United States v. Vann, No. 09-4298

Decided Oct. 11, 2011

Torrell Vann was arrested in possession of a handgun following a domestic altercation. Vann was charged with violating 18 U.S.C. §§ 922(g)(1) and 924. Section 922(g)(1) typically carries a statutory maximum sentence of ten years in prison. However, if Vann had three or more previous convictions for ACCA violent felonies, he would be subject to an enhanced minimum sentence of fifteen years with a maximum of life imprisonment. Vann had three previous convictions for violating North Carolina General Statute section 14-202.1 (the “Indecent Liberties Statute”). The Indecent Liberties Statute prohibits a person over the age of sixteen and at least five years older than a child from taking indecent liberties with that child. The statute prohibits under subsection (a)(1), any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire or, under subsection (a)(2), willfully committing or attempting to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years. Vann argued that his convictions under the Indecent Liberties Statute were not violent felonies making him subject to the ACCA sentencing enhancements. The district court disagreed, and sentenced Vann to fifteen years in prison. A divided panel of the Fourth Circuit affirmed. The Fourth Circuit granted Vann’s petition for rehearing en banc, and vacated the panel opinion.

The Fourth Circuit found that Vann’s previous violations of the Indecent Liberties Statute would not qualify as ACCA violent felonies unless the convictions were of subsection (a)(2). The charging documents against Vann allege a violation of the Statute without specifying either subsection thereof. The charging documents merely recite the language of the Indecent Liberties Statute, provide the dates of the alleged offenses and identities of Vann and the minor, and aver that the age requirements were met. Therefore, the court held that they could not determine that Vann was convicted of violating subsection (a)(2) of the Statute. Consequently, Vann’s indecent liberties offenses were not ACCA violent felonies.

Full Opinion

-Sara I. Salehi

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