenced under to 180 months under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1).  The First looks at the title of the act and knocks down his arguments one by one. 

Keep reading, and you can SEE the First bend.

As to one of the defendant’s prior convictions for burglary, the District Court looked at the transcript from the state court change-of-plea colloquy.  The state court judge, in adjudicating a guilty plea for a generic burglary – which is usually not a predicate offense under the ACCA – referred to a break-in at “Trader Jacks” but was somewhat opaque as to whether the underlying conviction was at a store and had something to do with a safe at a store.  But, since the state court judge mentioned some stores, the District Court judge concluded that this was an aggravated burglary.   Applying Taylor v. United States, 495 U.S. 575, 599 (1990) and United States v. Richards, 456 F.3d 260, 262-63 (1st Cir. 2006) (our coverage here), the court finds that 1) the state statute could have included the federal definition of aggravated burglary; and 2) just because the defendant at the state change of plea didn’t assent to the judge’s comments and was therefore an adoptive admission under Fed. R. Evid. 801(d)(2)(B) (not hearsay if "(B) a statement of which           the party has manifested an adoption or belief in its truth")!  That is definitely creative!  Holy crap!  Did the First really have to bend that far to avoid discussing the use of plea colloquys under the ACCA.

Then, the First notes that using “common sense” one can tell that “Trader Jacks” was a store (because it had a safe), and therefore a building.

Finally, following Almendarez-Torres v. United States, 523 U.S. 224, 239 (1998), the first finds that there was no sixth amendment issue in sending this guy to jail for a long time without jury fact-finding.