Statutory Rape is Not a Violent Crime Supporting Career Offender Status, Eleventh Rules – Spencer v. U.S.

August 21, 2013 by David S. Seltzer

I’ve written here several times before about federal sentence enhancements for things like being an “armed career criminal” or a “career offender.” These statuses are used to get the defendant much more time in prison than he or she would otherwise get for the current offense. As a result, there’s a lot of controversy over whether specific offenses qualify the defendant for those statuses. In Spencer v. U.S., the Eleventh U.S. Circuit Court of Appeals made a rare ruling for the defendant in such a controversy. Kevin Spencer of Central Florida was originally in court for distributing crack cocaine, but he was sentenced to roughly double the typical sentence because he qualified as a “career offender” because of prior convictions for drugs and statutory rape. The Eleventh found that the statutory rape was not a crime of violence qualifying Spencer for career offender status.

Spencer was 18 when he was charged with both of his priors. One was possession of cocaine with intent to sell, which is undisputedly a crime qualifying him for career offender status. The other was a Florida felony child abuse charge stemming from sex with his 14-year-old girlfriend. (It is not disputed that the sex was voluntary.) Spencer pleaded guilty to child abuse as part of a plea bargain. The plea agreement provided little detail, but when Spencer was caught at age 21 with the crack cocaine, the judge sentenced him, over his objections, as a career offender, noting that this doubled the sentence. Spencer then directly appealed to the Eleventh Circuit, which rejected his first appeal. But afterward, the U.S. Supreme Court decided Begay v. U.S., which limited the “crime of violence” priors qualifying for a sentence enhancement to crimes similar to those enumerated in the statute. Spencer moved to set aside his sentence based on this, and appealed the trial court’s denial.

He had better luck with the Eleventh Circuit the second time around. The court first agreed that Spencer can make his case under 28 USC 2255, which permits courts to set aside unconstitutional or illegal sentences. It concluded that a sentencing error involving wrongful career offender status or similar status can create a miscarriage of justice, noting that career offender status substantially increases sentences. In so ruling, it disagreed with similar but not entirely alike cases from the Eighth and Seventh Circuits. The Eleventh then found that third-degree felony child abuse in Florida is not a crime of violence as envisioned by the career offender statute. The statute requires either physical or mental injury to the child, requiring the court to look to the record to determine whether there was physical injury. But the record is not helpful, the court said, so it treated the conviction as the least culpable crime under the statute, for mental injury. And this is not a crime of violence, the court noted. It vacated the trial court and remanded for resentencing.

This decision is good news for Florida defendants who have priors. Any time that I defend someone with one or more prior convictions, I look carefully to see whether the client is eligible for this kind of sentence enhancements. If so, defending the crime aggressively, or negotiating a plea to a lesser offense that wouldn’t trigger the enhancement, is absolutely vital. It’s also interesting to me that the Eleventh noted the cost of keeping Spencer in prison for another six-plus years. The financial cost is less important than the cause of justice, in my opinion as a criminal defense attorney, but it would be a powerful argument for sentencing reform here in Florida, if we were having such a debate.

If you’re charged with a serious crime in Florida, don’t hesitate to call Seltzer Law, P.A., to discuss how we can help you defend your freedom. We offer free, confidential consultations, and we answer the phone 24 hours a day because we know police don’t stop working after 5 p.m. To learn more or set up a consultation, call us today at 1 -888-THE-DEFENSE (1-888-843-3333) or send us a message online.

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