Eleventh Circuit Applies Padilla to Civil Commitment Under State Law

In Bauder v. DOC Florida, the Eleventh Circuit, citing Padilla, affirmed the grant of a 2254 petition based on ineffective assistance of counsel in advising client that plea to aggravated stalking of minor would not subject him to involuntary civil commitment under Florida law.

Eleventh Circuit rules that possession of a short barreled shotgun under Florida law is not a violent felony predicate under the Armed Career Criminal Act.

On Wednesday September 8, 2010, in United States v. McGill, 14167 (11th Circuit), the Eleventh Circuit ruled that possession of a short barreled shotgun under Florida law is not a "violent felony" under the Armed Career Criminal Act.  In order to qualify as a violent felony under the Armed Career Criminal Act, a prior conviction must meet the statutory definition which provides that such an offense must be a felony that  (i) “has as an element” the actual, attempted, or threatened use of force against another person; or (ii) “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. § 924(e)(2)(B).

The Supreme Court opinion in Begay establishes a three step process for determining whether a particular prior conviction qualifies as a violent felony:

(1)  The offense is to be considered generically according to the elements required for conviction.

(2)  The court must determine whether the generic offense “involves conduct that ‘presents a serious potential risk of physical injury to another.’”

(3)  If the offense does present such a risk, the court determines whether that risk is “roughly similar, in kind as well as in degree of risk posed,” to the clause’s example crimes: burglary, arson, extortion, and the unlawful use of explosives.

In McGill's case, the Eleventh Circuit found that possession of a sawed off shotgun did present a risk of physical injury to another.  However, the panel found that the analysis did not survive the third step because possession of a sawed off shotgun did not present a risk similar in degree and kind to burglary, arson, extortion, or the use of explosives.  Particularly significant was the similarity between possession of explosives and possession of a sawed off shotgun.  However, Congress chose not to include possession of explosives, only use of explosives.

The Eleventh Circuit therefore rejected the Government's appeal and affirmed the sentence and ruling of the Middle District of Florida.