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Conviction Stands, ACCA Sentence Tossed in Mo. Firearm Case

By William Peacock, Esq. on October 24, 2014 | Last updated on March 21, 2019

The police rolled up on Warnell Reid's place to arrest his girlfriend, Earnestine Graham, who had herself violated the terms of her federal supervised release. When they got there, the front door was slightly open and Graham was standing inside in her pajamas. She was quickly arrested without incident, a protective sweep of the house was done (because of the presence of minors), and then she was allowed to change.

When police officers escorted her into the house, they noticed an SKS rifle in plain sight. Graham told police that the rifle belonged to her boyfriend, who himself showed up and was detained moments later. Graham also gave police permission to search the home, which led to the discovery of two more firearms and ammunition.

Reid was convicted of unlawful possession of a firearm by a felon and sentenced to a term of 188 months' imprisonment as an armed career criminal. On appeal, the Eighth Circuit upheld the conviction but vacated the Armed Career Criminal Act (ACCA) sentence.

Reid argued on appeal that police had no lawful reason to enter the house after completing the arrest outside the home. And if you think about it, there were three searches here, only one of which was consented to: the protective sweep, the wardrobe change, and the consensual search.

The panel started with the second search, finding that both the search and seizure were permissible under the Fourth Amendment.

"Graham was clad only in pajamas, and the district court found that 'the deputies allowed Graham to reenter [the home] to change her clothes,'" the court noted. "When an arrestee chooses to reenter her home for her own convenience, it is reasonable for officers to accompany her and to monitor her movements."

After the SKS rifle was located in plain sight, the officers secured permission to search further. Based on the permissible accompaniment and the subsequent consent, the Eighth Circuit found it unnecessary to address whether the protective sweep (which somehow turned up nothing) was a permissible search.

Reconnoitering Isn't Violent

Though his conviction stands thanks to the permissible searches, Reid should be looking at a substantially shorter sentence after the Eighth Circuit determined that one of his priors did not qualify as a violent prior under the Supreme Court's clarification of the Armed Career Criminal Act (ACCA) in 2007.

In 2003, the Eighth Circuit held that attempted burglary in Missouri (Reid's wobbly prior) counted as a violent felony for ACCA purposes. But in 2007, in James v. United States, the Supreme Court tweaked the test, holding that the proper inquiry was "whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another."

Attempted burglary in Missouri can include simply "reconnoitering the place contemplated for the commission of the offense" or "possession of materials to be employed in the commission of the offense, which are specially designed for such unlawful use."

Citing similar laws from four other states that have been addressed by the Ninth, Tenth, and Fifth Circuits, the Eighth Circuit held that per James, this "preparatory conduct that does not pose the same risk of violent confrontation and physical harm posed by an attempt to enter a structure illegally" makes attempted burglary in Missouri a non-ACCA prior.

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